JANUS ASPEN SERIES AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT JANUS PORTFOLIO
Exhibit (d)(61)
JANUS PORTFOLIO
THIS AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT (the “Agreement”) is made this 1st day
of July, 2010, between JANUS ASPEN SERIES, a Delaware statutory trust (the “Trust”), and JANUS
CAPITAL MANAGEMENT LLC, a Delaware limited liability company (“JCM”).
WITNESSETH:
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 Janus Portfolio (the
“Fund”); and
WHEREAS, the Trust and JCM deem it mutually advantageous that JCM should be appointed as the
investment adviser to the Fund.
NOW, THEREFORE, the parties agree as follows:
1. Appointment. The Trust hereby appoints JCM as investment adviser and manager with
respect to the Fund for the period and on the terms set forth in this Agreement. JCM hereby accepts
such appointment and agrees to render the services herein set forth, for the compensation herein
provided.
2. Investment Advisory Services. JCM shall determine the securities or other assets to
be purchased, sold or held and shall place orders for the purchase or sale of such securities or
other assets with brokers, dealers or others. JCM shall furnish continuous advice and
recommendations to the Fund, and have authority to act with respect thereto, 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 Amended and Restated
Trust Instrument (“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.
-1-
3. 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
1933 Act. 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.
4. 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. |
5. Compensation. The Trust shall pay to JCM for its services pursuant to this
Agreement a monthly base fee of 1/12 of 0.64% of the average daily closing net asset value of the
Fund (“Base Fee”) adjusted by a performance fee as set forth in Schedule A. For any period less
than a month during which this Agreement is in effect, the Base Fee shall be prorated according to
the proportion which such period bears to a full month of 28, 29, 30 or 31 days, as the case may
be.
6. Expenses Borne by JCM. In addition to the expenses which JCM may incur in the
performance of its investment advisory functions and other services 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:
-2-
| (a) | Reasonable compensation, fees and related expenses of the Trust’s officers and its Trustees, except for such Trustees who are not “interested persons,” as defined in the 1940 Act, of JCM, and except as otherwise provided in Section 7; and | ||
| (b) | Rental of offices of the Trust. |
7. 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 3 and 6 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,” as defined in the 1940 Act, of JCM; compensation and related expenses of the
Chief Compliance Officer of the Trust and compliance staff, as authorized from time to time by the
Trustees of the Trust; 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
to Fund shareholders; 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.
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.
-3-
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 February 1, 2011, 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
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 (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.
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 any
party to this Agreement 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
-4-
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.
17. 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.
This Agreement shall supercede all prior investment advisory agreements entered into between
JCM and the Trust, on behalf of the Fund.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers to execute this
Investment Advisory Agreement as of the amended date and year first above written.
| JANUS CAPITAL MANAGEMENT LLC |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Xxxxx X. Xxxxxx | ||||
| Senior Vice President, General Counsel and Secretary | ||||
| JANUS ASPEN SERIES |
||||
| By: | /s/ Xxxxxxxxx Xxxxxxxxxx-Xxxxxx | |||
| Xxxxxxxxx Xxxxxxxxxx-Xxxxxx | ||||
| Vice President, Secretary and Chief Legal Counsel |
||||
-5-
Schedule A
Performance Adjustment
Performance Adjustment
Beginning with the Base Fee payable for July 2010 and in month 13 thereafter, the Base Fee
shall be adjusted monthly based upon the investment performance of the Fund’s Service Shares
(“Class”) in relation to the cumulative investment record of the Fund’s benchmark, the Core Growth
Index (as described below) (the “Index”), over the “Performance Period” (such adjustment being
referred to herein as the “Performance Adjustment”). The “Performance Period” is defined as the
shorter of (a) the period from the date of this Agreement through the end of the month for which
the fee is being calculated, and (b) the 36 month period preceding the end of the month for which
the fee is being calculated.
The Index consists of an equal weighting (balanced daily) of two benchmark indices, the
Standard & Poor’s 500® Index (“S&P 500® Index”) and the Xxxxxxx
1000® Growth Index. The Index performance for the Performance Period is calculated based
on the equally weighted total returns from the Xxxxxxx 1000® Growth Index (50%) and the
S&P 500® Index (50%).
The Performance Adjustment shall be calculated by subtracting the investment record of the
Index from the investment performance of the Class. If there is less than a 0.50% difference (plus
or minus) between the investment performance of the Class and the investment record of the Index,
the Fund pays JCM the Base Fee with no adjustment. If the difference between the investment
performance of the Class and the investment record of the Index is 0.50% or greater during any
Performance Period, the Base Fee will be subject to an upward or downward performance adjustment of
1/12 of 0.016667% for every full 0.50% increment by which the Class outperforms or underperforms
the Index. The maximum percentage used in calculating the Performance Adjustment (positive or
negative) in any month is 1/12 of 0.15%. The Performance Adjustment is applied against the Fund’s
average daily net assets during the Performance Period.
For purposes of computing the Base Fee and the Performance Adjustment, net assets are averaged
over different periods (average daily net assets during the relevant month for the Base Fee versus
average daily net assets during the Performance Period for the Performance Adjustment). The Base
Fee is calculated and accrued daily. The Performance Adjustment is calculated monthly in arrears
and is accrued evenly each day throughout the month. The investment advisory fee is paid monthly in
arrears.
The average daily net asset value of the Fund, or any class thereof, shall be determined in
the manner set forth in the Trust’s Trust Instrument, Bylaws and registration statement, each as
may be amended from time to time.
The investment performance of the Class will be the sum of:
(1) the change in the Class’ net asset value (“NAV”) per share during the Performance Period;
plus
(2) the value of the Class’ cash distributions per share accumulated to the end of the
Performance Period; plus
-6-
(3) the value of capital gains taxes per share paid or payable on undistributed realized
long-term capital gains accumulated to the end of the Performance Period; expressed as a percentage
of the Class’ NAV per share at the beginning of the Performance Period. For this purpose, the value
of distributions per share of realized capital gains, of dividends per share paid from investment
income and of capital gains taxes per share paid or payable on undistributed realized long-term
capital gains shall be treated as reinvested in shares of the Class at the NAV in effect at the
close of business on the record date for the payment of such distributions and dividends and the
date on which provision is made for such taxes, after giving effect to such distributions,
dividends and taxes.
The investment record of the Index will be the sum of:
(1) the change in the level of the Index during the Performance Period, which is an equal
weighting of the change in the level of the underlying indices during the Performance Period; plus
(2) the value, computed consistently with the Index, of cash distributions made by companies
whose securities comprise the Index (50% of the S&P 500® Index and 50% of the Xxxxxxx
1000® Growth Index) accumulated to the end of the Performance Period; expressed as a
percentage of the Index level at the beginning of the Performance Period. For this purpose, cash
distributions on the securities which comprise the Index shall be treated as reinvested in the
Index at least as frequently as the end of each calendar quarter following the payment of the
dividend.
The Trustees have initially designated the Class to be used for purposes of determining the
Performance Adjustment. From time to time, the Trustees may, by vote of the Trustees of the Trust
voting in person, including a majority of the Trustees who are not parties to this Agreement or
“interested persons” (as defined in the 0000 Xxx) of any such parties, determine that a class of
shares of the Fund other than the Class is the most appropriate for use in calculating the
Performance Adjustment. If a different class of shares (“Successor Class”) is substituted in
calculating the Performance Adjustment, the use of that Successor Class of shares for purposes of
calculating the Performance Adjustment may apply to the entire Performance Period so long as such
Successor Class was outstanding at the beginning of such period. If the Successor Class of shares
was not outstanding for all or a portion of the Performance Period, it may only be used in
calculating that portion of the Performance Adjustment attributable to the period during which such
Successor Class was outstanding and any prior portion of the Performance Period shall be calculated
using the class of shares previously designated.
-7-
