Exhibit 4(dd)
SUB-ADVISORY AGREEMENT
JANUS SMALL CAP VALUE PORTFOLIO
(a Series of Janus Aspen 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 BAY ISLE FINANCIAL LLC, a Delaware limited liability company ("Bay
Isle").
WHEREAS, Janus has entered into an Investment Advisory Agreement
(the "Advisory Agreement") with Janus Aspen 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 Small Cap Value
Portfolio, 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, Bay Isle 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 Bay Isle to furnish investment
advisory services with respect to the Fund, and Bay Isle 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 Bay Isle. Janus hereby engages the services of Bay
Isle as subadviser in furtherance of the Advisory Agreement. Bay Isle
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) Bay Isle 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 shall direct Janus with respect to the
execution of trades in connection with such determinations, 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) Bay Isle 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 Bay
Isle, and the investment considerations which have given rise to
those decisions;
(c) Bay Isle shall maintain all books and records required to be
maintained by Bay Isle 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. Bay Isle 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) Bay Isle 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) Bay Isle 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, Bay Isle 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 Bay Isle; and
(g) Bay Isle will provide to Janus for regulatory filings and other
appropriate uses materially accurate and complete information
relating to Bay Isle as may be reasonably requested by Janus from
time to time and, notwithstanding anything herein to the
contrary, Bay Isle 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 Bay
Isle to Janus, provided, however, that Bay Isle shall not be
liable to the extent that any Damages are based upon inaccuracies
or omissions made in reliance upon information furnished to Bay
Isle by Janus.
2. Further Obligations. In all matters relating to the
performance of this Agreement, Bay Isle 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 Bay Isle 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 Bay Isle continuously and fully informed (or cause the
custodian of the Fund's assets to keep Bay Isle 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 Bay Isle 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 Bay Isle with any further materials or information
which Bay Isle may reasonably request to enable it to perform its
function under this Agreement; and
(d) To compensate Bay Isle for its services in accordance with the
provisions of Section 4 hereof.
4. Compensation. Janus shall pay to Bay Isle for its services
under this Agreement a fee, payable in United States dollars, at an
annual rate of 0.75% of the Fund's average daily net assets, provided,
however, that such fee shall be net of any reimbursement of expenses
paid by Janus to 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. Bay Isle shall pay all its own costs and expenses
incurred in rendering its service under this Agreement.
6. Representations of Bay Isle. Bay Isle hereby represents,
warrants and covenants to Janus as follows:
(a) Bay Isle: (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 Bay Isle 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 Bay Isle that could have a material adverse
effect upon Bay Isle's ability to fulfill its obligations under
this Agreement.
(b) Bay Isle 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 Bay Isle shall certify to
Janus that Bay Isle has complied with the requirements of Rule
17j-1 during the previous year and that there has been no
violation of Bay Isle'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, Bay Isle shall
permit Janus, its employees or its agents to examine the reports
required to be made to Bay Isle by Rule 17j-1(c)(1) and all other
records relevant to Bay Isle's code of ethics.
(c) Bay Isle 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 Bay Isle 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 Bay Isle 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
Bay Isle with a copy of such code of ethics, together with
evidence of its adoption.
(c) Janus has provided Bay Isle 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 Bay Isle.
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 Bay Isle, 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 Bay Isle at its principal place of
business. This Agreement may be terminated (i) by Janus or by Bay Isle
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 Bay Isle becomes unable to discharge its
duties and obligations under this Agreement. In addition, the
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, Bay Isle 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 Bay Isle. Janus will not seek to
hold Bay Isle, and Bay Isle 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, "Bay Isle" shall include any
affiliate of Bay Isle performing services for the Fund contemplated
hereunder and directors, officers and employees of Bay Isle and such
affiliates.
14. Activities of Bay Isle. The services of Bay Isle hereunder
are not to be deemed to be exclusive, and Bay Isle 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 Bay Isle 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
Bay Isle as directors, officers and shareholders of Bay Isle, that
directors, officers, employees and shareholders of Bay Isle are or may
become similarly interested in the Trust, and that Bay Isle 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 Bay Isle by Janus, the Trust or the Fund shall not
diminish or relieve in any way the liability of Bay Isle 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 Bay Isle at:
Bay Isle Financial LLC
000 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: President
Phone: (000) 000-0000
Fax: (000) 000-0000
(c) To the Trust at:
Janus Aspen 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:________________________________
BAY ISLE FINANCIAL LLC
By:________________________________
