Exhibit 4(bb)
SUB-ADVISORY AGREEMENT
RISK-MANAGED LARGE CAP CORE 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 ENHANCED INVESTMENT TECHNOLOGIES, LLC, a Delaware limited
liability company ("INTECH").
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 Risk-Managed Large Cap
Core 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, 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 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:________________________________
ENHANCED INVESTMENT TECHNOLOGIES, LLC
By:________________________________
Xxxxx X. Xxxxxx
Senior Vice President and
Chief Operating Officer
