Form N-SAR
Sub-Item 77Q1 (e)_3
Copies of new or amended Registrant investment advisory contracts
333-33978, 811-09885
SUB-ADVISORY AGREEMENT
XXXXX ADVISER RISK-MANAGED CORE FUND
(a Series of Janus Adviser Series)
This SUB-ADVISORY AGREEMENT (the "Agreement") is entered into effective as
of the 1st day of July 2004, amended this 1st day of January 2006, 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, Xxxxx has entered into an Investment Advisory Agreement (the
"Advisory Agreement") with Janus Adviser Series, a Delaware statutory 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 Adviser Risk-Managed Core Fund, a series of the Trust (the "Fund")
pursuant to which Xxxxx 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, Xxxxx 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. Xxxxx hereby engages the services of INTECH as
subadviser in furtherance of the Advisory Agreement. XXXXXX agrees to perform
the following duties, subject to the oversight of Xxxxx 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 Trust, on behalf of 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 Xxxxx 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 Xxxxx.
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.
Xxxxx 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. Xxxxx 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 plus or minus one-half of any
performance adjustment paid to or incurred by Janus pursuant to the Advisory
Agreement between the Trust, on behalf of the Fund, and Janus. Fees paid to
INTECH 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 Xxxxx, 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 Xxxxx.
7. Representations of Xxxxx. 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 Xxxxx 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) Xxxxx 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) Xxxxx 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 January 1, 2007, 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 INTECH, 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 January 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 Xxxxx or by
INTECH at any time, without penalty by giving 60 days' advance written notice of
termination to the other party, or (ii) by Xxxxx 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 1940 Act) 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. Xxxxx 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 sue 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 Xxxxx, 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 Xxxxxxx 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 Adviser Series
000 Xxxxxxx 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 January 1, 2006.
JANUS CAPITAL MANAGEMENT LLC
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President and Chief
Financial Officer
ENHANCED INVESTMENT TECHNOLOGIES, LLC
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
