Exhibit 99.77Q1e
INTERIM
INVESTMENT ADVISORY AGREEMENT
XXXXXX MID CAP GROWTH FUND
A SERIES OF XXXXXX INVESTMENT PORTFOLIO TRUST
This INVESTMENT ADVISORY AGREEMENT (the "Agreement") is made this 16th
day of December, 2002, between JANUS CAPITAL MANAGEMENT LLC, a Delaware limited
liability corporation ("Janus Capital"), and XXXXXX INVESTMENT PORTFOLIO TRUST,
a Delaware statutory trust (the "Trust"), with respect to the XXXXXX MID CAP
GROWTH FUND, a series of the Trust (the "Fund").
RECITALS
A. 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").
B. The Trust is authorized to create separate series of shares, each
with its own separate investment portfolio, one of such series created by the
Trust being the Fund.
X. Xxxxx Capital 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").
D. The Trust and Janus Capital deem it mutually advantageous that Janus
Capital should assist the Trustees and officers of the Trust in the management
of the securities portfolio of the Fund.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Appointment. The Trust hereby appoints Janus Capital as investment
adviser and manager with respect to the Fund for the period and on the terms set
forth in this Agreement. Janus Capital hereby accepts such appointment and
agrees to render the services herein set forth, for the compensation herein
provided.
2. Investment Advisory Functions. In its capacity as investment adviser
to the Fund, Janus Capital shall have the following duties and responsibilities:
(a) To manage the investment operations of the Fund and the
composition of its investment portfolio, and to determine without prior
consultation with the Trust, what securities and other assets of the Fund will
be acquired, held, disposed of or loaned, in conformity with the investment
objective, 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 1933
Act, the 1940 Act and the Advisers Act, the rules and regulations thereunder,
and all other applicable federal and state laws and regulations, and the
provisions of the Internal Revenue Code of 1986, as amended, applicable to the
Fund as a regulated investment company;
(b) To 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 decisions of
Janus Capital, and the investment considerations which have given rise to those
decisions;
(c) To place orders for the purchase and sale of securities for
investments of the Fund and for other related transactions as directed by the
appropriate officers of the Trust; to give instructions to the custodian
(including any subcustodian) of the Fund as to deliveries of securities to and
from such custodian and receipt and payments of cash for the account of the
Fund, and advise the Trust on the same day such instructions are given; and to
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;
(d) To maintain all books and records required to be maintained by
Janus Capital pursuant to the 1940 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 with such
periodic and special reports as the Trustees reasonably may request. Janus
Capital 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 any records which it maintains for the Trust and which are
required to be maintained under the 1940 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; and
(e) At such times as shall be reasonably requested by the Trustees,
to provide the Trustees 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 make available to the Trustees any
economic, statistical and investment services normally available to similar
investment company clients of Janus Capital.
3. Further Obligations. In all matters relating to the performance of
this Agreement, Janus Capital 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
of the Trust 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. The Trust agrees to provide Janus Capital with copies of
the Trust's Trust Instrument, bylaws, Registration Statements, written policies,
procedures and guidelines, and written instructions and directions of the
Trustees, and any amendments or supplements to any of them at, or, if
practicable, before the time such
2
materials become effective. Janus Capital shall maintain errors and omissions
insurance in an amount at least equal to that disclosed to the Trustees in
connection with their approval of this Agreement.
4. Obligations of Trust. The Trust shall have the following obligations
under this Agreement:
(a) To keep Janus Capital continuously and fully 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 Janus Capital 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 Janus Capital with any further materials or
information which Janus Capital may reasonably request to enable it to perform
its function under this Agreement; and
(d) To compensate Janus Capital for its services in accordance with
the provisions of Section 5 hereof.
5. Compensation. (a) The Trust shall pay to Janus Capital for its
services under this Agreement a fee, payable in United States dollars, at an
annual rate of 0.75% of the first $500 million of average daily net assets of
the Fund, 0.70% of the next $500 million of average daily net assets of the Fund
and 0.65% on any part of the average daily net assets of the Fund in excess of
$1 billion. 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.
(a) The compensation earned by Janus Capital under this Agreement
shall be held in an interest-bearing escrow account with the Trust's custodian
or a bank. If a majority of the outstanding voting securities (as defined in the
0000 Xxx) of the Fund approve an investment advisory agreement with Janus
Capital within 150 days of the day and year first written above, the amount in
the escrow account (including interest thereon) shall be paid to Janus Capital.
If a majority of the outstanding voting securities (as defined in the 0000 Xxx)
of the Fund do not approve an investment advisory agreement with Janus Capital
within 150 days of the day and year first written above, Janus Capital shall be
paid, out of the escrow account, the lesser of (i) any costs incurred by Janus
Capital in performing this Agreement (plus interest earned on that amount while
in escrow) or (ii) the total amount in the escrow account (plus interest
earned).
6. Expenses.
(a) Expenses Paid by the Trust. The Trust assumes and shall pay all
expenses incidental to its operations and business not specifically assumed or
agreed to be paid by Janus
3
Capital hereunder or otherwise, including, but not limited to, any compensation,
fees or reimbursements which the Trust pays to its Trustees who are not
interested persons of Xxxxxx Associates or Janus Capital; compensation of the
Fund's custodian, transfer agent, registrar and dividend disbursing agent and
other service providers; 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 Janus Capital 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 the 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 preparing, printing and mailing prospectuses and
statements of additional information to shareholders 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 Janus Capital 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 Janus Capital compensation for, or reimburse
Janus Capital for its expenses incurred in connection with, such services as
Janus Capital and the Trust shall agree from time to time, any other provision
of this Agreement notwithstanding.
(b) Expenses Paid by Janus Capital. Janus Capital shall pay all its
own costs and expenses incurred in fulfilling its obligations under this
Agreement. In addition to such costs and expenses, Janus Capital shall incur and
pay the following expenses relating to the Fund's operations:
(i) Reasonable compensation, fees and related expenses of the
Trust's officers and Trustees, except for such Trustees who are not
interested persons of Xxxxxx Associates or Janus Capital; and
(ii) Rental of offices of the Trust.
7. Brokerage Commissions. For purposes of this Agreement, brokerage
commissions paid by the Fund upon the purchase or sale of its portfolio
securities shall be considered a cost of securities of the Fund and shall be
paid by the Fund. Absent instructions from the Trust to the contrary, Janus
Capital is authorized and directed to place Fund portfolio transactions only
with brokers and dealers who render satisfactory service in the execution of
orders at the most favorable prices and at reasonable commission rates,
provided, however, that Janus Capital may pay a broker an amount of commission
for effecting a securities transaction in excess of the amount of commission
another broker would have charged for effecting that transaction if Janus
Capital determines in good faith that such amount of commission was reasonable
in relation to the value of the brokerage and research services provided by such
4
broker viewed in terms of either that particular transaction or the overall
responsibilities of Janus Capital. Janus Capital is also authorized to consider
sales of Fund shares as a factor in selecting broker-dealers to execute Fund
portfolio transactions. In placing portfolio business with such broker-dealers,
Janus Capital shall seek the best execution of each transaction. Subject to the
terms of this Agreement and the applicable requirements and provisions of the
law, including the 1940 Act and the Securities Exchange Act of 1934, as amended,
and in the event that Janus Capital or an affiliate is registered as a
broker-dealer, Janus Capital may select a broker with which it or any of its
affiliates or the Fund is affiliated. Janus Capital or such affiliated broker
may effect or execute Fund portfolio transactions, whether on a securities
exchange or in the over-the-counter market, and receive separate compensation
from the Fund therefor. Notwithstanding the foregoing, the Trust shall retain
the right to direct the placement of all portfolio transactions, and the
Trustees of the Trust may establish policies or guidelines to be followed by
Janus Capital in placing portfolio transactions for the Trust pursuant to the
foregoing provisions. Janus Capital shall report on the placement of portfolio
transactions in the prior fiscal quarter at each quarterly meeting of such
Trustees. To the extent consistent with applicable law, purchase or sell orders
for the Fund may be aggregated with simultaneous purchase or sell orders for
other clients of Janus Capital. Whenever Janus Capital simultaneously places
orders to purchase or sell the same security on behalf of the Fund and one or
more other clients of Janus Capital, such orders will be allocated as to price
and amount among all such clients in a manner reasonably believed by Janus
Capital to be fair and equitable to each client. The Trust recognizes that in
some cases, this procedure may adversely affect the results obtained for the
Fund.
8. Effectiveness, Duration and Termination. This Agreement, unless
sooner terminated as provided herein, shall become effective as of the day and
year first written above, and shall remain in effect until the earlier of: (i)
150 days from the date hereof or (ii) a majority of the outstanding voting
securities (as defined in the 0000 Xxx) of the Fund approve an investment
advisory agreement with Janus Capital. This Agreement may also be terminated at
any time, without the payment of any penalty, upon ten (10) days' written notice
to Janus Capital, by the affirmative vote of a majority of the Trustees of the
Trust or by the affirmative vote of the outstanding securities (as defined in
the 0000 Xxx) of the Fund. This Agreement will automatically and immediately
terminate in the event of its assignment, as such term is defined in the 1940
Act.
9. 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 of the Fund
or Xxxxxx Associates or Janus Capital and, (ii) if required by applicable law,
by the affirmative vote of a majority of the outstanding voting securities of
the Fund.
10. Allocation of Expenses. 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 any other series of the
Trust and between the Fund and other investment companies managed by Janus
Capital or its affiliates.
11. Limitation on Personal Liability. NOTICE IS HEREBY GIVEN that the
Trust is a statutory trust organized under the Delaware Statutory Trust Act
pursuant to a Certificate of
5
Trust filed in the office of the Secretary of State of the State of Delaware.
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.
12. Limitation of Liability of Janus Capital. Janus Capital 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 12, "Janus Capital" shall include any affiliate of Janus Capital
performing services for the Trust contemplated hereunder and directors, officers
and employees of Janus Capital and such affiliates.
13. Activities of Janus Capital. The services of Janus Capital to the
Trust hereunder are not to be deemed to be exclusive, and Janus Capital and its
affiliates are 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 Janus Capital 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 nature or a dissimilar
nature. It is understood that Trustees, officers and shareholders of the Trust
are or may become interested in Janus Capital as directors, officers and
shareholders of Janus Capital, that directors, officers, employees and
shareholders of Janus Capital are or may become similarly interested in the
Trust, and that Janus Capital may become interested in the Trust as a
shareholder or otherwise.
14. 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.
Where the effect of a requirement of the federal securities laws reflected in
any provision of this Agreement is made less restrictive by a rule, regulation,
order, interpretation or other authority of the Securities and Exchange
Commission, whether of special or general application, such provision shall be
deemed to incorporate the effect of such rule, regulation, order, interpretation
or other authority.
15. 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.
16. Miscellaneous. The headings in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions thereof or otherwise affect
6
their construction or effect. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors.
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:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
XXXXXX INVESTMENT PORTFOLIO
TRUST, with respect to the series
known as the Xxxxxx Mid Cap Growth
Fund
By:
-----------------------------------
Xxxx X. Xxxxxxxx
President
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INTERIM
INVESTMENT ADVISORY AGREEMENT
XXXXXX SMALL COMPANY GROWTH FUND
A SERIES OF XXXXXX INVESTMENT PORTFOLIO TRUST
This INVESTMENT ADVISORY AGREEMENT (the "Agreement") is made this 16th
day of December, 2002, between JANUS CAPITAL MANAGEMENT LLC, a Delaware limited
liability corporation ("Janus Capital"), and XXXXXX INVESTMENT PORTFOLIO TRUST,
a Delaware statutory trust (the "Trust"), with respect to the XXXXXX SMALL
COMPANY GROWTH FUND, a series of the Trust (the "Fund").
RECITALS
A. 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").
B. The Trust is authorized to create separate series of shares, each
with its own separate investment portfolio, one of such series created by the
Trust being the Fund.
X. Xxxxx Capital 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").
D. The Trust and Janus Capital deem it mutually advantageous that Janus
Capital should assist the Trustees and officers of the Trust in the management
of the securities portfolio of the Fund.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Appointment. The Trust hereby appoints Janus Capital as investment
adviser and manager with respect to the Fund for the period and on the terms set
forth in this Agreement. Janus Capital hereby accepts such appointment and
agrees to render the services herein set forth, for the compensation herein
provided.
2. Investment Advisory Functions. In its capacity as investment adviser
to the Fund, Janus Capital shall have the following duties and responsibilities:
(a) To manage the investment operations of the Fund and the
composition of its investment portfolio, and to determine without prior
consultation with the Trust, what securities and other assets of the Fund will
be acquired, held, disposed of or loaned, in conformity with the investment
objective, 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 1933
Act, the 1940 Act and the Advisers Act, the rules and regulations thereunder,
and all other applicable federal and state laws and regulations, and the
provisions of the Internal Revenue Code of 1986, as amended, applicable to the
Fund as a regulated investment company;
(b) To 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 decisions of
Janus Capital, and the investment considerations which have given rise to those
decisions;
(c) To supervise the purchase and sale of securities for investments
of the Fund and for other related transactions as directed by the appropriate
officers of the Trust; to give instructions to the custodian (including any
subcustodian) of the Fund as to deliveries of securities to and from such
custodian and receipt and payments of cash for the account of the Fund, and
advise the Trust on the same day such instructions are given; and to 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;
(d) To maintain all books and records required to be maintained by
Janus Capital pursuant to the 1940 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 with such
periodic and special reports as the Trustees reasonably may request. Janus
Capital 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 any records which it maintains for the Trust and which are
required to be maintained under the 1940 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; and
(e) At such times as shall be reasonably requested by the Trustees,
to provide the Trustees 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 make available to the Trustees any
economic, statistical and investment services normally available to similar
investment company clients of Janus Capital.
3. Further Obligations. In all matters relating to the performance of
this Agreement, Janus Capital 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
of the Trust 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. The Trust agrees to provide Janus Capital with copies of
the Trust's Trust Instrument, bylaws, Registration Statements, written policies,
procedures and guidelines, and written instructions and directions of the
Trustees, and any amendments or supplements to any of them at, or, if
practicable, before the time such
2
materials become effective. Janus Capital shall maintain errors and omissions
insurance in an amount at least equal to that disclosed to the Trustees in
connection with their approval of this Agreement.
4. Obligations of Trust. The Trust shall have the following obligations
under this Agreement:
(a) To keep Janus Capital continuously and fully 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 Janus Capital 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 Janus Capital with any further materials or
information which Janus Capital may reasonably request to enable it to perform
its function under this Agreement; and
(d) To compensate Janus Capital for its services in accordance with
the provisions of Section 5 hereof.
5. Compensation. (a) The Trust shall pay to Janus Capital for its
services under this Agreement a fee, payable in United States dollars, at an
annual rate of 0.85% of the first $500 million of average daily net assets of
the Fund, 0.80% of the next $500 million of average daily net assets of the Fund
and 0.75% on any part of the average daily net assets of the Fund in excess of
$1 billion. 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.
(a) The compensation earned by Janus Capital under this Agreement
shall be held in an interest-bearing escrow account with the Trust's custodian
or a bank. If a majority of the outstanding voting securities (as defined in the
0000 Xxx) of the Fund approve an investment advisory agreement with Janus
Capital within 150 days of the day and year first written above, the amount in
the escrow account (including interest thereon) shall be paid to Janus Capital.
If a majority of the outstanding voting securities (as defined in the 0000 Xxx)
of the Fund do not approve an investment advisory agreement with Janus Capital
within 150 days of the day and year first written above, Janus Capital shall be
paid, out of the escrow account, the lesser of (i) any costs incurred by Janus
Capital in performing this Agreement (plus interest earned on that amount while
in escrow) or (ii) the total amount in the escrow account (plus interest
earned).
6. Expenses.
(a) Expenses Paid by the Trust. The Trust assumes and shall pay all
expenses incidental to its operations and business not specifically assumed or
agreed to be paid by Janus
3
Capital hereunder or otherwise, including, but not limited to, any compensation,
fees or reimbursements which the Trust pays to its Trustees who are not
interested persons of Xxxxxx Associates or Janus Capital; compensation of the
Fund's custodian, transfer agent, registrar and dividend disbursing agent and
other service providers; 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 Janus Capital 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 the 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 preparing, printing and mailing prospectuses and
statements of additional information to shareholders 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 Janus Capital 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 Janus Capital compensation for, or reimburse
Janus Capital for its expenses incurred in connection with, such services as
Janus Capital and the Trust shall agree from time to time, any other provision
of this Agreement notwithstanding.
(b) Expenses Paid by Janus Capital. Janus Capital shall pay all its
own costs and expenses incurred in fulfilling its obligations under this
Agreement. In addition to such costs and expenses, Janus Capital shall incur and
pay the following expenses relating to the Fund's operations:
(i) Reasonable compensation, fees and related expenses of the
Trust's officers and Trustees, except for such Trustees who are not
interested persons of Xxxxxx Associates or Janus Capital; and
(ii) Rental of offices of the Trust.
7. Brokerage Commissions. For purposes of this Agreement, brokerage
commissions paid by the Fund upon the purchase or sale of its portfolio
securities shall be considered a cost of securities of the Fund and shall be
paid by the Fund. Absent instructions from the Trust to the contrary, Janus
Capital is authorized and directed to place Fund portfolio transactions only
with brokers and dealers who render satisfactory service in the execution of
orders at the most favorable prices and at reasonable commission rates,
provided, however, that Janus Capital may pay a broker an amount of commission
for effecting a securities transaction in excess of the amount of commission
another broker would have charged for effecting that transaction if Janus
Capital determines in good faith that such amount of commission was reasonable
in relation to the value of the brokerage and research services provided by such
4
broker viewed in terms of either that particular transaction or the overall
responsibilities of Janus Capital. Janus Capital is also authorized to consider
sales of Fund shares as a factor in selecting broker-dealers to execute Fund
portfolio transactions. In placing portfolio business with such broker-dealers,
Janus Capital shall seek the best execution of each transaction. Subject to the
terms of this Agreement and the applicable requirements and provisions of the
law, including the 1940 Act and the Securities Exchange Act of 1934, as amended,
and in the event that Janus Capital or an affiliate is registered as a
broker-dealer, Janus Capital may select a broker with which it or any of its
affiliates or the Fund is affiliated. Janus Capital or such affiliated broker
may effect or execute Fund portfolio transactions, whether on a securities
exchange or in the over-the-counter market, and receive separate compensation
from the Fund therefor. Notwithstanding the foregoing, the Trust shall retain
the right to direct the placement of all portfolio transactions, and the
Trustees of the Trust may establish policies or guidelines to be followed by
Janus Capital in placing portfolio transactions for the Trust pursuant to the
foregoing provisions. Janus Capital shall report on the placement of portfolio
transactions in the prior fiscal quarter at each quarterly meeting of such
Trustees. To the extent consistent with applicable law, purchase or sell orders
for the Fund may be aggregated with simultaneous purchase or sell orders for
other clients of Janus Capital. Whenever Janus Capital simultaneously places
orders to purchase or sell the same security on behalf of the Fund and one or
more other clients of Janus Capital, such orders will be allocated as to price
and amount among all such clients in a manner reasonably believed by Janus
Capital to be fair and equitable to each client. The Trust recognizes that in
some cases, this procedure may adversely affect the results obtained for the
Fund.
8. Effectiveness, Duration and Termination. This Agreement, unless
sooner terminated as provided herein, shall become effective as of the day and
year first written above, and shall remain in effect until the earlier of: (i)
150 days from the date hereof or (ii) a majority of the outstanding voting
securities (as defined in the 0000 Xxx) of the Fund approve an investment
advisory agreement with Janus Capital. This Agreement may also be terminated at
any time, without the payment of any penalty, upon ten (10) days' written notice
to Janus Capital, by the affirmative vote of a majority of the Trustees of the
Trust or by the affirmative vote of the outstanding securities (as defined in
the 0000 Xxx) of the Fund. This Agreement will automatically and immediately
terminate in the event of its assignment, as such term is defined in the 1940
Act.
9. 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 of the Fund
or Xxxxxx Associates or Janus Capital and, (ii) if required by applicable law,
by the affirmative vote of a majority of the outstanding voting securities of
the Fund.
10. Allocation of Expenses. 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 any other series of the
Trust and between the Fund and other investment companies managed by Janus
Capital or its affiliates.
11. Limitation on Personal Liability. NOTICE IS HEREBY GIVEN that the
Trust is a statutory trust organized under the Delaware Statutory Trust Act
pursuant to a Certificate of
5
Trust filed in the office of the Secretary of State of the State of Delaware.
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.
12. Limitation of Liability of Janus Capital. Janus Capital 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 12, "Janus Capital" shall include any affiliate of Janus Capital
performing services for the Trust contemplated hereunder and directors, officers
and employees of Janus Capital and such affiliates.
13. Activities of Janus Capital. The services of Janus Capital to the
Trust hereunder are not to be deemed to be exclusive, and Janus Capital and its
affiliates are 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 Janus Capital 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 nature or a dissimilar
nature. It is understood that Trustees, officers and shareholders of the Trust
are or may become interested in Janus Capital as directors, officers and
shareholders of Janus Capital, that directors, officers, employees and
shareholders of Janus Capital are or may become similarly interested in the
Trust, and that Janus Capital may become interested in the Trust as a
shareholder or otherwise.
14. 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.
Where the effect of a requirement of the federal securities laws reflected in
any provision of this Agreement is made less restrictive by a rule, regulation,
order, interpretation or other authority of the Securities and Exchange
Commission, whether of special or general application, such provision shall be
deemed to incorporate the effect of such rule, regulation, order, interpretation
or other authority.
15. 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.
16. Miscellaneous. The headings in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions thereof or otherwise affect
6
their construction or effect. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors.
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:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
XXXXXX INVESTMENT PORTFOLIO
TRUST, with respect to the series
known as the Xxxxxx Small Company
Growth Fund
By:
--------------------------------
Xxxx X. Xxxxxxxx
President
---------------------------------------------------------------------------
INTERIM
INVESTMENT ADVISORY AGREEMENT
XXXXXX BALANCED FUND
A SERIES OF XXXXXX INVESTMENT PORTFOLIO TRUST
This INVESTMENT ADVISORY AGREEMENT (the "Agreement") is made this 16th
day of December, 2002, between JANUS CAPITAL MANAGEMENT LLC, a Delaware limited
liability corporation ("Janus Capital"), and XXXXXX INVESTMENT PORTFOLIO TRUST,
a Delaware statutory trust (the "Trust"), with respect to the XXXXXX BALANCED
FUND, a series of the Trust (the "Fund").
RECITALS
A. 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").
B. The Trust is authorized to create separate series of shares, each
with its own separate investment portfolio, one of such series created by the
Trust being the Fund.
X. Xxxxx Capital 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").
D. The Trust and Janus Capital deem it mutually advantageous that Janus
Capital should assist the Trustees and officers of the Trust in the management
of the securities portfolio of the Fund.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Appointment. The Trust hereby appoints Janus Capital as investment
adviser and manager with respect to the Fund for the period and on the terms set
forth in this Agreement. Janus Capital hereby accepts such appointment and
agrees to render the services herein set forth, for the compensation herein
provided.
2. Investment Advisory Functions. In its capacity as investment adviser
to the Fund, Janus Capital shall have the following duties and responsibilities:
(a) To manage the investment operations of the Fund and the
composition of its investment portfolio, and to determine without prior
consultation with the Trust, what securities and other assets of the Fund will
be acquired, held, disposed of or loaned, in conformity with the investment
objective, 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 1933
Act, the 1940 Act and the Advisers Act, the rules and regulations thereunder,
and all other applicable federal and state laws and regulations, and the
provisions of the Internal Revenue Code of 1986, as amended, applicable to the
Fund as a regulated investment company;
(b) To 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 decisions of
Janus Capital, and the investment considerations which have given rise to those
decisions;
(c) To place orders for the purchase and sale of securities for
investments of the Fund and for other related transactions as directed by the
appropriate officers of the Trust; to give instructions to the custodian
(including any subcustodian) of the Fund as to deliveries of securities to and
from such custodian and receipt and payments of cash for the account of the
Fund, and advise the Trust on the same day such instructions are given; and to
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;
(d) To maintain all books and records required to be maintained by
Janus Capital pursuant to the 1940 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 with such
periodic and special reports as the Trustees reasonably may request. Janus
Capital 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 any records which it maintains for the Trust and which are
required to be maintained under the 1940 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; and
(e) At such times as shall be reasonably requested by the Trustees,
to provide the Trustees 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 make available to the Trustees any
economic, statistical and investment services normally available to similar
investment company clients of Janus Capital.
3. Further Obligations. In all matters relating to the performance of
this Agreement, Janus Capital 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
of the Trust 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. The Trust agrees to provide Janus Capital with copies of
the Trust's Trust Instrument, bylaws, Registration Statements, written policies,
procedures and guidelines, and written instructions and directions of the
Trustees, and any amendments or supplements to any of them at, or, if
practicable, before the time such
2
materials become effective. Janus Capital shall maintain errors and omissions
insurance in an amount at least equal to that disclosed to the Trustees in
connection with their approval of this Agreement.
4. Obligations of Trust. The Trust shall have the following obligations
under this Agreement:
(a) To keep Janus Capital continuously and fully 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 Janus Capital 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 Janus Capital with any further materials or
information which Janus Capital may reasonably request to enable it to perform
its function under this Agreement; and
(d) To compensate Janus Capital for its services in accordance with
the provisions of Section 5 hereof.
5. Compensation. (a) The Trust shall pay to Janus Capital for its
services under this Agreement a fee, payable in United States dollars, at an
annual rate of 0.70% of the first $1 billion of average daily net assets of the
Fund and 0.65% on any part of the average daily net assets of the Fund in excess
of $1 billion. 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.
(a) The compensation earned by Janus Capital under this Agreement
shall be held in an interest-bearing escrow account with the Trust's custodian
or a bank. If a majority of the outstanding voting securities (as defined in the
0000 Xxx) of the Fund approve an investment advisory agreement with Janus
Capital within 150 days of the day and year first written above, the amount in
the escrow account (including interest thereon) shall be paid to Janus Capital.
If a majority of the outstanding voting securities (as defined in the 0000 Xxx)
of the Fund do not approve an investment advisory agreement with Janus Capital
within 150 days of the day and year first written above, Janus Capital shall be
paid, out of the escrow account, the lesser of (i) any costs incurred by Janus
Capital in performing this Agreement (plus interest earned on that amount while
in escrow) or (ii) the total amount in the escrow account (plus interest
earned).
6. Expenses.
(a) Expenses Paid by the Trust. The Trust assumes and shall pay all
expenses incidental to its operations and business not specifically assumed or
agreed to be paid by Janus
3
Capital hereunder or otherwise, including, but not limited to, any compensation,
fees or reimbursements which the Trust pays to its Trustees who are not
interested persons of Xxxxxx Associates or Janus Capital; compensation of the
Fund's custodian, transfer agent, registrar and dividend disbursing agent and
other service providers; 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 Janus Capital 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 the 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 preparing, printing and mailing prospectuses and
statements of additional information to shareholders 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 Janus Capital 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 Janus Capital compensation for, or reimburse
Janus Capital for its expenses incurred in connection with, such services as
Janus Capital and the Trust shall agree from time to time, any other provision
of this Agreement notwithstanding.
(b) Expenses Paid by Janus Capital. Janus Capital shall pay all its own
costs and expenses incurred in fulfilling its obligations under this Agreement.
In addition to such costs and expenses, Janus Capital shall incur and pay the
following expenses relating to the Fund's operations:
(i) Reasonable compensation, fees and related expenses of the
Trust's officers and Trustees, except for such Trustees who are not
interested persons of Xxxxxx Associates or Janus Capital; and
(ii) Rental of offices of the Trust.
7. Brokerage Commissions. For purposes of this Agreement, brokerage
commissions paid by the Fund upon the purchase or sale of its portfolio
securities shall be considered a cost of securities of the Fund and shall be
paid by the Fund. Absent instructions from the Trust to the contrary, Janus
Capital is authorized and directed to place Fund portfolio transactions only
with brokers and dealers who render satisfactory service in the execution of
orders at the most favorable prices and at reasonable commission rates,
provided, however, that Janus Capital may pay a broker an amount of commission
for effecting a securities transaction in excess of the amount of commission
another broker would have charged for effecting that transaction if Janus
Capital determines in good faith that such amount of commission was reasonable
in relation to the value of the brokerage and research services provided by such
4
broker viewed in terms of either that particular transaction or the overall
responsibilities of Janus Capital. Janus Capital is also authorized to consider
sales of Fund shares as a factor in selecting broker-dealers to execute Fund
portfolio transactions. In placing portfolio business with such broker-dealers,
Janus Capital shall seek the best execution of each transaction. Subject to the
terms of this Agreement and the applicable requirements and provisions of the
law, including the 1940 Act and the Securities Exchange Act of 1934, as amended,
and in the event that Janus Capital or an affiliate is registered as a
broker-dealer, Janus Capital may select a broker with which it or any of its
affiliates or the Fund is affiliated. Janus Capital or such affiliated broker
may effect or execute Fund portfolio transactions, whether on a securities
exchange or in the over-the-counter market, and receive separate compensation
from the Fund therefor. Notwithstanding the foregoing, the Trust shall retain
the right to direct the placement of all portfolio transactions, and the
Trustees of the Trust may establish policies or guidelines to be followed by
Janus Capital in placing portfolio transactions for the Trust pursuant to the
foregoing provisions. Janus Capital shall report on the placement of portfolio
transactions in the prior fiscal quarter at each quarterly meeting of such
Trustees. To the extent consistent with applicable law, purchase or sell orders
for the Fund may be aggregated with simultaneous purchase or sell orders for
other clients of Janus Capital. Whenever Janus Capital simultaneously places
orders to purchase or sell the same security on behalf of the Fund and one or
more other clients of Janus Capital, such orders will be allocated as to price
and amount among all such clients in a manner reasonably believed by Janus
Capital to be fair and equitable to each client. The Trust recognizes that in
some cases, this procedure may adversely affect the results obtained for the
Fund.
8. Effectiveness, Duration and Termination. This Agreement, unless
sooner terminated as provided herein, shall become effective as of the day and
year first written above, and shall remain in effect until the earlier of: (i)
150 days from the date hereof or (ii) a majority of the outstanding voting
securities (as defined in the 0000 Xxx) of the Fund approve an investment
advisory agreement with Janus Capital. This Agreement may also be terminated at
any time, without the payment of any penalty, upon ten (10) days' written notice
to Janus Capital, by the affirmative vote of a majority of the Trustees of the
Trust or by the affirmative vote of the outstanding securities (as defined in
the 0000 Xxx) of the Fund. This Agreement will automatically and immediately
terminate in the event of its assignment, as such term is defined in the 1940
Act.
9. 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 of the Fund
or Xxxxxx Associates or Janus Capital and, (ii) if required by applicable law,
by the affirmative vote of a majority of the outstanding voting securities of
the Fund.
10. Allocation of Expenses. 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 any other series of the
Trust and between the Fund and other investment companies managed by Janus
Capital or its affiliates.
11. Limitation on Personal Liability. NOTICE IS HEREBY GIVEN that the
Trust is a statutory trust organized under the Delaware Statutory Trust Act
pursuant to a Certificate of
5
Trust filed in the office of the Secretary of State of the State of Delaware.
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.
12. Limitation of Liability of Janus Capital. Janus Capital 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 12, "Janus Capital" shall include any affiliate of Janus Capital
performing services for the Trust contemplated hereunder and directors, officers
and employees of Janus Capital and such affiliates.
13. Activities of Janus Capital. The services of Janus Capital to the
Trust hereunder are not to be deemed to be exclusive, and Janus Capital and its
affiliates are 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 Janus Capital 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 nature or a dissimilar
nature. It is understood that Trustees, officers and shareholders of the Trust
are or may become interested in Janus Capital as directors, officers and
shareholders of Janus Capital, that directors, officers, employees and
shareholders of Janus Capital are or may become similarly interested in the
Trust, and that Janus Capital may become interested in the Trust as a
shareholder or otherwise.
14. 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.
Where the effect of a requirement of the federal securities laws reflected in
any provision of this Agreement is made less restrictive by a rule, regulation,
order, interpretation or other authority of the Securities and Exchange
Commission, whether of special or general application, such provision shall be
deemed to incorporate the effect of such rule, regulation, order, interpretation
or other authority.
15. 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.
16. Miscellaneous. The headings in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions thereof or otherwise affect
6
their construction or effect. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors.
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:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
XXXXXX INVESTMENT PORTFOLIO
TRUST, with respect to the series
known as the Xxxxxx Balanced Fund
By:
----------------------------------
Xxxx X. Xxxxxxxx
President
---------------------------------------------------------------------------
INVESTMENT ADVISORY AGREEMENT
XXXXXX MID CAP VALUE FUND
(a Series of Xxxxxx Investment Portfolio Trust)
THIS INVESTMENT ADVISORY AGREEMENT (the
"Agreement") is made this 21st day of April, 2003, between XXXXXX
INVESTMENT PORTFOLIO TRUST, 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 Xxxxxx Mid Cap Value Fund (the
"Fund"); and
WHEREAS, the Trust and JCM deem it mutually advantageous
that JCM should be appointed as 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 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. 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. Subject to the approval of the Trustees of the Trust
and, if required, the shareholders of the Fund, JCM is authorized to engage
one or more subadvisers in connection with JCM's duties and
responsibilities under this Agreement, which subadvisers may be affiliates
of JCM.
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 duly appointed subadvisers or 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.
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;
(d) to compensate JCM for its services and reimburse
JCM for its expenses incurred hereunder in
accordance with the provisions hereof; and
(e) to compensate any subadviser engaged by JCM
pursuant to the authority granted in Section 1
hereof.
5. 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 0.65% of the daily closing net
asset value of the Fund (1/366 of 0.65% of the daily closing net asset
value of the Fund in a leap year) provided that any amounts due pursuant
to Section 4(e) above shall be paid directly to such subadviser by the Fund
and shall reduce the amount payable to Janus hereunder.
6. 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.
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 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 to fund shareholders; and all fees, dues and other
expenses incurred by the Trust in connection the membership of the Trust
in any trade association or other investment company organization.
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,
2004, unless sooner terminated in accordance with its terms, 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 SEC 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.
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
XXXXXX INVESTMENT PORTFOLIO
TRUST
By:___________________________________
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SUBADVISORY AGREEMENT
XXXXXX MID CAP VALUE FUND
(a Series of Xxxxxx Investment Portfolio Trust)
This SUB-ADVISORY AGREEMENT (the "Agreement") is
entered into effective as of the 21st day of April 2003, by and between
JANUS CAPITAL MANAGEMENT LLC, a Delaware limited liability
company ("Janus") and PERKINS, WOLF, XXXXXXXXX AND
COMPANY ("Subadviser").
WHEREAS, Janus has entered into an Investment Advisory
Agreement (the "Advisory Agreement") with Xxxxxx Investment Portfolio
Trust, 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
Xxxxxx Mid Cap Value Fund, 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, Subadviser 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 Subadviser to furnish
investment advisory services with respect to the Fund, and Subadviser 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 Subadviser. Janus hereby engages the services of
Subadviser as subadviser in furtherance of the Advisory Agreement.
Subadviser 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) Subadviser 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) Subadviser 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 Subadviser, and the
investment considerations which have given rise to those decisions;
(c) Subadviser shall maintain all books and records
required to be maintained by Subadviser 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. Subadviser 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) Subadviser 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) Subadviser shall provide Janus with such assistance
and advice as Janus may reasonably request as to the manner in which to
exercise, on behalf of the Fund, 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, so that Janus may exercise such rights, 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, Subadviser 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 Subadviser; and
(g) Subadviser will provide to Janus for regulatory
filings and other appropriate uses materially accurate and complete
information relating to Subadviser as may be reasonably requested by
Janus from time to time and, notwithstanding anything herein to the
contrary, Subadviser 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 Subadviser to Janus, provided, however, that Subadviser shall
not be liable to the extent that any Damages are based upon inaccuracies
or omissions made in reliance upon information furnished to Subadviser
by Janus.
2. Further Obligations. In all matters relating to the
performance of this Agreement, Subadviser 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 Subadviser 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 Subadviser continuously and fully
informed (or cause the custodian of the Fund's assets to keep Subadviser
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 Subadviser 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; and
(c) To furnish Subadviser with any further materials or
information which Subadviser may reasonably request to enable it to
perform its function under this Agreement.
4. Compensation. For Subadviser's services under this
Agreement, the Fund shall pay to Subadviser a fee equal to 50% of the
advisory fee payable to Janus from the Fund before reduction of the Janus
fee by the amount of the fee payable to Subadviser (net of any
reimbursements of expenses incurred or fees waived by Janus). Such 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 and shall be paid at the same time and in the same amount as the
fees payable to Janus. 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 the
Agreement is effective.
5. Expenses. Subadviser shall pay all its own costs and
expenses incurred in rendering its service under this Agreement.
6. Representations of Subadviser. Subadviser hereby
represents, warrants and covenants to Janus as follows:
(a) Subadviser: (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 Subadviser 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 Subadviser that could have a material adverse
effect upon Subadviser's ability to fulfill its obligations under this
Agreement.
(b) Subadviser 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 Subadviser shall certify to Janus that Subadviser has complied
with the requirements of Rule 17j-1 during the previous year and that there
has been no violation of Subadviser'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, Subadviser shall permit
Janus, its employees or its agents to examine the reports required to be
made to Subadviser by Rule 17j-1(c)(1) and all other records relevant to
Subadviser's code of ethics.
(c) Subadviser 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.
(d) Subadviser will notify Janus of any change in the
identity or control of its shareholders owning a 10% or greater interest in
Subadviser, or any change that would constitute a change in control of
Subadviser under the 1940 Act, prior to any such change if Subadviser is
aware, or should be aware, of any such change, but in any event as soon as
any such change becomes known to Subadviser.
7. 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 Subadviser, 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.
8. 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 Subadviser at its principal place of business. This
Agreement may also be terminated by Janus or the Trust: (i) upon a
material breach by Subadviser of any of the representations and warranties
set forth in Section 6 of this Agreement, if such breach shall not have been
cured within a 20-day period after notice of such breach; or (ii) if
Subadviser becomes unable to discharge its duties and obligations under
this Agreement. This Agreement may be terminated by Subadviser at any
time, without penalty: (i) by giving 60 days' advance written notice of
termination to Janus and to the Trust; or (ii) upon a material breach by
Janus of any of the obligations set forth in Section 3 of this Agreement, if
such breach shall not have been cured within a 20-day period after notice
of such breach. In addition, this Agreement shall terminate, without
penalty, upon the termination of the Advisory Agreement.
9. Assignment. This Agreement shall automatically terminate
in the event of its assignment.
10. 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, Subadviser 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).
11. 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.
12. Limitation of Liability of Subadviser. Janus will not seek
to hold Subadviser, and Subadviser 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, "Subadviser" shall include any affiliate of Subadviser performing
services for the Fund contemplated hereunder and directors, officers and
employees of Subadviser and such affiliates.
13. Activities of Subadviser. The services of Subadviser
hereunder are not to be deemed to be exclusive, and Subadviser 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 Subadviser 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 Subadviser as
directors, officers and shareholders of Subadviser, that directors, officers,
employees and shareholders of Subadviser are or may become similarly
interested in the Trust, and that Subadviser may become interested in the
Trust as a shareholder or otherwise.
14. 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 Subadviser by Janus, the Trust or the Fund shall not diminish or relieve
in any way the liability of Subadviser for any of its duties and
responsibilities under this Agreement.
15. 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 Subadviser at:
Perkins, Wolf, XxXxxxxxx and Company
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: President
Phone: (000) 000-0000
Fax: (000) 000-0000
(c) To the Trust at:
Xxxxxx Investment Portfolio Trust
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
16. 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.
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.
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:___________________________________
PERKINS, WOLF, XXXXXXXXX AND
COMPANY
By:___________________________________
ACKNOWLEDGMENT:
The undersigned acknowledges that it is obligated to compensate
Subadviser for its services in accordance with the provisions of
Section 4 of this Agreement.
XXXXXX INVESTMENT PORTFOLIO
TRUST on behalf of Xxxxxx Mid Cap Value
Fund
By:___________________________________
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INVESTMENT ADVISORY AGREEMENT
XXXXXX SMALL CAP VALUE FUND II
(a Series of Xxxxxx Investment Portfolio Trust)
THIS INVESTMENT ADVISORY AGREEMENT (the
"Agreement") is made this 21st day of April, 2003, between XXXXXX
INVESTMENT PORTFOLIO TRUST, 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 Xxxxxx Small Cap Value Fund II (the
"Fund"); and
WHEREAS, the Trust and JCM deem it mutually advantageous
that JCM should be appointed as 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 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. 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. Subject to the approval of the Trustees of the Trust
and, if required, the shareholders of the Fund, JCM is authorized to engage
one or more subadvisers in connection with JCM's duties and
responsibilities under this Agreement, which subadvisers may be affiliates
of JCM.
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 duly appointed subadvisers or 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.
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
investment advisory services a fee, calculated and payable for each day
that this Agreement is in effect, of 1/365 of 0.75% (1/366 of 0.75% of the
daily closing net asset value of the Fund in a leap year).
6. 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;
(b) Rental of offices of the Trust; and
(c) Fees of any subadviser engaged by JCM pursuant to
the authority granted in Section 1 hereof.
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 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 to fund shareholders; and all fees, dues and other
expenses incurred by the Trust in connection the membership of the Trust
in any trade association or other investment company organization.
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,
2004, unless sooner terminated in accordance with its terms, 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 SEC 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.
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
XXXXXX INVESTMENT PORTFOLIO TRUST
By:_____________________________________
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SUBADVISORY AGREEMENT
XXXXXX SMALL CAP VALUE FUND II
(a Series of Xxxxxx Investment Portfolio Trust)
This SUB-ADVISORY AGREEMENT (the "Agreement") is
entered into effective as of the 21st day of April 2003, by and between
JANUS CAPITAL MANAGEMENT LLC, a Delaware limited liability
company ("Janus") and BAY ISLE FINANCIAL LLC ("Subadviser").
WHEREAS, Janus has entered into an Investment Advisory
Agreement (the "Advisory Agreement") with Xxxxxx Investment Portfolio
Trust, 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
Xxxxxx Small Cap Value Fund II, 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, Subadviser 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 Subadviser to furnish
investment advisory services with respect to the Fund, and Subadviser 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 Subadviser. Janus hereby engages the services of
Subadviser as subadviser in furtherance of the Advisory Agreement.
Subadviser 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) Subadviser 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) Subadviser 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 Subadviser, and the
investment considerations which have given rise to those decisions;
(c) Subadviser shall maintain all books and records
required to be maintained by Subadviser 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. Subadviser 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) Subadviser 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) Subadviser 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, Subadviser 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 Subadviser; and
(g) Subadviser will provide to Janus for regulatory
filings and other appropriate uses materially accurate and complete
information relating to Subadviser as may be reasonably requested by
Janus from time to time and, notwithstanding anything herein to the
contrary, Subadviser 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 Subadviser to Janus, provided, however, that Subadviser shall
not be liable to the extent that any Damages are based upon inaccuracies
or omissions made in reliance upon information furnished to Subadviser
by Janus.
2. Further Obligations. In all matters relating to the
performance of this Agreement, Subadviser 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 Subadviser 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 Subadviser continuously and fully
informed (or cause the custodian of the Fund's assets to keep Subadviser
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 Subadviser 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 Subadviser with any further materials or
information which Subadviser may reasonably request to enable it to
perform its function under this Agreement; and
(d) To compensate Subadviser for its services in
accordance with the provisions of Section 4 hereof.
4. Compensation. Janus shall pay to Subadviser for its
services under this Agreement a fee, payable in United States dollars, at an
annual rate of 0.75% of the average daily net assets of the Fund, provided,
however, that such fee shall be net of any reimbursement of expenses paid
by Janus. 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 the
Agreement is effective.
5. Expenses. Subadviser shall pay all its own costs and
expenses incurred in rendering its service under this Agreement.
6. Representations of Subadviser. Subadviser hereby
represents, warrants and covenants to Janus as follows:
(a) Subadviser: (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 Subadviser 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 Subadviser that could have a material adverse
effect upon Subadviser's ability to fulfill its obligations under this
Agreement.
(b) Subadviser 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 Subadviser shall certify to Janus that Subadviser has complied
with the requirements of Rule 17j-1 during the previous year and that there
has been no violation of Subadviser'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, Subadviser shall permit
Janus, its employees or its agents to examine the reports required to be
made to Subadviser by Rule 17j-1(c)(1) and all other records relevant to
Subadviser's code of ethics.
(c) Subadviser 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.
Representations of Janus. Janus hereby represents, warrants and
covenants to Subadviser as follows:
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 Subadviser 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.
Janus has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the 1940 Act and will provide
Subadviser with a copy of such code of ethics, together with evidence of
its adoption.
Janus has provided Subadviser 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 Subadviser.
7. 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 Subadviser, 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.
8. 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 Subadviser at its principal place of business. This
Agreement may be terminated (i) by Janus or by Subadviser 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
Subadviser becomes unable to discharge its duties and obligations under
this Agreement. In addition, this Agreement shall terminate, without
penalty, upon the termination of the Advisory Agreement.
9. Assignment. This Agreement shall automatically terminate
in the event of its assignment.
10. 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, Subadviser 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).
11. 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.
12. Limitation of Liability of Subadviser. Janus will not seek
to hold Subadviser, and Subadviser 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, "Subadviser" shall include any affiliate of Subadviser performing
services for the Fund contemplated hereunder and directors, officers and
employees of Subadviser and such affiliates.
13. Activities of Subadviser. The services of Subadviser
hereunder are not to be deemed to be exclusive, and Subadviser 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 Subadviser 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 Subadviser as
directors, officers and shareholders of Subadviser, that directors, officers,
employees and shareholders of Subadviser are or may become similarly
interested in the Trust, and that Subadviser may become interested in the
Trust as a shareholder or otherwise.
14. 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 Subadviser by Janus, the Trust or the Fund shall not diminish or relieve
in any way the liability of Subadviser for any of its duties and
responsibilities under this Agreement.
15. 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 Subadviser 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:
Xxxxxx Investment Portfolio Trust
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
16. 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.
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.
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: ____________________________________
