JANUS ASPEN SERIES INVESTMENT ADVISORY AGREEMENT JANUS ASPEN PROTECTED SERIES — GROWTH
Exhibit (d)(70)
THIS INVESTMENT ADVISORY AGREEMENT (the “Agreement”) is made this 3rd day of
January, 2012, between JANUS ASPEN SERIES, a Delaware statutory 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 Janus Aspen Protected Series
- Growth (the “Fund”); and
WHEREAS, the Trust and JCM deem it mutually advantageous that JCM should be appointed as the
investment adviser to the Fund.
NOW, THEREFORE, the parties agree as follows:
1. Appointment. The Trust hereby appoints JCM as investment adviser and manager with
respect to the Fund for the period and on the terms set forth in this Agreement. JCM hereby accepts
such appointment and agrees to render the services herein set forth, for the compensation herein
provided.
2. Investment Advisory Services. JCM shall determine the securities or other assets to
be purchased, sold or held and shall place orders for the purchase or sale of such securities or
other assets with brokers, dealers or others. JCM shall furnish continuous advice and
recommendations to the Fund, and have authority to act with respect thereto, as to the acquisition,
holding, or disposition of any or all of the securities or other assets which the Fund may own or
contemplate acquiring from time to time. JCM shall give due consideration to the investment
policies and restrictions and the other statements concerning the Fund in the Amended and Restated
Trust Instrument (“Trust Instrument”), Bylaws, and registration statements under the 1940 Act and
the 1933 Act, and to the provisions of the Internal Revenue Code, as amended from time to time,
applicable to the Fund as a regulated investment company and as a funding vehicle for variable
insurance contracts. In addition, JCM shall cause its officers to attend meetings and furnish oral
or written reports, as the Trust may reasonably require, in order to keep the Trustees and
appropriate officers of the Trust fully informed as to the condition of the investment portfolio of
the Fund. 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, but are not
required to 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 other service providers, including
affiliates of, independent third party service providers, or duly appointed subadvisers whether
affiliated or not) the management and administration services necessary for the operation of the
Fund. JCM is also authorized to perform such services as JCM is or may be required to perform under
a Capital Protection Agreement where protection for the Fund relating to all or a certain portion
of it or a share class’ net asset value as described in that agreement is being provided to the
Fund by a capital protection provider. JCM is specifically authorized, on behalf of the Trust and
the Fund, to conduct relations with custodians, depositories, transfer and pricing agents,
administrators, fund accounting agents, accountants, attorneys, underwriters, brokers and dealers,
corporate fiduciaries, insurance company separate accounts, insurers, banks, capital protection
providers, agents, and such other persons in any such other capacity deemed by JCM and/or the
Trustees to be necessary or desirable. To the extent the Trust has not otherwise contracted on
behalf of the Fund, JCM shall generally monitor and report to Fund officers the Fund’s compliance
with investment policies and restrictions as set forth in the currently effective prospectus and
statement of additional information relating to the shares of the Fund under the 1933 Act. JCM
shall make reports to the Trustees of its performance of services hereunder upon request therefor
and furnish advice and recommendations with respect to such other aspects of the business and
affairs of the Fund as it shall determine to be desirable. JCM is also authorized, subject to
review by the Trustees, to furnish such other services as JCM shall from time to time determine to
be necessary or useful to perform the services contemplated by this Agreement to the extent such
services are not otherwise contracted by the Trust, on behalf of the Fund.
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. |
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5. Compensation. The Trust shall pay to JCM for its advisory services pursuant to this
Agreement a fee, calculated and payable for each day that this Agreement is in effect, of 1/365 of
0.64% of the average daily closing net asset value of the Fund (1/366 of 0.64% of the average daily
closing net asset value of the Fund in a leap year). The fee shall be paid monthly.
6. Expenses Borne by JCM. In addition to the expenses which JCM may incur in the
performance of its investment advisory functions and other services under this Agreement, and the
expenses which it may expressly undertake to incur and pay under other agreements with the Trust or
otherwise, JCM shall incur and pay the following expenses relating to the Fund’s operations without
reimbursement from the Fund:
| (a) | Reasonable compensation, fees and related expenses of the Trust’s officers and its Trustees, except for such Trustees who are not “interested persons,” as defined in the 1940 Act, of JCM, and except as otherwise provided in Section 7; | ||
| (b) | Rental of offices of the Trust; and | ||
| (c) | Fees of any subadviser engaged by JCM pursuant to the authority granted in Section 2 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,” as defined in the 1940 Act, of JCM; compensation and related expenses of the
Chief Compliance Officer of the Trust and compliance staff, as authorized from time to time by the
Trustees of the Trust; compensation (and any out-of-pocket expense as may be agreed upon) of the
Fund’s custodian, transfer agent, administrator, fund accounting agent, registrar, dividend
disbursing agent and capital protection provider; 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, its affiliates, or other Fund service providers, for effecting exchange
listed, over-the-counter or other securities transactions); interest; all federal, state and local
taxes (including stamp, excise, income and franchise taxes); costs of stock certificates and
expenses of delivering such certificates to purchasers thereof; expenses of local representation in
Delaware; expenses of shareholders’ meetings and of preparing, printing and distributing proxy
statements, notices, and reports to shareholders; expenses of preparing and filing reports and tax
returns with federal and state regulatory authorities; all expenses incurred in complying with all
federal and state laws and the laws of any foreign country applicable to the issue, offer, or sale
of shares of the Fund, including, but not limited to, all costs involved in the registration or
qualification of shares of the Fund for sale in any jurisdiction, the costs of portfolio pricing
services and compliance systems, and all costs involved in preparing, printing and mailing
prospectuses and statements of additional information to Fund shareholders; and all fees, dues and
other expenses incurred by the Trust in connection with the membership of the Trust in any trade
association or other investment company organization. To the extent that JCM shall perform any of
the above described
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administrative and clerical functions, including transfer agency, registry, dividend
disbursing, recordkeeping, bookkeeping, accounting and blue sky monitoring and registration
functions, and the preparation of reports and returns, the Trust shall pay to JCM compensation for,
or reimburse JCM for its expenses incurred in connection with, such services as JCM and the Trust
shall agree from time to time, any other provision of this Agreement notwithstanding.
8. Termination. This Agreement may be terminated at any time, without penalty, by the
Trustees of the Trust, or by the shareholders of the Fund acting by vote of at least a majority of
its outstanding voting securities, provided in either case that sixty (60) days advance written
notice of termination be given to JCM at its principal place of business. This Agreement may be
terminated by JCM at any time, without penalty, by giving sixty (60) days advance written notice of
termination to the Trust, addressed to its principal place of business. The Trust agrees that,
consistent with the terms of the Trust Instrument, the Trust shall cease to use the name “Janus” in
connection with the Fund as soon as reasonably practicable following any termination of this
Agreement if JCM does not continue to provide investment advice to the Fund after such termination.
9. Assignment. This Agreement shall terminate automatically in the event of any
assignment of this Agreement.
10. Term. This Agreement shall continue in effect until February 1, 2013, unless
sooner terminated in accordance with its terms, and shall continue in effect from year to year
thereafter only so long as such continuance is specifically approved at least annually by (a) the
vote of a majority of the Trustees of the Trust who are not parties hereto or interested persons of
any such party, cast in person at a meeting called for the purpose of voting on the approval of the
terms of such renewal, and (b) either the Trustees of the Trust or the affirmative vote of a
majority of the outstanding voting securities of the Fund. The annual approvals provided for herein
shall be effective to continue this Agreement from year to year if given within a period beginning
not more than ninety (90) days prior to February 1 of each applicable year, notwithstanding the
fact that more than three hundred sixty-five (365) days may have elapsed since the date on which
such approval was last given.
11. Amendments. This Agreement may be amended by the parties only if such amendment is
specifically approved (i) by a majority of the Trustees, including a majority of the Trustees who
are not interested persons (as that phrase is defined in Section 2(a)(19) of the 0000 Xxx) of any
party to this Agreement, and (ii) if required by applicable law, by the affirmative vote of a
majority of the outstanding voting securities of the Fund (as that phrase is defined in Section
2(a)(42) of the 1940 Act).
12. 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,
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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 Securities and Exchange Commission under said Act and as may be then in effect.
17. Governing Law. This Agreement shall be construed in accordance with the laws of
the State of Colorado (without giving effect to the conflicts of laws principles thereof) and the
1940 Act. To the extent that the applicable laws of the State of Colorado conflict with the
applicable provisions of the 1940 Act, the latter shall control.
This Agreement shall supercede all prior investment advisory agreements entered into between
JCM and the Trust, on behalf of the Fund.
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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 |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx | ||||
| Senior Vice President, General Counsel and Secretary |
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| JANUS ASPEN SERIES |
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| By: | /s/ Xxxxxxxxx Xxxxxxxxxx-Xxxxxx | |||
| Xxxxxxxxx Xxxxxxxxxx-Xxxxxx | ||||
| Vice President, Secretary and Chief Legal Counsel |
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