Form N-SAR
Sub-Item 77Q1(e)_3
Copies of new or amended Registrant investment advisory contracts
33-63212, 811-7736
JANUS ASPEN SERIES
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
OVERSEAS PORTFOLIO
THIS AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT (the "Agreement") is
made this 1st day of July, 2010, 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 Overseas Portfolio (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.
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 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 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.
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 services pursuant to this
Agreement a monthly base fee of 1/12 of 0.64% of the average daily closing net
asset value of the Fund ("Base Fee") adjusted by a performance fee as set forth
in Schedule A. For any period less than a month during which this Agreement is
in effect, the Base Fee shall be prorated according to the proportion which such
period bears to a full month of 28, 29, 30 or 31 days, as the case may be.
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;
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," 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 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 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 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, 2011, 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 1940 Act) of any party to this Agreement 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 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.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers to
execute this Investment Advisory Agreement as of the amended date and year first
above written.
JANUS CAPITAL MANAGEMENT LLC
By:__/s/ Xxxxx X. Xxxxxx___________
Xxxxx X. Xxxxxx
Senior Vice President, General Counsel
and Secretary
JANUS ASPEN SERIES
By:__/s/ Xxxxxxxxx Xxxxxxxxxx-Lofton__
Xxxxxxxxx Xxxxxxxxxx-Xxxxxx
Vice President, Secretary
and Chief Legal Counsel
Schedule A
Performance Adjustment
Beginning with the Base Fee payable for July 2010 and in month 16 thereafter,
the Base Fee shall be adjusted monthly based upon the investment performance of
the Fund's Service Shares ("Class") in relation to the cumulative investment
record of the Fund's benchmark, the Xxxxxx Xxxxxxx Capital International All
Country World ex-U.S. IndexSM (the "Index"), over the "Performance Period" (such
adjustment being referred to herein as the "Performance Adjustment"). The
"Performance Period" is defined as the shorter of (a) the period from the date
of this Agreement through the end of the month for which the fee is being
calculated, and (b) the 36 month period preceding the end of the month for which
the fee is being calculated.
The Performance Adjustment shall be calculated by subtracting the investment
record of the Index from the investment performance of the Class. If there is
less than a 0.50% difference (plus or minus) between the investment performance
of the Class and the investment record of the Index, the Fund pays JCM the Base
Fee with no adjustment. If the difference between the investment performance of
the Class and the investment record of the Index is 0.50% or greater during any
Performance Period, the Base Fee will be subject to an upward or downward
performance adjustment of 1/12 of 0.0107143% for every full 0.50% increment by
which the Class outperforms or underperforms the Index. The maximum percentage
used in calculating the Performance Adjustment (positive or negative) in any
month is 1/12 of 0.15%. The Performance Adjustment is applied against the Fund's
average daily net assets during the Performance Period.
For purposes of computing the Base Fee and the Performance Adjustment, net
assets are averaged over different periods (average daily net assets during the
relevant month for the Base Fee versus average daily net assets during the
Performance Period for the Performance Adjustment). The Base Fee is calculated
and accrued daily. The Performance Adjustment is calculated monthly in arrears
and is accrued evenly each day throughout the month. The investment advisory fee
is paid monthly in arrears.
The average daily net asset value of the Fund, or any class thereof, shall be
determined in the manner set forth in the Trust's Trust Instrument, Bylaws and
registration statement, each as may be amended from time to time.
The investment performance of the Class will be the sum of:
(1) the change in the Class' net asset value ("NAV") per share during the
Performance Period; plus
(2) the value of the Class' cash distributions per share accumulated to the end
of the Performance Period; plus
(3) the value of capital gains taxes per share paid or payable on undistributed
realized long-term capital gains accumulated to the end of the Performance
Period; expressed as a percentage of the Class' NAV per share at the beginning
of the Performance Period. For this purpose, the value of distributions per
share of realized capital gains, of dividends per share paid from investment
income and of capital gains taxes per share paid or payable on undistributed
realized long-term capital gains shall be treated as reinvested in shares of the
Class at the NAV in effect at the close of business on the record date for the
payment of such distributions and dividends and the date on which provision is
made for such taxes, after giving effect to such distributions, dividends and
taxes.
The investment record of the Index will be the sum of:
(1) the change in the level of the Index during the Performance Period; plus
(2) the value, computed consistently with the Index, of cash distributions made
by companies whose securities comprise the Index accumulated to the end of the
Performance Period; expressed as a percentage of the Index level at the
beginning of the Performance Period. For this purpose, cash distributions on the
securities which comprise the Index shall be treated as reinvested in the Index
at least as frequently as the end of each calendar quarter following the payment
of the dividend.
The Trustees have initially designated the Class to be used for purposes of
determining the Performance Adjustment. From time to time, the Trustees may, by
vote of the Trustees of the Trust voting in person, including a majority of the
Trustees who are not parties to this Agreement or "interested persons" (as
defined in the 1940 Act) of any such parties, determine that a class of shares
of the Fund other than the Class is the most appropriate for use in calculating
the Performance Adjustment. If a different class of shares ("Successor Class")
is substituted in calculating the Performance Adjustment, the use of that
Successor Class of shares for purposes of calculating the Performance Adjustment
may apply to the entire Performance Period so long as such Successor Class was
outstanding at the beginning of such period. If the Successor Class of shares
was not outstanding for all or a portion of the Performance Period, it may only
be used in calculating that portion of the Performance Adjustment attributable
to the period during which such Successor Class was outstanding and any prior
portion of the Performance Period shall be calculated using the class of shares
previously designated.
