SUB-ADVISORY AGREEMENT
JANUS ADVISER MID CAP VALUE FUND
(a Series of Janus Adviser Series)
This SUB-ADVISORY AGREEMENT (the "Agreement") is entered into effective as
of the 10th day of December 2002, by and between JANUS CAPITAL MANAGEMENT LLC, a
Delaware limited liability company ("Janus") and PERKINS, WOLF, XXXXXXXXX AND
COMPANY, a Delaware corporation ("PWM").
WHEREAS, Janus has entered into an Investment Advisory Agreement (the
"Advisory Agreement") with Janus Adviser Series, a Delaware business trust (the
"Trust") and an open-end, management investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), with respect to the
Janus Adviser 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, PWM 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 PWM to furnish investment advisory
services with respect to the Fund, and PWM 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 PWM. Janus hereby engages the services of PWM as subadviser in
furtherance of the Advisory Agreement. PWM 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) PWM 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) PWM 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 PWM, and the investment
considerations which have given rise to those decisions;
(c) PWM shall maintain all books and records required to be maintained by
PWM 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. PWM 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) PWM 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) PWM 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, PWM 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 PWM; and
(g) PWM will provide to Janus for regulatory filings and other appropriate
uses materially accurate and complete information relating to PWM as
may be reasonably requested by Janus from time to time and,
notwithstanding anything herein to the contrary, PWM 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 PWM
to Janus, provided, however, that PWM shall not be liable to the
extent that any Damages are based upon inaccuracies or omissions made
in reliance upon information furnished to PWM by Janus.
2. Further Obligations. In all matters relating to the performance of this
Agreement, PWM 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 PWM 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 PWM continuously and fully informed (or cause the custodian of
the Fund's assets to keep PWM 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 PWM 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 PWM with any further materials or information which PWM may
reasonably request to enable it to perform its function under this
Agreement.
4. Compensation. For PWM's services under this Agreement, the Fund shall pay
to PWM a fee equal to 50% of the advisory fee payable to Janus from the
Fund (calculated after any fee waivers). 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. PWM shall pay all its own costs and expenses incurred in
rendering its service under this Agreement.
6. Representations of PWM. PWM hereby represents, warrants and covenants to
Janus as follows:
(a) PWM: (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 PWM 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 PWM that
could have a material adverse effect upon PWM's ability to fulfill its
obligations under this Agreement.
(b) PWM 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 PWM shall certify to Janus that PWM has complied with the
requirements of Rule 17j-1 during the previous year and that there has
been no violation of PWM'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, PWM shall permit Janus,
its employees or its agents to examine the reports required to be made
to PWM by Rule 17j-1(c)(1) and all other records relevant to PWM's
code of ethics.
(c) PWM 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) PWM will notify Janus of any change in the identity or control of its
shareholders owning a 10% or greater interest in PWM, or any change
that would constitute a change in control of PWM under the 1940 Act,
prior to any such change if PWM is aware, or should be aware, of any
such change, but in any event as soon as any such change becomes known
to PWM.
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 PWM, 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 PWM at
its principal place of business. This Agreement may also be terminated by
Janus or the Trust: (i) by giving 60 days' advance written notice of
termination to PWM; (ii) upon a material breach by PWM 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 (iii) if PWM becomes unable to discharge its duties and
obligations under this Agreement. This Agreement may be terminated by PWM
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, PWM 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 PWM. Janus will not seek to hold PWM, and PWM
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, "PWM" shall include any
affiliate of PWM performing services for the Fund contemplated hereunder
and directors, officers and employees of PWM and such affiliates.
13. Activities of PWM. The services of PWM hereunder are not to be deemed to be
exclusive, and PWM 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 PWM 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 PWM as directors,
officers and shareholders of PWM, that directors, officers, employees and
shareholders of PWM are or may become similarly interested in the Trust,
and that PWM 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 PWM by Janus,
the Trust or the Fund shall not diminish or relieve in any way the
liability of PWM 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 PWM at:
Perkins, Wolf, XxXxxxxxx and Company
00 X. Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: President
Phone: (000) 000-0000
Fax: (000) 000-0000
(c) To the Trust at:
Janus Adviser Series
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
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 PWM for its services in accordance with the
provisions of Section 4 of this Agreement.
JANUS ADVISER SERIES on behalf of Janus Adviser Mid Cap
Value Fund
By:________________________________
