FORM OF SUB-MANAGEMENT AGREEMENT
This AGREEMENT made this ______ day of __________, 2003, between Janus
Capital Management LLC, a Delaware limited liability company ("JCM") and
Perkins, Wolf, XxXxxxxxx and Company, a Delaware corporation ("PWM").
WHEREAS, JCM has entered into a Subadvisory Agreement with
________________________________ (the "Subadvisory Agreement") with respect to
that certain investment series of ________________________________ (the
"Corporation") listed on Exhibit A attached hereto (the "Series"); 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; and
WHEREAS, JCM desires to delegate to PWM its duties and responsibilities for
providing investment advisory services to the Series, and PWM is willing to
accept such delegation and to render such investment advisory services.
NOW, THEREFORE, the parties agree as follows:
1. DELEGATION. JCM hereby delegates to PWM all the duties and
responsibilities required to be performed by JCM for the Series pursuant to
Section ___ of the Subadvisory Agreement, a copy of which is attached hereto as
Exhibit B. PWM hereby accepts such delegation and agrees to perform such duties
and assume such responsibilities, subject to the oversight of JCM. No provision
of this Agreement shall relieve JCM of its duties or responsibilities under the
Subadvisory Agreement, and JCM shall appropriately oversee, monitor and evaluate
PWM's performance of its duties and responsibilities under this Agreement.
2. FURTHER OBLIGATIONS.
(a) In all matters relating to the performance of this Agreement, PWM
shall act in conformity with the objectives, policies and limitations for the
applicable Series set forth in Corporation's current prospectus and statement of
additional information, such policies as the Directors of the Corporation may
from time to time establish and which have been furnished to PWM in writing, the
provisions of the Internal Revenue Code (the Code) applicable to "regulated
investment companies" (as defined in Section 851 of the Code), all as from time
to time in effect, and with all applicable federal and state laws governing such
Series' operations and investments including without limitation the provisions
of the Investment Company Act of 1940, as amended (the "1940 Act"), and rules
adopted thereunder and applicable federal and state securities, tax and banking
laws. For purposes of compliance with the foregoing, PWM shall be entitled to
treat each such portion of the assets of each such Series set forth in Exhibit A
managed by PWM as though such portion of the assets constituted the entire
Series, and PWM shall not be responsible in any way for the compliance of any
assets of the Series other than such portion of the assets of such Series
managed by PWM, with any of the foregoing or for the compliance of the Series,
taken as a whole, with any of the foregoing.
(b) PWM shall provide timely reports to JCM on its activities under
this Agreement as agreed on from time to time, and shall provide JCM with all
information or documents that JCM may reasonably request in connection with this
Agreement, including but not limited to
certified copies of its financial statements, and such other information with
regard to its affairs as JCM may reasonably request.
(c) PWM shall maintain all books and records required to be maintained
by PWM pursuant to the Investment Advisers Act of 1940, as amended, and shall
make such records available to JCM upon reasonable request.
3. COMPENSATION. JCM shall pay to PWM for its services under this
Agreement a fee, payable in United States dollars, at the annual rate set forth
in Exhibit A attached hereto. This fee shall be based on the average daily net
asset value of the portion of the assets of the Series for which PWM actually
provides advisory services, and shall be determined by taking an average of all
determinations of such net asset value during the month. This fee shall be
computed and accrued daily and payable monthly as soon as practicable after the
end of each month. 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.
4. EXPENSES AND EXCLUDED EXPENSES. PWM shall pay all its own costs and
expenses incurred in rendering the services required under this Agreement.
Notwithstanding any other provision hereof, it is expressly agreed that PWM
shall not be responsible to pay any organizational, operation or business
expenses of JCM or the Corporation including, without limitation, brokerage
commissions and other costs in connection with the purchase or sale of
securities or other investment instruments with respect to the Series.
5. TERMINATION. This Agreement shall continue in full force and effect
with respect to each Series until two years from the date hereof, and from year
to year thereafter so long as such continuance is specifically approved at least
annually (i) by the vote of a majority of those Directors of the Corporation who
are not parties to this Agreement or interested persons of any such party, cast
in person at a meeting called for the purpose of voting on such approval, and
(ii) by the Directors of the Corporation or by vote of a majority of the
outstanding voting securities of the Series voting separately from any other
series of the Corporation.
With respect to each Series, this Agreement may be terminated at any
time, without penalty, by vote of a majority of the Directors of the
Corporation, or by vote of a majority of the outstanding voting securities (as
defined in the 0000 Xxx) of the Series, voting separately from any other series
of the Corporation, or by JCM, on not less than 30 nor more than 60 days'
written notice to PWM. With respect to each Series, this Agreement may be
terminated by PWM at any time, without the payment of any penalty, on 90 days'
written notice to JCM and the Corporation; provided, however, that this
Agreement may not be terminated by PWM unless another subadvisory agreement has
been approved by the Corporation in accordance with the 1940 Act, or after six
months' written notice, whichever is earlier. The termination of this Agreement
with respect to any Series or the addition of any Series to Exhibit A hereto (in
the manner required by the 0000 Xxx) shall not affect the continued
effectiveness of this Agreement with respect to each other Series subject
hereto. This Agreement shall automatically terminate in the event of its
assignment (as defined by the 1940 Act). This Agreement will also terminate in
the event that the Subadvisory Agreement by and between JCM and
________________________________ is terminated.
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6. LIMIT OF LIABILITY; INDEMNIFICATION.
(a) In the absence of willful misfeasance, bad faith, gross negligence
or reckless disregard of its obligations or duties hereunder ("Disabling
Conduct") on the part of PWM (or its officers, directors, agents, employees,
controlling persons, shareholders and any other person or entity affiliated with
PWM) PWM shall not be subject to liability to JCM,
________________________________, the Corporation, any such Series or any
shareholder of the Corporation or any such Series for any act or omission in the
course of, or connected with, rendering services hereunder, including without
limitation, any error of judgment or mistake of law or for any loss suffered by
any of them in connection with the matters to which this Agreement relates,
except to the extent specified in Section 36(b) of the 1940 Act concerning loss
resulting from a breach of fiduciary duty with respect to the receipt of
compensation for services. Except for such Disabling Conduct, JCM shall
indemnify and hold harmless PWM (and its officers, directors, partners, agents,
employees, controlling persons, shareholders and any other person or entity
affiliated with PWM) (collectively, the "Indemnified Parties") from and against
any and all losses, claims, damages, liabilities or litigation (including
reasonable legal and other expense) arising from PWM's conduct under this
Agreement.
(b) PWM agrees to indemnify and hold harmless JCM and its affiliates
and each of their respective directors and officers and each person, who
controls JCM within the meaning of Section 15 of the Securities Act of 1933, as
amended (the "1933 Act") against any and all losses, claims, damages,
liabilities or litigation (including reasonable legal and other expenses), to
which JCM or its affiliates or such directors, officers or controlling person
may become subject under the 1933 Act, under other statutes, at common law or
otherwise, which may be based upon such Disabling Conduct or any material breach
of this Agreement by PWM; provided, however, that in no case is PWM's indemnity
in favor of any person deemed to protect or apply to such person against any
liability to which such person would otherwise by subject by reasons of willful
misfeasance, bad faith, or gross negligence in the performance of his, her or
its duties or by reason of his, her or its reckless disregard of such person's
obligations and duties under this Agreement.
(c) PWM shall not be liable to JCM, ________________________________,
the Corporation or any such Series for (i) any acts or omission of JCM,
________________________________, the Corporation or any other subadviser to the
Series with respect to the portion of the assets of a Series not managed by PWM
and (ii) acts of PWM which result from acts or omissions of JCM,
________________________________, or the Corporation, including, but not limited
to, a failure of JCM to provide accurate and current information with respect to
any records maintained by JCM, _______________________, the Corporation or any
other subadviser to a Series, which records are not also maintained by PWM. JCM
agrees that PWM shall manage the portion of the assets of a Series hereunder as
if it was a separate operating series and shall comply with Sections 1 and 2 of
this Agreement (including, but not limited to, the investment objectives,
policies and restrictions applicable to a Series and qualifications of a Series
as a regulated investment company under the Code) with respect to the portion of
assets of a Series managed by PWM pursuant to this Agreement. JCM shall
indemnify and hold harmless the Indemnified Parties from and against any and all
losses, claims, damages, liabilities or litigation (including reasonable legal
and other expenses) arising from the conduct of JCM,
________________________________, the Corporation or any other subadviser with
respect to the portion of a Series' assets not managed by PWM pursuant to this
Agreement.
7. ACTIVITIES OF PWM. The investment advisory services provided by PWM
hereunder are not exclusive, and PWM is free to render similar services to
others so long as its
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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 business, whether of a similar nature or dissimilar nature.
8. INDEPENDENT CONTRACTOR. PWM shall for all purposes hereunder be
deemed to be an independent contractor and shall, unless otherwise provided or
authorized, have no authority to act for or represent JCM, the Series or the
Corporation in any way, nor otherwise be deemed an agent of, partner or joint
venturer with, JCM, the Series or the Corporation.
9. PERMISSIBLE INTERESTS. It is understood that Directors, officers
and shareholders of the Corporation 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
Corporation, and that PWM may become interested in the Corporation as a
shareholder or otherwise.
10. NOTICES. Any notice or other communication required to be given
pursuant to this Agreement shall be deemed duly given if delivered or mailed by
certified or registered mail, return receipt requested and postage prepaid:
(a) To Janus Capital Management LLC at:
Janus Capital Management LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
(b) To Perkins, Wolf, XxXxxxxxx and Company at:
Perkins, Wolf, XxXxxxxxx and Company
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: President
11. AMENDMENTS. This Agreement may be amended by the parties only in a
written instrument signed by the parties to this Agreement and only if such
amendment is specifically approved (i) by the vote of a majority of those
Directors of the Corporation who are not parties to this Agreement or interested
persons of any such party, cast in person at a meeting called for the purpose of
voting on such approval, and (ii) by the Directors of the Corporation or by vote
of a majority of the outstanding voting securities of the Series voting
separately from any other series of the Corporation.
12. 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.
13. MISCELLANEOUS. This Agreement may be executed in two or more
counterparts, which taken together shall constitute one and the same instrument.
The headings in this
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Agreement are included for convenience of reference only and in no way define or
limit any of the provisions thereof or otherwise affect 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.
14. SEPARATE SERIES. Pursuant to the provisions of the Articles of
Incorporation and the General Laws of the State of __________________, each
Series is a separate series of the Corporation and all debts, liabilities,
obligations and expenses of a particular Series shall be enforceable only
against the assets of that Series and not against the assets of any other Series
or of the Corporation as a whole.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
JANUS CAPITAL MANAGEMENT LLC
By:
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Title:
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PERKINS, WOLF, XxXXXXXXX AND COMPANY
By:
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Title:
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EXHIBIT A
SUB-MANAGEMENT AGREEMENT
FEE SCHEDULE
For services provided under this Agreement, JCM shall pay to PWM a fee
computed at the annual rate set forth below:
SERIES FEE
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.25% on assets up to $50 million
.225% on assets over $50 million
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EXHIBIT B
SUBADVISORY AGREEMENT
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