Exhibit 4(x)
JANUS ASPEN SERIES
INVESTMENT ADVISORY AGREEMENT
RISK-MANAGED LARGE CAP CORE PORTFOLIO
THIS INVESTMENT ADVISORY AGREEMENT (the "Agreement") is made this
10th day of December, 2002, between JANUS ASPEN SERIES, 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 Risk-Managed Large
Cap Core Portfolio (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 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,
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 0.65% 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).
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.
(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 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.
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
JANUS ASPEN SERIES
By:
Xxxxxx Xxxxxx Xxxxx, Vice President
