SUB-ITEM 77Q1(e)
INTERIM
INVESTMENT ADVISORY AGREEMENT
▇▇▇▇▇▇ IPT-LARGE CAP GROWTH FUND
A Series of ▇▇▇▇▇▇ Institutional Products Trust
This INVESTMENT ADVISORY AGREEMENT (the "Agreement") is made this 16th
day of December, 2002, between JANUS CAPITAL MANAGEMENT LLC, a Delaware limited
liability corporation ("Janus Capital"), and ▇▇▇▇▇▇ INSTITUTIONAL PRODUCTS
TRUST, a Delaware statutory trust (the "Trust"), with respect to the ▇▇▇▇▇▇
IPT-LARGE CAP GROWTH FUND, a series of the Trust (the "Fund").
RECITALS
A. 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").
B. The Trust is authorized to create separate series of shares, each
with its own separate investment portfolio, one of such series created by the
Trust being the Fund.
▇. ▇▇▇▇▇ Capital 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").
D. The Trust and Janus Capital deem it mutually advantageous that
Janus Capital should assist the Trustees and officers of the Trust in the
management of the securities portfolio of the Fund.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Appointment. The Trust hereby appoints Janus Capital as
investment adviser and manager with respect to the Fund for the period and on
the terms set forth in this Agreement. Janus Capital hereby accepts such
appointment and agrees to render the services herein set forth, for the
compensation herein provided.
2. Investment Advisory Functions. In its capacity as investment adviser
to the Fund, Janus Capital shall have the following duties and responsibilities:
(a) To manage the investment operations of the Fund and the
composition of its investment portfolio, and to determine without prior
consultation with the Trust, what securities and other assets of the Fund
will be acquired, held, disposed of or loaned, in conformity with the investment
objective, policies and restrictions and the other statements concerning the
Fund in the Trust's trust
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instrument, as amended from time to time (the "Trust Instrument"), bylaws
and registration statements under the 1940 Act and the 1933 Act, the 1940 Act
and the Advisers Act, the rules and regulations thereunder, and all other
applicable federal and state laws and regulations, and the provisions of the
Internal Revenue Code of 1986, as amended, applicable to the Fund as a regulated
investment company or required to maintain compliance with any diversification
provisions applicable to insurance company separate accounts or qualified plans
investing in the Trust;
(b) To 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
decisions of Janus Capital, and the investment considerations which have given
rise to those decisions;
(c) To supervise the purchase and sale of
securities for investments of the Fund and for other related transactions as
directed by the appropriate officers of the Trust; to give instructions to
the custodian (including any subcustodian) of the Fund as to deliveries of
securities to and from such custodian and receipt and payments of cash for the
account of the Fund, and advise the Trust on the same day such instructions
are given; and to 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;
(d) To maintain all books and records required to be
maintained by Janus Capital pursuant to the 1940 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 with such periodic and special reports as the
Trustees reasonably may request. Janus Capital 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 any records which it maintains for the Trust and which are
required to be maintained under the 1940 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; and
(e) At such times as shall be reasonably requested by the
Trustees, to provide the Trustees 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 make available to the Trustees any economic, statistical and
investment services normally available to similar investment company clients of
Janus Capital.
3. Further Obligations. In all matters relating to the performance of
this Agreement, Janus Capital 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 of the Trust 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. The Trust agrees
to provide Janus Capital with copies of the Trust's Trust Instrument,
bylaws, Registration Statements, written policies, procedures and
guidelines, and written instructions and directions of the Trustees,
and any amendments or supplements to any of them at, or, if practicable, before
the time such materials become effective. Janus Capital shall maintain errors
and omissions insurance in an amount at least equal to that disclosed to the
Trustees in connection with their approval of this Agreement.
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4. Obligations of Trust. The Trust shall have the following
obligations under this Agreement:
(a) To keep Janus Capital continuously and fully 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 Janus Capital 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;
(c) To furnish Janus Capital with any further materials or
information which Janus Capital may reasonably request to enable it to perform
its function under this Agreement; and
(d) To compensate Janus Capital for its services in accordance
with the provisions of Section 5 hereof.
5. Compensation. (a) The Trust shall pay to Janus Capital for its
services under this Agreement a fee, payable in United States dollars, at an
annual rate of 0.75% of the first $500 million of average daily net assets
of the Fund, 0.70% of the next $500 million of average daily net assets of the
Fund and 0.65% on any part of the average daily net assets of the Fund in excess
of $1 billion. This 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. 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.
(b) The compensation earned by Janus Capital under this
Agreement shall be held in an interest-bearing escrow account with the
Trust's custodian or a bank. If a majority of the outstanding voting
securities (as defined in the ▇▇▇▇ ▇▇▇) of the Fund approve an investment
advisory agreement with Janus Capital within 150 days of the day and year first
written above, the amount in the escrow account (including interest thereon)
shall be paid to Janus Capital. If a majority of the outstanding voting
securities (as defined in the ▇▇▇▇ ▇▇▇) of the Fund do not approve an investment
advisory agreement with Janus Capital within 150 days of the day and year first
written above, Janus Capital shall be paid, out of the escrow account, the
lesser of (i) any costs incurred by Janus Capital in performing this Agreement
(plus interest earned on that amount while in escrow) or (ii) the total amount
in the escrow account (plus interest earned).
6. Expenses.
(a) Expenses Paid by the Trust. The Trust assumes
and shall pay all expenses incidental to its operations and business not
specifically assumed or agreed to be paid by Janus Capital hereunder or
otherwise, including, but not limited to, any compensation, fees or
reimbursements which the Trust pays to its Trusteess who are not
interested persons of ▇▇▇▇▇▇ Associates or Janus Capital; compensation of the
Fund's custodian, transfer agent, registrar and dividend disbursing agent and
other service providers; 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 Janus Capital 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 the purchasers thereof; expenses of local
representation in Delaware; expenses of shareholders' meetings and of
preparing, printing and
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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
preparing, printing and mailing prospectuses and statements of additional
information to shareholders of the Fund; 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 Janus Capital 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 Janus Capital compensation for, or reimburse Janus Capital for its expenses
incurred in connection with, such services as Janus Capital and the Trust
shall agree from time to time, any other provision of this Agreement
notwithstanding.
(b) Expenses Paid by Janus Capital. Janus Capital shall pay
all its own costs and expenses incurred in fulfilling its obligations under this
Agreement. In addition to such costs and expenses, Janus Capital shall incur and
pay the following expenses relating to the Fund's operations:
(i) Reasonable compensation, fees and related expenses of the
Trust's officers and Trustees, except for such
Trustees who are not interested persons of ▇▇▇▇▇▇ Associates
or Janus Capital; and
(ii) Rental of offices of the Trust.
7. Brokerage Commissions. For purposes of this Agreement, brokerage
commissions paid by the Fund upon the purchase or sale of its portfolio
securities shall be considered a cost of securities of the Fund and shall be
paid by the Fund. Absent instructions from the Trust to the contrary, Janus
Capital is authorized and directed to place Fund portfolio transactions only
with brokers and dealers who render satisfactory service in the execution of
orders at the most favorable prices and at reasonable commission rates,
provided, however, that Janus Capital may pay a broker an amount of commission
for effecting a securities transaction in excess of the amount of commission
another broker would have charged for effecting that transaction if Janus
Capital determines in good faith that such amount of commission was reasonable
in relation to the value of the brokerage and research services provided by such
broker viewed in terms of either that particular transaction or the overall
responsibilities of Janus Capital. Janus Capital is also authorized to consider
sales of Fund shares/variable insurance contracts that permit allocation of
contract values to the Fund as a factor in selecting broker-dealers to execute
Fund portfolio transactions. In placing portfolio business with such
broker-dealers, Janus Capital shall seek the best execution of each transaction.
Subject to the terms of this Agreement and the applicable requirements and
provisions of the law, including the 1940 Act and the Securities Exchange Act of
1934, as amended, and in the event that Janus Capital or an affiliate is
registered as a broker-dealer, Janus Capital may select a broker with which it
or any of its affiliates or the Fund is affiliated. Janus Capital or such
affiliated broker may effect or execute Fund portfolio transactions, whether on
a securities exchange or in the over-the-counter market, and receive separate
compensation from the Fund therefor. Notwithstanding the foregoing, the
Trust shall retain the right to direct the placement of all portfolio
transactions, and the Trustees of the Trust may establish
policies or guidelines to be followed by Janus Capital in placing portfolio
transactions for the Trust pursuant to the foregoing provisions. Janus
Capital shall report on the placement of portfolio transactions in the prior
fiscal quarter at each quarterly meeting of such Trustees. To the
extent consistent with applicable law, purchase or sell orders for the Fund may
be aggregated with simultaneous purchase or sell orders for other clients of
Janus Capital. Whenever Janus Capital simultaneously places orders to purchase
or sell the same security on behalf of the Fund and one or more other clients of
Janus Capital, such orders will be
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allocated as to price and amount among all such clients in a manner reasonably
believed by Janus Capital to be fair and equitable to each client. The
Trust recognizes that in some cases, this procedure may adversely affect
the results obtained for the Fund.
8. Effectiveness, Duration and Termination. This Agreement, unless
sooner terminated as provided herein, shall become effective as of the day and
year first written above, and shall remain in effect until the earlier of: (i)
150 days from the date hereof or (ii) a majority of the outstanding voting
securities (as defined in the ▇▇▇▇ ▇▇▇) of the Fund approve an investment
advisory agreement with Janus Capital. This Agreement may also be terminated at
any time, without the payment of any penalty, upon ten (10) days' written notice
to Janus Capital, by the affirmative vote of a majority of the
Trustees of the Trust or by the affirmative vote of the
outstanding securities (as defined in the ▇▇▇▇ ▇▇▇) of the Fund. This Agreement
will automatically and immediately terminate in the event of its assignment, as
such term is defined in the 1940 Act.
9. 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 of the Fund or ▇▇▇▇▇▇ Associates or Janus Capital and, (ii)
if required by applicable law, by the affirmative vote of a majority of the
outstanding voting securities of the Fund.
10. Allocation of Expenses. 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 any
other series of the Trust and between the Fund and other investment companies
managed by Janus Capital or its affiliates.
11. Limitation on Personal Liability. NOTICE IS HEREBY GIVEN that the
Trust is a statutory trust organized under the Delaware Statutory Trust Act
pursuant to a Certificate of Trust filed in the office of the Secretary of State
of the State of Delaware. 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 Janus Capital. Janus Capital 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 12, "Janus Capital" shall include any affiliate of Janus Capital
performing services for the Trust contemplated hereunder and directors,
officers and employees of Janus Capital and such affiliates.
13. Activities of Janus Capital. The services of Janus Capital to the
Trust hereunder are not to be deemed to be exclusive, and Janus Capital and
its affiliates are 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 Janus Capital 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 nature or a dissimilar
nature. It is understood that Trustees, officers and shareholders of
the Trust are or may become interested in Janus Capital as directors,
officers and shareholders of Janus Capital, that directors, officers, employees
and shareholders of Janus Capital are or may become similarly interested in the
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Trust, and that Janus Capital may become interested in the Trust as a
shareholder or otherwise.
14. 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.
Where the effect of a requirement of the federal securities laws reflected in
any provision of this Agreement is made less restrictive by a rule, regulation,
order, interpretation or other authority of the Securities and Exchange
Commission, whether of special or general application, such provision shall be
deemed to incorporate the effect of such rule, regulation, order, interpretation
or other authority.
15. 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.
16. Miscellaneous. The headings in this 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.
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:
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▇▇▇▇▇▇ ▇. Early
Vice President
▇▇▇▇▇▇ INSTITUTIONAL PRODUCTS TRUST,
with respect to the series known as
the ▇▇▇▇▇▇ IPT-Large Cap Growth Fund
By:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President