Exhibit 4(zzzzz)
SUB-ADVISORY AGREEMENT
JANUS ADVISER ▇▇▇▇▇▇▇ LARGE CAP VALUE FUND
(A SERIES OF JANUS ADVISER SERIES)
This SUB-ADVISORY AGREEMENT (the "Agreement") is entered into effective as
of the 31st day of December 2008, by and between JANUS CAPITAL MANAGEMENT LLC, a
Delaware limited liability company ("Janus") and ▇▇▇▇▇▇▇ INVESTMENT MANAGEMENT
LLC, a Delaware limited liability company ("▇▇▇▇▇▇▇").
WHEREAS, Janus has entered into an Investment Advisory Agreement (the
"Advisory Agreement") with Janus Adviser Series, a Delaware statutory 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
Janus Adviser ▇▇▇▇▇▇▇ Large 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, ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ to furnish investment advisory
services with respect to the Fund, and ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇. ▇▇▇▇▇ hereby engages the services of ▇▇▇▇▇▇▇ as
subadviser in furtherance of the Advisory Agreement. ▇▇▇▇▇▇▇ 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) ▇▇▇▇▇▇▇ 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 Trust, on behalf of the Fund,
as a regulated investment company;
(b) ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇, and the investment
considerations which have given rise to those decisions;
(c) ▇▇▇▇▇▇▇ shall maintain all books and records required to be
maintained by ▇▇▇▇▇▇▇ 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. ▇▇▇▇▇▇▇ 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) ▇▇▇▇▇▇▇ 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) ▇▇▇▇▇▇▇ 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, ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇;
and
(g) ▇▇▇▇▇▇▇ will provide to Janus for regulatory filings and other
appropriate uses materially accurate and complete information relating to
▇▇▇▇▇▇▇ as may be reasonably requested by Janus from time to time and,
notwithstanding anything herein to the contrary, ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ to ▇▇▇▇▇, provided, however, that ▇▇▇▇▇▇▇ shall
not be liable to the extent that any Damages are based upon inaccuracies or
omissions made in reliance upon information furnished to ▇▇▇▇▇▇▇ by ▇▇▇▇▇.
2. Further Obligations. In all matters relating to the performance of this
Agreement, ▇▇▇▇▇▇▇ shall act in conformity with the Trust's Trust Instrument,
bylaws and currently effective
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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 ▇▇▇▇▇▇▇
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 ▇▇▇▇▇▇▇ continuously and fully informed (or cause the
custodian of the Fund's assets to keep ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ with any further materials or information which
▇▇▇▇▇▇▇ may reasonably request to enable it to perform its function under this
Agreement; and
(d) To compensate ▇▇▇▇▇▇▇ for its services in accordance with the
provisions of Section 4 hereof.
4. Compensation. Janus shall pay ▇▇▇▇▇▇▇ for its services under this
Agreement a fee equal to 50% of the advisory fee payable to Janus from the Fund
(net of any performance fee adjustment, reimbursement of expenses incurred or
fees waived by Janus). Fees paid to ▇▇▇▇▇▇▇ 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.
5. Expenses. ▇▇▇▇▇▇▇ shall pay all its own costs and expenses incurred in
rendering its service under this Agreement.
6. Representations of ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ hereby represents, warrants and
covenants to Janus as follows:
(a) ▇▇▇▇▇▇▇: (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
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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 ▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇ that could have a material adverse effect upon ▇▇▇▇▇▇▇'▇ ability to
fulfill its obligations under this Agreement.
(b) ▇▇▇▇▇▇▇ 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, and any material
changes thereto. 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
▇▇▇▇▇▇▇ shall certify to Janus that ▇▇▇▇▇▇▇ has complied with the requirements
of Rule 17j-1 during the previous year and that there has been no violation of
▇▇▇▇▇▇▇'▇ 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, ▇▇▇▇▇▇▇ shall permit Janus, its employees or its agents to examine the
reports required to be made to ▇▇▇▇▇▇▇ by Rule 17j-1(c)(1) and all other records
relevant to ▇▇▇▇▇▇▇'▇ code of ethics.
(c) ▇▇▇▇▇▇▇ 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.
7. Term. This Agreement shall become effective as of the date first set
forth above and shall continue in effect until February 1, 2010 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 the Trust, Janus or ▇▇▇▇▇▇▇,
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.
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 90 days' advance written notice of termination be given to ▇▇▇▇▇▇▇ at its
principal place of business. This Agreement may be terminated (i) by Janus at
any time, without penalty by giving 90 days' advance written notice of
termination to ▇▇▇▇▇▇▇; (ii) by ▇▇▇▇▇▇▇ at any time, without penalty by giving
90 days advance notice to Janus and the Trust, unless Janus or the Trust
requests additional time to find a replacement for ▇▇▇▇▇▇▇, in which case
▇▇▇▇▇▇▇ shall allow the additional time requested by Janus or the Trust not to
exceed 90 days beyond the initial 90 days notice period unless otherwise agreed
to by Janus, the Trust and ▇▇▇▇▇▇▇; or (iii) by Janus or the Trust without
advance notice if
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▇▇▇▇▇▇▇ becomes unable to discharge its duties and obligations under this
Agreement. 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 ▇▇▇▇ ▇▇▇) of the Trust or Janus, ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇. Janus will not seek to hold
▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ 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, "▇▇▇▇▇▇▇" shall include any
affiliate of ▇▇▇▇▇▇▇ performing services for the Fund contemplated hereunder and
directors, officers and employees of ▇▇▇▇▇▇▇ and such affiliates.
13. Activities of ▇▇▇▇▇▇▇. The services of ▇▇▇▇▇▇▇ hereunder are not to be
deemed to be exclusive, and ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ as directors, officers and
shareholders of ▇▇▇▇▇▇▇, that directors, officers, employees and shareholders of
▇▇▇▇▇▇▇ are or may become similarly interested in the Trust, and that ▇▇▇▇▇▇▇
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 ▇▇▇ 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 ▇▇▇▇▇▇▇ by ▇▇▇▇▇, the Trust or the
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Fund shall not diminish or relieve in any way the liability of ▇▇▇▇▇▇▇ 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
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) To ▇▇▇▇▇▇▇ at:
▇▇▇▇▇▇▇ Investment Management LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(c) To the Trust at:
Janus Adviser Series
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Legal Counsel
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.
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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: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ INVESTMENT MANAGEMENT LLC
By: /s/ ▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇▇▇▇
Title: Chief Operating Officer
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