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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. ______________ )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] CONFIDENTIAL, FOR USE OF THE COMMISSION ONLY (AS PERMITTED BY
RULE 14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Section 240.14a-12
JANUS ASPEN SERIES
File Nos. 33-63212 and 811-7736
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(Name------------------
(Exact Name of Registrant as Specified In Itsin Charter)
- --------------------------------------------------------------------------------151 Detroit Street, Denver, Colorado 80206-4805
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(Address of Principal Executive Offices)
303-333-3863
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(Registrant's Telephone No., including Area Code)
Stephanie Grauerholz-Lofton -- 151 Detroit Street, Denver, Colorado 80206-4805
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(Name and Address of Person(s) Filing Proxy Statement, if other than the Registrant)Agent for Service)
Payment of Filing Fee (check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4)(1) and 0-11.
1) Title of each class of securities to which transaction applies:
- --------------------------------------------------------------------------------
2) Aggregate number of securities to which transaction applies:
- --------------------------------------------------------------------------------
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee
is calculated and state how it was determined):
- --------------------------------------------------------------------------------
4) Proposed maximum aggregate value of transaction:
- --------------------------------------------------------------------------------
5) Total fee paid:
- --------------------------------------------------------------------------------
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
- --------------------------------------------------------------------------------
2) Form, Schedule or Registration Statement No.:
- --------------------------------------------------------------------------------
3) Filing Party:
- --------------------------------------------------------------------------------
4) Date Filed:
- --------------------------------------------------------------------------------
PERSONS WHO POTENTIALLY ARE TO RESPOND TO THE COLLECTION OF INFORMATION CONTAINED IN THIS
FORM ARE NOT REQUIRED TO RESPOND UNLESS THE FORM DISPLAYS A CURRENTLY VALID OMB
CONTROL NUMBER.
SEC 1913 (05-05)(04-05)
FOR SHAREHOLDERS OF
ONE OR MORE OF THE SERIES OF JANUS ASPEN SERIES (THE
"TRUST")
DEAR SHAREHOLDER:
Your Fund'sSMALL COMPANY VALUE PORTFOLIO
, 2008
(JANUS LOGO)
Dear Shareholder:
The Board of Trustees for your Portfolio is requesting yourthat you vote on a
proposal to approve a subadvisory agreement between your Portfolio's investment
adviser, Janus Capital Management LLC ("Janus Capital"), and Perkins, Wolf,
McDonnell and Company, LLC ("PWM"), pursuant to which PWM, as subadviser, would
manage the investment of the Portfolio's assets. As the Portfolio's investment
adviser, Janus Capital would continue to be responsible for oversight of PWM and
the Portfolio's assets.
The proposal arises as Janus Capital seeks to have PWM serve as its value
equity investment platform. Janus Capital, which currently owns a 30% interest
in PWM, has entered into an agreement to acquire an additional 50% interest in
PWM. As a result of Janus Capital's proposed increased ownership interest of
PWM, Janus Capital conducted a review of all mutual funds pursuing a value
strategy that were advised by Janus Capital and its affiliates, including PWM.
The goal of that review was to move the Janus fund family to a more cohesive
operating platform for managing value-style mutual funds. Following the review,
Janus Capital determined that engaging PWM as subadviser for your Portfolio
would capitalize on Janus Capital's and PWM's broad investment expertise. The
Board of Trustees has approved the proposed subadvisory agreement between Janus
Capital and PWM, subject to approval by the Portfolio's shareholders as required
by law.
The relationship with PWM is being proposed primarily for the following
reasons:
1. PWM has substantial experience managing mutual fund portfolios with
investment objectives and strategies similar to those of the
Portfolio;
2. PWM currently serves as subadviser for several proposals
regardingother value funds for
which Janus Capital serves as investment adviser;
3. The engagement of PWM will not affect the overall fee that the
Portfolio pays for management services;
4. PWM will continue to pursue the Portfolio's investment objective
using the Portfolio's principal investment strategies; and
5. The Portfolio's current portfolio manager will continue to serve as
its portfolio manager.
The Board of Trustees for your Portfolio is also requesting that you vote
on a proposal to approve an amended investment advisory agreement between your
Portfolio and Janus FundCapital to change the Portfolio's investment advisory fee
structure from a fixed rate to a rate that adjusts up or down based upon the
Portfolio's performance relative to its benchmark index, the Russell 2000(R)
Value
Index. The Board of Trustees believes that moving to a fee schedule that moves
up or down based upon the Portfolio's performance better aligns the interests of
the Portfolio's manager with those of the shareholders of the Portfolio. Please
read the Proxy Statement for a description of the performance-based fee
structure you are being asked to approve. All other terms of the amended
investment advisory agreement will be substantially similar to the current
investment advisory agreement in place for your Portfolio.
These proposals will be presented to shareholders at a Special Meeting of
Shareholders to be held November 22, 2005. We encourage you to[ , 2008]. For additional details about the
proposals, please read the Questions and Answers section at the beginning of the
enclosed proxy
statementProxy Statement, as well as the entire Proxy Statement.
THE INDEPENDENT TRUSTEES OF THE PORTFOLIO BELIEVE THE PROPOSALS ARE IN THE
BEST INTEREST OF SHAREHOLDERS AND HAVE RECOMMENDED THAT SHAREHOLDERS VOTE "FOR"
THE PROPOSED SUBADVISORY AGREEMENT AND THE PROPOSED AMENDED INVESTMENT ADVISORY
AGREEMENT.
You can vote in one of four ways:
- BY MAIL with the enclosed proxy statement, which describes each ofcard;
- BY INTERNET through the proposals. A summary of the proposals is as follows:
1. For the Trust, to elect nine Trustees, including eight "independent"
candidates.
2. For shareholders of Flexible Bond Portfolio only, to approve the removal
of a fundamental policywebsite listed in the Fund's 80% investment policy regarding
income-producing securities.
3. To approve amendments toproxy voting instructions;
- BY TELEPHONE by calling [1- ] and following the Trust's Amended and Restated Trust
Instrument.
4. For shareholdersrecorded
instructions; or
- IN PERSON at the Special Meeting of each Fund (except Mid Cap Value Portfolio, Risk-
Managed Core Portfolio, Risk-Managed Growth Portfolio and Small Company
Value Portfolio)Shareholders on [ , to approve certain amendments to2008].
Your vote is extremely important, so please read the Fund's investment
advisory agreement with Janus Capital Management LLC ("JCM") to conform
to prevailing industry practice.
5. For shareholders of each of Mid Cap Value Portfolio, Risk-Managed Core
Portfolio and Worldwide Growth Portfolio, to approve a new investment
advisory agreement between the Fund and JCM to change the investment
advisory fee rate from a fixed rate to a rate that adjusts upward or
downward based upon the Fund's performance relative to its benchmark.
6. For shareholders of Risk-Managed Core Portfolio only, to approve a new
subadvisory agreement between JCM, on behalf of the Fund, and Enhanced
Investment Technologies, LLC ("INTECH") to change the subadvisory fee
rate paid by JCM to INTECH from a fixed rate to a rate that adjusts
upward or downward based upon the Fund's performance relative to its
benchmark.
As noted above, shareholders of each Fund referred to in number 5 above
will be asked to approve a change to the Fund's investment advisory fee
structure from a fixed-rate fee to a fee that varies based on the Fund's
performance relative to the Fund's benchmark. The proposed investment advisory
fee rate to be paid by the Fund would consist of a base fee as adjusted by a
performance adjustment. The base fee would be the same as the fixed-rate fee
currently paid by the Fund. During the first 12 months after the new investment
advisory agreement becomes effective
(scheduled for January 1, 2006), the Fund would pay only the base fee, without
adjustment. The performance adjustment would begin in month 13 of the new
agreement and would adjust the base fee upward or downward in certain increments
based upon the Fund's performance relative to its benchmark over an immediately
preceding period. The maximum adjustment (positive or negative) to a Fund's base
fee rate is 0.15% from the base rate currently paid by the Fund. Theenclosed Proxy
Statement describes the performance-based fee arrangement for the Fundcarefully and compares the new fee structure with the fees the Fund currently pays. With
respect to the new fee arrangement proposed for the subadvisory agreement for
Risk-Managed Core Portfolio between JCM and INTECH (#6 above), JCM, and not the
Fund, pays those fees. The Trustees believe that moving to a fee schedule that
moves upward or downward based upon the performance of a fund better aligns the
interests of the shareholders of the Fund with those of the Fund's manager.
YOUR VOTE IS IMPORTANT TO US. PLEASE TAKE A FEW MINUTES TO REVIEW THIS
PROXY STATEMENT AND COMPLETE, SIGN, DATE AND RETURN THE ENCLOSED PROXY CARD,
UNLESS YOU PLAN TO ATTEND THE SPECIAL MEETING. YOUR FUND'S BOARD OF TRUSTEES
APPROVED THE PROPOSALS AND URGES YOU TO VOTE "FOR" EACH PROPOSAL.submit your vote. If you have any questions about the
proposals, please call our proxy solicitor, Computershare,[ ], at
1-866-340-4019.[1- ].
Thank you for your responseconsideration of these important proposals. We value you
as a shareholder and we look forward to preserving your trust as
a valued shareholder over the long-term.our continued relationship.
Sincerely,
/s/ Dennis B. Mullen
Dennis B. Mullen
Chairman of the BoardRobin C. Beery
Robin C. Beery
President and Chief Executive Officer of
Janus Aspen Series
2
JANUS ASPEN SERIES
JANUS ASPEN SMALL COMPANY VALUE PORTFOLIO
151 DETROIT STREET
DENVER, COLORADO 80206
NOTICE OF A SPECIAL MEETING OF SHAREHOLDERS
Notice is hereby given that a Special Meeting of Shareholders of Janus
Aspen Small Company Value Portfolio (the "Portfolio"), a series of Janus Aspen
Series ("JAS" or the(the "Trust"), each separate series thereof, a "Fund" and
collectively, the "Funds") willhas been called to be held at the JW Marriott Hotel, 150
Clayton Lane, Denver, Colorado 80206, on November 22, 2005[ ], 2008 at 10:00[10:30] a.m.
Mountain Time (together with any adjournments or postponements thereof, the
"Meeting"). At the Meeting, shareholders of the Portfolio will be asked to vote
on the proposals set forth below and to transact such other business, if any, as
may properly come before the Meeting.
Proposal 1: To elect nine Trustees.approve a subadvisory agreement between Janus
Capital Management LLC ("Janus Capital"), the
Portfolio's investment adviser, and Perkins, Wolf,
McDonnell and Company, LLC, as subadviser to the
Portfolio.
Proposal 2: To approve amendments to the Trust's Amended
and Restated Trust Instrument.
Proposal 3: For shareholders of Flexible Bond Portfolio
only, to eliminate the Fund's fundamental 80%
investment policy regarding income-producing
securities.
Proposal 4.a.: For shareholders of each Fund (except Mid Cap
Value Portfolio, Risk-Managed Core Portfolio,
Risk-Managed Growth Portfolio and Small Company
Value Portfolio), to approve certain amendments
to each Fund's investment advisory agreement
with Janus Capital Management LLC ("JCM" or
"Janus Capital") to conform to prevailing
industry practice.
Proposal 4.b.: For shareholders of Mid Cap Value Portfolio,
Risk-Managed Core Portfolio, and Worldwide
Growth Portfolio only, to approve a newan amended investment advisory
agreement between the Trust, on behalf of each respective Fund,the
Portfolio, and JCM,Janus Capital, to change the
investment advisory fee rate from a fixed rate to
a rate that adjusts upwardup or downwarddown based upon the
Fund'sPortfolio's performance relative to its benchmark.
Proposal 5: For shareholdersbenchmark
index, the Russell 2000(R) Value Index.
Shareholders of Risk-Managed Core Portfolio
only, to approve a new subadvisory agreement
between JCM, on behalfrecord of the Fund, and Enhanced
Investment Technologies, LLC ("INTECH"), to
change the subadvisory fee rate paid by JCM to
INTECH from a fixed rate to a rate that adjusts
upward or downward based upon the Fund's
performance relative to its benchmark.
Any shareholder who owned shares of a FundPortfolio, as of the close of business on
September 9, 2005,[ , 2008], will receive notice of the Meeting and will be entitled to
vote at the Meeting.
SHAREHOLDERS WHO DO NOT EXPECT TO ATTEND THE MEETING ARE URGED TO COMPLETE,
SIGN, AND DATE THE ENCLOSED PROXY CARD(S) AND RETURN IT IN THE ENCLOSED
ADDRESSED ENVELOPE, WHICH NEEDS NO POSTAGE IF MAILED IN THE UNITED STATES, OR TO
TAKE ADVANTAGE OF THE INTERNET OR TELEPHONIC VOTING PROCEDURES DESCRIBED ON THE
ENCLOSED PROXY CARD(S). PROMPT RETURN OF THE ENCLOSED PROXY CARD(S) (OR VOTING
BY INTERNET OR TELEPHONE) WILL HELP YOUR FUND AVOID THE EXPENSES OF ADDITIONAL
SOLICITATIONS. IF YOU WISH TO ATTEND THE MEETING AND VOTE YOUR SHARES
IN PERSON AT THAT TIME, YOU WILL STILL BE ABLE TO DO SO.
By order of the Board of Trustees,
/s/ Kelley Abbott Howes
Kelley Abbott Howes
ViceRobin C. Beery
Robin C. Beery
President General Counsel
and Secretary
OctoberChief Executive Officer of
Janus Aspen Series
, 20052008
INSTRUCTIONS FOR SIGNING PROXY CARDS
The following general rules for signing proxy cards may be of assistance to
you and may avoid the time and expense to the Trustany delay involved in validating your vote if you fail to sign
your proxy card properly.
1. INDIVIDUAL ACCOUNT: Sign your name exactly as it appears in the
registration on the proxy card.
2. JOINT ACCOUNT: Either party may sign, but the name of the party
signing should conform exactly to the name shown in the registration on the
proxy card.
3. ALL OTHER ACCOUNTS: The capacity of the individual signing the
proxy card should be indicated unless it is reflected in the form of
registration. For example:
REGISTRATION VALID SIGNATURE
- ------------ ---------------
Corporate Account
(1) ABC Corp. ABC Corp.
(2) ABC Corp. John Doe, Treasurer
(3) ABC Corp. c/o John Doe, John Doe
Treasurer
(4) ABC Corp. Profit Sharing Plan John Doe, Trustee
Plan
Trust Account
(1) ABC Trust Jane B. Doe, Trustee
(2) Jane B. Doe, Trustee u/t/d Jane B. Doe
12/28/78
Custodial or Estate Account
(1) John B. Smith, Cust. f/b/o John B. Smith
John B. Smith, Jr. UGMA
(2) Estate of John B. Smith John B. Smith, Jr., Executor
i
October , 20052008
JANUS ASPEN SERIES
Balanced Portfolio Large Cap Growth Portfolio
Core Equity Portfolio Mid Cap Growth Portfolio
Flexible Bond Portfolio Mid Cap Value Portfolio
Foreign Stock Portfolio Money Market Portfolio
Forty Portfolio Risk-Managed Core Portfolio
Global Life Sciences Portfolio Risk-Managed Growth Portfolio
Global Technology Portfolio Small Company Value Portfolio
Growth and Income Portfolio Worldwide Growth Portfolio
International Growth Portfolio
JANUS ASPEN SMALL COMPANY VALUE PORTFOLIO
151 DETROIT STREET
DENVER, COLORADO 80206
SPECIAL MEETING OF SHAREHOLDERS
PROXY STATEMENT
This is a Proxy Statement for the above listed Janus funds (each, a "Fund"
and collectively, the "Funds"Aspen Small Company Value Portfolio
(the "Portfolio"), each of which is a series of Janus Aspen Series ("JAS" or the(the "Trust"). Proxies for a
Special Meeting of Shareholders of each
Fundthe Portfolio are being solicited by the
Board of Trustees of the Trust (the "Board""Board," the "Board of Trustees" or the
"Trustees") of JAS to approve the following proposals that have already been approved
by the Board.Board:
Proposal 1: To approve a subadvisory agreement between Janus Capital
Management LLC ("Janus Capital"), the Portfolio's investment
adviser, and Perkins, Wolf, McDonnell and Company, LLC, as
subadviser to the Portfolio.
Proposal 2: To approve an amended investment advisory agreement between
the Trust, on behalf of the Portfolio, and Janus Capital, to
change the investment advisory fee rate from a fixed rate to
a rate that adjusts up or down based upon the Portfolio's
performance relative to its benchmark index, the Russell
2000(R) Value Index.
The Special Meeting of Shareholders will be held at the JW Marriott Hotel,
150 Clayton Lane, Denver, Colorado 80206, on November 22, 2005[ ], 2008 at 10:00[10:30
a.m.] Mountain Time, or at such later time as may be necessary due to
adjournments or postponements thereof (the "Meeting"). Any shareholder of record
who owned shares of the Portfolio as of the close of business on [ ],
2008 (the "Record Date"), will receive notice of the Meeting and will be
entitled to vote at the Meeting.
At the Meeting, you will be asked to vote on several proposals affecting
your Fund(s).the proposals. You should read
the entire Proxy Statement before voting. If you have any questions, please call
1-866-340-4019.
Each Fundour proxy solicitor, [ ], at [1- ]. The Proxy
Statement, Notice of Special Meeting, and the proxy card(s) are first being
mailed to shareholders and contract owners on or about [ , 2008].
The Portfolio is available as a funding vehicle forin connection with investment in and payments
under variable life insurance policiescontracts and variable annuity accountscontracts offered
by the separate accounts, or subaccounts thereof, of certain life insurance
companies ("Participating Insurance Companies"). The FundsPortfolio may also be
available to
1
certain qualified retirement plans. Individual contract owners are not the
"shareholders" of the Funds.Portfolio. Rather, the Participating Insurance Companies
and their separate accounts are the shareholders. Each Participating Insurance
Company may offer to contract owners the opportunity to instruct it how to vote
shares on the proposals presented at the Meeting.
The Proxy Statement, Notice of Special Meeting and the
proxy card(s) are first being mailed to shareholders and contract owners on or
about October 10, 2005.
COPIES OF EACH FUND'S MOST RECENTTHE PORTFOLIO PROVIDES ANNUAL AND SEMIANNUAL REPORTS TO ITS SHAREHOLDERS
THAT HIGHLIGHT RELEVANT INFORMATION, INCLUDING INVESTMENT RESULTS AND A REVIEW
OF PORTFOLIO CHANGES, ARE AVAILABLE UPON REQUEST AND WITHOUT CHARGE
BY CONTACTING YOUR INSURANCE COMPANY OR PLAN SPONSOR.CHANGES. ADDITIONAL COPIES OF EACH FUND'STHE PORTFOLIO'S MOST RECENT ANNUAL
REPORT AND ANY MORE RECENT SEMIANNUAL REPORT ARE ALSO AVAILABLE, WITHOUT CHARGE, BY
CALLING 800- ,A JANUS REPRESENTATIVE AT 1-877-335-2687, VIA THE INTERNET AT
WWW.JANUS.COM,WWW.JANUS.COM/INFO, OR BY SENDING A WRITTEN REQUEST TO THE SECRETARY OF THE
TRUST AT 151 DETROIT STREET, DENVER, COLORADO 80206.
2
QUESTIONS AND ANSWERS
WHAT PROPOSALS AM I BEING ASKED TO VOTE ON?
ThereThe following Questions and Answers are several proposals for shareholder consideration.
- PROPOSAL 1 relatesintended to the election of nine Trustees. The election of
Trustees will be determined by the affirmative vote of a pluralityprovide an overview of
the shares of all Funds of the Trust voting in person or by proxy at the
Meeting.
- PROPOSAL 2 seeks approval of several amendments to the Trust's Amended
and Restated Trust Instrument ("Trust Instrument"). There are three
separate proposed amendments to the Trust Instrument describedinformation provided in this Proxy Statement under Proposals 2.a., 2.b. and 2.c. Approval of each
Proposal requiresto summarize the affirmative vote of a majority of the outstanding
shares of the Trust.
- PROPOSAL 2.A. provides for shareholder votesproposals
to be counted based on
each dollar of net asset value rather than one vote for each share.
- PROPOSAL 2.B. permits the Trustees, subject to applicable federal and
state law, to reorganize all or a portion of the Trust or any of its
Funds or classes.
- PROPOSAL 2.C. permits the Trustees, subject to applicable federal and
state law, to liquidate the Trust or any Fund or class thereof.
- PROPOSAL 3 applies to Flexible Bond Portfolio only and asks for approval
to eliminate the Fund's fundamental policy to normally invest at least
80% of its assets in income-producing securities. Under the Investment
Company Act of 1940, as amended ("1940 Act"), approval of Proposal 3
requires the affirmative vote of the lesser of: (i) more than 50% of the
outstanding voting securities of the Fund or (ii) 67% or more of the
outstanding voting securities presentconsidered at the Meeting, if more than 50% of
the outstanding voting securities of the Fundor at any adjournment thereof.
WHAT IS BEING PROPOSED?
You are present at the Meeting
in person or by proxy (a "1940 Act Majority").
- PROPOSAL 4.A. seeks approval of an amendmentbeing asked to the investment advisoryapprove a subadvisory agreement between Janus
Capital Management LLC ("Janus Capital"), your Portfolio's investment adviser,
and Perkins, Wolf, McDonnell and Company, LLC ("PWM"), so that PWM will serve as
subadviser to the Trust, on behalfPortfolio (the "Subadvisory Agreement"). A form of each of certain Funds,the
proposed Subadvisory Agreement is attached as Exhibit A to conform to prevailing industry practice.
Shareholders of each Fund (except Mid Cap Value Portfolio, Risk-Managed
Core Portfolio, Risk-Managed Growth Portfolio and Small Company Value
Portfolio)this Proxy Statement.
You are also being asked to approve this proposal with respect to that
Fund, which requires the vote of a 1940 Act Majority of that Fund.
- PROPOSAL 4.B. seeks approval of a newan amended investment advisory
agreement between JCM and the Trust, on behalf of each of Mid Cap Value Portfolio,
3
Risk-Managed Coreyour Portfolio and Worldwide Growth Portfolio. Under the
new agreement for each of these Funds,Janus Capital that will change the
investment advisory fee rate payablepaid to JCM by the Fund would changeJanus Capital from a fixed rate to a rate
that adjusts upwardup or downwarddown based upon the Fund'sPortfolio's performance relative to its
benchmark. Approvalbenchmark index, the Russell 2000(R) Value Index (the "Amended Advisory
Agreement"). A form of Proposal 4.bthe proposed Amended Advisory Agreement is attached as
Exhibit B to this Proxy Statement.
If approved, the Subadvisory Agreement will take effect upon consummation
of the transaction discussed below, which is anticipated to occur in the third
quarter of 2008. If shareholders approve the Amended Advisory Agreement, the
performance-based advisory fee structure is expected to take effect on the first
day of the month following the approval; however, the first performance fee
adjustment will not occur until one year after the new fee structure takes
effect.
WHAT IS HAPPENING BETWEEN JANUS AND PWM?
In 2003, Janus Capital Group Inc. ("JCGI" and, collectively with respect to a Fund requires a
1940 Act MajorityJanus
Capital, "Janus") acquired 30% of the outstanding voting securitiesownership interests of PWM,
and also obtained the Fund.
- PROPOSAL 5 appliesright to Risk-Managed Core Portfolio only and seeks approval
of a new subadvisory agreement between JCM, on behalf of the Fund, and
Enhanced Investment Technologies, LLC ("INTECH"). Under the new
subadvisory agreement, the subadvisory fee rate payable by JCM to INTECH
would change from a fixed rate to a rate that adjusts upward or downward
based upon the Fund's performance relative to its benchmark. Approval of
Proposal 5 requires a 1940 Act Majoritypurchase certain additional blocks of the
outstanding voting
securitiesownership interests of PWM. The 70% of PWM that is not currently
owned by Janus is beneficially owned by several affiliates of PWM, including
certain employees of PWM and members of their respective families (the
"Sellers").
On [ ], 2008, Janus and the Sellers entered into a Unit Purchase
Agreement (the "Purchase Agreement"), according to which Janus will acquire an
additional 50% of PWM (the "Pending Acquisition"), pending shareholder approval
of various proposals. In connection with the consummation of the Fund.
The following table identifiesPending
Acquisition, PWM will change its name to "Perkins Investment Management LLC."
Under the Funds entitledPurchase Agreement, certain current owners of PWM have retained a 20%
beneficial interest in PWM. Janus, however, has the right to vote on each proposal:
PROPOSALS
-----------------------------------------------------------------------------------------
2 4.A. 4.B. 5
(2.A., 2.B., 2.C.)acquire all or a
portion of that retained interest under certain circumstances.
3 (ADVISORY (JANUS (INTECH
1 (AMENDMENTS (ELIMINATE AGREEMENT PERFORMANCE- PERFORMANCE-
(TRUSTEE TO THE TRUST FUNDAMENTAL CONFORMING BASED BASED
FUND ELECTION) INSTRUMENT) POLICY) AMENDMENTS) ADVISORY FEE) ADVISORY FEE)
- ---- --------- ------------------ ----------- ----------- ------------- -------------
Balanced Portfolio........ X X X
Core Equity Portfolio..... X X X
Flexible Bond Portfolio... X X X X
Foreign Stock Portfolio... X X X
Forty Portfolio........... X X X
Global Life Sciences
Portfolio................ X X X
Global Technology
Portfolio................ X X X
Growth and Income
Portfolio................ X X X
International Growth
Portfolio................ X X X
Large Cap Growth
Portfolio................ X X X
Mid Cap Growth
Portfolio................ X X X
Mid Cap Value Portfolio... X X X
Money Market Portfolio.... X X X
Risk-Managed Core
Portfolio................ X X X X
Risk-Managed Growth
Portfolio................ X X
Small Company Value
Portfolio................ X X
Worldwide Growth
Portfolio................ X X X X
4
HAS MY FUND'S BOARD APPROVED THE PROPOSALS?
Yes,Janus expects PWM to serve as its domestic value equity investment platform
(the "Value Platform"). Management of the Value Platform will be ultimately
determined by a Board of Directors of PWM, which will be controlled by Janus.
This Board of Directors is separate and distinct from the Board unanimously recommends that shareholders vote FOR all
applicable proposals.of Trustees of
the Portfolio.
WHY AM I BEING ASKED TO ELECT TRUSTEES?
The Trustees are your representatives who oversee management and operations
of your Fund. Certain regulations require that a majority of Trustees be elected
by shareholders.APPROVE THE SUBADVISORY AGREEMENT?
In addition, new trustees cannot be appointed by the Trusteesan effort to fill vacancies created by an expansiontake advantage of the Board unless, after those
appointments, at least two-thirds of the Trustees have been elected by
shareholders. The Board currently has seven members, of which five have been
elected by shareholders. In addition, the Board has determinedbroad investment expertise within
Janus Capital and PWM and, in particular, PWM's value investment capability,
Janus Capital believes that it towould be in the Portfolio's best interestsinterest to
engage PWM to manage the investments of the Funds and their shareholders to expandPortfolio. However, because the
Board to nine
members. All seven membersPortfolio is registered under the Investment Company Act of 1940, as amended
(the "1940 Act"), which generally requires that any investment advisory
agreement, including the current Board and two new members will stand
for election at the Meeting.
WHY DOES THE BOARD RECOMMEND CHANGES TO THE TRUST INSTRUMENT?
The Board is recommending several amendments to the Trust Instrument to
shareholders for approval as described below.
- Shareholder Voting. Currently, shareholders of each Fund are entitled to
one vote for each full share held and fractional votes for fractional
shares held. If shareholders of the Trust approve the proposed amendments
to the Trust's Trust Instrument, shareholder voting will change from
"share-based" to "dollar-based," as described in Proposal 2. Thus, each
holder of a whole or fractional share held in a Fund will be entitled to
one vote for each whole dollar and a proportionate fractional vote for
each fractional dollar of net asset value standing in such shareholder's
name. The Board believes that dollar-based voting provides a more
equitable distribution of voting rights for certain votes than the one
share, one vote system currently in effect.
- Reorganization. Under current Securities and Exchange Commission ("SEC")
regulations, certain mergers and reorganizations of mutual funds canSubadvisory Agreement, be approved by the Board of such funds without requiring shareholder vote.
However, this is only the case if a Fund's organizational documents also
allow the BoardPortfolio's
shareholders prior to take such action. Since solicitation of Fund
shareholders in such a transaction can be costly to a Fund, the Board
believes that changing the Trust's Trust Instrument to be consistent with
current regulation could potentially save Fund shareholders unnecessary
costs and is therefore in the best interests of such Funds. The proposed
amendment to the Trust Instrument provides that the Trustees may,
consistent with applicable federal and state law, unilaterally approve
the reorganization of the Trust, Fund or class thereof.
5
- Liquidation. The current Trust Instrument permits the Board, without
shareholder approval, to terminate the Trust or any of its Funds under
certain circumstances. The current Trust Instrument does not expressly
provide that the Board may terminate one or more classes of a Fund. In
addition, there may be circumstances other than those described in the
Trust Instrument that the Board may determine is in the best interests of
the Trust, Fund or class to liquidate such Trust, Fund or class. As
proposed, the Trust Instrument expressly permits the Board to liquidate
any one or more classes of a Fund (as well as the Trust of Fund) under
any circumstances that the Board determines is in the best interests of
the class, Fund or Trust.
WHY IS THE BOARD RECOMMENDING THE ELIMINATION OF A FUNDAMENTAL 80% INVESTMENT
POLICY ON INCOME-PRODUCING SECURITIES FOR FLEXIBLE BOND PORTFOLIO?
Eliminating Flexible Bond Portfolio's fundamental investment policy to
invest 80% of net assets in income-producing securities is recommended because
the Fund has adopted a non-fundamental policy of investing 80% of its net assets
in bonds (consistent with the Fund's name) and such a policy is not required to
be a fundamental policy. The Board believes these two policiesbecoming effective, you are largely
duplicative and thus they are not both necessary. Since the policy related to
income-producing securities is a "fundamental" policy, it can only be changed
with shareholder approval. Notably, the proposed elimination of this investment
policy will not change the investment objectives of the Fund.
WHY IS THE BOARD PROPOSING CERTAIN CONFORMING AMENDMENTS TO CERTAIN FUNDS'
INVESTMENT ADVISORY AGREEMENTS?
Shareholders of certain Funds will bebeing asked to approve an amendment of a
Fund'sthe
Subadvisory Agreement.
WILL ADDING PWM AS SUBADVISER INCREASE MY PORTFOLIO'S INVESTMENT ADVISORY FEE?
No. The investment advisory agreement withfee rate paid by your Portfolio will not
increase as result of adding PWM as subadviser to your Portfolio. Janus Capital,
and not the Portfolio, will pay PWM a subadvisory fee for its services provided
to conform to prevailing
industry practice and clarify thatthe Portfolio. Janus Capital has investment discretion over
the Funds it manages. Such amendments are also in conformity with
recommendations made by an independent compliance consultant engaged by Janus
Capital. Janus Capital intendsagreed to continue to managereimburse certain
operating expenses of the FundsPortfolio to the level currently in place. You are,
however, being asked to approve a change to the investment advisory fee
structure payable by the Portfolio to Janus Capital, as described below and providein
Proposal 2.
WILL THE CHANGE IN MANAGEMENT AFFECT MY PORTFOLIO'S INVESTMENT STRATEGIES?
No. The Portfolio's principal investment policies, strategies and risks
will be the same levelbefore and after adoption of services under the proposed amended investmentSubadvisory
Agreement, and the Portfolio's current Portfolio Manager will continue managing
the Portfolio, although as an employee of PWM rather than Janus Capital.
Furthermore, Janus Capital has advised the Board of Trustees that it expects
there to be no diminution in the scope and quality of advisory agreements. These proposed amendments will not impactservices provided
to the fee paid by your Fund.Portfolio as a result of the Subadvisory Agreement with PWM.
After the closing of the Pending Acquisition, the Portfolio intends to
change its name to "Janus Aspen Perkins Small Company Value Portfolio."
WHY IS THE BOARD PROPOSING MOVING TO A PERFORMANCE-BASED FEE SCHEDULE FOR
CERTAIN FUNDS?SCHEDULE?
The Board believes that a fee schedule that adjusts based upon the positive
or negative performance of a Fundthe Portfolio, relative to its benchmark index,
better aligns the interests of the manager, Janus Capital, as well as any
subadviser, with those of the Fund'sPortfolio's shareholders. Currently, the Funds pay aPortfolio
pays an advisory fee at a fixed annual rate. As proposed, the rate of investment
advisory fee paidpayable to Janus
4
Capital would decrease when the FundPortfolio does not perform well, relative to its
benchmark index, and
6
would increase during periods when the FundPortfolio
outperforms its benchmark.benchmark index. Janus Capital believes that the proposed
advisory fee structure will enable it to maintain the quality of services it
provides to the FundsPortfolio and to attract and retain talented investment
personnel.
WHAT IS THE RECOMMENDATION OF THE BOARD OF TRUSTEES?
The Board of Trustees recommends that you vote "FOR" the proposals.
WHO WILL PAY FOR THE PROXY SOLICITATION?
Janus Capital and PWM will jointly bear the costs associated with the
Meeting and the proxy solicitation. Neither you nor your Portfolio will bear any
of those costs.
WHAT WILL HAPPEN IF SHAREHOLDERS OF AN APPLICABLE FUNDTHE PORTFOLIO DO NOT APPROVE ALL
APPLICABLE PROPOSED AMENDMENTS TO THE INVESTMENT ADVISORY AGREEMENT FOR THEIR
FUND?PROPOSALS?
If shareholders of a Fund who are voting on a proposal to amend such Fund's
current investment advisory agreement with Janus Capital or to approve a new
investment advisory agreement with Janus Capitalthe Portfolio do not approve such
proposal(s),the proposals, Janus
Capital will continue to manageserve as sole investment adviser to your Portfolio
pursuant to the Fundcurrent investment advisory agreement, and will continue to
receive compensation for its services at a flat fixed-rate feefixed-fee rate. The Board of Trustees
will take such action as detailed underit deems to be in the termsbest interest of the current investment advisory agreement.
WHAT SHOULD I DO IF I RECEIVE MORE THAN ONE PROXY CARD?
Because each Fund'sPortfolio,
including potentially soliciting additional proxies.
WHO IS ELIGIBLE TO VOTE?
Shareholders of record who owned shares of the Portfolio at the close of
business on [ ], 2008 (the "Record Date") will be entitled to be
present and vote at the Meeting. Those shareholders mustare entitled to one vote separately, you are being sent a
proxy card for
each Fund account that you have. Pleasewhole dollar (and a proportionate fractional vote for each fractional
dollar) of net asset value owned on all applicable
proposals shown on each proxy card that you receive.matters presented at the Meeting.
HOW DO I VOTE MY SHARES?
You can vote your sharesin any one of four ways:
- BY MAIL, by completing and signingsending the enclosed proxy card(s) (signed and mailing the completed proxy card(s)dated) in the
enclosed postage paid
envelope. You may also voteenvelope;
- BY INTERNET, by going to the website listed on your sharesproxy card;
- BY TELEPHONE, using the toll-free number listed on your proxy card; or
- IN PERSON, by telephoneattending the Special Meeting of Shareholders on
[ ], 2008 (or any adjournment or viapostponement thereof).
Whichever method you choose, please take the Internet by
followingtime to read the instructions onfull text of
the attached proxy card(s). Shareholders of record
of each Fund at the close of business on September 9, 2005 (the "Record Date")
will receive notice of and be askedProxy Statement before you vote.
It is important that shareholders respond to vote on the proposals, as applicable,
presented atensure that there is a quorum
for the Meeting. If we do not receive your response within a few weeks, you need assistance or have any questions regardingmay
be
5
contacted by [ ], the proposals or howproxy solicitor engaged by Janus Capital,
who will remind you to vote your shares please call 1-800- .
7
PROPOSAL 1: ELECTION OF TRUSTEES
Atand help you return your proxy. If we do
not receive sufficient votes to approve the Subadvisory Agreement or the Amended
Advisory Agreement by the date of the Meeting, shareholders of all Funds will be askedwe may adjourn the Meeting to elect nine
individualsa
later date so that we can continue to constitute the Trust's Board of Trustees. The nine nominees for
election as Trustees who receive the greatest number of votes from shareholders
voting in person or byseek additional votes.
IF I SEND MY VOTE IN NOW AS REQUESTED, CAN I CHANGE IT LATER?
Yes. You may revoke your proxy vote at any time before it is voted at the
Meeting will be elected as Trustees ofby: (i) delivering a written revocation to the Trust. These nine nominees were selected after careful consideration by the
Trust's Nominating and Governance Committee, a committee consisting entirely of
Trustees who are not "interested" persons (as defined in Section 2(a)(19) of the
1940 Act)Secretary of the Trust or JCM (the "Independent Trustees") and the nominations
were approved by all of the current Independent Trustees. Each nominee has
consented to serve as a Trustee. The persons named as proxies on the enclosed
proxy card(s) will vote for the election of the nominees named below unless
authority to vote for any or all of the nominees is withheld on a proxy card.
If elected, each Trustee will serve as a Trustee until the next meeting of
shareholders, if any, called for the purpose of electing Trustees or until the
election and qualification of a successor. If a Trustee sooner dies, resigns,
retires (required at age 72) or is removed as provided in the organizational
documents of the Trust, the Board may, in its discretion, subject to the 1940
Act, select another person to fill the vacant position. If any or all of the
nominees should become unavailable for election at the Meeting due to events not
now known or anticipated, the persons named as proxies will vote for such other
nominee or nominees as the current Independent Trustees may recommend.
The Funds are not required, and do not intend, to hold annual shareholder
meetings for the purpose of electing Trustees. However, under the terms of a
settlement reached between JCM and the SEC in August 2004, commencing in 2005
and not less than every fifth calendar year thereafter, the Trust will hold a
meeting of shareholders to elect Trustees. Shareholders also have the right to
call a meeting to remove a Trustee or to take other action described in the
Trust's organizational documents. Also, if at any time less than a majority of
the Trustees holding office has been elected by the Trust's shareholders, the
Trustees then in office will promptly call a shareholder meeting for the purpose
of electing Trustees.
The nominees for Trustees and their backgrounds are shown on the following
pages. This information includes each nominee's name, age, principal
occupation(s) during the past five years and other information about the
nominee's professional background, including other directorships the nominee
holds. The address of each nominee is
151 Detroit Street, Denver, Colorado 80206. All nominees listed below, other than Ms. Wolf80206; (ii) submitting a subsequently
executed proxy vote; or (iii) attending the Meeting and Mr. Contro,voting in person. Even
if you plan to attend the Meeting, we ask that you return your proxy. This will
help us ensure that an adequate number of shares are currently Trusteespresent at the Meeting for
consideration of the Trustproposals.
WHAT IS THE REQUIRED VOTE TO APPROVE THE PROPOSALS?
Approval of each proposal will require the affirmative vote of a "majority
of the outstanding voting securities" of the Portfolio within the meaning of the
1940 Act. A "majority of the outstanding voting securities" means the lesser of
(i) 67% or more of the shares of the Portfolio present at the Meeting, if the
holders of more than 50% of the outstanding shares are present or represented by
proxy, or (ii) more than 50% of the outstanding shares (a "1940 Act Majority").
One-third of the outstanding shares entitled to vote shall constitute a quorum.
Additionally, implementation of the Subadvisory Agreement and have served in that capacity since
originally elected or appointed. In addition, each nominee, other than Ms. Wolf
and Mr. Contro,the Amended
Advisory Agreement is currently a trusteecontingent upon approval of both Proposals within this
Proxy Statement, as well as approval of the same proposals by shareholders of
Janus InvestmentAdviser Small Company Value Fund, ("JIF") anda series of Janus Adviser Series
("JAD"), otheranother registered investment companiescompany advised by JCM (JIF, JAS and JAD are collectively referred
8
to herein asJanus Capital,
described in a separate proxy statement. In addition, implementation of each
Proposal is contingent upon the "Janus Funds"). Collectively, the Janus Funds consist of 65
series as of September 1, 2005.
Except for Mr. Bailey, each Trustee or nominee is not an "interested"
personclosing of the Trust,Pending Acquisition and other
conditions as that term is defineddescribed in the 1940 Act. Mr. Bailey is
treated as an interested person ofPurchase Agreement or otherwise agreed to by
Janus Capital and PWM.
WHO SHOULD I CALL FOR ADDITIONAL INFORMATION ABOUT THIS PROXY STATEMENT?
Please call [ ], the Trust by virtue of his past positions and
continuing relationships with JCM.
NOMINEES AS INDEPENDENT TRUSTEES
NUMBER OF
PORTFOLIOS
IN FUND
COMPLEX
OVERSEEN OR PRINCIPAL OCCUPATION(S)
LENGTH OF TO BE DURING PAST FIVE YEARS
NAME, AGE AND POSITION(S) TIME SERVED OVERSEEN BY AND OTHER DIRECTORSHIPS
WITH TRUST FOR THE TRUST NOMINEE HELD BY NOMINEE
- ------------------------- ------------- ----------- -----------------------
Jerome S. Contro 65 Partner, Tango Group, a
Age 49 private investment firm
Nominee N/A (since 1999). Trustee
and Chairman of RS
Investment Trust (since
2001); Director, IZZE
Beverages; and
Director, MyFamily,
Inc.
William F. McCalpin 65 Executive Vice
Age 47 President and Chief
Trustee 6/02-Present Operating Officer of
The Rockefeller
Brothers Fund (a
private family
foundation). Trustee
and Vice President,
Asian Cultural Council.
9
NUMBER OF
PORTFOLIOS
IN FUND
COMPLEX
OVERSEEN OR PRINCIPAL OCCUPATION(S)
LENGTH OF TO BE DURING PAST FIVE YEARS
NAME, AGE AND POSITION(S) TIME SERVED OVERSEEN BY AND OTHER DIRECTORSHIPS
WITH TRUST FOR THE TRUST NOMINEE HELD BY NOMINEE
- ------------------------- ------------- ----------- -----------------------
John W. McCarter, Jr. 65 President and Chief
Age 66 Executive Officer of
Trustee 6/02-Present The Field Museum of
Natural History
(Chicago, IL). Chairman
of the Board and
Director, Divergence
Inc.; Director, A.M.
Castle & Co. and W.W.
Grainger, Inc.; and
Trustee of Harris
Insight Funds Trust (19
portfolios), WTTW
(Chicago public
television station),
the University of
Chicago, and Chicago
Public Education Fund.
Dennis B. Mullen 65 Chairman and Chief
Age 61 Executive Officer, Red
Chairman Robin Gourmet Burgers,
Trustee 3/04-Present Inc. (since 2005).
9/93-Present Formerly, private
investor. Director, Red
Robin Gourmet Burgers,
Inc.; Director, Janus
World Funds (Dublin-
based, non-U.S. funds).
10
NUMBER OF
PORTFOLIOS
IN FUND
COMPLEX
OVERSEEN OR PRINCIPAL OCCUPATION(S)
LENGTH OF TO BE DURING PAST FIVE YEARS
NAME, AGE AND POSITION(S) TIME SERVED OVERSEEN BY AND OTHER DIRECTORSHIPS
WITH TRUST FOR THE TRUST NOMINEE HELD BY NOMINEE
- ------------------------- ------------- ----------- -----------------------
James T. Rothe 65 Co-founder and Managing
Age 61 Director, Roaring Fork
Trustee 1/97-Present Capital Partners
(private equity firm);
and Professor Emeritus
of Business, University
of Colorado, Colorado
Springs, CO (since
2004). Formerly,
Professor of Business,
University of Colorado
(2002-2004);
Distinguished Visiting
Professor of Business
(2001-2002),
Thunderbird (American
Graduate School of
International
Management), Phoenix,
AZ. Principal (1988-
1999) of Phillips-Smith
Retail Group, Addison,
TX (a venture capital
firm). Director, Red
Robin Gourmet Burgers,
Inc.
11
NUMBER OF
PORTFOLIOS
IN FUND
COMPLEX
OVERSEEN OR PRINCIPAL OCCUPATION(S)
LENGTH OF TO BE DURING PAST FIVE YEARS
NAME, AGE AND POSITION(S) TIME SERVED OVERSEEN BY AND OTHER DIRECTORSHIPS
WITH TRUST FOR THE TRUST NOMINEE HELD BY NOMINEE
- ------------------------- ------------- ----------- -----------------------
William D. Stewart 65 Corporate Vice
Age 60 President and General
Trustee 9/93-Present Manager of MKS
Instruments-HPS
Products, Boulder, CO
(a manufacturer of
vacuum fittings and
valves).
Martin H. Waldinger 65 Private Investments,
Age 66 Consultant to
Trustee 9/93-Present California Planned Unit
Developments. Formerly,
CEO and President,
Marwal, Inc.
Linda S. Wolf 65 Retired. Formerly,
Age 57 Chairman and Chief
Nominee N/A Executive Officer, Leo
Burnett (Worldwide)
(2001-2005); President,
Leo Burnett (USA)
(1996-2000). Director,
The Field Museum of
Natural History
(Chicago, IL);
Director, Children's
Memorial Hospital;
Director, Chicago
Council on Foreign
Relations; Director,
Economic Club of
Chicago.
12
NOMINEE AS INTERESTED TRUSTEE
NUMBER OF
PORTFOLIOS
IN FUND
COMPLEX
OVERSEEN OR PRINCIPAL OCCUPATION(S)
LENGTH OF TO BE DURING PAST FIVE YEARS
NAME, AGE AND POSITION(S) TIME SERVED OVERSEEN BY AND OTHER DIRECTORSHIPS
WITH TRUST FOR THE TRUST NOMINEE HELD BY NOMINEE
- ------------------------- ------------- ----------- -----------------------
Thomas H. Bailey 65 Retired. Formerly,
Age 67 President (1978-2002)
Trustee 5/93-Present and Chief Executive
Officer (1994-2002),
Janus Capital or Janus
Capital Corporation;
Chairman and Director
(1978-2002), Janus
Capital Corporation;
Director (1997-2001),
Janus Distributors,
Inc.; and President and
Director (1994-2002),
the Janus Foundation.
GENERAL INFORMATION REGARDING THE BOARD OF TRUSTEES
The Trust is governed by a Board of Trustees, which is responsible for
major decisions relating to each Fund's investment objective(s), policies and
techniques. The Trustees also supervise the operation of the Funds by officers
of the Funds and JCM (which is responsibleproxy solicitor for the Trust's day-to-day
operations). The Trustees meet periodically throughout the year to oversee the
Trust's activities, review each Fund's investment performance and the quality of
other services provided to each Fund and its shareholders by JCM, any
subadvisers to a Fund, and any affiliates of JCM, including administration,
distribution, and shareholder servicing.
At least annually, the Trustees review and evaluate the fees and operating
expenses paid by each Fund for these services and negotiate such changes that
they deem appropriate. In carrying out these responsibilities, the Trustees are
assisted by the Trust's independent auditor (who reports directly to the Trust's
Audit Committee), independent counsel, an independent fee consultant, and other
experts as appropriate, all of whom are selected by the Independent Trustees.
The Independent Trustees vote separately to approve all financial arrangements
and other agreements with each Fund's investment adviser and any affiliates of
the investment adviser. The Trust's Independent Trustees meet regularly in
executive session.
There were five regular meetings and one special meeting of the Trustees
held during the Trust's fiscal year ended December 31, 2004. Each Trustee
attendedPortfolio, at
13[ ].
6
least 75% of the meetings during that fiscal year. Since the Trust is not
required to convene annual shareholder meetings, there is no policy requiring
Trustee attendance at such meetings.PROPOSAL 1
APPROVE A SUBADVISORY AGREEMENT BETWEEN
JANUS CAPITAL AND PWM
INTRODUCTION
The Board of Trustees proposed for electionhas determined that it is in the best interest of the
shareholders of the Portfolio to engage PWM as the subadviser to the Portfolio.
Accordingly, the Board recommends that the shareholders of the Portfolio approve
the Subadvisory Agreement between Janus Capital and PWM. For a detailed
description of the specific factors considered by the Board of Trustees, see the
discussion below under the caption "Board Approval and Recommendation."
Janus Capital currently manages the Portfolio's investments. In conjunction
with Janus Capital's Pending Acquisition of a greater ownership interest of its
affiliated investment adviser, PWM, Janus Capital undertook a review of all of
the mutual funds pursuing value strategies that were advised by Janus Capital
and its affiliates, including PWM, with a goal of moving toward a more cohesive
operating platform. In an effort to take advantage of the broad investment
expertise within Janus Capital and PWM, Janus Capital recommended to the Board
of Trustees that PWM become the subadviser to the Portfolio.
Janus Capital discussed the matter with the Board of Trustees and presented
the Trustees with its analysis, findings, and recommendations at the Meeting will be
comprised of eight Independent Trustees and one individual who is considered an
"interested" Trustee. The SEC has adopted rules that require at least 75%Board's
meeting held on November 6, 2007. After a thorough consideration of the board membersprocess
undertaken by Janus Capital and the information, analysis, and recommendations
presented, the Trustees concluded that engaging PWM to serve as subadviser to
the Portfolio under the terms of a fundthe proposed Subadvisory Agreement was in the
best interest of the Portfolio and its shareholders. The Board approved the
proposed Subadvisory Agreement and recommended that it be submitted to be "independent" if such fund takes advantage of
certain exemptive rulesthe
Portfolio's shareholders for approval as required under the 1940 Act. If
approved, the slateSubadvisory Agreement will be executed and will take effect upon
consummation of nomineesthe Pending Acquisition, anticipated in the third quarter of
2008. In addition, PWM intends to change its name to "Perkins Investment
Management LLC."
INFORMATION CONCERNING THE SUBADVISER
PWM is approvedprincipally located at 311 S. Wacker Drive, Suite 6000, Chicago,
Illinois 60606. PWM is a subsidiary of Janus and is registered as an investment
adviser with the Securities and Exchange Commission (the "SEC"). PWM and its
predecessor have been in the investment management business since 1984. PWM also
serves as investment adviser or subadviser to separately managed accounts and
other registered investment companies, and currently serves as subadviser to
other Janus value equity mutual funds. Janus currently has a 30% ownership stake
in PWM. As of March 31, 2008, PWM had $[ ] in assets under
management. It is expected that, immediately following the Pending Acquisition,
7
the same investment and senior management personnel will remain responsible for
the day-to-day operations of PWM.
In 2003, JCGI acquired 30% of the outstanding ownership interests of PWM,
and also obtained the right to purchase certain additional blocks of the
outstanding ownership interests of PWM. The 70% of PWM that is not currently
owned by Janus is beneficially owned by several affiliates of PWM, including
certain employees of PWM and members of their respective families.
On [ ], 2008, Janus and the Sellers entered into a Purchase
Agreement, pursuant to which Janus will acquire an additional 50% of PWM (as
previously defined, the "Pending Acquisition"), pending shareholder approval of
various proposals. In connection with the consummation of the Pending
Acquisition, PWM will change its name to "Perkins Investment Management LLC."
Closing of the Pending Acquisition is subject to approval of subadvisory
agreements and amended advisory agreements by shareholders more than 85% of the Board of Trustees will be Independent.
COMMITTEES OF THE BOARD OF TRUSTEES
The Board of Trustees has seven standing committees that perform
specialized functions: an Audit Committee, a Brokerage Committee, an Investment
Oversight Committee, a Legal and Regulatory Committee, a Money Market Committee,
a Nominating and Governance Committee, and a Pricing Committee. Each committee
is comprised entirely of Independent Trustees and has a written charter that
delineates its duties and powers. Each committee reviews and evaluates matters
as specified in its charter and makes recommendations to the Trustees as it
deems appropriate. Each committee may utilize the resources of the Trust's
counsel, counsel to the Independent Trustees, independent auditors and other
experts. The committees normally meet in conjunction with regular meetings of
the Trustees but may convene at other times (in person or by telephone) as
deemed appropriate. The membership and chairperson of each committee is
appointed by the Trustees upon recommendation of the Trust's Nominating and
Governance Committee.
Audit Committee. The Audit Committee reviews the Trust's financial
reporting process, the system of internal controls over financial reporting,
disclosure controls and procedures, Form N-CSR filings and the audit process.
The Committee's review of the audit process includes, among other things,
recommendation of the appointment and compensation of the Trust's independent
auditors, oversight of the independent auditors, and pre-approval of all audit
and non-audit services. The Committee receives annual representations from the
Trust's independent auditor that audits the Funds' financial statements as to
its independence. Currently, the members of the Audit Committee are John W.
McCarter, Jr. (Chairman), Dennis B. Mullen and William D. Stewart. The Committee
held four meetings during the fiscal year ended December 31, 2004.
Brokerage Committee. The Brokerage Committee reviews and makes
recommendations regarding matters related to the Trust's use of brokerage
commissions and placement of portfolio transactions, including policies
regarding the allocation of brokerage commissions, directed brokerage,
"step-out" arrangements and any soft dollar credits. Currently, the members of
the Brokerage Committee are James
14
T. Rothe (Chairman), William F. McCalpin and Dennis B. Mullen. The Committee
held four meetings during the fiscal year ended December 31, 2004.
Investment Oversight Committee. The Investment Oversight Committee,
established in September 2004, oversees the investment activities of Funds that
invest in equity securities and/or fixed-income securities. The Committee meets
regularly with investment personnel at JCM and of any subadviser to a Fund to
review the investment performance and strategies of the Funds in light of their
stated investment objectives and policies. Prior to establishment of this
Committee, the Committee's functions were performed at least quarterly by all of
the Trustees. Currently, the members of the Investment Oversight Committee are
Dennis B. Mullen (Chairman), William F. McCalpin, John W. McCarter, Jr., James
T. Rothe, William D. Stewart and Martin H. Waldinger. The Committee held three
meetings during the fiscal year ended December 31, 2004.
Legal and Regulatory Committee. The Legal and Regulatory Committee
oversees compliance with various procedures adopted by the Trust, reviews
certain regulatory filings made with the SEC, and oversees the implementation
and administration of the Trust's Proxy Voting Guidelines. The Committee is also
responsible for monitoring the Trust's compliance with regulatory orders or
settlement agreements that have a bearing on the Trust. Currently, the members
of the Legal and Regulatory Committee are William F. McCalpin (Chairman),
William D. Stewart and Martin H. Waldinger. The Committee held four meetings
during the fiscal year ended December 31, 2004.
Money Market Committee. The Money Market Committee reviews various matters
related to the operations of the Trust's money market funds, including
compliance with the Trust's Money Market Fund Procedures and Rule 2a-7 under the
1940 Act. Currently, the members of the Money Market Committee are Martin H.
Waldinger (Chairman), William F. McCalpin and James T. Rothe. The Committee held
four meetings during the fiscal year ended December 31, 2004.
Nominating and Governance Committee. The Nominating and Governance
Committee consults with JCM management in developing the agenda for each regular
meeting of the Board, reviews and recommends changes to Trustee compensation,
and oversees the administration of, and ensures compliance with, the Governance
Procedures and Guidelines adopted by the Trust. The Committee is also
responsible for identifying and nominating candidates for appointment as
Trustees. Consistent with the Trust's organizational documents and procedures
adopted by the Committee, the Committee will consider Trustee nominations made
by shareholders. Shareholders of a Fund may submit names of potential candidates
for consideration by the Committee by submitting their recommendations to the
Trust's Secretary, at the address of the principal executive office of the
Trust, in accordance with procedures adopted by the Committee. A copy of such
procedures
15
is included as Appendix 1 to the Nominating and Governance Committee Charter
attached to this Proxy Statement as Exhibit A.
For any candidate of the Board of Trustees nominated by the Committee, the
principal criterion for selection of candidates is their ability to contribute
to the overall functioning of the Board of Trustees and to carry out the
responsibilities of the Trustees. In addition, in considering a potential
candidate's qualifications to serve as a Trustee, the Committee may take into
account a wide variety of criteria, including, but not limited to: (i) knowledge
of the investment company industry, (ii) relevant experience, (iii) educational
background, (iv) reputation for high ethical standards and personal and
professional integrity, (v) financial, technical or other expertise, (vi) time
commitment to the performance of duties of a Trustee, (vii) stature commensurate
with the responsibility of representing Fund shareholders, and (viii) if a
candidate is for an Independent Trustee position, that the person meets the
independence criteria established by the 1940 Act and the Governance Procedures
and Guidelines adopted by the Trustees.
The Committee may use any process it deems appropriate for the purpose of
evaluating candidates for Trustee, which may include, without limitation,
personal interviews, background checks, written submissions by the candidates
and third party references. There is no difference in the manner by which the
Committee will evaluate nominees when the nominee is submitted by a Fund
shareholder.
Currently, the members of the Nominating and Governance Committee are
Dennis B. Mullen (Chairman), John W. McCarter, Jr. and William D. Stewart. The
Committee held four meetings during the fiscal year ended December 31, 2004.
Pricing Committee. The Pricing Committee determines the fair value of
restricted and other securities for which market quotations are not readily
available, or that are deemed not to be reliable, pursuant to procedures adopted
by the Trustees. The Committee also reviews other matters related to pricing the
Funds' securities. Currently, the members of the Pricing Committee are William
D. Stewart (Chairman), James T. Rothe and Martin H. Waldinger. The Committee
held fifteen meetings during the fiscal year ended December 31, 2004.
SHARE OWNERSHIP
The Trustees believe that each Trustee should invest in one or more Janus
Funds (but not necessarily all) for which he or she serves as Trustee, to the
extent the Trustee is directly eligible to do so. The amount of such investment,
and Janus Fund(s) in which a Trustee determines to invest, will be dictated by
the Trustee's individual financial circumstances and investment goals.
16
The Trustees and nominees cannot directly own shares of a Fund without
purchasing an insurance contract through one of the Participating Insurance
Companies or through a qualified plan. As a result, as of September 13, 2005,
none of the Trustees or nominees for election at the Meeting owned any Fund
shares. The Trustees and nominees own shares of other Janus Funds that are
similarly managed asmutual
funds currently subadvised by PWM, described in separate proxy statements. Under
the Funds but offered through different distribution
channels. The following table showsPurchase Agreement, certain current owners of PWM have retained a 20%
beneficial interest in PWM. Janus, however, has the aggregate dollar range of equity
securities in all Janus Funds (65 funds as of September 13, 2005) owned directly
or beneficially as of September 13, 2005 by each Trustee and by the nominees for
election at the Meeting. As of September 13, 2005, the nominees, Trustees and
executive officers of the Funds owned, individually and collectively as a group,
less than 1% of the outstanding shares of each Fund.
AGGREGATE DOLLAR RANGE OF EQUITY
SECURITIES IN ALL FUNDS OVERSEEN OR TO BE
OVERSEEN BY TRUSTEE/NOMINEE IN
NAME OF TRUSTEE/NOMINEE JANUS FAMILY OF FUNDS
- ----------------------- -----------------------------------------
Independent Trustees
William F. McCalpin............. Over $100,000
John W. McCarter, Jr. .......... Over $100,000
Dennis B. Mullen................ Over $100,000
James T. Rothe.................. Over $100,000
William D. Stewart.............. Over $100,000
Martin H. Waldinger............. Over $100,000
Trustee Nominees
Jerome Contro................... Over $100,000
Linda S. Wolf................... Over $100,000
Interested Trustee
Thomas H. Bailey................ Over $100,000
COMPENSATION OF TRUSTEES
The Trust pays each Independent Trustee an annual retainer plus a fee for
each regular in-person meeting of the Trustees attended and a fee for attending
an in-person committee meeting convened on a date other than that of a regularly
scheduled Trustee meeting. Each current Independent Trustee also receives fees
from other Janus Funds for serving as Trustee of those Funds. JCM pays persons
who are directors, officers or employees of JCM or any affiliate thereof, or any
Trustee considered an "interested" Trustee, for their services as Trustees or
officers of the Fund. None of the Trustees are entitledright to receive any
retirement or deferred compensation benefits from the Funds.
17
The Trust's Nominating and Governance Committee, which consists solely of
Independent Trustees, annually reviews and recommends to the Independent
Trustees any changes to compensation paid by the Funds to the Independent
Trustees. The Independent Trustees also meet at least annually to review their
fees, in connection with the recommendations of the Nominating and Governance
Committee, to ensure that such fees continue to be appropriate in light of their
responsibilities as well as in relation to fees paid to trustees of other mutual
fund complexes. The following table shows the fees paid to each current
Independent Trustee by the Trust for the fiscal year ended December 31, 2004 and
by all of the Janus Funds during calendar year 2004:
AGGREGATE TOTAL COMPENSATION
COMPENSATION FROM THE TRUST AND THE
NAME OF TRUSTEE FROM THE TRUST(1) JANUS FUND COMPLEX(2)
- --------------- ----------------- ----------------------
William F. McCalpin........ $33,625 $243,000
John W. McCarter, Jr. ..... $34,054 $243,000
Dennis B. Mullen(3)........ $53,146 $429,205
James T. Rothe............. $34,859 $302,000
William D. Stewart......... $36,483 $252,000
Martin H. Waldinger........ $34,236 $247,500
- ---------------
(1) Includes compensation for service on behalf of 17 fund portfolios (as of
December 31, 2004).
(2) For Mr. Rothe, includes compensation for service on the boards of four Janus
trusts comprised of 61 portfolios (as of December 31, 2004). For Mr. Mullen,
includes compensation for service on the boards of five Janus trusts
comprised of 82 portfolios (21 portfolios of which are for service on the
board of Janus World Funds, and offshore product) (as of December 31, 2004).
For Messrs. McCarter, McCalpin, Stewart and Waldinger, includes compensation
for service on the boards of three Janus trusts comprised of 59 fund
portfolios (as of December 31, 2004).
(3) For compensation received from the Trust, includes additional compensation
paid for service as Independent Chairman of the Board of Trustees. For
aggregate compensation received from the Janus Fund Complex, includes
additional compensation paid for service as Independent Chairman of the
boards of three Janus trusts, including the Trust, comprised of 59
portfolios (as of December 31, 2004).
OFFICERS
The officers of the Trust and their principal occupations are set forth in
Exhibit B to this Proxy Statement.
18
SHAREHOLDER COMMUNICATIONS
The Trustees provide for shareholders to send written communications to the
Trustees via regular mail. Written communications to the Trustees, or to an
individual Trustee, should be sent to the attention of the Trust's Secretary at
the address of the Trust's principal executive office. All such communications
received by the Trust's Secretary shall be promptly forwarded to the individual
Trustee to whom they are addressed or to the full Board, as applicable. If a
communication does not indicate a specific Trustee, it will be sent to the Chair
of the Nominating and Governance Committee and the outside counsel to the
Independent Trustees for further distribution as deemed appropriate by such
persons. The Trustees may further develop and refine this process as deemed
necessary or desirable.
THE BOARD OF TRUSTEES, INCLUDING ALL OF THE INDEPENDENT TRUSTEES,
UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS OF EACH FUND VOTE FOR EACH NOMINEE.
PROPOSAL 2: APPROVE AMENDMENTS TO THE TRUST'S AMENDED AND RESTATED TRUST
INSTRUMENT
On September 20, 2005, the Board of Trustees approved several amendments to
the Trust's Trust Instrument and authorized the submission of those amendments
to the Trust's shareholders for their authorization.
As proposed, the amendments: (i) provide for shareholder votes to be
counted based upon each dollar of net asset value ("NAV") rather than one vote
for each share; (ii) permit the Trustees, subject to applicable federal and
state law, to reorganizeacquire all or a
portion of that retained interest under certain circumstances.
Assuming the Trustclosing of the Pending Acquisition, PWM will be 80% owned by
Janus, located at 151 Detroit Street, Denver, Colorado 80206, and 20% owned by a
newly formed limited liability company called "[ ]" which in turn
will be owned by certain principal employees of PWM, among others.
PWM acts as investment adviser or anysubadviser to other investment companies
with investment objectives and strategies similar to those of its Funds or
classes; and (iii) permit the Trustees, subject to applicable federal and state
law, to liquidate the Trust or any Fund or class. Such amendments require
shareholder approval. The Trust Instrument, marked to show the proposed
amendments,Portfolio.
Information on those similar investment companies is set forth in Exhibit C to
this Proxy Statement.
PROPOSAL 2.A. SHAREHOLDER VOTING RIGHTS
UnderPORTFOLIO MANAGER. Jakob V. Holm is Executive Vice President and current
Portfolio Manager of the current Trust Instrument, each holderPortfolio, and has served in that role since the
Portfolio's inception, with responsibility for day-to-day investment management.
Mr. Holm will continue to be responsible for the day-to-day management of the
Portfolio under the proposed Subadvisory Agreement with PWM. It is anticipated
that Mr. Holm will become an employee of PWM if the Pending Acquisition closes.
He will be integrated into the PWM investment team and will be supported in his
investment process by PWM research analysts. Mr. Holm is also Portfolio Manager
of other Janus accounts. He joined Janus Capital in July 2005, prior to which he
co-managed the Portfolio (2002-2005) and worked as a whole shareresearch analyst, analyzing
equity and fixed-income securities (2000-2005), at a prior Janus-affiliated
entity.
PRINCIPAL EXECUTIVE OFFICERS AND DIRECTORS OF THE SUBADVISER. Information
regarding the principal executive officers and directors of PWM is entitled to one vote as to any matter on whichset forth
below.
8
Unless otherwise noted, the holder is entitled to vote,
and each holder of a fractional share shall be entitled to a proportionate
fractional vote. The proposed amendment to the Trust Instrument would give
shareholders one voteprincipal address for each whole dollar and a fractional vote for each
fractional dollarperson listed below, as
it relates to his duties with PWM, is the same as that of NAVPWM.
NAME POSITION WITH PWM
- ---- -----------------
Robert Perkins.............. President, Manager
Gregory Wolf................ Chief Operating Officer
N. Theodore Hans............ Chief Compliance Officer
Jeffrey Kautz............... Chief Investment Officer, Manager
Gary Black*................. Manager
- ---------------
* Principal address is 151 Detroit Street, Denver, Colorado 80206.
Following the consummation of the applicable shares held in a shareholder's name
asPending Acquisition, the composition of
a record date. As a resultthe seven-person Board of Directors of PWM will consist of three representatives
from PWM and four representatives from Janus Capital.
SUMMARY OF THE CURRENT INVESTMENT ADVISORY AGREEMENT AND THE PROPOSED
SUBADVISORY AGREEMENT
A form of the proposed amendment, voting power would
be allocated in proportion to the value of each shareholder's investment rather
than on the number of shares owned. For the text of the proposed amendments, see
Article VI, Section 1 of the marked Trust InstrumentSubadvisory Agreement is attached to this Proxy
Statement as Exhibit C.
19
A. The original intentfollowing descriptions of the one share, one vote provision was to provide
equitable voting rights to all shareholders. Since establishment ofcurrent investment
advisory agreement between the Trust and adoptionJanus Capital and the proposed
Subadvisory Agreement are only summaries. You should refer to Exhibit A for the
text of the Trust Instrument, however,Subadvisory Agreement; the description of the Subadvisory Agreement
is qualified in its entirety by reference to Exhibit A.
DESCRIPTION OF THE CURRENT ADVISORY AGREEMENT
Janus Capital currently serves as investment adviser to the Portfolio
pursuant to the terms of an investment advisory agreement between the Trust, has established
additional Funds as well as share classes within certain Funds. Ason
behalf of the Record
Date, there were nineteen FundsPortfolio, and Janus Capital, dated July 1, 2004, (together with
any amendments thereto, the "Current Advisory Agreement"). The Current Advisory
Agreement continues in the Trust, eighteen of which consist of four
classes of shares and one of which consists of three classes of shares.
Separate votes are takeneffect from year to year so long as such continuance is
specifically approved annually by a Fund or class only if a matter affects or
requireseither the vote of only that Fund or class or if that Fund's or class'
interest in the matter differs from the interest of other Funds in the Trust. In
matters that affect the Trust as a whole, such as electing Trustees or amending
the Trust Instrument, shareholders vote on a Trust-wide basis. Under the current
Trust Instrument, a holder of lower-priced shares has a greater number of votes
on matters submitted to a Trust-wide vote than the holder of an equivalent
dollar amount of higher-priced shares. For example, a shareholder with a $10,000
investment in a Fund with an NAV of $5 per share currently would have twice as
many votes as a shareholder with a $10,000 investment in a Fund with an NAV of
$10 per share.
Under the Trust Instrument, as proposed to be amended, a shareholder's
voting power would be in direct proportion to the shareholder's dollar
investment. The Trustees believe that dollar-based voting, as proposed, provides
a more equitable distribution of voting rights, particularly for Trust-wide
votes, than the one-share, one-vote system currently in effect. The Board of Trustees has concluded thator the
proposed amendment to the Trust's Trust
Instrument is in the best interestsaffirmative vote of shareholders.
Information regarding the net assets of each class of shares of each Fund
asa 1940 Act Majority of the Record Date is shownoutstanding voting securities of
the Portfolio and, in Exhibit D to this Proxy Statement.
REQUIRED VOTE
Approval of Proposal 2.a. requireseither event, by the affirmative vote of a majority of the outstanding sharesTrustees
who are not parties to the Current Advisory Agreement or "interested persons"
(as defined by the 1940 Act) of any such party or the Trust voting("Independent
Trustees"), cast in person at a meeting called for such purpose. The Current
Advisory Agreement: (i) may be terminated, without penalty, by the Portfolio or
by proxy.
IfJanus Capital on 60 days' written notice; (ii) terminates automatically in the
proposal is not approved, the Trust Instrument will remain unchanged
and in effect with respect to provisions providing that voting is share-weighted
rather than dollar-weighted, as proposed.
THE BOARD OF TRUSTEES UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS VOTE FOR
PROPOSAL 2.A.
PROPOSAL 2.B. REORGANIZATION OF THE TRUST, ITS FUNDS OR CLASSES
Currently, the Trust Instrument requires shareholder approval in order to
reorganize the Trust or anyevent of its Funds or classes, except that to change the
Trust's form of organization the Trusteesassignment; and (iii) generally, may without shareholder approval: (i)
cause the
20
Trust to merge or consolidate with or into one or more entities, if the
surviving entity is the Trust or another open-end management investment company
under the 1940 Act, or a series thereof, that will succeed to or assume the
Trust's registration under the 1940 Act, or (ii) cause the Trust to incorporate
under the laws of Delaware.
The Board believes there may be other circumstances in which it would not be inamended without the
shareholders' best interests to require a shareholder meeting to
authorize a reorganization. For example, the Trustees may determine that it
would be in the best interests of shareholders to reorganize a particular Fund
(but not the entire Trust) into another registered investment company in an
attempt to achieve lower operating costs. As it now stands, the Trustees cannot
effectuate such a potentially beneficial reorganization without first conducting
a shareholder meeting and incurring attendant costs and delays. In contrast, the
proposed amendments to the Trust Instrument give the Trustees the flexibility to
merge, consolidate, reorganize or otherwise transfer assets of all or a portion
of the Trust or any of its Funds or classes and achieve potential shareholder
benefits without incurring the delay and potential costs of a proxy
solicitation. The Board also believes that such flexibility should help to
assure that the Trust and the Funds operate under the most appropriate form of
organization.
Any such transaction would be subject to applicable federal and state rules
and regulations. In the case of mergers or other reorganizations involving a
Fund and another fund managed or otherwise controlledapproval by JCM, under current SEC
rules, shareholder approval would still be required in many circumstances. For
example, shareholder approval would still be required when any fundamental
investment policy of the acquired fund was materially different from a policy of
the acquiring fund or when the terms of the acquiring fund's advisory contract
were materially different from that of the acquired fund. In all cases, the
proposed amendments require that applicable Fund shareholders receive prior
notification of any proposed transaction. For the text of the proposed
amendments, see Article X, Section 4 of the marked Trust Instrument attached to
this Proxy Statement as Exhibit C.
REQUIRED VOTE
Approval of Proposal 2.b. requires the affirmative vote of a majority of the outstanding shares of the Trust, voting in person or by proxy.
If the proposal is not approved, the Trust Instrument will remain unchanged
and in effect with respect to its current provisions regarding reorganizing the
Trust, a Fund or class.
THE BOARD OF TRUSTEES UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS VOTE FOR
PROPOSAL 2.B.
21
PROPOSAL 2.C. LIQUIDATION OF THE TRUST, A FUND OR A CLASS
The current Trust Instrument expressly permits the Trustees, without
shareholder approval, to terminate the Trust or any of its Funds ifincluding a majority of the
Independent Trustees, determines that continuationand, to the extent required by the 1940 Act, the vote of a
1940 Act Majority of the Trust or Fund is not in the
best interestsoutstanding voting securities of the Trust,Portfolio.
9
The Current Advisory Agreement was last re-approved by the Fund, or their respective shareholders as a
result of factors or events adversely affecting the ability of the Trust or the
Fund to conduct its business and operations in an economically viable manner.
The current Trust Instrument does not specifically state whether the Trustees
may elect to terminate one or more classes of a Fund without liquidating the
entire Fund. Also, the Trustees believe that there may be other circumstances,
such as when new legal constraints on Fund operations arise, in which it would
not be in the shareholders' best interests to require a shareholder meeting to
authorize a liquidation. As proposed, the Trust Instrument expressly permits the
Trustees to liquidate any one or more classes of a Fund (as well as a Trust or
Fund) under any circumstances that the Trustees determine to be in the best
interests of the Trust, Fund or class. Any such liquidation would be subject to
applicable federal and state rules and regulations. In all cases, the proposed
amendments require that applicable Fund shareholders receive prior notification
of any proposed transaction. The Board of
Trustees has concluded that the
proposed amendments to the Trust's Trust Instrument are in the best interestsat a meeting held on December 14, 2007. In conjunction with their
approval of the Trust'scontinuance of the Current Advisory Agreement, the Board noted
that at a meeting held on November 6, 2007, they had previously approved the
Subadvisory Agreement and that such new agreement would not take effect unless
approved by shareholders. ForA discussion of the textBoard's considerations and
recommendations concerning the Subadvisory Agreement at the November 6, 2007
board meeting follows below.
The Current Advisory Agreement provides that Janus Capital is entitled to
compensation for services provided thereunder at the annual rate of 0.74% of the
Portfolio's average daily net assets. The fee is computed daily and paid
monthly. You are being asked to approve changing this fixed-rate fee to a fee
that adjusts up or down based on the Portfolio's performance relative to its
benchmark index, the Russell 2000(R) Value Index, as described in Proposal 2.
DESCRIPTION OF THE PROPOSED SUBADVISORY AGREEMENT
Subadvisory Services. Under the terms of the proposed amendments, see Article X, Section 5Subadvisory
Agreement between Janus Capital and PWM, subject to the direction and control of
Janus Capital and the Board of Trustees, PWM will: (i) manage the investment
operations of the marked Trust Instrument attachedPortfolio; (ii) keep Janus Capital fully informed as to this Proxy Statementthe
valuation of assets of the Portfolio, its condition, investment decisions and
considerations; (iii) maintain all books and records required under federal
securities law relating to day-to-day portfolio management of the Portfolio;
(iv) perform certain limited related administrative functions; and (v) provide
the Trustees and Janus Capital with economic, operational, and investment data
and reports. Additionally, PWM will determine what securities and other assets
of the Portfolio will be acquired, held, disposed of or loaned, in conformity
with the investment objectives, policies, and restrictions established by the
Trustees and set forth in the Trust's registration statement.
Compensation. In return for the services to be provided under the
Subadvisory Agreement, PWM will be entitled to receive a subadvisory fee, paid
by Janus Capital, that is accrued daily and payable monthly at an annual rate
equal to 50% of the investment advisory fee otherwise payable by the Portfolio
to Janus Capital (calculated after any applicable performance fee adjustments,
fee waivers, and expense reimbursements). If the proposed Subadvisory Agreement
were currently in effect, Janus Capital would pay PWM an annual fee rate of
0.37% of average daily net assets (net of any fee waivers and expense
reimbursements).
The hiring of PWM as Exhibit C.
REQUIRED VOTE
Approvalsubadviser will have no effect on the terms of the
Current Advisory Agreement. PWM's subadvisory fee will be paid directly by Janus
Capital; however, shareholders should note that, if they approve the
performance-based investment advisory fee structure under Proposal 2.c. requires2 regarding
the fee paid by the Portfolio to Janus Capital, PWM's subadvisory fee rate will
also adjust up or
10
down in line with the performance fee, as Janus Capital will pay 50% of the
advisory fee it receives from the Portfolio to PWM.
During the most recent fiscal year ended December 31, 2007, the Portfolio
paid $139,074 (net of waivers) in advisory fees to Janus Capital. If the
Subadvisory Agreement had been in effect, PWM would have received $69,537 (net
of waivers) in subadvisory fees for that fiscal year, all paid by Janus Capital.
The following table summarizes the pro forma advisory fees (net of waivers)
based on the average net assets of the Portfolio that would have been paid by
JCM to PWM if the Subadvisory Agreement had been in effect for the fiscal year
ended December 31, 2007. This information assumes that the Performance
Adjustment (as described further under Proposal 2) would have been in effect
during the fiscal year and that it would have been calculated over the 36-month
period ended December 31, 2007. The last column indicates the percentage
increase or decrease of the fee that PWM would have received had the proposed
performance-based fee arrangement been in effect during the period.
AVERAGE NET ASSETS PRO FORMA % INCREASE(+) OR
(000'S) ADVISORY FEES DECREASE(-)
$19,537 $65,681 -5.6%
Liability. The Subadvisory Agreement provides that PWM, and any affiliate
of PWM performing services for the Portfolio contemplated thereunder (including
any managers, members, owners, directors, and officers of PWM and such
affiliates), 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 Portfolio, except for willful misfeasance, bad faith or gross
negligence in the performance of their respective duties, or by reason of
reckless disregard of their respective obligations and duties under the
Subadvisory Agreement, and except to the extent otherwise provided by law.
Term of the Agreement. Implementation of the Subadvisory Agreement is
contingent upon, and will become effective upon consummation of, the closing of
the Pending Acquisition, subject to certain other conditions. If approved, the
Subadvisory Agreement will be in effect for an initial term ending on February
1, 2010, and may continue in effect thereafter from year to year if such
continuance is specifically approved at least annually by either the Board of
Trustees or the affirmative vote of a 1940 Act Majority of the outstanding
voting securities of the Portfolio and, in either event, by the vote of a
majority of the outstanding sharesIndependent Trustees, cast in person at a meeting called for
such purpose.
Termination of the Trust,Agreement. The Subadvisory Agreement terminates
automatically in the event of its assignment or upon the termination of the
investment advisory agreement with Janus Capital. The Subadvisory Agreement may
be terminated at any time, without penalty, either by the shareholders of the
Portfolio acting by vote of at least a majority of its outstanding voting
in personsecurities, or by proxy.
If the proposalTrustees, provided in either case that 90 days' advance
written notice of termination be given to PWM at its principal place of
business. The Subadvisory Agreement
11
may also be terminated (i) by Janus Capital or by PWM at any time, without
penalty, by giving 90 days' advance written notice of termination to the other
party, or (ii) by Janus Capital or the Trust, without advance notice, if PWM
becomes unable to discharge its duties and obligations under the Subadvisory
Agreement.
BOARD APPROVAL AND RECOMMENDATION
The Trustees of Janus Aspen Series, all of whom are Independent Trustees
and none of whom has ever been affiliated with Janus Capital or PWM, considered
the proposed Subadvisory Agreement for the Portfolio. In the course of their
consideration of the Subadvisory Agreement, the Independent Trustees met in
executive session and were advised by their independent legal counsel. The
Independent Trustees received and reviewed a substantial amount of information
provided by Janus Capital and PWM in response to requests of the Independent
Trustees and their counsel. They also considered information provided by their
independent fee consultant. Based on their evaluation of that information and
other factors, on November 6, 2007, the Independent Trustees approved the
Subadvisory Agreement for the Portfolio, subject to shareholder approval. In
considering the Subadvisory Agreement and reaching their conclusions, the
Trustees reviewed and analyzed various factors that they determined were
relevant, including the factors described below.
Among other things, the Trustees considered:
(a) the representation of Janus Capital that there is not approved,expected to
be any diminution in the Trust Instrument will remain unchangednature, extent and quality of services provided to
the Portfolio and its shareholders;
(b) the experience of PWM as an asset management firm with the
capabilities, resources and personnel necessary to provide subadvisory
services to the Portfolio;
(c) the proposed responsibilities of PWM and the services to be
provided by it;
(d) the experience of PWM in effectmanaging other Janus funds, including
funds with similar investment objectives and strategies;
(e) the retention of the current portfolio manager for the day-to-day
management of the Portfolio;
(f) that the subadvisory fees to be paid to PWM by Janus Capital
appear to represent reasonable compensation in light of the services to be
provided;
(g) the terms and conditions of the Subadvisory Agreement; and
(h) the undertaking of Janus Capital and PWM to jointly bear the costs
of obtaining shareholder approval of the Subadvisory Agreement.
Certain of these considerations are discussed in more detail below.
12
NATURE, EXTENT AND QUALITY OF SERVICES
The Trustees' analysis of the nature, extent, and quality of PWM's proposed
services to the Portfolio took into account the investment objective and
strategies of the Portfolio and the knowledge the Trustees gained from their
regular meetings with PWM throughout prior years with respect to its current provisions regarding liquidatingother Janus
funds managed by PWM. In addition, the TrustTrustees reviewed PWM's resources and key
personnel, especially those who would be providing investment management
services to the Portfolio. The Trustees also considered other services to be
provided to the Portfolio by PWM. Janus Capital advised the Board of Trustees
that it expects that there will be no diminution in the scope and quality of
advisory services provided to the Portfolio as a result of the Pending
Acquisition or a Fund, butimplementation of the Subadvisory Agreement.
The Trustees concluded that the subadvisory relationship and arrangement
was not expressly permitting liquidationexpected to adversely affect the nature, extent or quality of a class, as
proposed.
THE BOARD OF TRUSTEES UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS VOTE FOR
PROPOSAL 2.C.
PROPOSAL 3: APPROVAL OF ELIMINATION OF FUNDAMENTAL
INVESTMENT POLICY FOR FLEXIBLE BOND PORTFOLIO
Flexible Bondservices
provided to the Portfolio, and that the Portfolio was likely to benefit from
services provided under the Subadvisory Agreement. They also concluded that the
quality of PWM's services to the other Janus funds for which PWM serves as
subadviser has been adequate. In reaching their conclusions, the Trustees
considered: (i) information provided by Janus Capital and PWM in connection with
the Trustees' consideration of the proposed Subadvisory Agreement; (ii) the key
factors identified in materials previously named Flexible Incomeprovided to the Trustees by their
independent counsel; (iii) that the current portfolio manager will continue to
handle the day-to-day management responsibilities for the Portfolio; and (iv)
that there will be no change in the overall investment strategies of the
Portfolio. In
accordance with a rule adoptedThey also concluded that PWM's financial condition was sound.
COSTS OF SERVICES TO BE PROVIDED
The Trustees considered the subadvisory fee rate and fee structure under
the proposed Subadvisory Agreement, as well as the overall fee structure of the
Portfolio. The Trustees examined the fee information and estimated expenses for
the Portfolio in comparison to information for other comparable funds, as
provided by Lipper, Inc. ("Lipper"), an independent provider of investment
company data.
The Trustees considered the SEC requiring a fundmethodology used by PWM in determining
compensation payable to adopt an 80%its portfolio managers and the competition for
investment policymanagement talent, and information provided by representatives of PWM
with respect to investments tiedhow the implementation of performance-based fees may impact that
methodology and its ability to a fund's name (the "names
rule"), Flexible Income Portfolio adopted a policy to normally invest at least
80%retain key employees. The Trustees also
considered that, other than the potential impact of its total assets in income-producing securities. Such policy was adopted
as a
22
fundamental policy. When Flexible Income Portfolio changed its name to Flexible
Bond Portfolio, in accordance with the names rule, it adopted a policy to
invest, under normal circumstances, at least 80% of its net assets in bonds.
This 80% policy was adopted as a non-fundamental policy and is in additionperformance fees, there will
be no change to the fundamental policyoverall fees paid by the Portfolio or services provided to
invest in income-producing securities. Bonds that
Flexible Bond Portfolio may invest in consist of mortgage-backed securities,
corporate bonds, government bonds, convertible bonds and zero coupon bonds.the Portfolio.
The Trustees concluded that the fee to be paid by Janus Capital to PWM was
reasonable in relation to the nature and JCM propose eliminating Flexible Bond Portfolio's fundamental
policy regarding investing 80%quality of total assets in income-producing securities.
Elimination of this fundamental policy requires shareholder approval.
The proposalthe services to eliminate Flexible Bond Portfolio's 80%be provided,
taking into account the fees charged by other advisers and subadvisers for
managing
13
comparable mutual funds with similar strategies and the fees PWM charges to
other Janus funds or clients with similar investment policy
regarding income-producing securities is designed to provide the Fund with
maximum flexibility to pursue its investment objective of maximizing total
return, consistent with preservation of capital, based primarily on investments
in bonds and to respond to an ever-changing investment environment. Flexible
Bond Portfolio intends to maintain its current investment objective and continue
to invest at least 80% of its net assets, under normal circumstances, in bonds.
Any change to Flexible Bond Portfolio's non-fundamental policy on bond
investments requires 60 days' prior notice to shareholders before
implementation.strategies.
INVESTMENT PERFORMANCE
The Trustees believenoted PWM's considerable investment management experience,
capabilities and resources. They also noted the past performance of other Janus
mutual funds which are managed by PWM, and other accounts having similar
investment objectives and strategies, but were unable to predict what effect, if
any, the engagement of PWM as subadviser would have on the future performance of
the Portfolio.
BENEFITS DERIVED FROM THE RELATIONSHIP WITH PWM
The Trustees also considered benefits that eliminating Flexible Bond Portfolio's policywould accrue to invest 80%the Portfolio
from its relationship with PWM. The Trustees concluded that, other than the
services to be provided by PWM pursuant to the proposed Subadvisory Agreement
and the fee to be paid indirectly by the Portfolio for such services, the
Portfolio, Janus Capital, and PWM may potentially benefit from their
relationship with one another in other ways. They also concluded that success of
total assets in income-producing securities istheir relationship could attract other business to Janus Capital and PWM or to
other Janus funds, and that the success of Janus Capital and PWM could enhance
each firm's ability to serve the Portfolio.
After full consideration of the above factors, as well as other factors,
the Trustees concluded that approving the proposed Subadvisory Agreement was in
the best interestsinterest of the Fund.Portfolio and its shareholders. The Trustees voted to
approve the Subadvisory Agreement and to recommend it to shareholders for their
approval.
REQUIRED VOTE
Approval of Proposal 3the Subadvisory Agreement requires the affirmative vote of a
1940 Act Majority of the securitiesPortfolio. Approval of Proposal 1 is contingent upon
the approval of both Proposals within this Proxy Statement, as well as upon the
approval of the same proposals by shareholders of Janus Adviser Small Company
Value Fund, with all share classes voting together with
respecta series of JAD, another registered investment company managed by
Janus Capital. Implementation of the Subadvisory Agreement is also contingent
upon the closing of the Pending Acquisition in addition to other conditions as
described in the Purchase Agreement or otherwise agreed to by Janus Capital and
PWM. If shareholders of the Portfolio do not approve the Proposal, or if any
other contingency is not met, Janus Capital will continue to be the sole adviser
to the Fund, eligible to be voted atPortfolio under the meeting.
On September 20, 2005,terms of the Current Advisory Agreement and the Board
of Trustees votedwill take such further action as it deems to approvebe in the eliminationbest interest
of Flexible Bond Portfolio's fundamental policy as described above.the Portfolio and its shareholders.
THE BOARDINDEPENDENT TRUSTEES OF TRUSTEESTHE TRUST UNANIMOUSLY RECOMMENDSRECOMMEND THAT SHAREHOLDERSYOU VOTE
"FOR" APPROVAL OF FLEXIBLE
BOND PORTFOLIO VOTE FOR APPROVAL TO ELIMINATE THE FUND'S FUNDAMENTAL 80%
INVESTMENT POLICY ON INCOME-PRODUCING SECURITIES.
23SUBADVISORY AGREEMENT.
14
PROPOSAL 4:2
APPROVE AMENDMENT TO INVESTMENT ADVISORY AGREEMENT PROPOSAL 4.A. APPROVE AMENDMENTSRELATED TO A FUND'SINTRODUCTION OF
PERFORMANCE INCENTIVE INVESTMENT ADVISORY AGREEMENT BETWEEN JCM ON BEHALF OF CERTAIN FUNDS
ThisFEE STRUCTURE FOR THE PORTFOLIO
INTRODUCTION
Janus Capital currently serves as investment adviser to the Portfolio
pursuant to the Current Advisory Agreement discussed above under Proposal 4.a. applies1, and
described further below.
The amendment to each Fund except Mid Capthe Current Advisory Agreement is being proposed in order
to change the Portfolio's advisory fee schedule from a fixed rate to a rate that
moves up or down based upon the performance of the Portfolio, relative to its
benchmark index, the Russell 2000(R) Value Portfolio,
Risk-Managed Core Portfolio, Risk-Managed Growth PortfolioIndex (the "Amended Advisory
Agreement"). The Trustees believe that moving to a performance incentive
investment advisory fee structure better aligns the interests of the Portfolio's
manager with those of the shareholders of the Portfolio.
The 1940 Act requires a vote of shareholders on matters that might have a
material effect on shareholders and Small Company
Valuetheir investments. Because changing the
terms of the investment advisory fee structure under the Current Advisory
Agreement is considered to be a material change to the Current Advisory
Agreement, you are being asked to approve an Amended Advisory Agreement for your
Portfolio. INTRODUCTION
On September 20, 2005,A form of the proposed Amended Advisory Agreement is attached to this
Proxy Statement as Exhibit B. The Board of Trustees approved certain amendments to
the Investment Advisory Agreement between the Trust, on behalf of certain Funds,
and JCM (the "Proposed Amended Advisory Agreements"), andhas authorized the
submission of those amendments to the applicable Funds' shareholders for their
approval. The primary purpose of these amendments is to conform to prevailing
industry practice. A description of the proposed amendments is provided in
further detail below under "Description of the Proposed Amended Advisory
Agreements." The proposed changes, on their face, may be considered "material"
changes requiring shareholder approval. Certain Funds' shareholders are also
being asked to approve a new Investment Advisory Agreement which, in addition to
incorporating the amendments discussed in Proposal 4.a., would contain a revised
fee schedule, as discussed in further detail under Proposal 4.b.
A copy of a form of Proposed Amended Advisory Agreement between JCM andto the Trust, on behalf of each equity or income Fund permitted to vote on this
Proposal 4.a., marked to show proposed revisions, is attached as Exhibit E to
this Proxy Statement. A copy of a form of Proposed Amended Advisory Agreement
between JCM and the Trust, on behalf of Money Market Portfolio, marked to show
proposed revisions, is attached as Exhibit F to this Proxy Statement.
JCM AS INVESTMENTPortfolio's shareholders for
approval.
INFORMATION CONCERNING THE ADVISER
JCM currentlyJanus Capital, 151 Detroit Street, Denver, Colorado 80206-4805, serves as the
investment adviser to each Fund pursuant to an
Investment Advisory Agreement between JCM and the Trust, on behalf of each Fund
(each, a "Current Advisory Agreement" and collectively, the "Current Advisory
Agreements"). JCMPortfolio. Janus Capital is a direct subsidiary of
Janus Capital Group Inc. ("JCG"),JCGI, a publicly-tradedpublicly traded company with principal operations in financial asset
management businesses. JCGbusinesses that had $187.6 billion in assets under management as of
March 31, 2008. JCGI owns approximately 95% of JCM,Janus Capital, with the remaining
5% held by Janus Management Holdings Corporation. The principal executive officers and
directors of JCM, located at 151 Detroit Street, Denver, Colorado 80206, and
their principal occupations are included in Exhibit G to this Proxy Statement.
Certain employees of JCMJanus
Capital and/or its affiliates serve as officers of the Trust. Certain officers
of the Trust and interested Trustees of the Trust are shareholders of JCG.
24
JCMJCGI.
Janus Capital (together with its predecessors) has served as an investment
adviser since 1970 and currently serves as investment adviser to all1970. As of March 31, 2008, the Janus Funds,
consistingfunds that Janus Capital
advises consisted of 6574 portfolios as of September 1, 2005, encompassingoffering a broad range of investment
objectives. JCMJanus Capital also serves as subadviser for a number of
private-label mutual funds and provides separate account advisory services for
institutional accounts.
As of , 2005, JCM had $ in assets under
management. JCM currently servesJanus Capital acts as an investment adviser or subadviser to other funds that
haveinvestment
companies with investment objectives and strategies similar to those of the
Portfo-
15
lio. Information on those similar investment objectives as the Funds, as described in detailcompanies is set forth in Exhibit HC
to this Proxy Statement.
DESCRIPTIONPrincipal Executive Officers and Directors of the Adviser. The principal
executive officers and directors of Janus Capital and their principal
occupations are included in Exhibit D to this Proxy Statement.
Trustees and Principal Executive Officers of the Trust. The Trustees and
principal executive officers of the Portfolio and their principal occupations,
including any positions with Janus Capital, are set forth in Exhibit E to this
Proxy Statement.
COMPARISON OF THE CURRENT AND AMENDED ADVISORY AGREEMENTS
Under eachThe terms of the Current Advisory Agreement JCMand the Amended Advisory
Agreement are substantially similar, except for the proposed change in fee
structure discussed below. Differences also include the dates of execution and
renewal. A description of the Current and Amended Advisory Agreements follows.
Advisory Services. The terms of the advisory services are the same under
the Current Advisory Agreement and the Amended Advisory Agreement.
Janus Capital provides each Fundthe Portfolio with continuing investment management
services. JCMJanus Capital is responsible for the day-to-day management of the
FundsPortfolio and providesfor providing continuous investment advice regarding the purchase
and sale of securities held by the Funds,Portfolio, subject to (i) the Trust's Amended
and Restated Trust Instrument Bylaws,and Bylaws; (ii) the investment objectives,
policies and restrictions set forth in each Fund'sthe Portfolio's registration statement,statement;
(iii) the provisions of the 1940 Act and the Internal Revenue Code of 1986, as
amended,amended; and (iv) such other policies and instructions as the Trustees may from
time to time determine. JCMIf shareholders approve Proposal 1, Janus Capital may
delegate certain of these duties to PWM, pursuant to the proposed Subadvisory
Agreement between Janus Capital and PWM. Janus Capital maintains a supervisory
role with respect to such delegation.
Janus Capital provides office space for the FundsPortfolio and pays the
salaries, fees, and expenses of all FundPortfolio officers (sharing certain expenses
and thosesalaries for the Portfolio's Chief Compliance Officer and other
compliance-related personnel as authorized by the Trustees who are considered interested
persons of JCM. JCM providesfrom time to time).
Janus Capital is also authorized to perform or delegate to others, such as PWM,
to perform certain administrative and other services and is responsible for the
other business affairs of all the Funds. JCMPortfolio. Janus Capital also provides certain
administrative services to the Trust pursuant to Administrative Services
Agreements between JCM and the Trust,Portfolio as described on page ofunder "Additional
Information About the Portfolio -- Other Portfolio Service Providers" in this
Proxy Statement.
The Funds payPortfolio pays all expenses incidentincidental to theirits organization, operations
and business not specifically assumed by JCM,Janus Capital, including custodian and
transfer agency fees and expenses, brokerage commissions and dealer spreads, and
other
16
expenses in connection with the execution of portfolio transactions, legal and
accounting expenses, interest, taxes, a portion of trade association or other
investment company organization dues and expenses, registration fees, expenses
of shareholders' meetings, and reports to shareholders, fees and expenses of
Independent Trustees, and other costs of complying with applicable laws
regulating the sale of FundPortfolio shares. Information concerning services provided by
Janus Distributors LLC ("Janus Distributors"), the Funds'Portfolio's distributor, and
Janus Services LLC ("Janus Services"), the Funds'Portfolio's transfer agent, each a
wholly-owned subsidiary of JCM,Janus Capital, and a description of any fees paid by
the FundsPortfolio to Janus Distributors and Janus Services, is provided on page ofincluded under
"Additional Information About the Portfolio -- Other Portfolio Service
Providers" in this Proxy Statement.
25
Pursuant to itsLiability. The Portfolio's Current and Amended Advisory Agreement, each Fund pays JCM anAgreements provide
that Janus Capital shall not be liable for any error of judgment or mistake of
law or for any loss arising out of any investment advisory feeor for its services, which is calculated daily and paid
monthly. The investment advisory fee paid by each Fund to JCM under its Current
Advisory Agreement is calculated at the following annual rate as a percentage of
each Fund's average daily net asset value.
FUND ANNUAL RATE
- ---- -----------
Foreign Stock Portfolio............. 0.64%
Forty Portfolio..................... 0.64%
Global Life Sciences Portfolio...... 0.64%
Global Technology Portfolio......... 0.64%
International Growth Portfolio...... 0.64%
Large Cap Growth Portfolio.......... 0.64%
Mid Cap Growth Portfolio............ 0.64%
Growth and Income Portfolio......... 0.62%
Core Equity Portfolio............... 0.60%
Worldwide Growth Portfolio.......... 0.60%
Balanced Portfolio.................. 0.55%
Flexible Bond Portfolio............. First $300 Million.... 0.55%
Over $300 Million.... 0.45%
Money Market Portfolio.............. 0.25%
Through May 1, 2007 for the Funds listed below (May 1, 2006 for Money
Market Portfolio), JCM has agreed by contract to waive its advisory fee payable
by each of these Funds in an amount equalany act or omission
taken with respect to the amount, if any, that such
Fund's normal operating expensesPortfolio, except for willful misfeasance, bad faith
or gross negligence in any fiscal year (including the investment
advisory fee, but excluding, as applicable, interest, taxes, brokerage
commissions, distribution (12b-1) feesperformance of its duties, or by reason of reckless
disregard of its obligations and extraordinary expenses) exceedduties under the following percentageagreement, and except to the
extent otherwise provided by law.
Termination of the Fund's average daily net asset value. JCM
anticipates continuing the fee waiver for Money Market Portfolio on a voluntary
basis after May 1, 2006. Mortality risk, expense riskAgreement. The Portfolio's Current and other charges imposed
by Participating Insurance Companies are also excluded from the expense
limitations noted.
Core Equity Portfolio.................................... 1.20%
Flexible Bond Portfolio.................................. 0.90%
Foreign Stock Portfolio.................................. 1.24%
Global Life Sciences Portfolio........................... 1.24%
Global Technology Portfolio.............................. 1.24%
Money Market Portfolio................................... 0.50%
26
The following table summarizes the advisory fees paid by the Funds to JCM
before any waivers and the amounts waived, if any, including any applicable
advisory fee waivers, for the fiscal year ended December 31, 2004.
ADVISORY FEES WAIVERS
FUND ($)(000'S) ($)(000'S)
- ---- ------------- ----------
Balanced Portfolio...................... 20,917 --
Core Equity Portfolio................... 65 30
Flexible Bond Portfolio................. 3,108 --
Foreign Stock Portfolio................. 86 --
Forty Portfolio......................... 5,927 --
Global Life Sciences Portfolio.......... 232 --
Global Technology Portfolio............. 1,239 --
Growth and Income Portfolio............. 519 --
International Growth Portfolio.......... 6,955 --
Large Cap Growth Portfolio.............. 10,672 --
Mid Cap Growth Portfolio................ 11,556 --
Money Market Portfolio.................. 36 36(1)
Worldwide Growth Portfolio.............. 21,736 --
- ---------------
(1) In addition to waiving all of its advisory fee, JCM also reimbursed the Fund
for other expenses that exceeded its expense limit.
At a meeting of the Trustees held on June 15, 2005, the Trustees, including
all of the Independent Trustees, approved the continuation of the CurrentAmended Advisory
Agreement for each Fund. Each Fund's Current Advisory Agreement
continuesAgreements continue in effect until July 1, 2006 and thereafter from year to year only so long as such continuance is
specifically approved at least annually by a majority of the Portfolio's Independent
Trustees, and by either a majority1940 Act Majority of the outstanding voting securities
of that Fundthe Portfolio or the Board of Trustees, of that Fund.
27
Eachcast in person at a meeting called
for such purpose. The Current Advisory Agreement:Agreement and the Amended Advisory
Agreement each: (i) may be terminated, without the payment
of any penalty, by JCM, the Trustees of the Trust,Portfolio or
by the shareholders of the
Fund acting by vote of at least a majority of its outstanding voting securitiesJanus Capital on 60 days' advance written notice; (ii) terminates automatically in the
event of its assignment; and (iii) generally, may not be amended without the
approval by vote of a majority of the Trustees, of the Fund, including a majority of the
Independent Trustees, and, to the extent required by the 1940 Act, the vote of a
majority1940 Act Majority of the outstanding voting securities of that Fund.the Portfolio.
Compensation. The table below
shows the datebase rate of each Current Advisory Agreement as well as the date each
Current Advisory Agreement was last submitted to a vote of shareholders and the
reasons for such submission.
DATE OF CURRENT DATE LAST SUBMITTED
FUND ADVISORY AGREEMENT TO SHAREHOLDERS
- ---- ------------------ -------------------
Balanced Portfolio........... July 1, 2004 January 31, 2002(1)
Core Equity Portfolio........ July 1, 2004 January 31, 2002(1)
Flexible Bond Portfolio...... July 1, 2004 January 31, 2002(1)
Foreign Stock Portfolio...... July 1, 2004 January 31, 2002(1)
Forty Portfolio.............. July 1, 2004 January 31, 2002(1)
Global Life Sciences
Portfolio.................. July 1, 2004 January 31, 2002(1)
Global Technology
Portfolio.................. July 1, 2004 January 31, 2002(1)
Growth and Income
Portfolio.................. July 1, 2004 January 31, 2002(1)
International Growth
Portfolio.................. July 1, 2004 January 31, 2002(1)
Large Cap Growth Portfolio... July 1, 2004 January 31, 2002(1)
Mid Cap Growth Portfolio..... July 1, 2004 January 31, 2002(1)
Money Market Portfolio....... April 3, 2002 January 31, 2002(1)
Worldwide Growth Portfolio... July 1, 2004 January 31, 2002(1)
- ---------------
(1) Approved by shareholders in connection with a transaction involving sale of
shares of JCM by Thomas H. Bailey resulting in a potential assignment of the investment advisory agreement.
DESCRIPTION OF THE PROPOSED AMENDED ADVISORY AGREEMENTS
Except forfee payable by the
proposed amendments toPortfolio is the Current Advisory Agreement for
each Fund as described below, and the effective dates and the renewal dates, the
terms of the Current Advisory Agreements and the Proposed Amended Advisory
Agreements are substantially similar. The same services will be provided under
the Proposed Amended Advisory Agreements as are provided under the Current
Advisory Agreements. For shareholders of Worldwide Growth Portfolio, one
additional change to your Fund's Current Advisory Agreement will be incorporated
into a new investment advisory agreement as discussed under Proposal 4.b. below.
28
What are the Significant Differences Between the Current Advisory Agreement and the Proposed Amended
Advisory Agreement?
The Current Advisory AgreementAgreement. In return for each applicable Fund does not expressly
provide that JCM will have investment discretion to manage the Fund's
investments. Rather, the Current Advisory Agreement provides that JCM will make
recommendations solely in an advisory capacity, with the Trust retaining control
over its investment policies. The Proposed Amended Advisory Agreement would
remove references to JCM acting solely in an advisory capacity and clarify that
JCM has authority to act on its investment recommendations and execute
transactions on behalf of the Funds.
Although, as a technical matter, these amendments will increase the scope
of JCM's authority, they are not expected to result in a significant change in
the way the Funds' investments are managed. Although each portfolio manager is
an employee of JCM, in accordance with the terms ofservices provided under the Current
Advisory Agreement, the Trustees have previously elected each Fund's portfolio manager as
a Fund officer. As such, each portfolio manager has been authorized to place
orders to purchasePortfolio pays Janus Capital an investment advisory fee
that is calculated daily and sell Fund investments. When actingpaid monthly based on matters affecting
their Fund, the portfolio manager(s) is acting in their dual role as a Fund
officer and employee of JCM. The proposed amendments are consistent with
recommendations made by an independent compliance consultant engaged by JCM.
Shareholders of Mid Cap Value Portfolio, Risk-Managed Core Portfolio,
Risk-Managed Growth Portfolio and Small Company Value Portfolio are not being
asked to vote on Proposal 4.a. as the Current Advisory Agreement between JCM and
the Trust on behalf of each of these Funds already contains the recommended
changes.
BOARD APPROVAL AND RECOMMENDATION
On September 20, 2005, the Board of Trustees, including allaverage daily net assets
of the Independent Trustees, voted unanimously to approvePortfolio, calculated at the Proposedannual rate of 0.74%. However, under the
Amended Advisory Agreement, for each applicable Fund and authorized the submission of each
Proposed Amended Advisory Agreementbase fee would be subject to adjustment up or
down based on the Portfolio's performance relative to its benchmark index, the
Russell 2000(R) Value Index. The proposed performance-based fee structure is
described below.
Janus Capital has agreed by contract to waive the advisory fee payable by
the Portfolio in an amount equal to the Fund's shareholders for approval.
In approvingamount, if any, by which the proposed amendments to each of the Current Advisory
Agreements, the Trustees considered the recommendations of the independent
compliance consultant engaged by JCM regarding the form of each of those
agreements and concluded that the proposed changePortfolio's
normal operating expenses in the description of the
authority of JCM would be more consistent with industry practice and would
reflect an appropriate delegation of authority to JCM.
In connection with their most recent consideration ofany fiscal year exceed 1.34%, including the
investment advisory agreements for all offee, but excluding the Funds,distribution and shareholder
servicing fees, adminis-
17
trative services fees, and items not normally considered operating expenses,
such as brokerage commissions, interest, dividends, taxes, and extraordinary
expenses including, but not limited to, acquired fund fees and expenses. Janus
Capital has agreed to continue the Trustees received and reviewed a
substantial amount of information provided by JCM and the respective subadvisers
for sub-advised Funds in response to requests of the Independent Trustees and
their
29
counsel. They also received and reviewed a considerable amount of information
and analysis provided to the Trustees by their independent fee consultant.
Throughout their consideration of the agreements, the Independent Trustees were
advised by their independent legal counsel. The Independent Trustees met on two
separate occasions with JCM management to consider the agreements, and at each
of those meetings they also met separately in executive session with their
counsel.
Based on their evaluation of the information provided by JCM, subadvisers
and the independent fee consultant and other information, the Trustees
determined that the overall arrangements between the Funds and JCM were fair and
reasonable in light of the nature and quality of the services provided by JCM,
its affiliates and the subadvisers, the fees charged for those services, and
other matters that the Trustees considered relevant in the exercise of their
business judgment.
In considering the agreements, the Trustees reviewed and analyzed various
factors that they determined were relevant, including the factors described
below, none of which by itself was considered dispositive. However, the material
factors and conclusions that formed the basis for the Trustees' determination to
approve the agreements are discussed separately below.
NATURE, EXTENT AND QUALITY OF SERVICES
The Trustees reviewed the nature, extent and quality of the services of JCM
and the subadvisers to the Funds, taking into account the investment objective
and strategy of each Fund and the knowledge the Trustees gained from their
regular meetings with management onwaiver until at least a quarterly basis. In addition, the
Trustees reviewed the resources and key personnel of JCM and subadvisers,
especially those who provide investment management services to the Funds.May 1, 2009.
Additional Information. The
Trustees also considered other services provided to the Funds by JCM or
subadvisers, such as managing the execution of portfolio transactions and the
selection of broker-dealers for those transactions, serving as the Funds'
administrator, monitoring adherence to the Funds' investment restrictions,
producing shareholder reports, providing support services for the Trustees and
Trustee committees and overseeing the activities of other service providers,
including monitoring compliance with various policies and procedures of the
Funds and with applicable securities laws and regulations. The Trustees also
reviewed the enhanced compliance program of JCM and the actions taken by JCM in
response to various legal and regulatory proceedings since the fall of 2003.
The Trustees concluded that the nature, extent and quality of the services
provided by JCM or subadviser to each Fund were appropriate and consistent with
the terms of the respective advisory agreements, that the quality of those
services had been consistent with or superior to quality norms in the industry
and that the Funds were likely to benefit from the continued provision of those
services. They also concluded that JCM and each subadviser had sufficient
personnel, with the
30
appropriate education and experience, to serve the Funds effectively and had
demonstrated its continuing ability to attract and retain well-qualified
personnel.
PERFORMANCE OF THE FUNDS
The Trustees considered the short-term and longer term performance of each
Fund. They reviewed information comparing each Fund's performance with the
performance of comparable funds and peer groups identified by Lipper Inc.
("Lipper") and with the Fund's benchmark. They concluded that the performance of
most Funds was good to very good. Although the performance of some Funds lagged
that of their peers for certain periods, they also concluded that JCM had taken
appropriate steps to address the under-performance and that the more recent
performance of most of those Funds had been improving.
COSTS OF SERVICES PROVIDED
The Trustees examined information on the fees and expenses of each Fund in
comparison to information for other comparable funds as provided by Lipper. They
noted that the rate of management fees for each Fund, after contractual expense
limitations, was below the mean management fee rate of the respective peer group
of funds selected by Lipper and for more than two-thirds of the Funds was in the
lowest cost quartile.
The Trustees considered the methodology used by JCM in determining
compensation payable to portfolio managers, the very competitive environment for
investment management talent and the competitive market for mutual funds in
different distribution channels.
The Trustees also reviewed JCM's management fees for its separate account
clients and for its sub-advised funds (for which JCM provides only portfolio
management services). Although in most instances sub-advisory and separate
account fee rates for various investment strategies were lower than management
fees for Funds having a similar strategy, the Trustees noted that JCM performs
significant additional services for the Funds that it does not provide to those
other clients, including administrative services, oversight of the Funds' other
service providers, trustee support, regulatory compliance and numerous other
services. Moreover, they noted that the spread between the average fees charged
to the Funds and the fees that JCM charged to its separate account clients was
significantly smaller than the average spread for such fees of other advisers,
based on publicly available data and research conducted by their independent fee
consultant.
The Trustees also considered the profitability to JCM and its affiliates of
their relationships with each Fund and found JCM's profitability not to be
unreasonable.
Finally, the Trustees considered the financial condition of JCM, which they
found to be sound.
31
The Trustees concluded that the management fees and other compensation
payable by each Fund to JCM and its affiliates, as well as the fees paid by JCM
to the subadvisers of sub-advised Funds, were reasonable in relation to the
nature and quality of the services provided, taking into account the fees
charged by other advisers for managing comparable mutual funds with similar
strategies and the fees JCM charges to other clients. The Trustees also
concluded that the overall expense ratio of each Fund was reasonable, taking
into account the size of the Fund, the quality of services provided by JCM, the
investment performance of the Fund and the expense limitations agreed to by JCM.
ECONOMIES OF SCALE
The Trustees received and considered information about the potential of JCM
to experience economies of scale as the assets of the Funds increase. They noted
that, although each Fund pays an advisory fee at a fixed rate as a percentage of
net assets, without any breakpoints, the management fee paid by each Fund, after
contractual expense limitations was below the mean management fee rate of the
Fund's peer group selected by Lipper; and, for those Funds whose expenses are
being reduced by the contractual expense limitations of JCM, JCM is subsidizing
the Funds because they have not reached adequate scale. Moreover, as the assets
of many of the Funds have declined in the past few years, the Funds have
benefited from having advisory fee rates that have remained constant rather than
increasing as assets decline. The Trustees also noted that the Funds share
directly in economies of scale through lower charges of third-party service
providers based on the combined scale of all of the Funds. Based on all of the
information they reviewed, the Trustees concluded that the fee structure in each
of the advisory agreements was reasonable and that the current rates of fees do
reflect a sharing between JCM and the Fund of economies of scale at the current
asset level of the Fund.
OTHER BENEFITS TO THE ADVISER
The Trustees also considered benefits that accrue to JCM and its affiliates
from their relationship with the Funds. They recognized that affiliates of JCM
separately serve the Funds as transfer agent and distributor, respectively. The
Trustees also considered JCM's use of commissions paid by most Funds on their
portfolio brokerage transactions to obtain proprietary research products and
services benefiting the Funds and/or other clients of JCM, as well as JCM's
agreement not to use any Fund's portfolio brokerage transactions to obtain third
party research through brokers. The Trustees concluded that JCM's use of "soft"
commission dollars to obtain proprietary research products and services was
consistent with regulatory requirements and was likely to benefit the Funds. The
Trustees also concluded that, other than the services provided by JCM and its
affiliates pursuant to the agreements and the fees to be paid by each Fund
therefore, the Funds and JCM may potentially benefit from their relationship
with each other in other ways.
32
They concluded that JCM benefits from the receipt of proprietary research
products and services acquired through commissions paid on portfolio
transactions of the Funds and that the Funds benefit from JCM's receipt of those
products and services, as well as research products and services acquired
through commissions paid by other clients of JCM. They further concluded that
success of each Fund could attract other business to JCM or its other Funds and
that the success of JCM could enhance JCM's ability to serve the Funds.
After full consideration of the above factors as well as other factors, the
Trustees, including all of the Independent Trustees, concluded that the
investment advisory agreement for each Fund was in the best interest of the Fund
and its shareholders.
REQUIRED VOTE
Approval of Proposal 4.a. as to each applicable Fund requires a 1940 Act
Majority of that Fund. If shareholders of a Fund do not approve the Proposed
Amended Advisory Agreement for the Fund, JCM would continue as the Fund's
investment adviser under the terms of the Current Advisory Agreement, with the
Fund. If shareholders approve the Proposed Amended Advisory Agreement for the
Fund, the amendments are expected to become effective on January 1, 2006.
THE BOARD OF TRUSTEES, INCLUDING ALL OF THE INDEPENDENT TRUSTEES,
UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS OF EACH APPLICABLE FUND VOTE FOR
APPROVAL OF THE PROPOSED AMENDED ADVISORY AGREEMENT FOR THEIR FUND.
PROPOSAL 4.B. APPROVE A NEW INVESTMENT ADVISORY AGREEMENT
BETWEEN JCM AND THE TRUST ON BEHALF OF CERTAIN FUNDS THAT WOULD
INTRODUCE A PERFORMANCE INCENTIVE INVESTMENT ADVISORY FEE STRUCTURE FOR THE
FUNDS
This Proposal 4.b. applies to shareholders of Mid Cap Value Portfolio,
Risk-Managed Core Portfolio and Worldwide Growth Portfolio.
INTRODUCTION
On September 20, 2005, the Board of Trustees approved a new Investment
Advisory Agreement ("Proposed New Advisory Agreement") for shareholders of each
of Mid Cap Value Portfolio, Risk-Managed Core Portfolio and Worldwide Growth
Portfolio that changes the annual rate for fees paid to JCM by each Fund
pursuant to an investment advisory agreement dated July 1,
2004, between JCM and
the Trust, on behalf of each Fund ("Current Advisory Agreement") from a fixed-
rate fee to one that adjusts upward or downward based upon a Fund's performance
relative to its benchmark. Such a change in fee structure requires shareholder
approval. The Board of Trustees authorized the submission of the Proposed New
Advisory Agreement to shareholders of the applicable Funds for their approval.
33
A copy of a form of the Proposed New Advisory Agreement for Worldwide
Growth Portfolio is attached as Exhibit I to this Proxy Statement. A copy of a
form of the Proposed New Advisory Agreement for Mid Cap Value Portfolio and
Risk-Managed Core Portfolio is attached as Exhibit J to this Proxy Statement.
The proposal to modify the fee schedule in each Fund's Current Advisory
Agreement and institute the proposed performance-based advisory fee is designed
to more closely align JCM's interests with those of the Funds' shareholders. The
investment advisory fee shareholders pay to JCM decreases when the Fund is not
performing well relative to its benchmark and increases during periods when the
Fund outperforms its benchmark. In addition, JCM believes that the proposed
advisory fee structure will enable it to maintain the quality of services it
providesamended June 14, 2006, was last submitted to the Funds and to attract and retain talented investment personnel.
JCM AS INVESTMENT ADVISER
JCM currently serves as the investment adviser to each Fund pursuant to an
Investment Advisory Agreement between JCM and the Trust, on behalf of each Fund
(each, a "Current Advisory Agreement" and collectively, the "Current Advisory
Agreements"). JCM is a direct subsidiary of Janus Capital Group Inc. ("JCG"), a
publicly-traded company with principal operations in financial asset management
businesses. JCG owns approximately 95% of JCM, with the remaining 5% held by
Janus Management Holdings Corporation. The principal executive officers and
directors of JCM, located at 151 Detroit Street, Denver, Colorado 80206, and
their principal occupations are included in Exhibit G to this Proxy Statement.
Certain employees of JCM and/or its affiliates serve as officers of the Trust.
Certain officers of the Trust and interested Trustees of the Trust are
shareholders of JCG.
JCM (together with its predecessors) has served as an investment adviser
since 1970 and currently serves as investment adviser to all of the Janus Funds,
consisting of 65 portfolios as of September 1, 2005, encompassing a broad range
of investment objectives. JCM also serves as subadviser for a number of
private-label mutual funds and provides separate account advisory services for
institutional accounts. As of, 2005, JCM had $ in assets under management. JCM
currently serves as an investment adviser to other funds that have similar
investment objectives as the Funds, as described in detail in Exhibit H to this
Proxy Statement.
DESCRIPTION OF THE CURRENT ADVISORY AGREEMENT
Under each Current Advisory Agreement, JCM provides each Fund with
continuing investment management services. For Worldwide Growth Portfolio, JCM
is responsible for the day-to-day management of the Fund and provides continuous
investment advice regarding the purchase and sale of securities held by the
Fund, subject to the Trust's Trust Instrument, Bylaws, the investment objec-
34
tives, policies and restrictions set forth in each Fund's registration
statement, the provisions of the 1940 Act and the Internal Revenue Code of 1986,
as amended, and such policies and instructions as the Trustees may determine.
For Risk-Managed Core Portfolio, JCM has delegated these responsibilities to
Enhanced Investment Technologies, LLC ("INTECH") pursuant to a subadvisory
agreement between JCM, on behalf of the Fund, and INTECH. For Mid Cap Value
Portfolio, JCM has delegated these responsibilities to Perkins, Wolf, McDonnell
and Company, LLC ("Perkins") pursuant to a subadvisory agreement between JCM, on
behalf of the Fund, and Perkins. JCM maintains a supervisory role with respect
to such delegation to each of INTECH and Perkins.
JCM provides office space for the Funds and pays the salaries, fees and
expenses of all Fund officers and those Trustees who are considered interested
persons of JCM. JCM provides certain administrative and other services and is
responsible for the other business affairs of all the Funds. JCM has delegated
certain of these duties to INTECH and Perkins with respect to the Fund each
manages pursuant to the subadvisory agreement between JCM and each of INTECH and
Perkins. JCM also provides certain administrative services to the Trust pursuant
to an Administrative Services Agreement between JCM and the Trust, described in
greater detail on page of this Proxy Statement.
[UPDATE] The Funds pay all expenses incident to their organization,
operations and business not specifically assumed by JCM, including custodian and
transfer agency fees and expenses, brokerage commissions and dealer spreads and
other expensesinitial shareholder in
connection with the executionPortfolio's commencement of portfolio transactions, legal
and accounting expenses, interest, taxes, a portion of trade association or
other investment company organization dues and expenses, registration fees,
expenses of shareholders' meetings and reports to shareholders, fees and
expenses of Independent Trustees, and other costs of complying with applicable
laws regulating the sale of Fund shares. Information concerning services
provided by Janus Distributors, the Funds' distributor, and Janus Services, the
Funds' transfer agent, and a description of any fees paid by the Funds to Janus
Distributors and Janus Services is provided on page of this Proxy Statement.operations. At a meeting of the
Trustees held on June 15, 2005,December 14, 2007, the Trustees, including
all of the Independent Trustees approved the continuation of
the Current Advisory Agreement for each Fund. Each Fund'sthrough February 1, 2009. In conjunction with
their approval of the continuance of the Current Advisory Agreement, continuesthe Board
noted that at a meeting held on November 6, 2007, they had previously approved
the Amended Advisory Agreement and that such new agreement would not take effect
unless approved by shareholders. A discussion of the Board's considerations and
recommendations concerning the Amended Advisory Agreement at the November 6,
2007 board meeting follows below.
The implementation of the Amended Advisory Agreement is contingent upon the
closing of the Pending Acquisition, and the performance-based advisory fee
structure is expected to become effective on the first day of the month
following the approval, subject to certain other conditions. The Current
Advisory Agreement will be in effect until Julyit terminates in accordance with its
terms, including or until the Amended Advisory Agreement becomes effective. If
approved, the Amended Advisory Agreement will be in effect for an initial term
ending on February 1, 20062009, and may continue in effect thereafter from year to
year only so
long asif such continuancecontinuation is specifically approved at least annually by either
the Board of Trustees or the affirmative vote of a majority of the
Independent Trustees, and by either a majority1940 Act Majority of the
outstanding voting securities of that Fund or the Trustees of that Fund.
35
Each Current Advisory Agreement: (i) may be terminated without the payment
of any penaltyPortfolio and, in either event, by JCM, 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
on 60 days' advance written notice; (ii) terminates automatically in the event
of its assignment; and (iii) generally, may not be amended without the approval
by vote of a majority of the Trustees of the Fund, including a majority of the
Independent Trustees and, to the extent required by the 1940 Act, the vote
of a majority of the outstanding voting securities of that Fund. The table below
shows the date of each Current Advisory Agreement, the date each Current
Advisory Agreement was last submitted toIndependent Trustees, cast in person at a vote of shareholders and the reasonsmeeting called
for such submission.
DATE OF CURRENT DATE LAST SUBMITTED TO
FUND ADVISORY AGREEMENT SHAREHOLDERS
- ---- ------------------ ----------------------
Mid Cap Value Portfolio............ July 1, 2004 December 31, 2002(1)
Risk-Managed Core Portfolio........ July 1, 2004 December 31, 2002(1)
Worldwide Growth Portfolio......... July 1, 2004 January 31, 2002(2)
- ---------------
(1) Approved by the initial shareholder in connection with the Fund's
commencement of operations.
(2) Approved by shareholders in connection with a transaction involving sale of
shares of JCM by Thomas H. Bailey resulting in a potential assignment of the
investment advisory agreement
DESCRIPTION OF CURRENT ADVISORY FEE
Pursuant to its Current Advisory Agreement, each Fund pays JCM an
investment advisory fee for its services, which is calculated daily and paid
monthly. The investment advisory fee paid by each Fund to JCM under its Current
Advisory Agreement is calculated at the following annual rates as a percentage
of each Fund's average daily net asset value:
FUND ANNUAL RATE
- ---- -----------
Mid Cap Value Portfolio(1)......................... 0.64%
Risk-Managed Core Portfolio(2)..................... 0.50%
Worldwide Growth Portfolio......................... 0.60%
- ---------------
(1) This amount is reduced by the amount payable by Mid Cap Value Portfolio to
Perkins, the subadviser to Mid Cap Value Portfolio, pursuant to a Sub-
Advisory Agreement between JCM and Perkins. Under this Sub-Advisory
Agreement, Mid Cap Value Portfolio pays Perkins a fee equal to 50% of the
advisory fee payable by the Fund to JCM (net of any reimbursements of
expenses incurred or fees waived by JCM). For the fiscal year ended Decem-
36
ber 31, 2004, the Fund paid Perkins a subadvisory fee at the annual rate of
0.32% of the Fund's average daily net assets.
(2) JCM, and not Risk-Managed Core Portfolio, pays INTECH a fee for its services
provided pursuant to a Sub-Advisory Agreement between JCM, on behalf of the
Fund, and INTECH, at an annual rate of 0.26% of the Fund's average daily net
assets.
Through May 1, 2007 for Mid Cap Value Portfolio and Risk-Managed Core
Portfolio, JCM has agreed by contract to waive its advisory fee payable by each
of these Funds in an amount equal to the amount, if any, that such Fund's normal
operating expenses in any fiscal year (including the investment advisory fee,
but excluding, as applicable, interest, taxes, brokerage commissions,
distribution (12b-1) fees and extraordinary expenses) exceed the following
percentage of the Fund's average daily net asset value. Mortality risk, expense
risk and other charges imposed by Participating Insurance Companies are also
excluded from the expense limitations noted.
Mid Cap Value Portfolio.................................. 1.24%
Risk-Managed Core Portfolio.............................. 1.10%
The following table summarizes the advisory fees paid by the Funds to JCM
before any waivers and the amounts waived, if any, including any applicable
advisory fee waivers, for the fiscal year ended December 31, 2004.
ADVISORY FEES WAIVERS
($)(000'S) ($)(000'S)
------------- ----------
Mid Cap Value Portfolio(1).............. 218 --
Risk-Managed Core Portfolio(1).......... 86 --
Worldwide Growth Portfolio(1)........... 21,736 --
- ---------------
(1) DISCUSS SYNTHETIC PERFORMANCE FOR PERIODS PRIOR TO COMMENCEMENT OF SERVICE
SHARES.
37
The following table summarizes the pro forma advisory fees based on the net
assets of each Fund as of its fiscal year end that would have been paid by the
Funds to JCM under the Proposed New Advisory Agreements before any waivers and
the amounts that would have been waived, including any applicable advisory fee
waivers, for the fiscal year ended December 31, 2004. This information assumes
that the performance adjustment (as described below) would have been in effect
during the fiscal year and that it would have been calculated over a full 36
month performance period. The last column indicates the percentage increase or
decrease of the fee that JCM would have received (net of any waivers currently
in effect) had the proposed performance-based fee arrangement been in effect
during the period.
PRO FORMA
NET ASSETS ADVISORY FEES WAIVERS % INCREASE
FUND ($) (000'S) ($) (000'S) ($) OR DECREASE
- ---- ----------- ------------- ------- -----------
Mid Cap Value
Portfolio.......... 41,564 208 0 (4.89)%
Risk-Managed Core
Portfolio.......... 20,680 89 0 3.27%
Worldwide Growth
Portfolio.......... 2,727,930 21,712 0 (0.11)%
purpose.
DESCRIPTION OF THE PROPOSED NEW ADVISORY AGREEMENTS
Except forPERFORMANCE FEE STRUCTURE
Under the proposed change in fee structure discussed below andAmended Advisory Agreement, the
changes discussed under Proposal 4.a. above that apply to Worldwide Growth
Portfolio, the terms of the Current Advisory Agreements and the Proposed New
Advisory Agreements are substantially similar, except for the effective dates
and renewal dates. It is anticipated that the same services will be provided
under the Proposed New Advisory Agreements as are provided under the Current
Advisory Agreements.
The proposed investment advisory fee
rate to be paid to JCMJanus Capital by each Fundthe Portfolio will consist of two components: (1)
a base management fee equalcalculated by applying the current contractual fixed-rate advisory
fee of 0.74% to a specified
annual fixed-rate fee, applied against the Fund'sPortfolio's average daily net assets calculated overduring the previous
month for which the base fee is paid ("Base Fee"), plus or minus (2) a performance feeperformance-fee adjustment ("Performance
Adjustment") calculated by applying a variable rate of up to 0.15%, applied against (positive or
negative) to the Fund'sPortfolio's average daily net assets calculated over a
rollingduring the applicable
performance measurement period. The performance measurement period generally
will be the previous 36 month period, except that (i)months, although no performance adjustmentPerformance Adjustment will be made
until a Proposed Newthe Amended Advisory Agreement has been in effect for at least 12 months and (ii) when a Proposed Newmonths.
When the Amended Advisory Agreement has been in effect for at least 12 months,
but less than 36 months, the performance measurement period will be equal to the
time that has elapsed since the Proposed NewAmended Advisory Agreement took effect. 38
For each Fund, theThe Base
Fee is the same as the annual fixed-rate fee paid
to JCM by the Fund under its Current Advisory Agreement.calculated and accrued daily. The Performance Adjustment is calculated
monthly in
18
arrears and is accrued evenly each day throughout the month. The investment
advisory fee is paid monthly in arrears.
The Performance Adjustment may result in an increase or decrease in the
investment advisory fee rate paid by a Fundthe Portfolio, depending uponon the investment
performance of the FundPortfolio relative to its primary benchmark index, the Russell
2000(R) Value Index, over the performance measuringmeasurement period. No Performance
Adjustment will be applied unless the difference between the Portfolio's
investment performance and the cumulative investment record of the Russell
2000(R) Value Index is 0.50% or greater (positive or negative) during the
applicable performance measurement period. Because the Performance Adjustment is
tied to the Portfolio's performance relative to its benchmark index (and not its
absolute performance), the Performance Adjustment could increase Janus Capital's
fee even if the Portfolio's shares lose value during the performance measurement
period, and could decrease Janus Capital's fee even if the Portfolio's shares
increase in value during the performance measurement period. For purposes of
computing the Base Fee and the Performance Adjustment, net assets arewill be
averaged over different periods (average daily net assets during the previous
month for the Base Fee, versus average daily net assets overduring the performance
measuringmeasurement period for the Performance Adjustment). For purposesPerformance of the Portfolio
is calculated net of expenses, whereas the Portfolio's benchmark index does not
have any fees or expenses. Reinvestment of dividends and distributions are
included in calculating the performance of both the Portfolio and the Russell
2000(R) Value Index.
Should the Trustees subsequently decide to divide shares of the Portfolio
into two or more separate classes, the Performance Adjustment for a Fund,will be calculated
using the investment performance of the Fund's
Service Shares for the measuring period will be used.oldest class of shares. After JCMJanus
Capital determines whether a particular Fund'sthe Portfolio's performance was above or below its benchmark indexthe
Russell 2000(R) Value Index by comparing the investment performance of the
Fund's
Service SharesPortfolio's oldest share class against the cumulative investment record of that Fund's benchmark index, JCMthe
Russell 2000(R) Value Index, Janus Capital will apply the same performance adjustmentPerformance
Adjustment (positive or negative) across all
share classeseach other class of that Fund.shares of the
Portfolio.
The Trustees may determine that a class of shares of a Fundthe Portfolio other
than Service Sharesthe oldest class of shares is the most appropriate for use in calculating
the Performance Adjustment. If a different class of shares is substituted in
calculating the Performance Adjustment, the use of that successor class of
shares for purposes of calculating the Performance Adjustment may apply to the entire performance measurement period so long as suchthe
successor class was outstanding at the beginning of such period. InIf the event that such
successor class of shares was not outstanding for all or a portion of the
performance measuringmeasurement period, it may only be used in calculating that portion
of the Performance Adjustment attributable to the period during which suchthe
successor class was outstanding, and any prior portion of the performance
measuringmeasurement period shallwould be calculated using the class of shares previously
designated. Any change to the class of shares used to calculate the Performance
Adjustment is subject to applicable law. It is currently the position of the
staff of the SEC (the "Staff") that any changes to a class of shares selected
for
19
purposes of calculating the Performance Adjustment will require shareholder
approval. If there is a change in the Staff's position, the Trustees intend to
notify shareholders of such change in position at such time as the Trustees may
determine that a change in such selected class is appropriate.
As previously noted, the Portfolio's benchmark index is the Russell 2000(R)
Value Index. This index measures the performance of those Russell 2000(R)
companies with lower price-to-book ratios and lower forecasted growth values.
The Trustees may from time to time determine that another securities index is a
more appropriate benchmark than a particular Fund's benchmark index as
identified below for each Fund, for purposes of evaluating the performance of
that Fund.the Portfolio. In suchthat event, the Trustees will substituteapprove the substitution of a
successor index for the Fund'sPortfolio's benchmark index. However, the calculation of
the Performance Adjustment for any portion of the performance measurement period
prior to the adoption of the successor index will still be based upon the
Fund'sPortfolio's performance compared to its former benchmark index. Any change to
a particular Fund'sthe Portfolio's benchmark index for purposes of calculating the Performance
Adjustment is subject to applicable law. It is currently the position of the
Staff that any changes to the Portfolio's benchmark index will require
shareholder approval. If there is a change in the Staff's position, the Trustees
intend to notify shareholders of such change in position at such time as the
Trustees may determine that a change in the Portfolio's benchmark index is
appropriate.
It is not possible to predict the effect of the Performance Adjustment on
future overall compensation to Janus Capital since it will depend on the
performance of the Portfolio relative to the record of the Portfolio's benchmark
index and future changes to the size of the Portfolio.
If the average daily net assets of the Portfolio remain constant during a
36-month performance measurement period, current net assets will be the same as
average net assets over the performance measurement period and the maximum
Performance Adjustment will be equivalent to 0.15% of current net assets. When
current net assets vary from average net assets over the 36-month performance
measurement period, the Performance Adjustment, as a percentage of current
assets, may vary significantly, including at a rate more or less than 0.15%,
depending upon whether the net assets of the Portfolio had been increasing or
decreasing (and the amount of such increase or decrease) during the performance
measurement period. Note that if net assets for the Portfolio were increasing
during the performance measurement period, the total performance fee paid,
measured in dollars, would be more than if the Portfolio had not increased its
net assets during the performance measurement period.
Suppose, for example, that the Performance Adjustment was being computed
after the assets of the Portfolio had been shrinking. Applying the proposed
monthly Base Fee of 1/12th of 0.74% of average daily net assets during the
previous month, assume that average daily net assets during the 36-month
performance measurement period were $500 million, but that average daily net
assets during the preceding month were just $200 million.
20
The Base Fee would be computed as follows:
$200 million x 0.74% / 12 = $123,333
If the Portfolio outperformed or underperformed its benchmark index by an
amount which triggered the maximum Performance Adjustment, the Performance
Adjustment would be computed as follows:
$500 million x 0.15% / 12 = $62,500, which is approximately 1/12th of
0.375% of $200 million.
If the Portfolio had outperformed its benchmark index, the advisory fee
rate for that month would be a Base Fee of $123,333, plus a Performance
Adjustment of $62,500, for a total fee of $185,833, which is approximately
1/12th of 1.115% of $200 million.
If the Portfolio had underperformed its benchmark index, the advisory fee
rate for that month would be a Base Fee of $123,333, minus a Performance
Adjustment of $62,500, for a total fee of $60,833, which is approximately 1/12th
of 0.365% of $200 million.
Therefore, the total advisory fee rate for that month, as a percentage of
average net assets during the preceding month, would be approximately 1/12th of
1.115% in the case of outperformance, or approximately 1/12th of 0.365% in the
case of underperformance. Under extreme circumstances involving underperformance
by a rapidly shrinking Portfolio, the dollar amount of the Performance
Adjustment could be more than the dollar amount of the Base Fee. In such
circumstances, Janus Capital would reimburse the Portfolio.
By contrast, the Performance Adjustment would be a smaller percentage of
current assets if the net assets of the Portfolio were increasing during the
performance measurement period. Suppose, for example, that the Performance
Adjustment was being computed after the assets of the Portfolio had been
growing. Assume its average daily net assets during the 36-month performance
measurement period were $500 million, but that average daily net assets during
the preceding month were $800 million.
The Base Fee would be computed as follows:
$800 million x 0.74% / 12 = $493,333
If the Portfolio outperformed or underperformed its benchmark index by an
amount which triggered the maximum Performance Adjustment, the Performance
Adjustment would be computed as follows:
$500 million x 0.15% / 12 = $62,500, which is approximately 1/12th of
0.094% of $800 million.
If the Portfolio had outperformed its benchmark index, the advisory fee
rate for that month would be a Base Fee of $493,333, plus a Performance
Adjustment of
21
$62,500, for a total fee of $555,833, which is approximately 1/12th of 0.834% of
$800 million.
If the Portfolio had underperformed its benchmark index, the advisory fee
rate for that month would be a Base Fee of $493,333, minus a Performance
Adjustment of $62,500, for a total fee of $430,833, which is approximately
1/12th of 0.646% of $800 million.
Therefore, the total advisory fee rate for that month, as a percentage of
average net assets during the preceding month, would be approximately 1/12th of
0.834% in the case of outperformance, or approximately 1/12th of 0.646% in the
case of underperformance.
If approved by shareholders ofand any other contingencies are met, the applicable Fund, the Proposed NewAmended Advisory
Agreement and new fee schedule for that Fund aredescribed in this Proposal is expected to become effective on January 1, 2006. Forthe
first day of the month following the approval. However, as noted above, for the
first 12 months after the effective date, only the Fund'sPortfolio's Base Fee rate
will apply.
Beginning 12 months afterCOMPARISON OF CURRENT AND PRO FORMA ADVISORY FEES DURING THE PREVIOUS FISCAL
YEAR
The following table shows: (1) the effective date,
39
dollar amount of the Performance Adjustment will go into effect based upon the performance period
commencing on the effective date. When a Proposed New Advisory Agreement has
been in effect for at least 12 months, but less than 36 months, the performance
measurement period will be equal to the time that has elapsed since the Proposed
New Advisory Agreement took effect. Once a Fund has 36 months of performance
history from the effective date, the Performance Adjustment will be calculated
using a rolling 36 month period.
The proposed Base Fee for each Fund (which is the same as the current
annual investmentactual advisory
fee ratefees paid by the Fund to JCM)Portfolio, before and the Fund's
primary benchmark index are shown in the following table:
PROPOSED BASE FEE
FUND BENCHMARK (ANNUAL FEE RATE)
- ---- --------- -----------------
Mid Cap Value Portfolio..... Russell Midcap Value Index* 0.64%+
Risk-Managed Core
Portfolio................. S&P 500 Index** 0.50%++
Worldwide Growth
Portfolio................. MSCI World Index*** 0.60%
- ---------------
* The Russell Midcap Value Index measures the performance of those Russell
Midcap companies with lower price-to-book ratios and lower forecasted
growth rates.
** The Standard & Poor's ("S&P") 500 Index is Standard & Poor's composite
index of 500 stocks, a widely recognized, unmanaged index of common stock
prices.
*** The MSCI World Index is a market capitalization weighted index composed of
companies representative of the market structure of 23 Developed Market
countries in North America, Europe and the Asia/Pacific Region.
+ This amount is reduced by the amount payable by Mid Cap Value Portfolio to
Perkins, the subadviser to Mid Cap Value Portfolio, pursuant to a
Subadvisory Agreement between JCM and Perkins. Under this Subadvisory
Agreement, Mid Cap Value Portfolio pays Perkins a fee equal to 50% of the
advisory fee payable by the Fund to JCM (net of any reimbursements of
expenses incurred or fees waived by JCM). Forafter all applicable waivers, for the
fiscal year ended December 31, 2004, Mid Cap Value Portfolio paid Perkins a subadvisory fee
at2007; (2) the annual rate of 0.32%dollar amount of the Fund's average daily net assets.
++ JCM,pro forma
advisory fees that would have been paid by the Portfolio, before and not Risk-Managed Core Portfolio, pays INTECH aafter all
applicable waivers, if the proposed performance-based fee for its
services provided pursuant to a Subadvisory Agreementstructure had been in
effect during such fiscal year; and (3) the difference between JCM, on
behalf(i) the amount of
the Fund,pro forma advisory fees, net of waivers, that would have been paid under the
performance-based fee structure and INTECH, at an annual rate of 0.26%(ii) the amount of the Fund's
average dailyactual advisory fees
paid, net assets.of waivers, expressed as a percentage of the actual advisory fees'
amount. Such percentage difference is positive when the amount of the pro forma
advisory fees would have been larger than the amount of the actual advisory fees
paid by the Portfolio, and negative when the amount of the pro forma advisory
fees would have been smaller than the amount of the actual advisory fees paid by
the Portfolio. For purposes of pro forma calculations, it is assumed that the
Performance Adjustment would have been in effect during the entire fiscal year
ended December 31, 2007 and that it would have been calculated over the full
preceding 36-month performance measurement period.
PRO FORMA DIFFERENCE
ACTUAL ACTUAL ADVISORY FEE PRO FORMA BETWEEN
ADVISORY FEE ADVISORY FEE BEFORE PRO FORMA ADVISORY FEE PRO FORMA
BEFORE WAIVER WAIVER AFTER WAIVER WAIVER* WAIVER* AFTER WAIVER* AND ACTUAL
($) (000'S) ($) (000'S) ($) (000'S) ($) (000'S) ($) (000'S) ($) (000'S) ADVISORY FEE
- ------------- ----------- ------------ ------------ ----------- ------------- ------------
144 5 139 136 5 131 (5.8)%
- ---------------
* As described in this Proxy Statement, any Performance Adjustment included
in calculating the performance adjustmentPro Forma Advisory Fees for a Fund, if the difference betweenPortfolio is based on
the investment performance of the Fund's Service Shares andPortfolio's oldest class of shares
versus the investment recordPortfolio's benchmark index over the 36-month period ended
December 31, 2007.
22
HYPOTHETICAL EXAMPLE
The following hypothetical examples illustrate the application of the
Fund's primaryPerformance Adjustment for the Portfolio. The examples assume that the average
daily net assets of the Portfolio remain constant during a 36-month performance
measurement period. The Performance Adjustment would be a smaller percentage of
current assets if the net assets of the Portfolio were increasing during the
performance measurement period, and a greater percentage of current assets if
the net assets of the Portfolio were decreasing during the performance
measurement period. All numbers in the examples are rounded to the nearest
hundredth percent. The net assets of the Portfolio as of the fiscal years ended
December 31, 2006 and December 31, 2007 were $16,845,000 and $20,336,000,
respectively.
The monthly maximum positive or negative Performance Adjustment of 1/12th
of 0.15% of average net assets during the prior 36 months occurs if the
Portfolio outperforms or underperforms its benchmark index is 0.50% or greater
during any measurement period,by 4.50 % over the
Base Fee will be subject to an upward or
downward performance adjustment.same period. The performance adjustmentPerformance Adjustment is made in specificeven increments for every
0.50% difference that is 0.50% or greater in the investment performance of the Fund's Service Shares compared to the investment record of
the Fund's primary benchmark index. During any measuring period, the maximum
annual rate of the investment advisory fee is +0.15% of the Base Fee and the
minimum annual rate of the investment advisory fee is -0.15% of the Base Fee.
The following tables show the annualized investment advisory fee rate payable by
each
40
Fund if the Fund outperforms or underperforms its primary benchmark index at the
levels shown in the tables.
MID CAP VALUE PORTFOLIO
Fund Outperforms its Benchmark By(%):............... 0.0 0.5 1.0 1.5 2.0
Management Fee(%):*................................. 0.6400 0.6588 0.6775 0.6963 0.7150
Fund Outperforms its Benchmark By(%):............... 2.5 3.0 3.5 4.0
Management Fee(%):*................................. 0.7338 0.7525 0.7713 0.7900
- ---------------
* Rounded to the nearest thousandth percent. The performance adjustment is made
in 0.01875% increments for every 0.50% difference that is 0.50% or greater in
the investment performance of the Fund's Service SharesPortfolio compared to the
investment record of the Russell Midcap2000(R) Value Index.
EXAMPLE 1: PORTFOLIO OUTPERFORMS ITS BENCHMARK BY 4.50%
If the Portfolio has outperformed the Russell 2000(R) Value Index by 4.50%
during the preceding 36 months, the Portfolio would calculate the investment
advisory fee as follows:
PERFORMANCE TOTAL ADVISORY FEE
BASE FEE RATE ADJUSTMENT RATE RATE FOR THAT MONTH
------------- --------------- -------------------
Fund Underperforms its Benchmark By(%):............. 0.0 -0.5 -1.0 -1.5 -2.0
Management Fee(%):*................................. 0.6400 0.6213 0.6025 0.5838 0.56501/12th of 0.74% 1/12th of 0.15% 1/12th of 0.89%
EXAMPLE 2: PORTFOLIO PERFORMANCE TRACKS ITS BENCHMARK
If Portfolio performance has tracked the performance of the Russell 2000(R)
Value Index during the preceding 36 months, the Portfolio would calculate the
investment advisory fee as follows:
PERFORMANCE TOTAL ADVISORY FEE
BASE FEE RATE ADJUSTMENT RATE RATE FOR THAT MONTH
------------- --------------- -------------------
Fund Underperforms its Benchmark By(%):............. -2.5 -3.0 -3.5 -4.0
Management Fee(%):*................................. 0.5463 0.5275 0.5088 0.49001/12th of 0.74% 0.00% 1/12th of 0.74%
- ---------------
* Rounded toEXAMPLE 3: PORTFOLIO UNDERPERFORMS ITS BENCHMARK BY 4.50%
If the nearest thousandth percent. The performance adjustment is made
in 0.01875% increments for every 0.50% difference that is 0.50% or greater inPortfolio has underperformed the Russell 2000(R) Value Index by
4.50% during the preceding 36 months, the Portfolio would calculate the
investment performance of the Fund's Service Shares compared to the
investment record of the Russell Midcap Value Index.
Under the terms of the current subadvisory agreement between JCM, on behalf
of Mid Cap Value Portfolio, and Perkins, Mid Cap Value Portfolio pays Perkins a
fee equal to 50% of the advisory fee paid to JCM by the Fund (and JCM's fee is
thereby reduced by 50% to account for the fee paid directly to Perkins). This
means that pursuant to the terms of the Proposed New Advisory Agreement, the
rate of subadvisory fee that Perkins receives from the Fund will adjust up or
down in line with the rate of fee paid by the Fund to JCM based on Mid Cap Value
Portfolio's Service Shares performance relative to the Russell Midcap Value
Index. If shareholders of Mid Cap Value Portfolio do not approve the Proposed
New Advisory Agreement for their Fund, Perkins will continue to receive a
subadvisory fee from the Fund that is equal to 50% of the advisory fee paid by
the Fund to JCM under the Current Advisory Agreement (and JCM's advisory fee is
thereby reduced by 50%), currently 0.32% of Mid Cap Value Portfolio's average
daily net assets.
RISK-MANAGED CORE PORTFOLIOas follows:
PERFORMANCE TOTAL ADVISORY FEE
BASE FEE RATE ADJUSTMENT RATE RATE FOR THAT MONTH
------------- --------------- -------------------
Fund Outperforms its Benchmark By(%):............... 0.0 0.5 1.0 1.5 2.0
Management Fee(%):*................................. 0.5000 0.5188 0.5375 0.5563 0.57501/12th of 0.74% 1/12th of -0.15% 1/12th of 0.59%
Fund Outperforms its Benchmark By(%):............... 2.5 3.0 3.5 4.0
Management Fee(%):*................................. 0.5938 0.6125 0.6313 0.6500
- ---------------
* Rounded to the nearest thousandth percent. The performance adjustment is made
in 0.01875% increments for every 0.50% difference that is 0.50% or greater in
the investment performance of the Fund's Service Shares compared to the
investment record of the S&P 500 Index.
4123
Fund Underperforms its Benchmark By(%):............. 0.0 -0.5 -1.0 -1.5 -2.0
Management Fee(%):*................................. 0.5000 0.4813 0.4625 0.4438 0.4250
Fund Underperforms its Benchmark By(%):............. -2.5 -3.0 -3.5 -4.0
Management Fee(%):*................................. 0.4063 0.3875 0.3688 0.3500
- ---------------
* Rounded to the nearest thousandth percent. The performance adjustment is made
in 0.01875% increments for every 0.50% difference that is 0.50% or greater in
the investment performance of the Fund's Service Shares compared to the
investment record of the S&P 500 Index.
WORLDWIDE GROWTH PORTFOLIO
Fund Outperforms its Benchmark
By(%):.............................. 0.0 0.5 1.0 1.5 2.0 2.5 3.0
Management Fee(%):*................... 0.6000 0.6125 0.6250 0.6375 0.6500 0.6625 0.6750
Fund Outperforms its Benchmark
By(%):.............................. 3.5 4.0 4.5 5.0 5.5 6.0
Management Fee(%):*................... 0.6875 0.7000 0.7125 0.7250 0.7375 0.7500
- ---------------
* The performance adjustment is made in 0.0125% increments for every 0.50%
difference that is 0.50% or greater in the investment performance of the
Fund's Service Shares compared to the investment record of the MSCI World
Index.
Fund Underperforms its Benchmark
By(%):.............................. 0.0 -0.5 -1.0 -1.5 -2.0 -2.5 -3.0
Management Fee(%):*................... 0.6000 0.5875 0.5750 0.5625 0.5500 0.5375 0.5250
Fund Underperforms its Benchmark
By(%):.............................. -3.5 -4.0 -4.5 -5.0 -5.5 -6.0
Management Fee(%):*................... 0.5125 0.5000 0.4875 0.4750 0.4625 0.4500
- ---------------
* The performance adjustment is made in 0.0125% increments for every 0.50%
difference that is 0.50% or greater in the investment performance of the
Fund's Service Shares compared to the investment record of the MSCI World
Index.
COMPARISON OF CURRENT FEES AND EXPENSES WITH PRO FORMA FEES AND EXPENSES
The following table describestables describe the shareholder fees and annual fund
operating expenses that you may pay if you buy and hold shares of the Portfolio
under the current fee structure and proposed performance-based fee structure,
if you buywithout giving effect to any fee waivers. For purposes of pro forma
calculations, it is assumed that the Performance Adjustment would have been in
effect during the entire fiscal year ended December 31, 2007, and hold shares of the Funds. For all
Funds, thethat it would
have been calculated over a full 36-month performance measurement period. The
fees and expenses shown were determined based upon average net assets as of the
fiscal year ended December 31, 2004. All expenses are2007. For the 36-month period ended December 31,
2007, the Portfolio outperformed the Russell 2000(R) Value Index and the fiscal
year-end average daily net assets were higher than the trailing 36-month average
daily net assets, resulting in the pro forma management fee shown withoutin the effect of expense offset arrangements.Annual
Fund Operating Expenses table below.
Shareholder fees are those paid directly from your investment and may
include sales loads, redemption fees or exchange fees. The Funds arePortfolio is a
no-load investments,investment, so you will generally not pay any shareholder fees when you
buy or sell shares of the Funds.Portfolio. However, if you sell shares of Risk-Managed Core
Portfolio or Worldwide Growth Portfolio that you have held for three months or
less, you may pay a redemption fee. In addition, each variable insurance contract
involves fees and expenses not described herein. Please consultSee your contract prospectus
for informa-
42
tioninformation regarding contract fees and expenses, and any restrictions on
purchases or allocations.
Annual fund operating expenses are paid out of a Fund'sthe Portfolio's assets and
include fees for portfolio management, maintenance of shareholder accounts,
shareholder servicing, accounting and other services. You do not pay these fees
directly but, as the examples show, these costs are borne indirectly by all
shareholders.
The tables and examples provided below are designed to assist participants
in qualified plans that invest in shares of the Portfolio in understanding the
fees and expenses that you may pay as an investor in the Portfolio. THE TABLES
AND EXAMPLES DO NOT REFLECT DEDUCTIONS AT THE SEPARATE ACCOUNT LEVEL FOR ANY
CHANGES THAT MAY BE INCURRED UNDER A CONTRACT. INCLUSION OF THESE CHARGES WOULD
INCREASE THE FEES AND EXPENSES DESCRIBED BELOW.
The Trust, on behalf of the Portfolio, has entered into an expense waiver
agreement with Janus Capital. Pursuant to that waiver agreement, Janus Capital
has agreed to reduce annual Portfolio operating expenses to the extent that
total operating expenses exceed 1.34% of average daily net assets, subject to
certain limitations as described in the expense waiver agreement. Additional
details with respect to the expense waiver agreement are described in the
footnotes to the Annual Fund Operating Expenses table listed below. As a result
of the expense waiver agreement, the actual Total Annual Operating Expenses may
be less than the amount listed in the table below.
24
SHAREHOLDER FEES (PAID DIRECTLY FROM YOUR INVESTMENT)
(CURRENT AND PRO FORMA STRUCTURE)
SERVICE
SHARES
-------
Maximum Sales Charge (load) Imposed on Purchases
(as a % of offering price).......................... None
Redemption Fee........................................ None
Exchange Fee.......................................... None
ANNUAL FUNDPORTFOLIO OPERATING EXPENSES (DEDUCTED FROM FUNDPORTFOLIO ASSETS)(1)
ACQUIRED TOTAL
DISTRIBUTION/DISTRIBUTION FUND(5) ANNUAL NET ANNUAL
SERVICE FUND FUND
MANAGEMENT (12B-1) OTHER FEES AND OPERATING
EXPENSE OPERATING
FEE FEES(1)FEE(2) FEES(3) EXPENSES(4) EXPENSES EXPENSES(2) WAIVER EXPENSES(2)EXPENSES(6)
---------- ------------------------- ----------- -------- ----------- ------- -----------
MID CAPJANUS ASPEN SMALL COMPANY
VALUE PORTFOLIO
Service Shares
Current.......... 0.64%Current............. 0.74% 0.25% 0.47% 1.36% -- 1.36%
Proposed......... 0.61%0.72% 0.01% 1.72%
Pro Forma........... 0.70% 0.25% 0.47% 1.33% -- 1.33%
Institutional
Shares
Current.......... 0.64% N/A 0.37% 1.01% -- 1.01%
Proposed......... 0.61% N/A 0.37% 0.98% -- 0.98%
RISK-MANAGED CORE
PORTFOLIO
Service Shares
Current.......... 0.50% 0.25% 0.62%(3) 1.37% -- 1.37%
Proposed......... 0.58% 0.25% 0.62%(3) 1.45% 0.10% 1.35%
WORLDWIDE GROWTH
PORTFOLIO
Service Shares
Current.......... 0.60% 0.25% 0.03% 0.88% N/A 0.88%
Proposed......... 0.60% 0.25% 0.03% 0.88% N/A 0.88%
Service II Shares
Current.......... 0.60% 0.25% 0.03% 0.88% N/A 0.88%
Proposed......... 0.60% 0.25% 0.03% 0.88% N/A 0.88%
Institutional
Shares
Current.......... 0.60% N/A 0.03% 0.63% N/A 0.63%
Proposed......... 0.60% N/A 0.03% 0.63% N/A 0.63%0.72% 0.01% 1.68%
- ---------------
(1) Because the 12b-1 fee is charged as an ongoing fee, over time the fee will
increase the cost of your investment and may cost you more than paying other
types of sales charges.
43
(2) Annual Fund Operating Expenses are stated both with (under "Net" expenses)
and without (under "Total" expenses") contractual expense waivers by JCM.
JCM has contractually agreed to waive each Fund's total operating expenses
(excluding the distribution fees, brokerage commissions, interest, taxes and
extraordinary expenses) to a certain limit until at least May 1, 2007. The
expense waivers shown reflect the application of such limit.
(3) Included in Other Expenses is an administrative services fee of 0.10% of the
average daily net assets to compensate Janus Services for providing, or
arranging for the provision of, recordkeeping, subaccounting and
administrative services to retirement or pension plan participants, variable
contract owners or other underlying investing through institutional
channels.
EXAMPLES:
The following examples are based on expenses without waivers as shown in
the table above.THE FOLLOWING EXAMPLES ARE BASED ON EXPENSES WITHOUT WAIVERS, AS SHOWN IN
THE TABLES ABOVE. These examples are intended to help you compare the cost of
investing in the FundsPortfolio, under both the current fee structure and the
proposed fee structure, with the cost of investing in other mutual funds. The
examples assume that you invest $10,000 in each of the FundsPortfolio for the time periods
indicated, reinvest all dividends and distributions, and then redeem all of your
shares at the end of those periods.each period. The examples also assume that your investment
has a 5% return each year and that the Funds'Portfolio's operating expenses without
waivers remain the same. The pro forma calculations assume that the Performance
Adjustment had been in effect for a 36-month period as of the end of the last
fiscal year. Although your actual costs may be higher or lower, based on these
assumptions your costs would be:
1 YEAR 3 YEARS 5 YEARS 10 YEARS
------ ------- ------- --------
MID CAPJANUS ASPEN SMALL COMPANY VALUE
PORTFOLIO
Service Shares
Current................... $138 $431 $745 $1,635
Proposed.................. $135 $421 $729 $1,601
Institutional Shares
Current................... $103 $322 $558 $1,236
Proposed.................. $100 $312Current...................... $175 $542 $1,201
RISK-MANAGED CORE PORTFOLIO
Service Shares
Current................... $139 $434 $750 $1,646
Proposed.................. $148 $459 $792 $1,735
WORLDWIDE GROWTH PORTFOLIO
Service Shares
Current................... $ 90 $281 $488 $1,084
Proposed.................. $ 90 $281 $488 $1,084$933 $2,030
Pro Forma*................... $171 $530 $913 $1,987
44- ---------------
(1) All expenses are shown without the effect of expense offset arrangements.
Pursuant to such arrangements, credits realized as a result of uninvested
cash balances are used to reduce custodian and transfer agent expenses.
(2) The "Management Fee" is the investment advisory fee rate paid by the
Portfolio to Janus Capital as of the end of the fiscal year. Any Performance
Adjustment included in calculating the Pro Forma
25
1 YEAR 3 YEARS 5 YEARS 10 YEARS
------ ------- ------- --------
Service II Shares
Current................... $ 90 $281 $488 $1,084
Proposed.................. $ 90 $281 $488 $1,084
Institutional Shares
Current................... $ 64 $202 $351 $ 786
Proposed.................. $ 64 $202 $351 $ 786
Management Fee as shown is based on the investment performance of the Portfolio
versus the Russell 2000(R) Value Index over the 36-month period ended December
31, 2007.
(3) Because the 12b-1 fee is charged as an ongoing fee, over time the fee will
increase the cost of your investment and may cost you more than paying other
types of sales charges.
(4) Included in Other Expenses is an administrative services fee of 0.10% of the
average daily net assets of the Portfolio to compensate Janus Services LLC
for providing, or arranging for the provision of, recordkeeping,
subaccounting, and administrative services to retirement or pension plan
participants, variable contract owners, or other underlying investors
investing through institutional channels.
(5) "Acquired Fund" means any underlying portfolio (including, but not limited
to, exchange-traded funds) in which the Portfolio invests or has invested
during the period. Total Annual Fund Operating Expenses shown may not
correlate to the Portfolio's ratio of gross expenses to average net assets
appearing in the Portfolio's financial statements, which reflect the
operating expenses of the Portfolio and does not include Acquired Fund fees
and expenses.
(6) Total Annual Operating Expenses do not reflect the application of a
contractual expense waiver by Janus Capital. Janus Capital has contractually
agreed to waive the Portfolio's total operating expenses (excluding the
distribution and shareholding servicing fee, administrative services fee,
brokerage commissions, interest, dividends, taxes and extraordinary expenses
including, but not limited to, acquired fund fees and expenses) to the
extent such operating expenses exceed 1.34% of average daily net assets on
the fiscal year ending date in which the agreement is in effect. Because a
fee waiver will have a positive effect upon the Portfolio's performance, a
fee waiver that is in place during the period when the Performance
Adjustment applies may affect the Performance Adjustment in a way that is
favorable to Janus Capital. It is possible that the cumulative dollar amount
of additional compensation ultimately payable to Janus Capital for that
period, under some circumstances, exceed the cumulative dollar amount of
fees waived by Janus Capital. The current agreement will be in effect until
May 1, 2009, unless terminated, revised or extended. Additionally, the
current agreement does not contain any provisions allowing for the
recoupment of any fees waived.
* The Pro Forma numbers shown include a pro forma management fee calculated as
described in the text and related footnotes that accompany the fee table
above.
BOARD APPROVAL AND RECOMMENDATION
On September 20, 2005,The Trustees considered the BoardAmended Advisory Agreement for the Portfolio.
In the course of Trustees, including alltheir consideration of the Amended Advisory Agreement, the
Independent Trustees voted unanimouslymet in executive session and were advised by their
independent legal counsel. The Independent Trustees received and reviewed a
substantial amount of information provided by Janus Capital in response to
approve the Proposed New Advisory
Agreement for each applicable Fund and authorized the submissionrequests of each
Proposed New Advisory Agreement to the Fund's shareholders for approval.
For more than a year the Independent Trustees and their counsel. They also considered
information provided by their independent fee consultant. Based on their
evaluation of that information and other factors, on November 6, 2007, the
Independent Trustees approved the Amended Advisory Agreement for the Portfolio,
subject to shareholder approval.
In considering whether to approve the Amended Advisory Agreement, the Board
of Trustees noted that, except for the proposed performance-based fee structure,
the Amended Advisory Agreement is substantially similar to the Current Advisory
Agreement, which was most recently approved by them at a meeting held on
December 20, 2006. The Board also met with representatives of Janus Capital and
considered information provided by Janus Capital in preparation for the
Trustees' consideration of advisory contracts at their meetings held in December
2007. The Board took into account the services provided by Janus Capital in its
capacity as investment adviser to the Portfolio and concluded that the services
26
provided were acceptable. Certain of these considerations are discussed in more
detail below.
NATURE, EXTENT AND QUALITY OF SERVICES
The Trustees reviewed the nature, extent and quality of the services
provided by Janus Capital, taking into account the investment objective and
strategies of the Portfolio and the knowledge the Trustees gained from their
regular meetings with management on at least a quarterly basis, and their
ongoing review of information related to the Portfolio. In addition, the
Trustees reviewed the resources and key personnel of Janus Capital, especially
those who provide investment management services to the Portfolio. The Trustees
also considered other services provided to the Portfolio by Janus Capital. Janus
Capital also advised the Board of Trustees that it expects that there will be no
diminution in the scope and quality of advisory services provided to the
Portfolio as a result of the Amended Advisory Agreement.
The Trustees concluded that the advisory relationship and arrangement was
not expected to adversely affect the nature, extent or quality of services
provided to the Portfolio, and that the Portfolio would continue to benefit from
services provided under the Amended Advisory Agreement. They also concluded that
the quality of Janus Capital's services to the Portfolio has been adequate. In
reaching their conclusions, the Trustees considered: (i) information provided by
Janus Capital for their consideration of the Amended Advisory Agreement; (ii)
the key factors identified in materials previously provided to the Trustees by
their independent counsel; and (iii) that there will be a performance-based fee
structure that better aligns the interests of Janus Capital with those of the
Portfolio and its shareholders. They also concluded that Janus Capital's
financial condition was sound.
COSTS OF SERVICES PROVIDED
The Trustees considered the performance fee structure proposed under the
Amended Advisory Agreement, as well as the overall fee structure of the
Portfolio. Included as part of their analysis of the overall performance fee
structure, the Trustees, in consultation with their independent fee consultant,
considered the appropriate performance range that would result in consultationthe maximum
and minimum Performance Adjustment of up to 0.15% (positive or negative) of the
Portfolio's average daily net assets during the applicable performance
measurement period. The Trustees reviewed information provided by Janus Capital
and prepared by their independent fee consultant with independent legal counselrespect to an appropriate
deviation of excess/under returns relative to the Independent
Trustees, have been exploring the possibility of modifying the fee structure for
certainPortfolio's benchmark index,
taking into consideration expected tracking error of the Funds to providePortfolio, expected
returns and potential risks and economics involved for a Base Fee for eachJanus Capital and the
Portfolio's shareholders. The Trustees also reviewed the structure of
those Funds at the
same rate as the current advisory fee rate for that Fund, and a
performance-based adjustment that would increase or decrease the rate of fee
based on whether the Fund's total return performance exceeds or lags a stated
relevant benchmark index. They also worked with JCM to develop a performance
structure that was acceptable to JCM. In doing so, the Independent Trustees were
seeking to provide a closer alignment of the interests of JCM with those Funds
and their shareholders. They believe that the fee structures proposed for each
of those Funds will achieve that objective.fees applied by other Janus funds.
As described above, the maximum amount by which the actual fee, as
adjusted, can differPerformance Adjustment that will be added to or
subtracted from the Base Fee as a result of the Portfolio's performance,
relative to its benchmark index, is a Fund's performance isvariable of up to 0.15% of average net
assets.assets during the
27
performance measurement period. Importantly, the performance is computed after
deducting the Fund'sPortfolio's operating expenses (including advisory fees), which
means that, in order to receive any upward adjustment from the Base Fee, JCMJanus
Capital must deliver a total return after expenses that exceeds the return of
the benchmark index, thatwhich does not incur any expenses.
The Trustees determined that the primary benchmark index specified in each
of the Proposed NewAmended
Advisory AgreementsAgreement for purposes of computing the performance fee adjustmentsPerformance Adjustment is
appropriate for the respective FundPortfolio based on a number of factors, including the fact that the
index is broad-based and is composed of securities of the types in which the
FundPortfolio may invest. The Trustees believe that divergence between the
Fund'sPortfolio's performance and performance of the index can be attributableattributed, in part,
to the ability of the portfolio manager in making investment decisions 45
within
the parameters of the Fund'sPortfolio's investment objective and investment policies
and restrictions.
The Trustees determined that the class of shares of each Fund selected for
purposes of calculating the Performance Adjustment as applied to the Fund is the
most appropriate class for use in calculating the Performance Adjustment. In
making that determination, the Trustees considered the fee structure and
expenses paid by each class of shares, any fees paid to or retained by JCM or
its affiliates, as well as the distribution channel for each class of shares.
The time periods to be used in determining any Performance Adjustment were
also judged to be of appropriate length to ensure proper correlation and to
prevent fee adjustments from being based upon random or insignificant
differences between the performance of the FundPortfolio and of the index. In that
regard, the Trustees concluded that it would be appropriate for there to be no
adjustment from the Base Fee for the first 12 months after the effective date of
the Proposed NewAmended Advisory Agreement before implementation of any Performance
Adjustment, and that, once implemented, the Performance
Adjustment should reflect only the Fund'sPortfolio's performance subsequent to that
effective date. Moreover, the Trustees believed that, upon reaching the
thirty-sixth month after the effective date, the performance measurement period
wouldshould be fully implemented, and that the Performance Adjustment should
thereafter be based upon a thirty-six month36-month rolling performance measurement period.
In additionThe Trustees concluded that the estimated overall expense ratio of the
Portfolio, taking into account any expense limitations and proposed Performance
Adjustments, was reasonable in relation to consideringthe nature and quality of the
services to be provided, taking into consideration the fees charged by other
advisers and subadvisers for managing comparable mutual funds with similar
strategies.
PERFORMANCE OF THE PORTFOLIO
The Trustees considered the performance fee structure reflected in each
Proposed Newresults of the Portfolio over
various time periods. They reviewed information comparing the Portfolio's
performance with the performance of comparable funds and peer groups identified
by Lipper, and with the Portfolio's benchmark index. They concluded that the
performance of the Portfolio was acceptable under current market conditions.
Although the performance of the Portfolio lagged its benchmark index for certain
periods, the Trustees also concluded that Janus Capital, as the Portfolio's
adviser, had taken appropriate steps to address those instances of
underperformance.
28
OTHER BENEFITS FROM THE RELATIONSHIP WITH JANUS CAPITAL
The Trustees also considered benefits that would accrue to the Portfolio
from its relationship with Janus Capital. The Trustees concluded that, other
than the services to be provided by Janus Capital pursuant to the Amended
Advisory Agreement and the fees to be paid by the Portfolio for such services,
the Portfolio and Janus Capital may potentially benefit from their relationship
with each other in approving eachother ways. They also concluded that success of those agreements,their
relationship could attract other business to Janus Capital or to other Janus
funds, and that the success of Janus Capital could enhance its ability to serve
the Portfolio.
After full consideration of the above factors, as well as other factors,
the Trustees followedconcluded that approving the processAmended Advisory Agreement was in the
best interest of the Portfolio and consideredits shareholders. The Trustees, all of whom
are Independent Trustees, voted to approve the factorsAmended Advisory Agreement and reached the
conclusions described above under Proposal 4.a -- Board Approval and
Recommendation.to
recommend it to shareholders for their approval.
REQUIRED VOTE
Approval of Proposal 4.b. as to each applicable Fundthe Amended Advisory Agreement requires the affirmative vote of
a 1940 Act Majority.Majority of the Portfolio. Approval of Proposal 4.b. by shareholders of Risk-Managed Core
Portfolio2 is contingent upon
the approval of both Proposals within this Proxy Statement, as well as upon the
approval of the same proposal forby shareholders of Janus Risk-Managed Stock Fund, a series of JIF, and Janus Adviser Risk-Managed
Core Fund, a series of JAD, with respect to separate proposed new advisory
agreements for those funds described in separate proxy statements. Approval of
Proposal 4.b. by shareholders of Mid Cap Value Portfolio is contingent upon
approval of the same proposal for shareholders of Janus Mid Cap Value Fund, a
series of JIF, and Janus Adviser Mid CapSmall Company
Value Fund, a series of JAD, with
respectanother registered investment company managed by
Janus Capital. Implementation of the Amended Advisory Agreement is also
contingent upon the closing of the Pending Acquisition in addition to separate proposed new advisory agreements for those fundsother
conditions as described in separate proxy statements. Approval of Proposal 4.b.the Purchase Agreement or otherwise agreed to by
shareholders of
Worldwide Growth Portfolio is contingent upon approval of the same proposal for
shareholders of Janus Worldwide Fund, a series of JIF,Capital and Janus Adviser
Worldwide Fund, a series of JAD, with respect to separate proposed new advisory
agreements for those funds described in separate proxy statements.
46
PWM. If shareholders of a Fundthe Portfolio do not approve the
Proposed New Advisory
Agreement for the Fund, JCM will continue as the Fund's investment adviser under
the terms ofProposal, or if any other contingency is not met, the Current Advisory Agreement
for that Fund.
THE BOARD OF TRUSTEES, INCLUDING ALL OF THE INDEPENDENT TRUSTEES,
UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS OF EACH APPLICABLE FUND VOTE FOR
APPROVAL OF THE PROPOSED NEW ADVISORY AGREEMENT FOR THEIR FUND.
PROPOSAL 5: APPROVE A NEW SUB-ADVISORY AGREEMENT
BETWEEN JCM, ON BEHALF OF RISK-MANAGED CORE PORTFOLIO,
AND INTECH THAT WOULD INTRODUCE A
PERFORMANCE INCENTIVE SUBADVISORY FEE STRUCTURE
This Proposal 5 applies to Risk-Managed Core Portfolio only.
INTRODUCTION
On September 20, 2005, as describedwill remain in Proposal 4.b. above,effect and the Board of Trustees approvedwill take such further action as
it deems to be in the Proposed New Advisory Agreement for shareholdersbest interest of Risk-
Managed Corethe Portfolio that changesand its shareholders.
THE INDEPENDENT TRUSTEES OF THE TRUST UNANIMOUSLY RECOMMEND THAT YOU VOTE
"FOR" APPROVAL OF THE AMENDED ADVISORY AGREEMENT.
ADDITIONAL INFORMATION ABOUT THE PORTFOLIO
OTHER PORTFOLIO SERVICE PROVIDERS
Administrator. Janus Capital also serves as administrator to the
annual fee rate for advisory fees paid
to JCMPortfolio, performing internal accounting, recordkeeping, blue sky monitoring
and registration functions of the Portfolio. Janus Capital may be reimbursed by
the Fund, pursuant to its Current Advisory Agreement, from a
fixed-rate fee to one that adjusts upward or downward based upon the performance
of the Fund's Service Shares relative to its benchmark, the S&P 500(R) Index.
In addition, the Board of Trustees approved a new Sub-Advisory Agreement
("Proposed New Sub-Advisory Agreement") between JCM, on behalf of the Fund,Portfolio for certain administrative and INTECH, related to subadvisory services provided for the Fund that similarly
changes the annual fee rate for subadvisory fees paid by JCM to INTECH, pursuant
to its current Sub-Advisory Agreement ("Current Sub-Advisory Agreement"), from a
fixed-rate fee to one that adjusts upward or downward based upon the performance
of the Fund's Service Shares relative to its benchmark. Such change in fee
structure requires shareholder approval. The Board of Trustees authorized the
submission of the Proposed New Sub-Advisory Agreement to shareholders of the
Fund for their approval.
A Copy of the Proposed New Sub-Advisory Agreement is attached to this Proxy
Statement as Exhibit K.
The proposal to replace the Current Sub-Advisory Agreement with the
Proposed New Sub-Advisory Agreement and institute the proposed performance-
based subadvisory fee is designed to more closely align INTECH's interests with
those of the Fund's shareholders. The subadvisory fee JCM pays to INTECH would
decrease when the Fund is not performing well relative to its benchmark, and
would increase during periods when the Fund outperforms its benchmark. In
addition, JCM believes that the proposed subadvisory fee structure would enable
INTECH to
47
maintain the quality of servicesclerical functions it provides to
the FundPortfolio, as well as attract and
retain talented investment personnel. THE FUND DOES NOT PAY ANY FEE TO INTECH;
THE SUBADVISORY FEE IS PAID SOLELY BY JCM.
INTECH AS SUBADVISER
INTECH currently serves as subadviserfor reasonable costs it incurs in performing certain
functions. Janus Capital intends to continue to provide the Fund pursuant to the Current
Sub-Advisory Agreement. INTECH is a direct subsidiary of JCG. JCG owns
approximately 77.5%same administrative
services after implementation of the outstanding voting shares of INTECH. JCG also owns
approximately 95% of JCM. The principal executive officers and directors of
INTECH, located at 2401 PGA Boulevard, Suite 100, Palm Beach Gardens, Florida
33410, and their principal occupations are included in Exhibit L to this Proxy
Statement.
INTECH has served as an investment adviser since and currently
serves as subadviser to five Janus Funds as of September 1, 2005. INTECH also
provides separate account advisory services to institutional accounts. As of
, 2005, INTECH had $ in assets under management. INTECH currently
serves as subadviser to several other funds with similar investment objectives
as those of the Fund. The objective, net asset size as of June 30, 2005, and
annual rate of compensation paid by JCM to INTECH, as a percentage of the Fund's
average daily net assets, is shown in the table below.
ANNUAL RATE FEE WAIVERS
NET ASSET OF OR
FUND OBJECTIVE SIZE COMPENSATION REDUCTIONS
- ---- --------- --------- ------------ -----------
Janus Risk-Managed
Stock Fund.......... 0.26% None
Janus Adviser
Risk-Managed Core
Fund................ 0.26% None
DESCRIPTION OF THE CURRENT SUB-ADVISORY AGREEMENT
Under the Current Sub-Advisory Agreement, JCM has delegated to INTECH
certain investment management services. JCM maintains a supervisory role with
respect to its delegation of investment management services to INTECH. INTECH is
responsible for the day-to-day management of the Fund and determines the
purchase and sale of securities held by the Fund, subject to the Trust's Trust
Instrument, Bylaws, the investment objectives, policies and restrictions set
forth in the Fund's registration statement, the provisions of the 1940 Act and
the Internal Revenue Code of 1986, as amended, and such policies and
instructions as the Trustees may determine.
INTECH pays the salaries, fees and expenses of its investment personnel. In
connection with JCM's delegation of investment management services to INTECH,
48
INTECH: (i) manages the investment operations of the Fund's portfolio; (ii)
furnishes information to JCM or the Trust as reasonably required to keep JCM,
the Board of Trustees and appropriate officers of the Trust fully informed as to
the condition of the portfolio of the Fund; (iii) maintains all books and
records related to the Fund required to be maintained pursuant to the 1940 Act
and the Investment Advisers Act of 1940, as amended; (iv) submits reports to JCM
relating to the valuation of the Fund's assets; (v) exercises voting rights,
subscription rights, rights to consent to corporate action and any other rights
pertaining to the Fund's assets that may be exercised; (vi) provides the
Trustees and JCM with economic, operational and investment data and reports; and
(vii) provides JCM with information for regulatory filings. JCM provides certain
administrative and other services and is responsible for the other business
affairs of the Fund.
Pursuant to its Current Sub-Advisory Agreement dated July 1, 2004, JCM pays
INTECH a subadvisory fee for its services, which is calculated daily and paid
monthly at the annual rate of 0.26% of the Fund's average daily net asset value.
For the fiscal year ended December 31, 2004, JCM paid INTECH $39,703 in
subadvisory fees.
At a meeting of the Trustees held on June 15, 2005, the Trustees, including
all of the Independent Trustees, approved the continuation of the Current Sub-
Advisory Agreement for the Fund. The Current Sub-Advisory Agreement continues in
effect until July 1, 2006 and thereafter from year to year so long as such
continuance is approved at least annually by a majority of the Independent
Trustees and by either a majority of the outstanding voting securities of the
Fund or the Trustees of the Fund. The Current Sub-Advisory Agreement was
submitted to the vote of the Fund's initial shareholder on in
connection with the commencement of the Fund's operations.
The Current Sub-Advisory Agreement: (i) may be terminated without payment
of any 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 on 60
days' advance written notice; (ii) terminates automatically in the event of its
assignment; (iii) may be terminated by JCM or INTECH at any time, without
penalty, by giving 60 days' advance written notice of termination to the other
party; (iv) may be terminated by JCM or the Trust without advance notice if
INTECH becomes unable to discharge its duties and obligations under the Current
Sub-Advisory Agreement; (v) terminates, without penalty, upon termination of the
Current Advisory Agreement between JCM and the Fund; and (vi) generally, may not
be amended without approval by vote of a majority of the Trustees of the Fund,
including a majority of the Independent Trustees and, to the extent required by
the 1940 Act, the vote of a majority of the outstanding voting securities of the
Fund.
The following table summarizes the pro forma advisory fees based on the net
assets of the Fund that would have been paid by JCM to INTECH under the
49
Proposed New Sub-Advisory Agreement for the fiscal year ended December 31, 2004.
This information assumes that the performance adjustment (as described below)
would have been in effect during the fiscal year and that it would have been
calculated over a full 36 month performance period. The last column indicates
the percentage increase or decrease of the fee that INTECH would have received
had the proposed performance-based fee arrangement been in effect during the
period.
PRO FORMA % INCREASE OR
NET ASSETS ADVISORY FEES DECREASE
(000'S)--- ------------- -------------
$20,680 $41,113 3.55%
DESCRIPTION OF THE PROPOSED NEW SUB-ADVISORY AGREEMENT
Except for the performance adjustments described below, the terms of the
Current Sub-AdvisorySubadvisory Agreement and the
Proposed New Sub-Advisory Agreement are
substantially similar, except for the effective dates and the renewal dates. It
is anticipated that the same services will be provided under the Proposed New
Sub-Advisory Agreement as are provided under the Current Sub-Advisoryproposed Amended Advisory Agreement.
The proposed investment advisory fee rate to be paid by JCM to INTECH will
consist of two components: (1)29
Distributor. Janus Distributors, a base management fee equal to 0.26% of the
Fund's average daily net assets, calculated over the previous month for which
the base fee is paid ("Base Fee"), plus or minus (2) half of any performance fee
adjustment paid to JCM by the Fund ("Performance Adjustment"), pursuant to the
Proposed New Advisory Agreement between JCM and the Trust, on behalf of the
Fund. No Performance Adjustment will be paid to INTECH until the Proposed New
Sub-Advisory Agreement has been in effect for at least 12 months.
The Base Fee is the same as the annual fixed-rate fee paid by JCM to INTECH
under its Current Sub-Advisory Agreement. The Performance Adjustment is
calculated monthly and may result in an increase or decrease in the subadvisory
fee rate paid by JCM to INTECH, depending upon the investment performance of the
Fund's Service Shares relative to the S&P 500(R) Index over the performance
measuring period. For purposes of computing the Base Fee and the Performance
Adjustment, net assets are averaged over different periods (average daily net
assets for the Base Fee versus average net assets over the performance measuring
period for the Performance Adjustment).
If approved by shareholders of the Fund, the Proposed New Sub-Advisory
Agreement and new fee schedule for the Fund is expected to become effective on
January 1, 2006. For the first 12 months after inception of the new fee
schedule, only the Base Fee rate will apply. Beginning 12 months after the
effective date, the Performance Adjustment will go into effect based upon the
performance period commencing on the effective date. When the Proposed New
Sub-Advisory Agree-
50
ment has been in effect for at least 12 months, but less than 36 months, the
performance measurement period will be equal to the time that has elapsed since
the Proposed New Sub-Advisory Agreement took effect. Once the Fund has 36 months
of performance history from January 1, 2006, the Performance Adjustment will be
calculated using a rolling 36 month period. During any measuring period, the
maximum annual rate of the subadvisory fee is 0.335% and the minimum annual rate
of the subadvisory fee is 0.185%.
BOARD APPROVAL AND RECOMMENDATION
On September 20, 2005, the Board of Trustees, including all of the
Independent Trustees, voted unanimously to approve the Proposed New Sub-Advisory
Agreement for Risk-Managed Core Portfolio and authorized the submission of the
Proposed New Sub-Advisory Agreement to the Fund's shareholders for approval.
The Trustees determined that, if the fees paid by the Fund to JCM are to be
performance-based, the fees paid by JCM to INTECH should be determined under a
corresponding performance-based fee structure. In approving the proposed
performance fee structure for the Proposed New Sub-Advisory Agreement between
JCM, on behalf of the Fund, and INTECH, the Trustees considered the factors and
reached the conclusions described above under Proposal 4.b -- Board Approval and
Recommendation.
In addition, in approving the Proposed New Sub-Advisory Agreement, the
Trustees followed the process and considered the factors and reached the
conclusions described above under Proposal 4.a -- Board Approval and
Recommendation.
REQUIRED VOTE
Approval of Proposal 5 requires a 1940 Act Majority of the Fund with all
classes voting together. Approval of Proposal 5 is contingent upon approval of
the Proposed New Advisory Agreement by shareholders of Risk-Managed Core
Portfolio as described in Proposal 4.b. above. If shareholders of the Fund do
not approve the Proposed New Sub-Advisory Agreement, INTECH will continue as the
Fund's subadviser under the terms of the Current Sub-Advisory Agreement. If
approved, the Proposed New Sub-Advisory Agreement will become effective on
January 1, 2006.
THE BOARD OF TRUSTEES, INCLUDING ALL OF THE INDEPENDENT TRUSTEES,
UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS OF THE FUND VOTE FOR APPROVAL OF THE
PROPOSED NEW SUB-ADVISORY AGREEMENT.
51
FUND SERVICE PROVIDERS
WHO SERVES AS MY FUND'S TRANSFER AGENT?
Janus Services, a whollyownedwholly-owned subsidiary of JCM,Janus
Capital, located at 151 Detroit Street, Denver, Colorado 80206, is a distributor
of the Portfolio pursuant to an Amended and Restated Distribution Agreement
between the Trust and Janus Distributors. According to plans adopted pursuant to
Rule 12b-1 under the 1940 Act for Service Shares of the Portfolio, Janus
Distributors receives a 12b-1 distribution fee from Service Shares at the annual
rate of up to 0.25% of the average daily net assets of such shares. Janus
Distributors uses the payments to pay insurance companies and qualified service
providers for distribution services provided by such service providers. Janus
Distributors may retain some or all of the fee it receives or may pass it
through to financial intermediaries in payment for distribution services. Janus
Distributors intends to continue to provide the same services after
implementation of the proposed Subadvisory Agreement and the proposed Amended
Advisory Agreement.
Service Shares of the Portfolio paid fees to Janus Distributors in the
amount of $48,843 for the fiscal year ended December 31, 2007.
Transfer Agent. Janus Services, P.O. Box 173375, Denver, Colorado 80207-
3375, a wholly-owned subsidiary of Janus Capital, serves as each Fund'sthe Portfolio's
transfer agent pursuant to aan Amended and Restated Transfer Agency Agreement
("Transfer Agency Agreement") between Janus Services and the Trust. Pursuant to
the Transfer Agency Agreement, each class of each Fundthe Portfolio reimburses Janus Services for
out-of-pocket expenses incurred by Janus Services in connection with services
rendered. In addition, Janus Services may receive from Service Shares of Risk-Managed Core Portfolio, Risk-Managed Growth Portfolio, Mid Cap Value
Portfolio and Small Company Valuethe
Portfolio an administrative services fee calculated at an annual rate of up to
0.10% of the average daily net asset valueassets of the Service Shares of each of these Funds.such shares. Such fee compensates Janus
Services for providing, or arranging for the provision of, recordkeeping,
subaccounting and administrative services to retirement or pension plan
participants, variable contract owners or other underlying investors investing
through institutional channels. Janus Services may pass through all or a portion
of this administrative services fee to third party service providers. Janus
Services may also retain a portion of the administrative services fee to cover
costs of administering relationships with third party service providers. Janus
Services intends to continue to provide the same services underafter implementation
of the Proposedproposed Subadvisory Agreement and the proposed Amended Advisory
Agreements (discussed in Proposal 4.a. above) and the Proposed
New Advisory Agreements (discussed in Proposal 4.b. above). Fees paid byAgreement.
Service Shares of Mid Cap Valuethe Portfolio Risk-Managed Core Portfolio and Small Company
Value Portfoliopaid administrative services fees to Janus
Services in the amount of $19,537 for the fiscal year ended December 31, 2004
are shown in the following table.
FEES PAID TO JANUS SERVICES FOR FISCAL YEAR
FUND ENDED DECEMBER 31, 2004
- ---- -------------------------------------------
Mid Cap Value Portfolio.......
Risk-Managed Core Portfolio...
Risk-Managed Growth
Portfolio...................
Small Company Value
Portfolio...................
WHO SERVES AS MY FUND'S DISTRIBUTOR?
Janus Distributors, a wholly-owned subsidiary of JCM, located at 151
Detroit Street, Denver, Colorado 80206, serves as distributor of the Trust
pursuant to a Distribution Agreement between the Trust and Janus Distributors.
Pursuant to plans adopted pursuant to Rule 12b-1 under the 1940 Act for Service
Shares and Service II Shares, Janus Distributors receives a 12b-1 distribution
fee from Service Shares and Service II Shares at the annual rate of up to 0.25%
of the average daily net assets of such shares in each Fund. Janus Distributors
uses the payments to pay insurance companies and qualified service providers for
distribution services pro-
52
vided by such service providers. Janus Distributors may retain some or all of
this fee or may pass it through to financial intermediaries in payment for
distribution services. Janus Distributors intends to continue to provide the
same services under the Proposed Amended Advisory Agreements (discussed in
Proposal 4.a. above) and the Proposed New Advisory Agreements (discussed in
Proposal 4.b. above).
Fees paid by Service Shares and Service II Shares of each Fund offering
such shares for the fiscal year ended December 31, 2004 are shown in the table
below.
FEES PAID TO JANUS DISTRIBUTORS FOR
FISCAL YEAR ENDED
DECEMBER 31, 2004
-------------------------------------
FUND SERVICE SHARES SERVICE II SHARES
- ---- -------------- --------------------
Balanced Portfolio.................
Core Equity Portfolio..............
Flexible Bond Portfolio............
Foreign Stock Portfolio............
Forty Portfolio....................
Global Life Sciences Portfolio.....
Global Technology Portfolio........
Growth and Income Portfolio........
International Growth Portfolio.....
Large Cap Growth Portfolio.........
Mid Cap Growth Portfolio...........
Mid Cap Value Portfolio............
Money Market Portfolio.............
Risk-Managed Core Portfolio........
Risk-Managed Growth Portfolio......
Small Company Value Portfolio......
Worldwide Growth Portfolio.........
WHO SERVES AS MY FUND'S ADMINISTRATOR?
JCM serves as administrator to the Trust, performing internal accounting,
recordkeeping, blue sky monitoring and registration functions of the Trust. JCM
may be reimbursed by the Trust for certain administrative and clerical functions
it provides to each Fund as well as for reasonable costs it incurs in performing
certain functions. JCM intends to continue to provide the same administrative
services after implementation of the Proposed Amended Advisory Agreements
(discussed in Proposal 4.a. above) and the Proposed New Advisory Agreements
(discussed in Proposal 4.b. above).
53
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Based on the Audit Committee's recommendation, the Board of Trustees,
including all of the Independent Trustees, selected PricewaterhouseCoopers LLP
("PWC") as the Trust's independent registered public accounting firm during the
Trust's current fiscal year. In accordance with Independence Standards Board
Standard No. 1 ("ISB No. 1"), PWC has confirmed to the Trust's Audit Committee
that it is an independent registered accounting firm with respect to the Funds.
Representatives of PWC will be available at the Meeting to answer appropriate
questions concerning the Trust's financial statements and will have an
opportunity to make a statement if they so choose.
As the independent registered public accounting firm for the Trust, PWC
performs audit services for the Trust, including the audit of the Trust's annual
financial statements, reviews of the Trust's annual reports, semi-annual
reports, quarterly portfolio holdings reports and registration statement
amendments. PWC may also provide other audit-related, non-audit and tax-related
services to the Funds.
The Trust's Audit Committee must pre-approve all audit and non-audit
services provided by PWC to the Funds. The Trust's Audit Committee has adopted
policies and procedures to, among other purposes, provide a framework for the
Audit Committee's consideration of any non-audit services provided by PWC. The
policies and procedures require that any audit and non-audit service provided to
the Funds by PWC and any non-audit service provided by PWC to JCM and entities
controlling, controlled by, or under common control with JCM that provide
ongoing services to the Funds (collectively, "Fund Service Providers"), that
relate directly to the operations and financial reporting of a Fund ("Covered
Services"), are subject to approval by the Audit Committee before such service
is provided. The Chairman of the Audit Committee (or, in his absence, any Audit
Committee member) is authorized to grant such pre-approval in the interim
between regularly scheduled meetings of the Audit Committee. In such case, the
Chairman must report the pre-approval to the Audit Committee no later than its
next meeting.
Pre-approval of non-audit services provided by PWC to the Trust and Fund
Service Providers is not required if: (i) the services were not recognized by
JCM at the time of the engagement as non-audit services; (ii) for non-audit
services provided to the Trust, the aggregate fees paid for all such non-audit
services provided to the Trust are no more than 5% of the total fees paid by the
Trust to the independent auditor during the fiscal year in which the non-audit
services are provided; (iii) for non-audit services provided to Fund Service
Providers, the aggregate fees for all such non-audit services provided are no
more than 5% of the total fees paid by the Trust and Fund Service Providers
during the fiscal year of the Trust in which the non-audit services are
provided; and (iv) such services are promptly brought to the attention of the
Audit Committee by JCM, and the Audit
54
Committee or its delegate approves them prior to the completion of the audit
(the "de minimis exception").
In circumstances where the Trust's Audit Committee did not pre-approve
certain non-audit services that were rendered by PWC to any Fund Service
Provider that did not relate directly to the operations and financial reporting
of a Janus Fund ("Non-Covered Service"), the Trust's Audit Committee will
consider whether the provision of such non-audit service by PWC is compatible
with maintaining PWC's independence in auditing the Funds, taking into account
representations from PWC, in accordance with ISB No. 1, regarding its
independence from the Funds and their related entities. There were no non-audit
services provided to a Fund Service Provider by PWC that were not pre-approved
by the Audit Committee.
Audit Fees. In each of the fiscal years ended December 31, 2004 and
December 31, 2003, the aggregate Audit Fees billed by PWC for professional
services rendered for the audits of the financial statements of each Fund, or
services that are normally provided by PWC in connection with statutory and
regulatory filings or engagements for those fiscal years for the Trust, are
shown in the table below.
2004(A) 2003(A)
- ------- -------
$237,100 $245,100
- ---------------
(A) Aggregate amounts may reflect rounding.
Audit-Related Fees. In each of the fiscal years ended December 31, 2004
and December 31, 2003, there were no Audit-Related Fees billed by PWC for
services rendered for assurance and related services to each Fund that are
reasonably related to the performance of the audit or review of the Funds'
financial statements, but not reported as Audit Fees.
In each of the fiscal years ended December 31, 2004 and December 31, 2003,
the aggregate Audit-Related Fees that were billed by PWC that were required to
be approved by the Audit Committee for services rendered on behalf of the Fund
Service Providers for assurance and related services that relate directly to the
operations and financial reporting of the Funds that are reasonably related to
the performance of the audit or review of the Funds' financial statements, but
not reported as Audit Fees, are shown in the table below.
2004(A) 2003(A)
- ------- -------
$112,250 $231,395
- ---------------
(A) Aggregate amounts may reflect rounding.
Fees included in the audit-related category consist of assurance and
related services (e.g., due diligence services) that are traditionally performed
by the
55
independent registered public accounting firm. These audit-related services
include due diligence related to mergers and acquisitions and semiannual
financial statement disclosure review.
No amounts were approved by the Audit Committee pursuant to the de minimis
exception for the fiscal years ended December 31, 2004 and December 31, 2003 for
the Trust, on behalf of each Fund. There were no amounts that were required to
be approved by the Audit Committee pursuant to the de minimis exception for the
fiscal years ended December 31, 2004 and December 31, 2003 for the Trust, on
behalf of the Fund Service Providers, that relate directly to the operations and
financial reporting of each Fund.
Tax Fees. In each of the fiscal years ended December 31, 2004 and December
31, 2003, the aggregate Tax Fees billed by PWC for professional services
rendered for tax compliance, tax advice, and tax planning for the Funds, are
shown in the table below.
2004(A) 2003(A)
- ------- -------
$57,695 $58,656
- ---------------
(A) Aggregate amounts may reflect rounding.
In each of the fiscal years ended December 31, 2004 and December 31, 2003,
the aggregate Tax Fees billed by PWC that were required to be approved by the
Audit Committee for professional services rendered on behalf of the Fund Service
Providers for tax compliance, tax advice, and tax planning that relate directly
to the operations and financial reporting of the Funds are shown in the table
below.
2004(A) 2003(A)
- ------- -------
$38,435 $23,215
- ---------------
(A) Aggregate amounts may reflect rounding.
Fees included in the Tax Fees category consist of all services performed by
professional staff in PWC's tax division, except those services related to the
audit. Typically, this category includes fees for tax compliance, tax planning,
and tax advice. Tax fees include amounts for tax advice related to mergers and
acquisitions and requests for ruling or technical advice from taxing
authorities.
No amounts were approved by the Audit Committee pursuant to the de minimis
exception for the fiscal years ended December 31, 2004 and December 31, 2003 for
the Trust, on behalf of each Fund. There were no amounts that were required to
be approved by the Audit Committee pursuant to the de minimis exception for the
fiscal years ended December 31, 2004 and December 31, 2003 for the Trust, on
behalf of the Fund Service Providers, that relate directly to the operations and
financial reporting of each Fund.
56
All Other Fees. In each of the fiscal years ended December 31, 2004 and
December 31, 2003, there were no Other Fees billed by PWC for all other
non-audit services rendered to the Funds.
In each of the fiscal years ended December 31, 2004 and December 31, 2003,
there were no Other Fees billed by PWC that were required to be approved by the
Audit Committee for all other non-audit services rendered on behalf of the Fund
Service Providers that relate directly to the operations and financial reporting
of the Funds.
There were no amounts that were approved by the Audit Committee pursuant to
the de minimis exception for the fiscal years ended December 31, 2004 and
December 31, 2003 for the Trust, on behalf of each Fund. There were no amounts
that were required to be approved by the Audit Committee pursuant to the de
minimis exception for the fiscal years ended December 31, 2004 and December 31,
2003 for the Trust, on behalf of the Fund Service Providers that relate directly
to the operations and financial reporting of each Fund.
For the fiscal years ended December 31, 2004 and December 31, 2003 for the
Trust, the aggregate fees billed by PWC of $84,000 and $119,000, respectively,
for non-audit services rendered on behalf of the Funds, JCM and Fund Service
Providers relating to Covered and Non-Covered Services, are shown in the table
below.
2004(A) 2003(A)
--------------------------------------- ---------------------------------------
COVERED SERVICES NON-COVERED SERVICES COVERED SERVICES NON-COVERED SERVICES
---------------- -------------------- ---------------- --------------------
$84,000 $0 $119,000 $0
- ---------------
(A) Aggregate amounts may reflect rounding.2007.
ADDITIONAL INFORMATION ABOUT THE MEETING
QUORUM AND VOTING
Shareholders areof the Portfolio will vote together at the Meeting. Each
holder of a whole or fractional share shall be entitled to one vote for each
full share heldwhole dollar and a proportionate fractional vote for each fractional sharedollar of
net asset value held onin such
30
shareholder's name as of the Record Date. If you are not the owner of record,
but are a beneficial owner as a participant in a qualified plan or a contract
owner of a variable insurance contract, your qualified plan or insurance company
may request that you instruct
itprovide instruction on how to vote the shares you
beneficially own. Your qualified plan or insurance company will provide you with
additional information.
One-third of the outstanding shares entitled to vote at the Meeting with
respect to each Fund or the Trust, as applicable, shall
be a quorum for the
57
transaction of business at the Meeting. Any lesser number is
sufficient for adjournments. Quorum with respect to each proposal is described in greater
detail below. In the event that the necessary quorum to transact
business or the vote required to obtain anyapprove a proposal is not obtained at the
Meeting, with respect
to one or more Funds, the persons named as proxies may propose one or more adjournments of
the Meeting, in accordance with applicable law, to permit further solicitation
of proxies with respect to that proposal.proxies. Any such adjournment as to a matterproposal will require the affirmative
vote of the holders of a majority of the shares of the applicable Fund,Portfolio, present in
person or by proxy at the Meeting. If a quorum is not present, theThe persons named as proxies will vote thosethe
proxies that they are entitled to vote "FOR" each item for the proposedPortfolio (including broker non-votes and abstentions) in favor
of adjournment if they determine additional solicitation is warranted and will vote those proxies required to be voted "AGAINST" each
item againstin the
adjournment.interest of shareholders of the Portfolio.
"Broker non-votes" are shares held by a broker or nominee for which an
executed proxy is received by the Trust,Portfolio, but are not voted as to one or more
proposals because
instructions have not been received from beneficial owners or persons entitled
to vote, and the broker or nominee does not have discretionary voting power.
For purposes of determining the presence of a quorum for
transacting business at the Meeting, abstentionsAbstentions and "broker non-votes" are treatedcounted as shares that areeligible to vote at the
Meeting in determining whether a quorum is present, but do not represent votes
cast with respect to adjournment or a proposal. For purposesAccordingly, assuming the
presence of voting on a proposal, abstentions and broker
non-votes will not be counted in favor of, but will have no other effect on,
Proposal 1, for which the required vote is a plurality of the votes cast. For
Proposals 2, 3, 4.a., 4.b., and 5,quorum, abstentions and "broker non-votes" will have the same effect asof
a "no" vote.
PROPOSAL 1: ELECTING TRUSTEES
Shareholdersvote against a proposal. Therefore, if your shares are held through a broker
or other nominee, it is important for you to instruct the broker or nominee how
to vote your shares.
Approval of each FundProposal will require the affirmative vote together. The presence in person or by
proxyof a 1940 Act
Majority of the holders of record of one-third of the Funds' aggregate total shares
outstanding and entitled to vote constitutes a quorum at the Meeting with
respect to this proposal.
PROPOSALS 2.A., 2.B., AND 2.C.: AMENDMENTS TO THE TRUST INSTRUMENT
Shareholders of each Fund will vote together with respect to each of
Proposal 2.a., 2.b. and 2.c. The presence in person or by proxy of the holders
of record of one-third of the Funds' aggregate total shares outstanding and
entitled to vote constitutes a quorum at the Meeting with respect to this
proposal.
PROPOSAL 3: ELIMINATION OF FUNDAMENTAL POLICY, FLEXIBLE BOND PORTFOLIO ONLY
Shareholders of Flexible Bond Portfolio will vote together. The presence in
person or by proxy of the holders of record of more than 50% of Flexible Bond
Portfolio's aggregate total shares outstanding and entitled to vote constitutes
a quorum with respect to this proposal.
58
PROPOSAL 4.A. AND 4.B.: APPROVAL OF AMENDED OR NEW INVESTMENT ADVISORY
AGREEMENT
Shareholders of each Fund (except Mid Cap Value Portfolio, Risk-Managed
Core Portfolio, Risk-Managed Growth Portfolio, and Small Company Value
Portfolio) vote separately on Proposal 4.a. (all classes voting together).
Shareholders of Mid Cap Value Portfolio, Risk-Managed Core Portfolio, and
Worldwide Growth Portfolio will vote separately on Proposal 4.b. (all classes
voting together). The presence in person or by proxy of the holders of record of
one-third of each applicable Fund's shares outstanding and entitledshareholders eligible to vote at the Meeting constitutes a quorum with respectMeeting. In
addition to the Proposals outlined in this proposal.
Approval of Proposal 4.b. byProxy Statement, shareholders of
Risk-Managed Core Portfolioother funds within the Janus fund complex are receiving a similar proxy
statement seeking approval for a subadvisory agreement with PWM and an amended
investment advisory agreement with Janus Capital. Implementation of the
agreement referred to in each Proposal in this Proxy Statement is contingent
upon the approval of both Proposals in this Proxy Statement, as well as upon the
approval of the same proposal forproposals by shareholders of Janus Risk-
Managed Stock Fund, a series of JIF, and Janus Adviser Risk-Managed Core Fund, a
series of JAD, with respect to separate proposed new advisory agreements for
those funds described in separate proxy statements. Approval of Proposal 4.b. by
shareholders of Mid Cap Value Portfolio is contingent upon approval of the same
proposal for shareholders of Janus Mid Cap Value Fund, a series of JIF, and
Janus Adviser Mid CapSmall Company
Value Fund, a series of JAD, with respect to separate
proposed new advisory agreements for those funds described in a separate proxy statements. Approvalstatement. In
addition, implementation of each Proposal 4.b. by shareholders of Worldwide Growth
Portfolio is contingent upon approvalconsummation of the
same proposal for shareholders of
Janus Worldwide Fund, a series of JIF,Pending Acquisition and Janus Adviser Worldwide Fund, a
series of JAD, with respect to separate proposed new advisory agreements for
those funds described in separate proxy statements.
PROPOSAL 5: APPROVAL OF NEW SUB-ADVISORY AGREEMENT, RISK-MANAGED CORE
PORTFOLIO ONLY
Shareholders of Risk-Managed Core Portfolio will vote together on Proposal
5. The presence in person or by proxy of the holders of record of one-third of
the Fund's shares outstanding and entitled to vote at the Meeting constitutes a
quorum with respect to this proposal. Approval of Proposal 5 is contingent upon
approval of the Proposed New Advisory Agreement by shareholders of Risk-Managed
Core Portfolio as described in Proposal 4.b. above.
With respect to Proposals 4.b and 5, in addition to obtaining the required
shareholder approval, implementation of the Proposed New Advisory Agreement for
each applicable Fund (described in Proposal 4.b.) and the Proposed New Sub-
Advisory Agreement for Risk-Managed Core Portfolio (described in Proposal 5) is
subject to an amendment to JCM's settlement order entered into with the Office
of the Attorney General of the State of New York ("NYAG") in August 2004 (the
"Order"). Under the Order, JCM agreedcertain other conditions that it would reduce the net management
fee rates paid by certain Janus Funds by $25 million a year over a five-year
period
59
commencing July 1, 2004 and that such reduced fee rates may not be increased
during that period. In order to be able to implement the proposed performance
fee structures for various Funds, the Independent Trustees requested the NYAG to
amend the Order to allow JCM to charge such fees. The NYAG has agreed in
principle to that request, and JCM and the NYAG areoutlined in the
process of amending
the Order accordingly.
PRINCIPAL HOLDERS OF VOTING SECURITIESPurchase Agreement or otherwise agreed to by Janus Capital and PWM.
31
SHARE OWNERSHIP
The number of outstanding shares and net assets of each class of each Fund,
as applicable,following table shows, as of the close of business on the Record Date,
is included in
Exhibit D to this Proxy Statement.the number of outstanding shares and net assets of the Portfolio:
TOTAL NUMBER OF
PORTFOLIO SHARES OUTSTANDING NET ASSETS
- --------- ------------------ ----------
Janus Aspen Small Company Value
Portfolio.........................
Shares of each Fundthe Portfolio are offered byfor purchase through an insurance
contract of a Participating Insurance Company or through a qualified plan. As of
September 1, 2005,[ ] , 2008, all of the outstanding shares of the FundsPortfolio were owned
by certain insurance company separate accounts and qualified plans and by JCM
[CONFIRM].plans. The
percentage ownership of each separate account or qualified plan owning 5% or
more of the outstanding shares of the Portfolio as of the Record Date are shown
below. To the best knowledge of the Trust, no person beneficially owned more
than 5% of each class (as applicable)the outstanding shares of each Fund's sharesthe Portfolio except as of
September 1, 2005 is provided in Exhibit M.shown below. To the
best knowledge of the Trust's
knowledge,Trust, entities shown as owning 25% or more of September 1, 2005, no personthe
Portfolio, unless otherwise indicated, are not the beneficial owners of such
shares. None of the qualified plans owned beneficially10% or more of the shares of the Trust
as a whole.
NAME AND ADDRESS OF BENEFICIAL OWNER NUMBER OF SHARES PERCENTAGE OF PORTFOLIO
- ------------------------------------ ---------------- -----------------------
As of the Record Date, the officers and Trustees as a group owned less than
5%1% of any class of a Fund'sthe outstanding shares except as stated in Exhibit M. [TO THE
BEST KNOWLEDGE OF THE TRUST, EXCEPT FOR JCM'S OWNERSHIP IN A FUND, AS INDICATED
IN EXHIBIT M TO THIS PROXY STATEMENT, NO PERSON OWNS 25% OR MORE OF A CLASS OF
SHARES OF ANY FUND. ENTITIES SHOWN IN EXHIBIT M TO THIS PROXY STATEMENT AS
OWNING 25% OR MORE OF A CLASS OF A FUND[, UNLESS OTHERWISE INDICATED,] ARE NOT
THE BENEFICIAL OWNERS OF SUCH SHARES.] [NONE OF THE QUALIFIED PLANS OWNED 10% OR
MORE OF THE SHARES OF THE TRUST AS A WHOLE.]of the Portfolio.
SOLICITATION OF PROXIES
The cost of preparing, printing, and mailing the proxy card(s), and this
Proxy Statement, and all other costs incurred with the solicitation of proxies,
including any additional solicitation made by letter, telephone, or otherwise,
will be allocated between JCMshared by Janus Capital and the Janus Funds, as described in the next
sentence. JCM will pay the costs associated with solicitation of proxies for the
election of Trustees. The Janus Funds will pay all other costs allocated among
the Funds on the basis of relative net assets.PWM. In addition to solicitation by mail,
officers and representatives of the Funds,Trust, officers and employees of JCMJanus
Capital or its affiliates, and certain financial services firms and their
representatives, without extra compensation, or a solicitor, may conduct
additional solicitations personally, by telephone, or by any other means
available.
JCMJanus Capital has engaged Computershare,[ ], a professional proxy
solicitation firm, to assist in the solicitation of proxies, for the Funds, at an estimated
cost of $5.4 million,[$ ], plus [any out-of-pocket] expenses. Such expenses shall be allocated between the Janus
Funds and JCM as described above.
60
Insurance companies and qualified plans may be required to forward
soliciting material to the beneficial owners of shares. For those services, they
will be
reimbursedshared by Janus Capital and PWM, with Janus assuming 75% of the Funds for their expenses and
Perkins assuming 25% of the expenses up to $2,500,000 after which Janus will
assume 100% of the extent the Funds would
have directly borne those expenses. Among other things, Computershare[ ] will be: (i)
required to maintain the confidentiality of all shareholder information; (ii)
prohibited from selling or otherwise
32
disclosing shareholder information to any third party; and (iii) required to
comply with applicable telemarketing laws.
Insurance companies and qualified plans may be required to forward
soliciting material to the beneficial owners of the Portfolio and to obtain
authorization for the execution of proxies. For those services, they will be
reimbursed by Janus Capital and/or PWM for their expenses, to the extent that
Janus Capital or the Portfolio would have directly borne those expenses.
As the Meeting date approaches, certain shareholders whose votes have not
been received may receive telephone calls from a representative of
Computershare if their vote has not been
received.[ ]. Authorization to permit Computershare[ ] to execute proxies
may be obtained by telephonic or electronically transmitted instructions from
shareholders of each Fund.the Portfolio. Proxies that are obtained telephonically will be
recorded in accordance with the procedures described below. The Funds believePortfolio
believes that these procedures are reasonably designed to ensure that both the
identity of the shareholder casting the vote and the voting instructions of the
shareholder are accurately determined.
In all cases where a telephonic proxy is solicited, the Computershare[ ]
representative is required to ask for each shareholder's full name, address and
title (if the shareholder is authorized to act on behalf of an entity, such as a
corporation), and to confirm that the shareholder has received the Proxy
Statement and proxy card(s) in the mail. If the information solicited agrees
with the information provided to Computershare,[ ], then the Computershare[ ]
representative has the responsibility to explain the process, read the proposals
listed on the proxy card, and ask for the shareholder's instructions on such
proposals.each
proposal. Although the Computershare[ ] representative is permitted to answer
questions about the process, he or she is not permitted to recommend to the
shareholder how to vote. The Computershare[ ] representative may read any
recommendation set forth in this Proxy Statement. The Computershare[ ]
representative will record the shareholder's instructions. Within 72 hours, the
shareholder will be sent a confirmation of his or her vote asking the
shareholder to call Computershare[ ] immediately if his or her instructions are
not accurately reflected in the confirmation.
Telephone Touch-Tone Voting. Shareholders may provide their voting
instructions through telephone touch-tone voting. This option requires shareholders to input
a control number which is located on each voting instruction card. After
inputting this number, shareholders will be prompted to provide their votingby following the instructions
on each proposal.the enclosed proxy card(s). Shareholders will have an opportunity to review
their voting instructions and make any necessary changes before submitting their
voting instructions and terminating their telephone call.
Internet Voting. Shareholders may provide their voting instructions
through Internet voting. Follow the instructions in the proxy materials. This
option requires shareholders to enter a control number which is located on the
proxy card. Followvoting by following the instructions on the screen using theenclosed proxy
card as a
guide.card(s). Shareholders who
61
vote via the Internet, in addition to confirming their
voting instructions prior to submission and terminating their Internet link,session,
will, upon request, receive an e-mail confirming their voting instructions.
If a shareholder wishes to participate in the Meeting but does not wish to
give a proxy by telephone or via the Internet, the shareholder may still submit
the proxy
33
card(s) originally sent with the Proxy Statement in the postage paidpostage-paid envelope
provided, or attend the Meeting in person. Should shareholders requireShareholders requiring additional
information regarding the proxy or replacement proxy card(s), they may contact
Computershare[ ] at 1-800- .[1- ]. Any proxy given by a shareholder is
revocable until voted at the Meeting.
Revoking a Proxy. Any shareholder submitting a proxy has the power to
revoke it at any time before it is exercised by submitting to the Secretary of
the Trust (at the address indicated on page 1 of this Proxy Statement)at 151 Detroit Street, Denver, Colorado 80206, a written notice of
revocation or a subsequently executed proxy, or by attending the Meeting and
voting in person. All properly executed and unrevoked proxies received in time
for the Meeting will be voted as specified in the proxy or, if no specification
is made, for each proposal referred towill be voted "FOR" the proposals, as described in thethis Proxy
Statement.
Shares Held Byby Accounts of Insurance Companies. Shares of the FundsPortfolio
may be held by certain separate accounts of insurance companies to fund benefits
payable under certain variable annuity contracts and variable life insurance
policies ("variable contracts").policies. Your insurance company may request that you provide it with voting
instructions for your beneficially held shares of any such separate account. If
you do not provide voting instructions to your insurance company, it may vote
all of the shares held in that separate account in the same proportions as the
voting actually received from its other variable contract holders for that
separate account.
PORTFOLIO TRANSACTIONS
All orders for the purchase or sale of a Fund'sthe Portfolio's portfolio securities
are placed on behalf of each Fundthe Portfolio by JCMJanus Capital or its agent. INTECH has authority toIf
shareholders approve the proposed Subadvisory Agreement, Janus Capital will
place trades on behalf of Risk-Managed Coreportfolio transactions solely upon PWM's direction. The Portfolio and Risk-Managed Growth
Portfolio. Each of JCM's and INTECH's policy is to seek "best execution" on each
trade. The Funds dodoes not
allocate portfolio transactions to broker-dealers on the basis of the sale of
FundPortfolio shares, although brokerage firms whose customers purchase shares of
the FundsPortfolio may execute transactions for the FundsPortfolio and receive brokerage
commissions. 62
The Trustees have authorized JCM to place tradesThere were no portfolio transactions for the Portfolio placed with
an affiliated broker.
JCM has not placed any trades with an affiliated broker since June 16, 2004.
However, prior to June 16, 2004, JCM was affiliated with DST Securities, Inc.
("DSTS"), a wholly-owned subsidiary of DST Systems, Inc. ("DST"), and placed
trades on behalf ofbroker-dealer during the Funds through DSTS. As authorized by the Trustees, JCM
placed trades with DSTS when it reasonably believed that the quality of the
execution and the associated commission were fair and reasonable and when,
overall, the associated transaction costs, net of any credits discussed below,
were lower than the net costs that would be incurred through other brokerage
firms that provide comparable execution. Brokerage commissions paid on
transactions executed through DSTS were normally used as a means to reduce Fund
expenses by generating credits to offset the license fees charged to a Fund by
DST for the use of its shareholder accounting system. The table below sets forth
the fees paid to DSTS for the Funds'Portfolio's last fiscal year ended December 31, 2004. Funds
not listed below did not pay any fees to DSTS.
AGGREGATE COMMISSIONS PERCENT OF AGGREGATE BROKERAGE
FUND PAID TO DSTS COMMISSIONS PAID BY FUND
- ---- --------------------- ------------------------------
year.
LEGAL MATTERS
Information regarding material pending legal proceedings involving JCMJanus
Capital, PWM, or any Fundthe Trust is attached as Exhibit F to this Proxy Statement as Exhibit N.Statement.
SHAREHOLDER PROPOSALS FOR SUBSEQUENT MEETINGS
ShareholdersThe Portfolio is not required, and does not intend, to hold annual
shareholder meetings. Under the terms of a settlement reached between Janus
Capital and the SEC in August 2004, commencing in 2005 and not less than every
fifth calendar year thereafter, the Trust will hold a meeting of shareholders to
elect Trustees.
34
Shareholder meetings may be called from time to time as described in the Amended
and Restated Trust Instrument and the Bylaws of the Trust.
Under the proxy rules of the SEC, shareholder proposals that meet certain
conditions may be included in the Portfolio's proxy statement for a particular
meeting. Those rules currently require that for future meetings, the shareholder
must be a record or beneficial owner of the Portfolio shares either (i) with a
value of at least $2,000 or (ii) in an amount representing at least 1% of the
Portfolio's securities to be voted at the time the proposal is submitted and for
one year prior thereto, and must continue to own such shares through the date on
which the meeting is held. Another requirement relates to the timely receipt by
the Portfolio of any such proposal. Under those rules, a proposal must have been
submitted within a reasonable time before the Portfolio began to print and mail
this Proxy Statement in order to be included in this Proxy Statement. A proposal
submitted for inclusion in the Portfolio's proxy material for the next special
meeting after the meeting to which this Proxy Statement relates must be received
by the Portfolio within a reasonable time before the Portfolio begins to print
and mail the proxy materials for that meeting.
A shareholder wishing to submit proposalsa proposal for inclusion in a proxy
statement
for a shareholder meeting subsequent to the Meeting, if any, should send theirthe written proposalsproposal to
the Secretary of the Trust at 151 Detroit Street, Denver, Colorado 80206, within
a reasonable time before the solicitationPortfolio begins to print and mail the proxy
materials for that meeting. Notice of proxies for
such meeting.shareholder proposals to be presented at
the Meeting must have been received within a reasonable time before the
Portfolio began to mail this Proxy Statement. The timely submission of a
proposal does not guarantee its inclusion.inclusion in the proxy materials.
SHAREHOLDER COMMUNICATIONS
The Trustees provide for shareholders to send written communications to the
Trustees via regular mail. Written communications to the Trustees, or to an
individual Trustee, should be sent to the attention of the Trust's Secretary at
the address of the Trust's principal executive office. All such communications
received by the Trust's Secretary shall be promptly forwarded to the individual
Trustee to whom they are addressed or to the full Board of Trustees, as
applicable. If a communication does not indicate a specific Trustee, it will be
sent to the Chairperson of the Nominating and Governance Committee and the
independent counsel to the Trustees for further distribution, as deemed
appropriate by such persons. The Trustees may further develop and refine this
process as deemed necessary or desirable.
REPORTS TO SHAREHOLDERS AND FINANCIAL STATEMENTS
COPIES OF EACH FUND'S MOST RECENTThe annual report to shareholders of the Portfolio, including financial
statements of the Portfolio, has previously been sent to shareholders. THE
PORTFOLIO PROVIDES ANNUAL AND SEMIANNUAL REPORTS TO ITS SHAREHOLDERS THAT
HIGHLIGHT RELEVANT
35
INFORMATION, INCLUDING INVESTMENT RESULTS AND 63
A REVIEW OF PORTFOLIO CHANGES, ARE AVAILABLE UPON REQUEST AND WITHOUT CHARGE BY
CONTACTING YOUR INSURANCE COMPANY OR PLAN SPONSOR.CHANGES.
ADDITIONAL COPIES OF EACH FUND'STHE PORTFOLIO'S MOST RECENT ANNUAL REPORT AND ANY MORE
RECENT SEMIANNUAL REPORT ARE ALSO AVAILABLE, WITHOUT CHARGE, BY CALLING 800- ,A JANUS
REPRESENTATIVE AT 1-877-335-2687, VIA THE INTERNET AT WWW.JANUS.COM,WWW.JANUS.COM/INFO, OR BY
SENDING A WRITTEN REQUEST TO THE SECRETARY OF THE TRUST AT 151 DETROIT STREET,
DENVER, COLORADO 80206.
OTHER MATTERS TO COME BEFORE THE MEETING
The Board of Trustees is not aware of any matters that will be presented
for action at the Meeting other than the matters described in this Proxy
Statement. Should any other matters requiring a vote of shareholders arise, the
proxy in the accompanying form will confer upon the person or persons entitled
to vote the shares represented by such proxy the discretionary authority to vote
the shares as to any other matters, in accordance with their best judgment in
the interest of the Trust and/or Fund.Portfolio.
PLEASE COMPLETE, SIGN, AND RETURN THE ENCLOSED PROXY CARD(S) OR VOTE BY
INTERNET OR TELEPHONE PROMPTLY. NO POSTAGE IS REQUIRED IF YOU MAIL YOUR PROXY
CARD(S) IN THE UNITED STATES.
By order of the Board of Trustees,
/s/ Kelley Abbott Howes
Kelley Abbott Howes
ViceRobin C. Beery
Robin C. Beery
President General Counsel
and Secretary
64Chief Executive Officer of
Janus Aspen Series
36
INDEX OF EXHIBITS
EXHIBIT A: Nominating and Governance Committee CharterForm of Subadvisory Agreement
EXHIBIT B: Officers of the Trust
EXHIBIT C: Trust Instrument with Proposed Amendments
EXHIBIT D: Number of Outstanding Shares and Net Assets
EXHIBIT E: Form of Proposed Amended Advisory Agreement for Equity
and Income Funds
EXHIBIT F: Form of Amended Investment Advisory Agreement
for Money Market Fund
EXHIBIT G:C: Other Funds Managed by Janus Capital and PWM with
Similar Investment Objectives
EXHIBIT D: Principal Executive Officers and Directors of Janus
Capital and Their Principal Occupations
EXHIBIT H: Other Funds Managed with Similar Investment Objectives
EXHIBIT I: FormE: Trustees and Principal Executive Officers of Proposed New Advisory Agreement for Worldwide
Growth Portfolio
EXHIBIT J: Form of Proposed New Advisory Agreement for Mid Cap
Valuethe
Portfolio and Risk-Managed Core PortfolioTheir Principal Occupations
EXHIBIT K: Form of Proposed New Sub-Advisory Agreement for Risk-
Managed Core Portfolio
EXHIBIT L: Principal Executive Officer and Directors of INTECH
EXHIBIT M: 5% Beneficial Owners of Shares
EXHIBIT N:F: Legal Matters
6537
EXHIBIT A[EXHIBIT A]
[FORM OF SUB-ADVISORY AGREEMENT]
[JANUS ASPEN PERKINS SMALL COMPANY VALUE PORTFOLIO
(A SERIES OF JANUS ASPEN SERIES
JANUS INVESTMENT FUND
JANUS ADVISER SERIES
NOMINATING AND GOVERNANCE COMMITTEE CHARTER
(ADOPTED DECEMBER 5, 2000; REVISED DECEMBER 10, 2001;
REVISED DECEMBER 10, 2002; REVISED SEPTEMBER 16, 2003;
REVISED MARCH 16, 2004; REVISED JUNE 15, 2004; REVISED JUNE 14, 2005)
I. PURPOSE
The Nominating and Governance CommitteeSERIES)]
[This SUB-ADVISORY AGREEMENT (the "Committee""Agreement") is a committeeentered into effective as
of the Boardday of Trustees2008, by and between JANUS CAPITAL MANAGEMENT
LLC, a Delaware limited liability company ("Trustees"Janus") of each ofand PERKINS INVESTMENT
MANAGEMENT LLC, a Delaware limited liability company ("Perkins").]
[WHEREAS, Janus has entered into an Investment Advisory Agreement (the
"Advisory Agreement") with Janus Aspen Series, Janus
Investment Fund,a Delaware statutory trust (the
"Trust") and Janus Adviser Series (each a "Trust" and, collectively, the
"Trusts"). Its primary functions are to:
- identify and recommend individuals for Trustee membership,
- consult withan open-end, management in planning Trustee meetings, and
- oversee the administration of, and ensure compliance with, the Governance
Procedures and Guidelines (the "Procedures and Guidelines") adopted by
the Trusts as in effect from time to time.
II. COMPOSITION
The Committee shall be comprised of three or more Independent Trustees, who
shall be designated by a majority vote of the Trustees. Independent Trustees are
those Trustees of the Trusts who are not "interested persons" of the Trusts, as
defined byinvestment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act") and
who meet, with respect to
Janus Aspen Perkins Small Company Value Portfolio, a series of the standards for independence set forthTrust (the
"Fund") pursuant to which Janus has agreed to provide investment advisory
services with respect to the Fund; and]
[WHEREAS, Perkins is engaged in the Proceduresbusiness of rendering investment
advisory services and Guidelines.
The membersis registered as an investment adviser under the
Investment Advisers Act of 1940, as amended (the "Advisers Act"); and]
[WHEREAS, Janus desires to retain Perkins to furnish investment advisory
services with respect to the Fund, and ChairmanPerkins 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 Perkins. Janus hereby engages the services of Perkins
as subadviser in furtherance of the CommitteeAdvisory Agreement. Perkins 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) Perkins 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 electedacquired, 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,
A-1
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) Perkins 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 Perkins, and the
investment considerations which have given rise to those decisions;]
[(c) Perkins shall maintain all books and records required to be
maintained by Perkins 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. Perkins
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) Perkins 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) Perkins 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
annuallyof the Trust, so that Janus may exercise such rights, or, in the event
that the Trust retains the right to exercise such voting and serve until their respective successorsother
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 duly electedreasonably requested by the Trustees
or Janus, Perkins shall provide the Trustees and qualified.
III. MEETINGS
The CommitteeJanus 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 meet four times annually, or more frequentlymake available to the Trustees
and Janus any
A-2
economic, statistical and investment services normally available to
similar investment company clients of Perkins; and]
[(g) Perkins will provide to Janus for regulatory filings and other
appropriate uses materially accurate and complete information relating
to Perkins as
circumstances dictate. Special meetings (including telephone meetings) may be calledreasonably requested by Janus from time to time
and, notwithstanding anything herein to the contrary, Perkins 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
Perkins to Janus, provided, however, that Perkins shall not be liable to
the extent that any Damages are based upon inaccuracies or omissions
made in reliance upon information furnished to Perkins by Janus.]
[2. Further Obligations. In all matters relating to the performance
of this Agreement, Perkins 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 Perkins 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 Perkins continuously and fully informed (or cause the
custodian of the Fund's assets to keep Perkins 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 Perkins 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 Perkins with any further materials or information
which Perkins may reasonably request to enable it to perform its
function under this Agreement; and]
A-3
[(d) To compensate Perkins for its services in accordance with the
provisions of Section 4 hereof.]
[4. Compensation. Janus shall pay Perkins 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 Perkins 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. Perkins shall pay all its own costs and expenses
incurred in rendering its service under this Agreement.]
[6. Representations of Perkins. Perkins hereby represents, warrants
and covenants to Janus as follows:]
[(a) Perkins: (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 Chairman1940 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 Perkins 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 Perkins that
could have a material adverse effect upon Perkins' ability to fulfill
its obligations under this Agreement.]
[(b) Perkins 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 majorityvice president of Perkins shall certify to
Janus that Perkins has complied with the requirements of Rule 17j-1
during the previous year and that there has been no violation of
Perkins' 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, Perkins shall permit
A-4
Janus, its employees or its agents to examine the reports required to be
made to Perkins by Rule 17j-1(c)(1) and all other records relevant to
Perkins' code of ethics.]
[(c) Perkins 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 members ofdate 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 Committee upon
reasonable notice to the other members of the Committee. The presence in person
or by telephonevote of a majority of
the number of Committee members shall
constitute a
A-1
quorum at any meeting. If a quorum is not present, the member(s) of the
Committee who is/are present may select any other Independent Trustee(s) to
serve on the Committee for such meeting to constitute a quorum. The Committee
may ask management and representatives of the servicing agents to attend
meetings and provide pertinent information as appropriate.
IV. RESPONSIBILITIES AND DUTIES
In performing its duties, the Committee will maintain effective working
relationships with the Trustees and management. To effectively perform his or
her role, each Committee member will obtain an understanding of the detailed
responsibilities of Committee membership. Each Committee member will also
achieve an understanding of the Trusts' separation of duties and
responsibilities among the investment adviser, custodian, transfer agent, fund
accounting function and principal accounting officer, and the risks associated
with such responsibilities. The duties and responsibilities of a Committee
member shall be in addition to his or her duties as a Trustee and include
responsibility to prepare for, attend, and actively participate in Committee
meetings. Members may pursue training related to their responsibilities.
A. TRUSTEE NOMINATIONS, ELECTIONS, AND TRAINING
The Committee shall:
1. Identify and nominate candidates for appointment as Trustees of the Trusts. The principal criterion for selection of candidates is their ability to
contribute to the overall functioningTrust who are not parties hereto or interested persons
of the Boards and to carry out the
responsibilities of the Trustees. The Trustees, collectively, should representTrust, Janus or Perkins, cast in person at a broad cross section of backgrounds, functional disciplines, and experience. In
addition, in considering a potential candidate's qualifications to serve as a
Trustee of a Trust, the Committee may take into account a wide variety of
criteria, including, but not limited to:
(a) The candidate's knowledge in matters related to the investment
company industry;
(b) The candidate's relevant experience, including as a director or
senior officer of public or private companies, or service as a
director/trustee of a registered investment company;
(c) The candidate's educational background;
(d) The candidate's reputation for high ethical standards and personal
and professional integrity;
(e) Any specific financial, technical or other expertise possessed by
the candidate, and the extent to which such expertise would complement the
Trustees' existing mix of skills and qualifications;
A-2
(f) The candidate's willingness to serve, and willingness and ability
to commit the time necessary for the performance of the duties of a
Trustee, including high attendance at regular and special meetings and
participation in committee activities as needed;
(g) The candidate must exhibit stature commensurate with the
responsibility of representing Fund shareholders;
(h) If the nomination is for an "independent" trustee, the candidate
must not be considered an "interested" person of the Fund, Janus Capital
Management LLC ("Janus Capital") or any sub-adviser to a Fund, as defined
under the 1940 Act;
(i) The candidate must otherwise be qualified under applicable laws
and regulations to serve as a trustee of the applicable Trust; and
(j) Such other criteria as the Committee determines to be relevant in
light of the existing composition of the Board, number of Board members and
any anticipated vacancies or other factors.
Although Janus Capital, current Trustees, current shareholders of a Fund
and any other person or entity that may be deemed necessary or desirable by
the Committee, may submit to the Committee suggested candidates for
Trustees, neither the Committee nor the Independent Trustees as a group
shall consider those candidates on a preferential basis as opposed to other
possible candidates. Shareholders may submit the name of a candidate for
consideration by the Committee by submitting their recommendations to the
Trusts' Secretary in accordance with the Procedures for Consideration of
Trustee Candidates Submitted by Shareholders ("Shareholder Nomination
Procedures") attached as Appendix 1. The Trusts' Secretary will forward all
such recommendations to the Chairman of the Committee (or his designee)
promptly upon receipt, and, for shareholder recommendations, in accordance
with the Shareholder Nomination Procedures.
The Committee may use any process it deems appropriatemeeting called for the
purpose of evaluating candidates, which process may include, without limitation,
personal interviews, background checks, written submissions byvoting on the candidates and third party references. There is no difference in the manner
by which the Committee will evaluate nominees when the nominee is submitted
by a shareholder.
The Committee reserves the right to make the final selection regarding the
nomination of any Trustee of a Trust and to recommend such nomination to
the Independent Trusteesapproval of the applicable Trust.
2. Review periodically the composition and size of the Board of Trustees to
determine whether it may be appropriate to add individuals with backgrounds or
skill sets different from those of the current Trustees.
A-3
3. Oversee arrangements for orientation of new Independent Trustees,
continuing education for the Independent Trustees, and an annual evaluation of
the performance of the Independent Trustees in accordance with the Procedures
and Guidelines.
B. COMMITTEE NOMINATIONS AND FUNCTIONS
The Committee shall:
1. Identify and recommend individuals for membership on all committees,
recommend individuals to chair committees, and review committee assignments at
least annually.
2. Review as necessary the responsibilities of each committee, whether
there is a continuing need for each committee, whether there is a need for
additional committees, and whether committees should be combined or reorganized.
C. GOVERNANCE OVERSIGHT
The Committee shall:
1. Oversee the governance processes and activities of the Trustees to
assure conformity to the Procedures and Guidelines.
2. Recommend an Independent Trustee of the Trust for appointment by the
Trustees as Chairman of the Trustees, as described in each Trust's Declaration
of Trust or Trust Instrument, or by-laws. The Chairman of the Trustees may
perform the following functions:
(a) Act as the primary contact between Janus Capital and the Trustees,
undertaking to meet or confer periodically with members of the Janus
Capital executive team regarding matters related to the operations and
performance of the Trusts;
(b) Coordinate the Trustees' use of outside resources, including
consultants or other professionals;
(c) Coordinate an annual schedule of portfolio reports to the
Trustees;
(d) Conduct the Trustee meetings;
(e) Confer with Janus Capital personnel and counsel for the
Independent Trustees in planning agendas for regular board and committee
meetings; and
(f) Perform such other duties as the Independent Trustees may
determine from time to time.
3. Review annually the Procedures and Guidelines, and recommend changes, if
any, to the Trustees.
A-4
D. TRUSTEE MEETING PLANNING
The Committee shall consult with management in planning Trustee meetings
and may from time to time recommend agenda items, or request presentations from
particular service providers, consultants, or portfolio managers, either to the
Committee or the Trustees.
E. OTHER RESPONSIBILITIES AND DUTIES
The Committee shall:
1. Review annually the compensation of the Independent Trustees and
determine whether to recommend to the Trustees any change in the schedule of
compensation. The Committee may also recommend that the Trustees authorize the
payment of supplemental compensation to any one or more Independent Trustees in
view of special responsibilities assumed, services rendered or any other
appropriate factors.
2. Authorize and oversee investigations into any matters within the
Committee's scope of responsibilities. The Committee shall be empowered to use
Trust assets to retain independent counsel, consultants, and other professionals
to assist in the conduct of any investigation. Janus Capital will report the use
of Trust assets for such purpose quarterly to the Trustees.
3. Review this Charter at least annually and recommend changes, if any, to
the Trustees.
4. Perform any other activities consistent with this Charter, each Trust's
Declaration of Trust or Trust Instrument, by-laws, and governing law as the
Committee or the Trustees deem necessary or appropriate.
5. Maintain minutes of its meetings and report to the Trustees.
A-5
APPENDIX 1
JANUS INVESTMENT FUND
JANUS ASPEN SERIES
JANUS ADVISER SERIES
(EACH A "TRUST," AND COLLECTIVELY, THE "TRUSTS," AND EACH
SERIES OF A TRUST, A "FUND")
PROCEDURES FOR CONSIDERATION OF TRUSTEE CANDIDATES SUBMITTED BY SHAREHOLDERS
(ADOPTED MARCH 16, 2004)
The Trusts' Nominating and Governance Committee ("Committee") is
responsible for identifying and nominating candidates for appointment as
Trustees of the Trusts. Shareholders of a Fund may submit names of potential
candidates for nomination as Trustee of a Trust in accordance with these
Procedures.
A candidate for nomination as Trustee of a Trust submitted by a shareholder
will not be deemed to be properly submitted to the Committee for the Committee's
consideration unless the following qualifications have been met and procedures
followed:
1. A shareholder of a Fund who wishes to nominate a candidate for
election to a Trust's Board of Trustees ("Nominating Shareholder") must
submit any such recommendation in writing via regular mail to the attention
of the Secretary of the Trust, at the address of the principal executive
offices of the Trust ("Shareholder Recommendation").
2. The Shareholder Recommendation must include: (i) the class or
series and number of all shares of the Fund owned beneficially or of record
by the Nominating Shareholder at the time the recommendation is submitted
and the dates on which such shares were acquired, specifying the number of
shares owned beneficially; (ii) a full listing of the proposed candidate's
education, experience (including knowledge of the investment company
industry, experience as a director or senior officer of public or private
companies, and directorships on other boards of other registered investment
companies), current employment, date of birth, business and residence
address, and the names and addresses of at least three professional
references; (iii) information as to whether the candidate is or may be an
"interested person" (as such term is defined in the Investment Company Act
of 1940, as amended) of the Fund, Janus Capital Management LLC, or any
sub-adviser to a Fund, and, if believed not to be an "interested person,"
information regarding the candidate that will be sufficient for the Fund to
make such determination; (iv) the written and signed consent of the
candidate to be named as a nominee and to serve as a Trustee of the Trust,
if elected; (v) a description of all arrangements or
A-6
understandings between the Nominating Shareholder, the candidate and/or any
other person or persons (including their names) pursuant to which the
Shareholder Recommendation is being made, and if none, so specify; (vi) the
class or series and number of all shares of the Fund owned of record or
beneficially by the candidate, as reported by the candidate; and (vii) such
other information that would be helpful to the Committee in evaluating the
candidate.
3. The Committee may require the Nominating Shareholder to furnish
such other information as it may reasonably require or deem necessary to
verify any information furnished pursuant to paragraph 2 above or to
determine the qualifications and eligibility of the candidate proposed by
the Nominating Shareholder to serve as a Trustee of a Trust. If the
Nominating Shareholder fails to provide such other information in writing
within seven days of receipt of written request from the Committee, the
recommendationterms of such candidate as a nominee will be deemed not properly
submitted for consideration,renewal, and (b)
either the Committee is not required to consider
such candidate.
Unless otherwise specified by the Committee chairman (or his designee) or
by outside counsel to the independent Trustees, the Secretary of the Trust (or
her designee) will promptly forward all Shareholder Recommendations to the
Committee chairman (or his designee) and the outside counsel to the independent Trustees of the Trust indicating whetheror the Shareholder Recommendation has
been properly submitted pursuant to these Procedures.
Recommendations for candidates as Trustees of a Trust will be evaluated,
among other things, in light of whether the number of Trustees is expected to
change and whether the Trustees expect any vacancies. When the Committee is not
actively recruiting new Trustees, Shareholder Recommendations will be kept on
file until active recruitment is under way.
A-7
EXHIBIT B
TRUST OFFICERS AND THEIR PRINCIPAL OCCUPATIONS
TERM OF
NAME, AGE AS OF OFFICE* AND
DECEMBER 31, 2004 POSITIONS HELD WITH LENGTH OF PRINCIPAL OCCUPATIONS DURING
AND ADDRESS PORTFOLIOS TIME SERVED THE PAST FIVE YEARS
- ----------------- ------------------- ----------- ----------------------------
Jonathan D. Coleman... Executive Vice President 2/02-Present Vice President of Janus
151 Detroit Street and Portfolio Manager Capital and Portfolio
Denver, CO 80206 Mid Cap Growth Portfolio Manager for other Janus
Age 33 accounts. Formerly, Analyst
(1994-1997 and 2000-2002)
for Janus Capital
Corporation.
C. Mike Lu............ Executive Vice President 12/99-Present Vice President of Janus
151 Detroit Street and Portfolio Manager Capital and Portfolio
Denver, CO 80206 Global Technology Manager for other Janus
Age 35 Portfolio accounts.
Brent A. Lynn......... Executive Vice President 1/01-Present Vice President of Janus
151 Detroit Street and Portfolio Manager Capital and Portfolio
Denver, CO 80206 International Growth Manager for other Janus
Age 40 Portfolio accounts. Formerly, Analyst
(1991-2001) for Janus
Capital Corporation.
Thomas R. Malley...... Executive Vice President 12/99-Present Vice President of Janus
151 Detroit Street and Co-Portfolio Manager Capital and Portfolio
Denver, CO 80206 Global Life Sciences Manager for other Janus
Age 36 Portfolio accounts.
Marc Pinto............ Executive Vice President 5/05-Present Vice President of Janus
151 Detroit Street and Co-Portfolio Manager Capital and Portfolio
Denver, CO 80206 Balanced Portfolio Manager for other Janus
Age 43 accounts.
Blaine P. Rollins..... Executive Vice President 1/00-Present Vice President of Janus
151 Detroit Street and Portfolio Manager Capital and Portfolio
Denver, CO 80206 Large Cap Growth Manager for other Janus
Age 37 Portfolio accounts.
Scott W. Schoelzel.... Executive Vice President 5/97-Present Vice President of Janus
151 Detroit Street and Portfolio Manager Capital and Portfolio
Denver, CO 80206 Forty Portfolio Manager for other Janus
Age 46 accounts.
Gibson Smith.......... Executive Vice President 5/05-Present Vice President of Janus
151 Detroit Street and Co-Portfolio Manager Capital and Portfolio
Denver, CO 80206 Balanced Portfolio Manager for other Janus
Age 36 accounts. Formerly, Analyst,
(2001-2003) for Janus
Capital Corporation and
worked in the fixed-income
division (1991-2001) for
Morgan Stanley.
B-1
TERM OF
NAME, AGE AS OF OFFICE* AND
DECEMBER 31, 2004 POSITIONS HELD WITH LENGTH OF PRINCIPAL OCCUPATIONS DURING
AND ADDRESS PORTFOLIOS TIME SERVED THE PAST FIVE YEARS
- ----------------- ------------------- ----------- ----------------------------
Minyoung Sohn......... Executive Vice President 5/05-Present Vice President of Janus
151 Detroit Street and Portfolio Manager Capital and Portfolio
Denver, CO 80206 Core Equity Portfolio Manager for other Janus
Age 29 accounts. Formerly, Analyst
(1998-2003) for Janus
Capital Corporation.
Executive Vice President 1/04-Present
and Portfolio Manager
Growth and Income
Portfolio
Ronald V. Speaker..... Executive Vice President 5/93-Present Vice President of Janus
151 Detroit Street and Portfolio Manager Capital and Portfolio
Denver, CO 80206 Flexible Bond Portfolio Manager for other Janus
Age 40 accounts.
J. Eric Thorderson.... Executive Vice President 1/01-Present Vice President of Janus
151 Detroit Street and Portfolio Manager Capital and Portfolio
Denver, CO 80206 Money Market Portfolio Manager for other Janus
Age 43 accounts.
Jason P. Yee.......... Executive Vice President 7/04-Present Vice President of Janus
151 Detroit Street and Portfolio Manager Capital and Portfolio
Denver, CO 80206 Worldwide Growth Manager for other Janus
Age 35 Portfolio accounts. Formerly,
Portfolio Manager and
Managing Director
(1996-2000) for Bee &
Associates and Analyst
(2000-2001) for Janus
Capital Corporation.
Executive Vice President 3/01-Present
and Portfolio Manager
Foreign Stock Portfolio
Bonnie M. Howe........ Vice President 12/99-Present Vice President and Assistant
151 Detroit Street General Counsel of Janus
Denver, CO 80206 Capital, Janus Distributors
Age 39 LLC and Janus Services LLC.
B-2
TERM OF
NAME, AGE AS OF OFFICE* AND
DECEMBER 31, 2004 POSITIONS HELD WITH LENGTH OF PRINCIPAL OCCUPATIONS DURING
AND ADDRESS PORTFOLIOS TIME SERVED THE PAST FIVE YEARS
- ----------------- ------------------- ----------- ----------------------------
Kelley Abbott Howes... General Counsel 4/04-Present Senior Vice President and
151 Detroit Street General Counsel of Janus
Denver, CO 80206 Vice President and 12/99-Present Capital and Janus Services
Age 39 Secretary LLC; and Senior Vice
President and Assistant
General Counsel of Janus
Distributors LLC. Formerly,
Vice President (1999-2005)
of Janus Distributors LLC;
Vice President (2000-2004)
and Assistant General
Counsel (2002-2004) of Janus
Services LLC; and Vice
President and Assistant
General Counsel (1999-2004)
of Janus Capital.
David R. Kowalski..... Vice President and Chief 6/02-Present Senior Vice President and
151 Detroit Street Compliance Officer Chief Compliance Officer of
Denver, CO 80206 Janus Capital, Janus
Age 47 Distributors LLC, and Janus
Services LLC; Chief
Compliance Officer of Bay
Isle Financial LLC and
Enhanced Investment
Technologies LLC. Formerly,
Vice President of Janus
Capital (2000-2005), Janus
Distributors LLC (2000-2001)
and Janus Services LLC
(2004-2005); Assistant Vice
President of Janus Services
LLC (2000-2004); and Senior
Vice President and Director
(1985-2000) of Mutual Fund
Compliance for Van Kampen
Funds.
B-3
TERM OF
NAME, AGE AS OF OFFICE* AND
DECEMBER 31, 2004 POSITIONS HELD WITH LENGTH OF PRINCIPAL OCCUPATIONS DURING
AND ADDRESS PORTFOLIOS TIME SERVED THE PAST FIVE YEARS
- ----------------- ------------------- ----------- ----------------------------
Girard C. Miller**.... President and Chief 11/03-Present Executive Vice President and
151 Detroit Street Executive Officer Chief Operating Officer of
Denver, CO 80206 Janus Capital Group Inc. and
Age 53 Janus Capital; President of
Janus Distributors LLC and
Janus Capital International
LLC; Executive Vice
President of Janus Services
LLC; President and Director
of Janus Management Holdings
Corporation; Chief Operating
Officer and President of
Capital Group Partners,
Inc.. Formerly, Director of
Capital Group Partners, Inc.
(2003-2004); and President
and Chief Executive Officer
of ICMA Retirement
Corporation (1993-2003).
Jesper Nergaard....... Chief Financial Officer 3/05-Present Vice President of Janus
151 Detroit Street Capital. Formerly, Director
Denver, CO 80206 Vice President, 2/05-Present of Financial Reporting for
Age 42 Treasurer, and Principal OppenheimerFunds, Inc.
Accounting Officer (2004-2005); Site Manager
and First Vice President of
Mellon Global Securities
Services (2003); and
Director of Fund Accounting,
Project Development and
Training of INVESCO Funds
Group (1994-2003).
- ---------------
* Officers are elected annually by the Trustees for a one-year term.
** Effective August 2005, Mr. Miller has announced his intention to retire his
positions with Janus Capital Group Inc. and its subsidiaries. Also effective
at that time, Mr. Miller will retire as President and Chief Executive Officer
of the Trust.
B-4
EXHIBIT C
JANUS ASPEN SERIES
AMENDED AND RESTATED
TRUST INSTRUMENT
DATED MARCH 18, 2003,
AMENDED [NOVEMBER , 2005]
DEFINITIONS..................................................... C-1
THE TRUSTEES AND THE ADVISORY BOARD............................. C-2
SECTION 1. Management of the Trust.......................... C-2
SECTION 2. Election and Number of Trustees.................. C-2
SECTION 3. Term of Office of Trustees....................... C-2
SECTION 4. Vacancies; Appointment of Trustees............... C-3
SECTION 5. Temporary Vacancy or Absence..................... C-3
SECTION 6. Chairman......................................... C-3
SECTION 7. Action by the Trustees........................... C-3
SECTION 8. Ownership of Trust Property...................... C-4
SECTION 9. Effect of Trustees Not Serving................... C-4
SECTION 10. Trustees, etc. as Shareholders................... C-4
POWERS OF THE TRUSTEES.......................................... C-5
SECTION 1. Powers........................................... C-5
SECTION 2. Certain Transactions............................. C-7
SECTION 3. Advisory Board................................... C-8
SERIES; CLASSES; SHARES......................................... C-8
SECTION 1. Establishment of Series or Classes............... C-8
SECTION 2. Shares of Beneficial Interest.................... C-8
SECTION 3. Investment in the Trust.......................... C-9
SECTION 4. Assets and Liabilities of Series................. C-9
SECTION 5. Ownership and Transfer of Shares................. C-10
SECTION 6. Status of Shares; Limitation of Shareholder
Liability........................................ C-11
DISTRIBUTIONS AND REDEMPTIONS................................... C-11
SECTION 1. Distributions.................................... C-11
SECTION 2. Redemptions...................................... C-11
SECTION 3. Determination of Net Asset Value................. C-12
SECTION 4. Suspension of Right of Redemption................ C-12
SECTION 5. Redemptions Necessary for Qualification as
Regulated Investment Company..................... C-12
SHAREHOLDERS' VOTING POWERS AND MEETINGS........................ C-13
SECTION 1. Voting Powers.................................... C-13
SECTION 2. Meetings of Shareholders......................... C-14
SECTION 3. Quorum; Required Vote............................ C-14
C-i
CONTRACTS WITH SERVICE PROVIDERS................................ C-14
SECTION 1. Investment Adviser............................... C-14
SECTION 2. Principal Underwriter............................ C-15
SECTION 3. Transfer Agency, Shareholder Services, and
Administration Agreements........................ C-15
SECTION 4. Custodian........................................ C-15
SECTION 5. Parties to Contracts with Service Providers...... C-15
EXPENSES OF THE TRUST AND SERIES................................ C-16
LIMITATION OF LIABILITY AND INDEMNIFICATION..................... C-17
SECTION 1. Limitation of Liability.......................... C-17
SECTION 2. Indemnification.................................. C-17
SECTION 3. Indemnification of Shareholders.................. C-19
MISCELLANEOUS................................................... C-19
SECTION 1. Trust Not a Partnership.......................... C-19
SECTION 2. Trustee Action; Expert Advice; No Bond or
Surety........................................... C-19
SECTION 3. Record Dates..................................... C-19
SECTION 4. Termination of the Trust, Series or Class........ C-20
SECTION 5. Reorganization................................... C-21
SECTION 6. Trust Instrument................................. C-21
SECTION 7. Applicable Law................................... C-21
SECTION 8. Amendments....................................... C-22
SECTION 9. Fiscal Year...................................... C-23
SECTION 10. Severability..................................... C-23
SECTION 11. Use of the Name "Janus."......................... C-23
C-ii
JANUS ASPEN SERIES
AMENDED AND RESTATED TRUST INSTRUMENT
This AMENDED AND RESTATED TRUST INSTRUMENT is made on March 18, 2003, by
the Trustees, to establish a business trust for the investment and reinvestment
of funds contributed to the Trust by investors. The Trustees declare that all
money and property contributed to the Trust shall be held and managed in trust
pursuant to this Trust Instrument. The name of the Trust created by this Trust
Instrument is Janus Aspen Series.
ARTICLE I
DEFINITIONS
Unless otherwise provided or required by the context:
(a) "Advisory Board" refers to the Advisory Board of the Trust
established in accordance with Article III, Section 3.
(b) "Bylaws" means the Bylaws of the Trust adopted by the Trustees, as
amended from time to time;
(c) "Class" means any class of Shares of a Series established pursuant
to Article IV;
(d) "Commission," "Interested Person," and "Principal Underwriter"
have the meanings provided in the 1940 Act;
(e) "Covered Person" means a person so defined in Article IX, Section
2;
(f) "Delaware Act" means Chapter 38 of Title 12 of the Delaware Code
entitled "Treatment of Delaware Business Trusts," as amended from time to
time;
(g) "Majority Shareholder Vote" means "theaffirmative vote of a majority of
the outstanding voting securities" as defined insecurities of the 1940 Act;
(h) "Net Asset Value" means the net asset valueFund. 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 Seriesapplicable 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 Trust, determined asFund acting
by vote of at least a majority of its outstanding voting securities,
provided in Article V, Section 3;any such case that 90 days' advance written notice of
termination be given to Perkins at its principal place of business. This
Agreement may be terminated (i) "Outstanding Shares" means Shares shown in the booksby Janus at any time, without penalty by
giving 90 days' advance written notice of termination to Perkins; (ii) by
Perkins at any time, without penalty by giving 90 days' advance notice to
Janus and the Trust, unless Janus or its transfer agent as then issued and outstanding, but doesthe Trust requests additional time to
find a replacement for Perkins, in which case Perkins shall allow the
additional time requested by Janus or the Trust not include
Shares which have been repurchased or redeemedto exceed 90 days'
beyond the initial 90 days' notice period unless otherwise agreed to by
Janus, the Trust and which are
held in the treasury of the Trust;
(j) "Series" means a series of Shares established pursuant to Article
IV;
(j) "Shareholder" means a record owner of Outstanding Shares;
C-1
(l) "Shares" means the equal proportionate transferable units of
interest into which the beneficial interest of each SeriesPerkins; or Class is
divided from time to time (including whole Shares and fractions of Shares);
(m) "Trust" means(iii) by Janus Aspen Series established hereby, and reference
to the Trust, when applicable to one or more Series, refers to that Series;
(n) "Trustees" means the persons who have signed this Trust
Instrument, so long as they shall continue in office in accordance with the
terms hereof, and all other persons who may from time to time be duly
qualified and serving as Trustees in accordance with Article II, in all
cases in their capacities as Trustees hereunder;
(o) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the Trust or any
Series or the Trustees on behalf of the Trust or any Series;
(p) The "1940 Act" means the Investment Company Act of 1940, as
amended from time to time.
ARTICLE II
THE TRUSTEES AND THE ADVISORY BOARD
SECTION 1. Management of the Trust.
The business and affairs of the Trust shall be managed by or under the
direction of the Trustees, and they shall have all powers necessary or desirable
to carry out that responsibility. The Trustees may execute all instruments and
take all action they deem necessary or desirable to promote the interests of the
Trust. Any determination made by the Trustees in good faith as to what is in the
interests of the Trust shall be conclusive.
SECTION 2. Election and Number of Trustees.
Immediately following adoption of this Amended and Restated Trust
Instrument, the Trustees of the Trust shall be the persons signing this Amended
and Restated Trust Instrument. The number of Trustees shall be fixed from time
to time by a majority of the Trustees; provided, that there shall be at least
two (2) Trustees. The Shareholders shall elect the Trustees (other than the
initial Trustee) on such dates as the Trustees may fix from time to time.
SECTION 3. Term of Office of Trustees.
Each Trustee shall hold office for life or until his successor is elected or the Trust terminates; except that (a) any Trustee may resign by delivering to
the other Trustees or to any Trust officer a written resignation effective upon
such delivery or a later date specified therein; (b) any Trustee who requests to
be retired, or who has
C-2
become physically or mentally incapacitated or is otherwisewithout
advance notice if Perkins becomes unable to serve,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 retiredamended by the parties only in
a written instrument signed by a majority of the other Trustees,
specifying the effective date of retirement; (c) any Trustee shall be retired or
removed with or without cause at any time upon the unanimous written request of
the remaining Trustees;parties to this Agreement and (d) any Trustee may be removed at any meeting of the
Shareholders by a vote of at least two-thirds of the Outstanding Shares.
SECTION 4. Vacancies; Appointment of Trustees.
Whenever a vacancy shall exist, regardless of the reason foronly if
such vacancy,
the remaining Trustees shall appoint any person as they determine in their sole
discretion to fill that vacancy, consistent with the limitations under the 1940
Act. Such appointment shall be made by a written instrument signedamendment is specifically approved (i) by a majority of the Trustees,
or byincluding a resolutionmajority of the Trustees duly adopted and recordedwho are not interested persons (as
that phrase is
A-5
defined in Section 2(a)(19) of the records1940 Act) of the Trust specifying the effective date of the appointment. The
Trustees may appoint a new Trustee as provided above in anticipation of a
vacancy expected to occur because of the retirement, resignation, or removal of
a Trustee,Janus, Perkins
or an increase in number of Trustees, provided that such appointment
shall become effective only at or after the expected vacancy occurs. As soon as
any such Trustee has accepted his appointment in writing, the trust estate shall
vest in the new Trustee, together with the continuing Trustees, without any
further act or conveyance,their affiliates, and he shall be deemed a Trustee hereunder.
SECTION 5. Temporary Vacancy or Absence.
Whenever a vacancy in the Trustees shall occur, until such vacancy is
filled, or while any Trustee is absent from his domicile (unless that Trustee
has made arrangements to be informed about, and to participate in, the affairs
of the Trust during such absence), or is physically or mentally incapacitated,
the remaining Trustees shall have all the powers hereunder and their certificate
as to such vacancy, absence, or incapacity shall be conclusive. Any Trustee may,(ii) if required by power of attorney, delegate his powers as Trustee for a period not to exceed
six (6) months, unless otherwise extended for one or more additional consecutive
six (6) month periods, to any other Trustee or Trustees.
SECTION 6. Chairman.
The Trustees shall appoint one of their number to be Chairman of the
Trustees. The Chairman shall preside at all meetings of the Trustees and
Shareholders and shall have such other duties as may be assigned to the Chairmanapplicable law, by the
Trustees from time to time.
SECTION 7. Action by the Trustees.
The Trustees shall act by majorityaffirmative vote at a meeting duly called (including
at a telephonic meeting, unless the 1940 Act requires that a particular action
be taken only at a meeting of the Trustees in person) at which a quorum is
present or by
C-3
written consent of a majority of Trustees (or such greater number as may be
required by applicable law) without a meeting. A majoritythe outstanding voting securities of the
Trustees shall
constitute a quorum at any meeting. Meetings of the Trustees may be called
orally orFund (as that phrase is defined in writing by the Chairman of the Trustees or by any two other
Trustees. Notice of the time, date and place of all Trustees meetings shall be
given to each Trustee by telephone, facsimile or other electronic mechanism sent
to his home or business address at least twenty-four hours in advance of the
meeting or by written notice mailed to his home or business address at least
seventy-two hours in advance of the meeting. Notice need not be given to any
Trustee who attends the meeting without objecting to the lack of notice or who
signs a waiver of notice either before or after the meeting. Subject to the
requirementsSection 2(a)(42) of the 1940 Act, the Trustees by majority vote may delegateAct).]
[11. Limitation on Personal Liability. All parties to any
Trustee or Trustees authority to approve particular matters or take particular
actions on behalf of the Trust. Any written consent or waiver may be providedthis Agreement
acknowledge and delivered toagree that the Trust by facsimile or other similar electronic mechanism.
SECTION 8. Ownership of Trust Property.
The Trust Property of the Trust and of each Series shall be held separate
and apart from any assets now or hereafter held in any capacity other than as
Trustee hereunder by the Trustees or any successor Trustees. All of the Trust
Property and legal title thereto shall at all times be considered as vested in
the Trustees on behalf of the Trust, except that the Trustees may cause legal
title to any Trust Property to be held by or in the name of the Trust, or in the
name of any person as nominee. No Shareholder shall be deemed to have a
severable ownership in any individual asset of the Trust or of any Series or any
right of partition or possession thereof, but each Shareholder shall have, as
provided in Article IV, a proportionate undivided beneficial interest in the
Trust or Series represented by Shares.
SECTION 9. Effect of Trustees Not Serving.
The death, resignation, retirement, removal, incapacity, or inability or
refusal to serve of the Trustees, or any one of them, shall not operate to annul
the Trust or to revoke any existing agency created pursuant to the terms of this
Trust Instrument.
SECTION 10. Trustees, etc. as Shareholders.
Subject to any restrictions in the Bylaws, any Trustee, officer, agent or
independent contractor of the Trust may acquire, own and dispose of Shares to
the same extent as any other Shareholder; the Trustees may issue and sell Shares
to and buy Shares from any such person or any firm or company in which such
person is interested, subject only to any general limitations herein.
C-4
ARTICLE III
POWERS OF THE TRUSTEES
SECTION 1. Powers.
The Trustees in all instances shall act as principals, free of the control
of the Shareholders. The Trustees shall have full power and authority to take or
refrain from taking any action and to execute any contracts and instruments that
they may consider necessary or desirable in the management of the Trust. The
Trustees shall not in any way be bound or limited by current or future laws or
customs applicable to trust investments, but shall have full power and authority
to make any investments which they, in their sole discretion, deem proper to
accomplish the purposes of the Trust. The Trustees may exercise all of their
powers without recourse to any court or other authority. Subject to any
applicable limitation herein or in the Bylaws or resolutions of the Trust, the
Trustees shall have power and authority, without limitation:
(a) To invest and reinvest cash and other property, and to hold cash
or other property uninvested, without in any event being bound or limited
by any current or future law or custom concerning investments by trustees,
and to sell, exchange, lend, pledge, mortgage, hypothecate, write options
on and lease any or all of the Trust Property; to invest in obligations,
securities and assets of any kind, and without regard to whether they may
mature before the possible termination of the Trust; and without limitation
to invest all or any part of its cash and other property in securities
issued by a registered investment company or series thereof, subject to the
provisions of the 1940 Act;
(b) To operate as and carry on the business of a registered investment
company, and exercise all the powers necessary and proper to conduct such a
business;
(c) To adopt Bylaws not inconsistent with this Trust Instrument
providing for the conduct of the business of the Trust and to amend and
repeal them to the extent such right is not reserved to the Shareholders;
(d) To elect and remove such officers and appoint and terminate such
agents as they deem appropriate;
(e) To appoint and remove members of the Advisory Board in accordance
with the provisions of Section 3 of this Article III.
(f) To employ as custodian of any assets of the Trust, subject to any
provisions herein or in the Bylaws, one or more banks, trust companies or
companies that are members of a national securities exchange, or other
entities permitted by the Commission to serve as such;
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(g) To retain one or more transfer agents and Shareholder servicing
agents, or both;
(h) To provide for the distribution of Shares either through a
Principal Underwriter or distributor as provided herein or by the Trust
itself, or both, or pursuant to a distribution plan of any kind;
(i) To set record dates in the manner provided for herein or in the
Bylaws;
(j) To delegate such authority as they consider desirable to any
officers of the Trust and to any agent, independent contractor, manager,
investment adviser, custodian or underwriter;
(k) To sell or exchange any or all of the assets of the Trust, subject
to Article X, Section 4;
(l) To vote or give assent, or exercise any rights of ownership, with
respect to other securities or property; and to execute and deliver powers
of attorney delegating such power to other persons;
(m) To exercise powers and rights of subscription or otherwise which
in any manner arise out of ownership of securities;
(n) To hold any security or other property (i) in a form not
indicating any trust, whether in bearer, book entry, unregistered or other
negotiable form, or (ii) either in the Trust's or Trustees' own name or in
the name of a custodian or a nominee or nominees, subject to safeguards
according to the usual practice of business trusts or investment companies;
(o) To establish separate and distinct Series with separately defined
investment objectives and policies and distinct investment purposes, and
with separate Shares representing beneficial interests in such Series, and
to establish separate Classes, all in accordance with the provisions of
Article IV;
(p) To the full extent permitted by Section 3804 of the Delaware Act,
to allocate assets, liabilities and expenses of the Trust to a particular
Series and liabilities and expenses to a particular Class or to apportion
the same between or among two or more Series or Classes, provided that any
liabilities or expenses incurred by a particular Series or Class shall be
payable solely out of the assets belonging to that Series or Class as
provided for in Article IV, Section 4;
(q) To consent to or participate in any plan for the liquidation,
reorganization, consolidation or merger of any corporation or concern whose
securities are held by the Trust; to consent to any contract, lease,
mortgage, purchase, or sale of property by such corporation or concern; and
to pay calls or subscriptions with respect to any security held by the
Trust;
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(r) To compromise, arbitrate, or otherwise adjust claims in favor of
or against the Trust or any matter in controversy including, but not
limited to, claims for taxes;
(s) To make distributions of income and of capital gains to
Shareholders in the manner hereinafter provided for;
(t) To borrow money;
(u) To establish committees for such purposes, with such membership,
and with such responsibilities as the Trustees may consider proper;
(v) To issue, sell, repurchase, redeem, cancel, retire, acquire, hold,
resell, reissue, dispose of and otherwise deal in Shares; to establish
terms and conditions regarding the issuance, sale, repurchase, redemption,
cancellation, retirement, acquisition, holding, resale, reissuance,
disposition of or dealing in Shares; and, subject to Articles IV and V, to
apply to any such repurchase, redemption, retirement, cancellation or
acquisition of Shares any funds or property of the Trust or of the
particular Series with respect to which such Shares are issued; and
(w) To carry on any other business in connection with or incidental to
any of the foregoing powers, to do everything necessary or desirable to
accomplish any purpose or to further any of the foregoing powers, and to
take every other action incidental to the foregoing business or purposes,
objects or powers.
The clauses above shall be construed as objects and powers, and the
enumeration of specific powers shall not limit in any way the general powers of
the Trustees. Any action by one or more of the Trustees in their capacity as
such hereunder shall be deemed an action on behalf of the Trust or the
applicable Series, and not an action in an individual capacity. No one dealing
with the Trustees shall be under any obligation to make any inquiry concerning
the authority of the Trustees, or to see to the application of any payments made
or property transferred to the Trustees or upon their order. In construing this
Trust Instrument, the presumption shall be in favor of a grant of power to the
Trustees.
SECTION 2. Certain Transactions.
Except as prohibited by applicable law, the Trustees may, on behalf of the
Trust, buy any securities from or sell any securities to, or lend any assets of
the Trust to, any Trustee or officer of the Trust or any firm of which any such
Trustee or officer is a member acting as principal, or have any such dealings
with any investment adviser, administrator, distributor or transfer agent for
the Trust or with any Interested Person of such person. The Trust may employ any
such person or entity in which such person is an Interested Person, as broker,
legal counsel, registrar, investment adviser, administrator, distributor,
transfer agent, dividend disbursing agent, custodian or in any other capacity
upon customary terms.
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SECTION 3. Advisory Board.
The Trustees may from time to time establish an Advisory Board having such
rights, responsibilitiesseries trust and other characteristics as shall be specified in a
written charter approved by the Trustees.
ARTICLE IV
SERIES; CLASSES; SHARES
SECTION 1. Establishment of Series or Classes.
The Trust shall consist of one or more Series. The Trustees hereby
establish the Series listed in Schedule A attached hereto and made a part
hereof. Each additional Series shall be established by the adoption of a
resolution of the Trustees. The Trustees may divide the Shares of any Series
into Classes. In such case each Class of a Series shall represent interests in
the assets of that Series. The Trustees may designate the relative rights and
preferences of the Shares of each Series or Class. The Trust shall maintain
separate and distinct records for each Series and hold and account for the
assets thereof separately from the other assets of the Trust or of any other
Series. A Series may issue any number of Shares and need not issue Shares. Each
Share of a Series shall represent an equal beneficial interest in the net assets
of such Series. Each holder of Shares of a Series or Class shall be entitled to
receive his pro rata share of all distributions made with respect to such Series
or Class. Upon redemption of his Shares, such Shareholder shall be paid solely
out of the funds and property of such Series. The Trustees may change the name
of any Series or Class. At any time that there are no shares outstanding of any
particular Series (or Class) previously established and designated, the Trustees
may by a majority vote abolish that Series (or Class) and rescind the
establishment and designation thereof.
SECTION 2. Shares of Beneficial Interest.
The beneficial interest in the Trust shall be divided into Shares of one or
more separate and distinct Series or Classes established by the Trustees. The
number of Shares of each Series and Class is unlimited and each Share shall have
a par value of $0.001 per Share. All Shares issued hereunder shall be fully paid
and nonassessable. Shareholders shall have no preemptive or other right to
subscribe to any additional Shares or other securities issued by the Trust. The
Trustees shall have full power and authority, in their sole discretion and
without obtaining Shareholder approval: to issue original or additional Shares
at such times and on such terms and conditions as they deem appropriate; to
issue fractional Shares and Shares held in the treasury; to establish and to
change in any manner Shares of any Series or Classes with such preferences,
terms of conversion, voting powers, rights and privileges as the Trustees may
determine (but the Trustees may not change
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Outstanding Shares in a manner materially adverse to the Shareholders of such
Shares); to divide or combine the Shares of any Series or Classes into a greater
or lesser number; to classify or reclassify any unissued Shares of any Series or
Classes into one or more Series or Classes of Shares; to abolish any one or more
Series or Classes of Shares; to issue Shares to acquire other assets (including
assets subject to, and in connection with, the assumption of liabilities) and
businesses; and to take such other action with respect to the Shares as the
Trustees may deem desirable. Shares held in the treasury shall not confer any
voting rights on the Trustees and shall not be entitled to any dividends or
other distributions declared with respect to the Shares.
SECTION 3. Investment in the Trust.
The Trustees shall accept investments in any Series from such persons and
on such terms as they may from time to time authorize. At the Trustees'
discretion, such investments, subject to applicable law, may be in the form of
cash or securities in which that Series is authorized to invest, valued as
provided in Article V, Section 3. Investments in a Series shall be credited to
each Shareholder's account in the form of full or fractional Shares at the Net
Asset Value per Share next determined after the investment is received or
accepted as may be determined by the Trustees; provided, however, that the
Trustees may, in their sole discretion, (a) impose a sales charge upon
investments in any Series or Class or (b) determine the Net Asset Value per
Share of the initial capital contribution. The Trustees shall have the right to
refuse to accept investments in any Series at any time without any cause or
reason therefor whatsoever.
SECTION 4. Assets and Liabilities of Series.
All consideration received by the Trust for the issue or sale of Shares of
a particular Series, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits, and proceeds thereof
(including any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of such proceeds
in whatever form the same may be), shall be held and accounted for separately
from the other assets of the Trust and every other Series and are referred to as
"assets belonging to" that Series. The assets belonging to a particular Series
shall belong only to that Series for all purposes, and to no other Series,
subject only to the rights of creditors of that particular Series. Any assets,
income, earnings, profits, and proceeds thereof, funds, or payments which are
not readily identifiable as belonging to any particular Series shall be
allocated by the Trustees between and among one or more Series as the Trustees
deem fair and equitable. Each such allocation shall be conclusive and binding
upon the Shareholders of all Series for all purposes, and such assets, earnings,
income, profits or funds, or payments and proceeds thereof shall be referred to
as assets belonging to that Series. The assets belonging to a Series shall be so
recorded upon the books of the Trust, and shall be held by the Trustees in
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trust for the benefit of the Shareholders of that Series. The assets belonging
to a Series shall be charged with the liabilities of that Series and all
expenses, costs, charges and reserves attributable to that Series, except that
liabilities and expenses allocated solely to a particular Class shall be borne
by that Class. Any general liabilities, expenses, costs, charges or reserves of
the Trust which are not readily identifiable as belonging to any particular
Series or Class shall be allocated and charged by the Trustees between or among
any one or more of the Series or Classes in such manner as the Trustees deem
fair and equitable. Each such allocation shall be conclusive and binding upon
the Shareholders of all Series or Classes for all purposes.
Without limiting the foregoing, but subject to the right of the Trustees to
allocate general liabilities, expenses, costs, charges or reserves as herein
provided, the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to a particular Seriesseries shall be enforceable against
the assets ofheld with respect to such Seriesseries only, and not against the
assets of the Trust generally or of any other Series. Notice of this contractual
limitation on liabilities among Series may, in the Trustees' discretion, be set
forth in the certificate of trust of the Trust (whether originally or by
amendment) as filed or to be filed in the Office of the Secretary of State of
the State of Delaware pursuant to the Delaware Act, and upon the giving of such
notice in the certificate of trust, the statutory provisions of Section 3804 of
the Delaware Act relating to limitations on liabilities among Series (and the
statutory effect under Section 3804 of setting forth such notice in the
certificate of trust) shall become applicable to the Trust and each Series. Any
person extending credit to, contracting with or having any claim against any
Series may look only to the assets of that Series to satisfy or enforce any
debt, liability, obligation or expense incurred, contracted or otherwise
existing with respect to that Series. No Shareholder or former Shareholder of
any Series shall have a claim on or any right to any assets allocated or
belonging to any other Series. No Shareholder or former Shareholder of any
particular Series shall have any claim or right to institute suit against the
Trust or any Seriesheld with respect to
any matterother series and further that does not directly affect
that particular Series.
SECTION 5. Ownership and Transferno Trustee, officer or holder of Shares.
The Trust shall maintain a register containing the names and addressesshares
of beneficial interest of the Shareholders of each Series and Class thereof, the number of Shares of each
Series and Class held by such Shareholders, and a record of all Share transfers.
The register shall be conclusive as to the identity of Shareholders of record
and the number of Shares held by them from time to time. The Trustees may
authorize the issuance of certificates representing Shares and adopt rules
governing their use. The Trustees may make rules governing the transfer of
Shares, whether or not represented by certificates.
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SECTION 6. Status of Shares; Limitation of Shareholder Liability.
Shares shall be deemed to be personal property giving Shareholders only the
rights provided in this Trust Instrument. Every Shareholder, by virtue of having
acquired a Share, shall be held expressly to have assented to and agreed to be
bound by the terms of this Trust Instrument and to have become a party hereto.
No Shareholder shall be personally liable for the debts, liabilities,
obligations and expenses incurred by, contracted for, or otherwise existing with
respect to, the Trust or any Series. Neither the Trust nor the Trustees shall
have any power to bind any Shareholder personally or to demand payment from any
Shareholder for anything, other than as agreed by the Shareholder. Shareholders
shall have the same limitation of personal liability as is extended to
shareholders of a private corporation for profit incorporated in the State of
Delaware. Every written obligation of the Trust or any Series shall contain a
statement to the effect that such obligation may only be enforced against the
assets of the Trust or such Series; however, the omission of such statement
shall not operate to bind or create personal liability for any Shareholder or
Trustee.
ARTICLE V
DISTRIBUTIONS AND REDEMPTIONS
SECTION 1. Distributions
The Trustees may declare and pay dividends and other distributions from the
assets belonging to each Series. The amount and payment of dividends or
distributions and their form, whether they are in cash, Shares or other Trust
Property, shall be determined by the Trustees. Dividends and other distributions
may be paid pursuant to a standing resolution adopted once or more often as the
Trustees determine. All dividends and other distributions on Shares of a
particular Series shall be distributed pro rata to the Shareholders of that
Series in proportion to the number of Shares of that Series they held on the
record date established for such payment, except that such dividends and
distributions shall appropriately reflect expenses allocated to a particular
Class of such Series. The Trustees may adopt and offer to Shareholders such
dividend reinvestment plans, cash dividend payout plans or similar plans as the
Trustees deem appropriate.
SECTION 2. Redemptions.
Each Shareholder of a Series shall have the right at such times as may be
permitted by the Trustees to require the Series to redeem all or any part of his
Shares at a redemption price per Share equal to the Net Asset Value per Share.
In the absence of such resolution, the redemption price per Share shall be the
Net Asset Value next determined after receipt by the Series of a request for
redemption in proper form less such charges as are determined by the Trustees
and described in
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any required disclosure document. The Trustees may specify conditions, prices,
and places of redemption, and may specify binding requirements for the proper
form or forms of requests for redemption. Payment of the redemption price may be
wholly or partly in securities or other assets at the value of such securities
or assets used in such determination of Net Asset Value, or may be in cash. Upon
redemption, Shares may be reissued from time to time. The Trustees may require
Shareholders to redeem Shares for any reason under terms set by the Trustees,
including the failure of a Shareholder to supply a personal identification
number if required to do so, or to have the minimum investment required, or to
pay when due for the purchase of Shares issued to him. To the extent permitted
by law, the Trustees may retain the proceeds of any redemption of Shares
required by them for payment of amounts due and owing by a Shareholder to the
Trust or any Series or Class. Notwithstanding the foregoing, the Trustees may
postpone payment of the redemption price and may suspend the right of the
Shareholders to require any Series or Class to redeem Shares during any period
of time when and to the extent permissible under the 1940 Act.
SECTION 3. Determination of Net Asset Value.
The Trustees shall cause the Net Asset Value of Shares of each Series or
Class to be determined from time to time in a manner consistent with applicable
laws and regulations. The Trustees may delegate the power and duty to determine
Net Asset Value per Share to one or more Trustees or officers of the Trust or to
a custodian, depository or other agent appointed for such purpose. The Net Asset
Value of Shares shall be determined separately for each Series or Class at such
times as may be prescribed by the Trustees or, in the absence of action by the
Trustees, as of the close of the regular trading session on the New York Stock
Exchange on each day for all or part of which such Exchange is open for
unrestricted trading.
SECTION 4. Suspension of Right of Redemption.
If, as referred to in Section 2 of this Article, the Trustees postpone
payment of the redemption price and suspend the right of Shareholders to redeem
their Shares, such suspension shall take effect at the time the Trustees shall
specify, but not later than the close of business on the business day next
following the declaration of suspension. Thereafter Shareholders shall have no
right of redemption or payment until the Trustees declare the end of the
suspension. If the right of redemption is suspended, a Shareholder may either
withdraw his request for redemption or receive payment based on the Net Asset
Value per Share next determined after the suspension terminates.
SECTION 5. Redemptions Necessary for Qualification as Regulated Investment
Company.
If the Trustees shall determine that direct or indirect ownership of Shares
of any Series has or may become concentrated in any person to an extent which
would
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disqualify any Series as a regulated investment company under the Internal
Revenue Code, then the Trustees shall have the power (but not the obligation) by
lot or other means they deem equitable to (a) call for redemption by any such
person of a number, or principal amount, of Shares sufficient to maintain or
bring the direct or indirect ownership of Shares into conformity with the
requirements for such qualification and (b) refuse to transfer or issue Shares
to any person whose acquisition of Shares in question would, in the Trustees'
judgment, result in such disqualification. Any such redemption shall be effected
at the redemption price and in the manner provided in this Article. Shareholders
shall upon demand disclose to the Trustees in writing such information
concerning direct and indirect ownership of Shares as the Trustees deem
necessary to comply with the requirements of any taxing authority.
ARTICLE VI
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 1. Voting Powers.
The Shareholders shall have power to vote only with respect to (a) the
election of Trustees as provided in Section 2 of this Article; (b) the removal
of Trustees as provided in Article II, Section 3(d); (c) any investment advisory
or management contract as provided in Article VII, Section 1; (d) the amendment
of this Trust Instrument to the extent and as provided in Article X, Section 8;
and (e) such additional matters relating to the Trust as may be required or
authorized by law, this Trust Instrument, or the Bylaws or any registration of
the Trust with the Commission or any State, or as the Trustees may consider
desirable.
On any matter submitted to a vote of the Shareholders, all Shares shall be
voted by individual Series or Class, except (a) when required by the 1940 Act,
Shares shall be voted in the aggregate and not by individual Series or Class,
and (b) when the Trustees have determined that the matter affects the interests
of more than one Series or Class, then the Shareholders of all such affected
Series or Classes shall be entitled to vote thereon. Each holder of Shares of
each Series or Class, as applicable, shall be entitled to one vote for each
dollar of net asset value (or fractional vote for each fractional dollar of net
asset value) of such Shares standing in such Shareholder's name on the books of
the Trust on the record date for such vote (with references in this Declaration
of Trust to "Shares voted" or Shares "entitled to vote" interpreted as "votes
cast" or "votes entitled to be cast"). There shall be no cumulative voting in
the election of Trustees. Shares may be voted in person or by proxy or in any
manner provided for in the Bylaws. The Bylaws may provide that proxies may be
given by any electronic or telecommunications device or in any other manner, but
if a proposal by anyone other than the officers or Trustees is submitted to a
vote of the Shareholders of any Series or Class, or if there is a
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proxy contest or proxy solicitation or proposal in opposition to any proposal by
the officers or Trustees, Shares may be voted only in person or by written
proxy. Until Shares of a Series are issued, as to that Series the Trustees may
exercise all rights of Shareholders and may take any action required or
permitted to be taken by Shareholders by law, this Trust Instrument or the
Bylaws.
SECTION 2. Meetings of Shareholders.
Special meetings of the Shareholders of any Series or Class may be called
by the Trustees and shall be called by the Trustees upon the written request of
Shareholders owning at least two-thirds of the Outstanding Shares of such Series
or Class entitled to vote. Shareholders shall be entitled to at least fifteen
days' notice of any meeting, given as determined by the Trustees.
SECTION 3. Quorum; Required Vote.
One-third of the Outstanding Shares of each Series or Class, or one-third
of the Outstanding Shares of the Trust, entitled to vote in person or by proxy
shall be a quorum for the transaction of business at a Shareholders' meeting
with respect to such Series or Class, or with respect to the entire Trust,
respectively. Any lesser number shall be sufficient for adjournments. Any
adjourned session of a Shareholders' meeting may be held within a reasonable
time without further notice. Except when a larger vote is required by law, this
Trust Instrument or the Bylaws, a majority of the Outstanding Shares voted in
person or by proxy shall decide any matters to be voted upon with respect to the
entire Trust and a plurality of such Outstanding Shares shall elect a Trustee;
provided, that if this Trust Instrument or applicable law permits or requires
that Shares be voted on any matter by individual Series or Classes, then a
majority of the Outstanding Shares of that Series or Class (or, if required by
law, a Majority Shareholder Vote of that Series or Class) voted in person or by
proxy on the matter shall decide that matter insofar as that Series or Class is
concerned. Shareholders may act as to the Trust or any Series or Class by the
written consent of a majority (or such greater amount as may be required by
applicable law) of the Outstanding Shares of the Trust or of such Series or
Class, as the case may be.
ARTICLE VII
CONTRACTS WITH SERVICE PROVIDERS
SECTION 1. Investment Adviser.
Subject to a Majority Shareholder Vote, the Trustees may enter into one or
more investment advisory contracts on behalf of the Trust or any Series,
providing for investment advisory services, statistical and research facilities
and services, and other facilities and services to be furnished to the Trust or
Series on terms and conditions acceptable to the Trustees. Any such contract may
provide for the
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investment adviser to effect purchases, sales or exchanges of portfolio
securities or other Trust Property on behalf of the Trustees or may authorize
any officer or agent of the Trust to effect such purchases, sales or exchanges
pursuant to recommendations of the investment adviser. The Trustees may
authorize the investment adviser to employ one or more sub-advisers. Any
reference in this Trust Instrument to the investment adviser shall be deemed to
include such sub-advisers, unless the context otherwise requires.
SECTION 2. Principal Underwriter.
The Trustees may enter into contracts on behalf of the Trust or any Series
or Class, providing for the distribution and sale of Shares by the other party,
either directly or as sales agent, on terms and conditions acceptable to the
Trustees. The Trustees may adopt a plan or plans of distribution with respect to
Shares of any Series or Class and enter into any related agreements, whereby the
Series or Class finances directly or indirectly any activity that is primarily
intended to result in sales of its Shares, subject to the requirements of
Section 12 of the 1940 Act, Rule 12b-1 thereunder, and other applicable rules
and regulations.
SECTION 3. Transfer Agency, Shareholder Services, and Administration
Agreements.
The Trustees, on behalf of the Trust or any Series or Class, may enter into
transfer agency agreements, Shareholder service agreements, and administration
and management agreements with any party or parties on terms and conditions
acceptable to the Trustees.
SECTION 4. Custodian.
The Trustees shall at all times place and maintain the securities and
similar investments of the Trust and of each Series in custody meeting the
requirements of Section 17(f) of the 1940 Act and the rules thereunder. The
Trustees, on behalf of the Trust or any Series, may enter into an agreement with
a custodian on terms and conditions acceptable to the Trustees, providing for
the custodian, among other things, to (a) hold the securities owned by the Trust
or any Series and deliver the same upon written order or oral order confirmed in
writing, (b) receive and receipt for any moneys due to the Trust or any Series
and deposit the same in its own banking department or elsewhere, (c) disburse
such funds upon orders or vouchers, and (d) employ one or more sub-custodians.
SECTION 5. Parties to Contracts with Service Providers.
The Trustees may enter into any contract referred to in this Article with
any entity, although one more of the Trustees or officers of the Trust may be an
officer, director, trustee, partner, shareholder, or member of such entity, and
no such contract shall be invalidated or rendered void or voidable because of
such relationship. No person having such a relationship shall be disqualified
from voting on or
C-15
executing a contract in his capacity as Trustee and/or Shareholder, or be liable
merely by reason of such relationship for any loss or expense to the Trust with
respect to such a contract or accountable for any profit realized directly or
indirectly therefrom.
Any contract referred to in Sections 1 and 2 of this Article shall be
consistent with and subject to the applicable requirements of Section 15 of the
1940 Act and the rules and orders thereunder with respect to its continuance in
effect, its termination, and the method of authorization and approval of such
contract or renewal. No amendment to a contract referred to in Section 1 of this
Article shall be effective unless assented to in a manner consistent with the
requirements of Section 15 of the 1940 Act, and the rules and orders thereunder.
ARTICLE VIII
EXPENSES OF THE TRUST AND SERIES
Subject to Article IV, Section 4, the Trust or a particular Series shall
pay, or shall reimburse the Trustees from the Trust estate or the assets
belonging to the particular Series, for their expenses and disbursements,
including, but not limited to, interest charges, taxes, brokerage fees and
commissions; expenses of issue, repurchase and redemption of Shares; certain
insurance premiums; applicable fees, interest charges and expenses of third
parties, including the Trust's investment advisers, managers, administrators,
distributors, custodians, transfer agents and fund accountants; fees of pricing,
interest, dividend, credit and other reporting services; costs of membership in
trade associations; telecommunications expenses; funds transmission expenses;
auditing, legal and compliance expenses; costs of forming the Trust and its
Series and maintaining its existence; costs of preparing and printing the
prospectuses of the Trust and each Series, statements of additional information
and Shareholder reports and delivering them to Shareholders; expenses of
meetings of Shareholders and proxy solicitations therefor; costs of maintaining
books and accounts; costs of reproduction, stationery and supplies; fees and
expenses of the Trustees and members of the Advisory Board; compensation of the
Trust's officers and employees and costs of other personnel performing services
for the Trust or any Series; costs of Trustee meetings and meetings of the
Advisory Board; Commission registration fees and related expenses; state or
foreign securities laws registration fees and related expenses; and for such
non-recurring items as may arise, including litigation to which the Trust or a
Series (or a Trustee or officer of the Trust acting as such) is a party, and for
all losses and liabilities by them incurred in administering the Trust. The
Trustees shall have a lien on the assets belonging to the appropriate Series, or
in the case of an expense allocable to more than one Series, on the assets of
each such Series, prior to any rights or interests of the Shareholders thereto,
for the reimbursement to them of such expenses, disbursements, losses and
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liabilities. This Article shall not preclude the Trust from directly paying any of
the aforementioned fees and expenses.
ARTICLE IX
LIMITATION OF LIABILITY AND INDEMNIFICATION
SECTION 1.foregoing.]
[12. Limitation of Liability.
All persons contracting with or having any claim against the Trust or a
particular Series shall look only to the assetsLiability of the Trust or such Series for
payment under such contract or claim; and neither the Trustees nor any of the
Trust's officers, employees, members of the Advisory Board or agents, whether
past, present or future, shall be personally liable therefor. Every written
instrument or obligation on behalf of the Trust or any Series shall contain a
statement to the foregoing effect, but the absence of such statement shall not
operate to make any Trustee or officer of the Trust liable thereunder. Provided
they have exercised reasonable care and have acted under the reasonable belief
that their actions are in the best interest of the Trust, the Trustees and
officers of the Trust shall not be responsible or liable for any act or omission
or for neglect or wrongdoing of them or any officer, agent, employee, investment
adviser or independent contractor of the Trust, but nothing contained in this
Trust Instrument or in the Delaware Act shall protect any Trustee or officer of
the Trust against liability to the Trust or to Shareholders to which he would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his
office.
SECTION 2. Indemnification.
(a) Subject to the exceptions and limitations contained in subsection (b)
below:
(i) every person who is, or has been, a Trustee, officer, member of
the Advisory Board or employee of the Trust ("Covered Person") shall be
indemnified by the Trust or the appropriate Series to the fullest extent
permitted by law against liability and against all expenses reasonably
incurred or paid by him in connection with any claim, action, suit or
proceeding in which he becomes involved as a party or otherwise by virtue
of his being or having been a Covered Person and against amounts paid or
incurred by him in the settlement thereof, whether or not he is a Covered
Person at the time such expenses are incurred;
(ii) as used herein, the words "claim," "action," "suit," or
"proceeding" shall apply to all claims, actions, suits or proceedings
(civil, criminal or other, including appeals), actual or threatened, and
the words "liability" and "expenses" shall include, without limitation,
attorneys' fees, costs, judgments, amounts paid in settlement, fines,
penalties and other liabilities.
C-17
(b) No indemnification shall be provided hereunder to a Covered Person:
(i) who shall have been adjudicated by a court or body before which
the proceeding was brought (A) to be liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of his office,
or (B) not to have acted in good faith in the reasonable belief that his
action was in the best interest of the Trust; or
(ii) in the event of a settlement, unless there has been a
determination that such Covered Person did not engage in willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office: (A) by the court or other
body approving the settlement; (B) by at least a majority of those Trustees
who are neither Interested Persons of the Trust nor are parties to the
matter based upon a review of readily available facts (as opposed to a full
trial-type inquiry); or (C) by written opinion of independent legal counsel
based upon a review of readily available facts (as opposed to a full
trial-type inquiry).
(c) The rights of indemnification herein provided may be insured against by
policies maintained by the Trust, shall be severable, shall not be exclusive of
or affect any other rights to which any Covered Person may now or hereafter be
entitled, and shall inure to the benefit of the heirs, executors and
administrators of a Covered Person.
(d) To the maximum extent permitted by applicable law, expenses in
connection with the preparation and presentation of a defense to any claim,
action, suit or proceeding of the character described in subsection (a) of this
Section may be paid by the Trust or applicable Series from time to time prior to
final disposition thereof upon receipt of an undertaking by or on behalf of such
Covered Person that such amount will be paid over by him to the Trust or
applicable Series if it is ultimately determined that he is not entitled to
indemnification under this Section; provided, however, that either (i) such
Covered Person shall have provided appropriate security for such undertaking,
(ii) the Trust is insured against losses arising out of any such advance
payments or (iii) either a majority of the Trustees who are neither Interested
Persons of the Trust nor parties to the matter, or independent legal counsel in
a written opinion, shall have determined, based upon a review of readily
available facts (as opposed to a full trial-type inquiry) that there is reason
to believe that such Covered PersonPerkins. Janus will not be disqualified from
indemnification under this Section.
(e) Any repeal or modification of this Article IX by the Shareholders of
the Trust, or adoption or modification of any other provision of the Trust
Instrument or Bylaws inconsistent with this Article, shall be prospective only,seek to the extent that such repeal or modification would, if applied
retrospectively, adversely affect any
C-18
limitation on the liability of any Covered Person or indemnification available
to any Covered Person with respect to any act or omission which occurred prior
to such repeal, modification or adoption.
SECTION 3. Indemnification of Shareholders.
If any Shareholder or former Shareholder of any Series shall be held
personally liable solely by reason of his being or having been a Shareholderhold
Perkins, and not because of his acts or omissions or for some other reason, the Shareholder
or former Shareholder (or his heirs, executors, administrators or other legal
representatives or in the case of any entity, its general successor) shall be
entitled out of the assets belonging to the applicable Series to be held
harmless from and indemnified against all loss and expense arising from such
liability. The Trust, on behalf of the affected Series, shall, upon request by
such Shareholder, assume the defense of any such claim made against such
Shareholder for any act or obligation of the Series and satisfy any judgment
thereon from the assets of the Series.
ARTICLE X
MISCELLANEOUS
SECTION 1. Trust Not a Partnership.
This Trust Instrument creates a trust and not a partnership. No Trustee
shall have any power to bind personally either the Trust's officers or any
Shareholder.
SECTION 2. Trustee Action; Expert Advice; No Bond or Surety.
The exercise by the Trustees of their powers and discretion hereunder in
good faith and with reasonable care under the circumstances then prevailing
shall be binding upon everyone interested. Subject to the provisions of Article
IX, the Trustees shall not be liable for errors of judgment or mistakes of fact
or law. The Trustees may take advice of counsel, members of the Advisory Board
or other experts with respect to the meaning and operation of this Trust
Instrument, and subject to the provisions of Article IX,Perkins 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,
"Perkins" shall include any affiliate of Perkins performing services for
the Fund contemplated hereunder and directors, officers and employees of
Perkins and such affiliates.]
[13. Activities of Perkins. The services of Perkins hereunder are not
to be deemed to be exclusive, and Perkins 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 Perkins 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 Perkins as directors, officers and shareholders of
Perkins, that directors, officers, employees and shareholders of Perkins
are or may become similarly interested in the Trust, and that Perkins 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 sue upon and enforce this
Agreement in accordance with such adviceits terms as if it were a signatory hereto.
Any oversight, monitoring or for failing to follow such
advice. The Trusteesevaluation of the activities of Perkins by
Janus, the Trust or the Fund shall not bediminish or relieve in any way the
liability of Perkins for any of its duties and responsibilities under this
Agreement.]
[15. Notices. Any notice or other communication required to give any bond as such, nor any
surety if a bond is obtained.
SECTION 3. Record Dates.
The Trustees may fix in advance a date upbe given
pursuant to one hundred twenty (120) days
before the date of any Shareholders' meeting, or the date for the payment of any
dividends or other distributions, or the date for the allotment of rights, or
the date when any change or conversion or exchange of Shares shall go into
effect as a record date for the determination of the Shareholders entitled to
notice of, and to vote at, any such meeting, or entitled to receive payment of
such dividend or other distribution, or to receive any such allotment of rights,
or to exercise such rights in
C-19
respect of any such change, conversion or exchange of Shares. Any Shareholder
who was a Shareholder at the date and time so fixedthis Agreement shall be entitleddeemed duly given if delivered
personally
A-6
or by overnight delivery service or mailed by certified or registered mail,
return receipt requested and postage prepaid, or sent by facsimile
addressed to votethe parties at their respective addresses set forth below, or
at such meeting orother address as shall be designated by any adjournment thereof.
SECTION 4. Termination of the Trust, Series or Class.
(a) Unless terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be dissolved at any time by the Trustees byparty in a written
notice to the Shareholders. Any Series may be dissolved at any time by
the Trustees by written notice to the Shareholders of such Series. Any Class of
any Series may be terminated at any time by the Trustees by written notice to
the Shareholders of such Class. Any action to dissolveother party.]
[(a) To Janus at:]
[Janus Capital Management LLC
151 Detroit Street
Denver, Colorado 80206
Attention: General Counsel
Phone: (303) 333-3863
Fax: (303) 316-5728]
[(b) To Perkins at:]
[Perkins Investment Management LLC
311 South Wacker Drive, Suite 6000
Chicago, Illinois 60606
Attention: President
Phone: (312) 922-0355
Fax: (312) 922-0418]
[(c) To the Trust shall be deemed
to also be an action to dissolve eachat:]
[Janus Aspen Series
and each Class thereof.
(b) Upon the requisite action by the Trustees to dissolve the Trust or any
one or more Series, after paying or otherwise providing for all charges, taxes,
expenses and liabilities, whether due or accrued or anticipated,151 Detroit Street
Denver, Colorado 80206
Attention: Chief Legal Counsel]
[16. Certain Definitions. The terms "vote of a majority of the
Trustoutstanding 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 ofhereafter amended, and the particular Seriesrules and
regulations thereunder, subject to such orders, exemptions and
interpretations as may be determinedissued by the Trustees, the Trust shall
in accordance with such procedures as the Trustees consider appropriate reduce
the remaining assets of the Trust or of the affected Series to distributable
form in cash or Shares (if any Series remain) or other securities, or any
combination thereof, and distribute ratably the proceeds to the Shareholders of
the Trust or Series involved. Thereupon, any affected Series or Class shall
terminate and the Trustees and the Trust shall be discharged of any and all
further liabilities and duties relating thereto or arising therefrom, and the
right, title and interest of all parties with respect to such Series or Class
shall be canceled and discharged. Upon the requisite action by the Trustees to
terminate any Class of any Series, the Trustees may, to the extent they deem it
appropriate, follow the procedures set forth in this Section 4(b) with respect
to such Class that are specified in connection with the dissolution and winding
up of the Trust or any Series. Alternatively, in connection with the termination
of any Class of any Series, the Trustees may treat such termination as a
redemption of the Shareholders of such Class effected provided that the costs
relating to the termination of such Class may, to the extent consistent withSEC under the 1940 Act and other applicable law,as may
be includedthen in the determination of the net
asset value of the Shares of such Class for purposes of determining the
redemption price toeffect.]
[17. Governing Law. This Agreement shall be paid to the Shareholders of such Class (to the extent not
otherwise included in such determination).
(c) Following completion of winding up of the Trust's business, the
Trustees shall cause a certificate of cancellation of the Trust's Certificate of
Trust to be filedconstrued in accordance
with the Delaware Act, which certificate of
cancellation may be signed by any one Trustee. Upon termination of the Trust,
the Trustees shall be discharged of any and all further liabilities and duties
relating thereto or arising therefrom, and the right, title and interest of all
parties with respect to the Trust shall be canceled and discharged.
C-20
SECTION 5. Reorganization.
The Trust, or any one or more Series or Classes, may, either as the
successor, survivor, or non-survivor, (1) consolidate or merge with one or more
other trusts, sub-trusts, partnerships, limited liability companies,
associations or corporations (or series or class of a series with respect to the
foregoing) organized under the laws of the State of Delaware or any other state
of the United States, to form a consolidated or merged trust, sub-trust,
partnership, limited liability company, association or corporation under the
laws of which any one of the constituent entities is organized or (2) transfer a
substantial portion of its assets to one or more other trusts, sub-trusts,
partnerships, limited liability companies, associations or corporations (or
series or class of a series with respectColorado (without giving effect to the
foregoing) organized underconflicts of laws principles thereof) and the 1940 Act. To the extent that
the applicable laws of the State of Delaware or any other state of the United States, or have
one or more such trusts, sub-trusts, partnerships, limited liability companies,
associations or corporations (or series or class of a series with respect to the
foregoing) transfer a substantial portion of its assets to it, any such
consolidation, merger or transfer to be upon such terms and conditions as are
specified in an agreement and plan of reorganization authorized and approved by
the Trustees and entered into by the Trust, or one or more Series as the case
may be, in connection therewith. Any such consolidation, merger or transfer may
be authorized at any time by vote of a majority of the Trustees then in office
without the need for shareholder approval. Prior to giving effect to any such
authorization, the Trust shall notify the Shareholders of the relevant Series or
Class.
Pursuant to and in accordanceColorado conflict with the applicable
provisions of Section 3815(f) of the
Delaware Act, an agreement of merger or consolidation approved by the Trustees
in accordance with this Section 5 may effect any amendment to the Trust
Instrument or effect the adoption of a new trust instrument of the Trust if it
is the surviving or resulting trust in the merger or consolidation.
SECTION 6. Trust Instrument.
The original or a copy of this Trust Instrument and of each amendment
hereto or Trust Instrument supplemental shall be kept at the office of the Trust
where it may be inspected by any Shareholder. Anyone dealing with the Trust may
rely on a certificate by a Trustee or an officer of the Trust as to the
authenticity of the Trust Instrument or any such amendments or supplements and
as to any matters in connection with the Trust. The masculine gender herein
shall include the feminine and neuter genders. Headings herein are for
convenience only and shall not affect the construction of this Trust Instrument.
This Trust Instrument may be executed in any number of counterparts, each of
which shall be deemed an original.
SECTION 7. Applicable Law.
This Trust Instrument and the Trust created hereunder are governed by and
construed and administered according to the Delaware Act and the applicable laws
C-21
of the State of Delaware; provided, however, that there shall not be applicable
to the Trust, the Trustees or this Trust Instrument (a) the provisions of
Section 3540 of Title 12 of the Delaware Code, or (b) any provisions of the laws
(statutory or common) of the State of Delaware (other than the Delaware Act)
pertaining to trusts which relate to or regulate (i) the filing with any court
or governmental body or agency of trustee accounts or schedules of trustee fees
and charges, (ii) affirmative requirements to post bonds for trustees, officers,
agents or employees of a trust, (iii) the necessity for obtaining court or other
governmental approval concerning the acquisition, holding or disposition of real
or personal property, (iv) fees or other sums payable to trustees, officers,
agents or employees of a trust, (v) the allocation of receipts and expenditures
to income or principal, (vi) restrictions or limitations on the permissible
nature, amount or concentration of trust investments or requirements relating to
the titling, storage or other manner of holding of trust assets, or (vii) the
establishment of fiduciary or other standards of responsibilities or limitations
on the acts or powers of trustees, which are inconsistent with the limitations
or liabilities or authorities and powers of the Trustees set forth or referenced
in this Trust Instrument. The Trust shall be of the type commonly called a
Delaware business trust, and, without limiting the provisions hereof, the Trust
may exercise all powers which are ordinarily exercised by such a trust under
Delaware law. The Trust specifically reserves the right to exercise any of the
powers or privileges afforded to trusts or actions that may be engaged in by
trusts under the Delaware Act, and the absence of a specific reference herein to
any such power, privilege or action shall not imply that the Trust may not
exercise such power or privilege or take such actions.
SECTION 8. Amendments.
The Trustees may, without any Shareholder vote, amend or otherwise
supplement this Trust Instrument by making an amendment, a Trust Instrument
supplemental hereto or an amended and restated trust instrument; provided, that
Shareholders shall have the right to vote on any amendment (a) which would
affect the voting rights of Shareholders granted in Article VI, Section 1, (b)
to this Section 8, (c) required to be approved by Shareholders by law or by the
Trust's registration statement(s) filed with the Commission, and (d) submitted
to them by the Trustees in their discretion. Any amendment submitted to
Shareholders which the Trustees determine would affect the Shareholders of any
Series shall be authorized by vote of the Shareholders of such Series and no
vote shall be required of Shareholders of a Series not affected. Notwithstanding
anything else herein, any amendment to Article IX which would have the effect of
reducing the indemnification and other rights provided thereby to Trustees,
officers, employees, and agents of the Trust or to Shareholders or former
Shareholders, and any repeal or amendment of this sentence, shall each require
the affirmative vote of the holders of two-thirds of the Outstanding Shares of
the Trust entitled to vote thereon.
C-22
SECTION 9. Fiscal Year
The fiscal year of the Trust shall end on a specified date as set forth in
the Bylaws. The Trustees may change the fiscal year of the Trust without
Shareholder approval.
SECTION 10. Severability.
The provisions of this Trust Instrument are severable. If the Trustees
determine, with the advice of counsel, that any provision hereof conflicts with the 1940 Act, the regulated investment company provisions of the Internal
Revenue Code or with other applicable laws and regulations, the conflicting
provisionlatter shall be deemed never to have constituted a part of this Trust
Instrument; provided, however, that such determination shall not affect any of
the remaining provisions of this Trust Instrument or render invalid or improper
any action taken or omitted prior to such determination. If any provision hereof
shall be held invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision only in such jurisdiction
and shall not affect any other provision of this Trust Instrument.
SECTION 11. Use of the Name "Janus."
Janus International Holdings LLC ("JIH") has consented to the use by the
Trust and by each Series thereof to the identifying word "Janus" in the name of
the Trust and of each Series. Such consent is conditioned upon the Trust's
employment of Janus Capital Management LLC as investment adviser to the Trust
and to each Series. As between JIH and the Trust, JIH shall control the use of
such name insofar as such name contains the identifying word "Janus." JIH may
from time to time use the identifying word "Janus" or license the use of the
identifying word "Janus" in other connections and for other purposes, including
without limitation in the names of other investment companies, corporations or
businesses that it or one of its affiliates may manage, advise, sponsor or own
or in which it or one of its affiliates may have a financial interest. JIH may
require the Trust or any Series to cease using the identifying word "Janus" in
the name of the Trust or any Series if the Trust or Series ceases to employ
Janus Capital Management LLC or a subsidiary or affiliate thereof as investment
adviser.
C-23control.]
A-7
IN[IN WITNESS WHEREOF, the undersigned, being the Trustees of the Trust,parties have caused this Agreement to be executed
this Trust Instrumentby their duly authorized officers designated below as of the dateday and year first
above written.
- --------------------------------- ---------------------------------
Thomas H. Bailey James T. Rothe
- --------------------------------- ---------------------------------
William F. McCalpin William D. Stewart
- --------------------------------- ---------------------------------
John W. McCarter, Jr. Martin H. Waldinger
- ---------------------------------
Dennis B. Mullen
Address: 151 Detroit Street
Denver, Colorado 80206
C-24]
[JANUS CAPITAL MANAGEMENT LLC]
[By:
----------------------------------
Name:
Title:]
[PERKINS INVESTMENT MANAGEMENT LLC]
[By:
----------------------------------
Name:
Title:]
A-8
EXHIBIT D
NUMBER OF OUTSTANDING SHARES AND NET ASSETS
The following table shows, as of the close of business on the Record Date,
the number of outstanding shares and net assets of each class of each Fund, as
applicable:
TOTAL NUMBER
OF SHARES
PORTFOLIO OUTSTANDING NET ASSETS
- --------- ------------ ----------
Balanced Portfolio
Institutional.................................
Service.......................................
Core Equity Portfolio
Institutional.................................
Service.......................................
Flexible Bond Portfolio
Institutional.................................
Service.......................................
Foreign Stock Portfolio
Service.......................................
Forty Portfolio
Institutional.................................
Service.......................................
Global Life Sciences Portfolio
Institutional.................................
Service.......................................
Global Technology Portfolio
Institutional.................................
Service.......................................
Service II....................................
Growth and Income Portfolio
Institutional.................................
Service.......................................
International Growth Portfolio
Institutional.................................
Service.......................................
Service II....................................
D-1
TOTAL NUMBER
OF SHARES
PORTFOLIO OUTSTANDING NET ASSETS
- --------- ------------ ----------
Large Cap Growth Portfolio
Institutional.................................
Service.......................................
Mid Cap Growth Portfolio
Institutional.................................
Service.......................................
Mid Cap Value Portfolio
Institutional.................................
Service.......................................
Money Market Portfolio
Institutional.................................
Risk-Managed Core Portfolio
Service Shares................................
Risk-Managed Growth Portfolio
Service.......................................
Small Company Value Portfolio
Service.......................................
Worldwide Growth Portfolio
Institutional.................................
Service.......................................
Service II....................................
D-2
EXHIBIT E
FORM OF PROPOSED AMENDED ADVISORY AGREEMENT
FOR EQUITY AND INCOME FUNDSB
JANUS ASPEN SERIES
FORM OF INVESTMENT[AMENDED ]INVESTMENT ADVISORY AGREEMENT
[ ]SMALL COMPANY VALUE PORTFOLIO
THIS INVESTMENT ADVISORY AGREEMENT (the "Agreement") is made this 1st day
of July, 2004, [AS AMENDED JANUARY 1, 2006][as amended this day of , between2008, ]between
JANUS ASPEN SERIES, a Delaware statutory trust (the "Trust"), and JANUS CAPITAL
MANAGEMENT LLC, a Delaware limited liability company ("JCM").
W I T N E S S E T H: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 [ ] Portfolio (the "Fund"); and
WHEREAS, the Trust and JCM deem it mutually advantageous that JCM should be
appointed as the 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, and
have authority to act with respect thereto, 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
E-1
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.
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 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 1933 Act. 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.
E-2
5. Compensation.
BALANCED PORTFOLIO
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 0.55% of the daily closing net asset value of the Fund (1/366 of 0.55% of the
daily closing net asset value of the Fund in a leap year). The fee shall be paid
monthly.
FOREIGN STOCK PORTFOLIO, FORTY PORTFOLIO GLOBAL LIFE SCIENCES PORTFOLIO, GLOBAL
TECHNOLOGY PORTFOLIO, INTERNATIONAL GROWTH PORTFOLIO, LARGE CAP GROWTH
PORTFOLIO, AND MID CAP GROWTH PORTFOLIO
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 0.64% of the daily closing net asset value of the Fund (1/366 of 0.64% of the
daily closing net asset value of the Fund in a leap year). The fee shall be paid
monthly.
CORE EQUITY PORTFOLIO AND WORLDWIDE GROWTH PORTFOLIO
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 0.60% of the daily closing net asset value of the Fund (1/366 of 0.60% of the
daily closing net asset value of the Fund in a leap year). The fee shall be paid
monthly.
GROWTH AND INCOME PORTFOLIO
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 0.62% of the daily closing net asset value of the Fund (1/366 of 0.62% of the
daily closing net asset value of the Fund in a leap year). The fee shall be paid
monthly.
FLEXIBLE BOND PORTFOLIO
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 0.55% of the first $300,000,000 of the daily closing net asset value of the
Fund, plus 1/365 of 0.45% of the daily closing net asset value in excess of
$300,000,000 (or 1/366 of the daily closing net asset value of either rate in a
leap year). The fee shall be paid monthly.
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
E-3
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," as defined in the 1940 Act, of JCM; and
(b) Rental of offices of the Trust.
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," as defined in the 1940 Act, 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 with the membership of the Trust in any trade
association or other investment company organization. To the extent that JCM
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 JCM compensation
for, or reimburse JCM for its expenses incurred in connection with, such
services as JCM and the Trust shall agree from time to time, any other provision
of this Agreement notwithstanding.
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
E-4
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 [JANUARY 1, 2007]
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 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 (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 [JANUARY 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 1940 Act) of any party to this Agreement 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.
E-5
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 15,
"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.
This Agreement shall supercede all prior investment advisory agreements
entered into between JCM and the Trust, on behalf of the Fund.
E-6
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:
--------------------------------------
Chief Financial Officer and Senior
Vice President
JANUS ASPEN SERIES
By:
--------------------------------------
President and Chief Executive Officer
E-7
EXHIBIT F
FORM OF PROPOSED AMENDED ADVISORY AGREEMENT
FOR MONEY MARKET PORTFOLIO
JANUS ASPEN SERIES
FORM OF INVESTMENT ADVISORY AGREEMENT
MONEY MARKET PORTFOLIO
THIS INVESTMENT ADVISORY AGREEMENT (the "Agreement") is made this 3rd day
of April, 2002, [AS AMENDED JANUARY 1, 2006], between JANUS ASPEN SERIES, a
Delaware business trust (the "Trust"), and JANUS CAPITAL MANAGEMENT LLC, a
Delaware limited liability company ("JCM").
WITNESSETH:
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 Money Market Portfolio (the "Fund"); and
WHEREAS, the Trust and JCM deem it mutually advantageous that JCM should be
appointed as investment adviser of the Fund.
NOW, THEREFORE, the parties agree as follows:
1. 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. JCM shall furnish
continuous advice and recommendations to the Fund, and have authority to act
with respect thereto, 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
F-1
Trustees and appropriate officers of the Trust fully informed as to the
condition of the investment portfolio of the Fund.
2. 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 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.
3. 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.
4. 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 0.25% of the aggregate closing net asset value of the shares
of the Fund for each day of such month.
F-2
5. 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.
6. 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 2 and 5
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 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 JCM 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 JCM compensation for, or reimburse JCM for its
expenses incurred in connection with, such services as JCM and the Trust shall
agree from time to time, any other provision of this Agreement notwithstanding.
F-3
7. 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.
8. Assignment. This Agreement shall terminate automatically in the event
of any assignment of this Agreement.
9. Term. This Agreement shall continue in effect until [JANUARY 1, 2007],
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 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 [JANUARY 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.
10. 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 1940 Act) 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).
11. 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.
12. 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
F-4
liability of the Trustees, officers and holders of shares of beneficial interest
of the Trust.
13. 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.
14. 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.
15. 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.
F-5
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:
--------------------------------------
JANUS ASPEN SERIES
By:
--------------------------------------
F-6
EXHIBIT G
PRINCIPAL EXECUTIVE OFFICERS OF JCM AND
THEIR PRINCIPAL OCCUPATIONS
POSITION(S) WITH ADVISER
NAME ADVISER/AFFILIATED ENTITY NAME OR AFFILIATED ENTITY
- ---- ------------------------------ ------------------------
Robin C. Beery........... Janus Capital Group Inc. Chief Marketing Officer
and Executive Vice
President
Janus Capital Management LLC Chief Marketing Officer
and Executive Vice
President
The Janus Foundation President and Director
Janus Services LLC President
Gary D. Black............ Janus Capital Group Inc. Chief Investment Officer,
President and Director
Janus Capital Management LLC Chief Investment Officer
and President
Janus Management Holdings Corp. Executive Vice President
Bay Isle Financial LLC President
Enhanced Investment Technologies, Working Director
LLC
John H. Bluher........... Janus Capital Group Inc. General Counsel, Chief
Public Affairs Officer
and Executive Vice
President
Janus Capital Management LLC Chief Public Affairs
Officer and Executive
Vice President
Janus Management Holdings Corp. General Counsel, Chief
Public Affairs Officer
and Executive Vice
President
Janus Services LLC Executive Vice President
Capital Group Partners, Inc. Director
Enhanced Investment Technologies, Vice President
LLC
Dominic Martellaro....... Janus Capital Group Inc. Executive Vice President
Janus Capital Management LLC Executive Vice President
Janus Capital Trust Manager Limited Director
Janus Services LLC Executive Vice President
Janus World Funds Director
David R. Martin.......... Janus Capital Group Inc. Chief Financial Officer
and Executive Vice
President
Janus Capital Management LLC Chief Financial Officer
and Executive Vice
President
Janus International Limited Chief Financial Officer
and Executive Vice
President
Janus Management Holdings Corp. Chief Financial Officer
and Executive Vice
President
Janus Services LLC Chief Financial Officer
and Executive Vice
President
G-1
POSITION(S) WITH ADVISER
NAME ADVISER/AFFILIATED ENTITY NAME OR AFFILIATED ENTITY
- ---- ------------------------------ ------------------------
Steven L. Scheid......... Janus Capital Group Inc. Chief Executive Officer,
Director and Chairman of
the Board
Janus Capital Management LLC Chief Executive Officer
Enhanced Investment Technologies, Working Director
LLC
John Zimmerman........... Janus Capital Group Inc. Executive Vice President
Janus Capital Management LLC Executive Vice President
Enhanced Investment Technologies, Working Director
LLC
G-2
EXHIBIT H
OTHER FUNDS MANAGED BY JCM WITH SIMILAR
INVESTMENT OBJECTIVES
The following table provides information regarding other funds managed by
JCM having a similar investment objective as the Funds. The table shows such
fund's asset size as of June 30, 2005, the rate of compensation paid to JCM by
that fund and whether JCM has contractually agreed to waive or reduce
compensation it receives from that fund.
ANNUAL RATE OF FEE WAIVERS OR
FUND OBJECTIVE ASSET SIZE COMPENSATION REDUCTIONS
- ---- --------- ---------- ------------------ --------------
Equity Funds
Balanced Portfolio... Seeks long-term 2,248.2 0.55% N/A
capital growth,
consistent with
preservation of
capital and balanced
by current income.
Core Equity
Portfolio.......... Seeks long-term 10.9 0.60% 1.20%
growth of capital.
Foreign Stock
Portfolio.......... Seeks long-term 16.7 0.64% 1.24%
growth of capital.
Forty Portfolio...... Seeks long-term 939.9 0.64% N/A
growth of capital.
Global Life Sciences
Portfolio.......... Seeks long-term 35.2 0.64% 1.24%
growth of capital.
Global Technology
Portfolio.......... Seeks long-term 153.8 0.64% 1.24%
growth of capital.
Growth & Income
Portfolio.......... Seeks long-term 135.4 0.62% N/A
capital growth and
current income.
International Growth
Portfolio.......... Seeks long-term 1,017.4 0.64% N/A
growth of capital.
Large Cap Growth
Portfolio.......... Seeks long-term 910.4 0.64% N/A
growth of capital in
a manner consistent
with the preservation
of capital.
Mid Cap Growth
Portfolio.......... Seeks long-term 750.2 0.64% N/A
growth of capital.
Mid Cap Value
Portfolio.......... Seeks capital 46.3 0.64% 1.24%
appreciation.
H-1
ANNUAL RATE OF FEE WAIVERS OR
FUND OBJECTIVE ASSET SIZE COMPENSATION REDUCTIONS
- ---- --------- ---------- ------------------ --------------
Risk-Managed Core
Portfolio.......... Seeks long-term 18.0 0.50% 1.10%
growth of capital.
Risk-Managed Growth
Portfolio.......... Seeks long-term 10.5 0.50% 1.10%
growth of capital.
Small Company Value
Portfolio.......... Seeks capital 3.1 0.74% 1.34%
appreciation.
Worldwide Growth
Portfolio.......... Seeks long-term 1,703.5 0.60% N/A
growth of capital in
a manner consistent
with the preservation
of capital.
Income Funds
Flexible Bond
Portfolio.......... Seeks to obtain 329.9 First $300 Million 0.90%
maximum total return, 0.55%
consistent with Over $300 Million
preservation of 0.45%
capital.
Money Market Funds
Money Market
Portfolio.......... Seeks maximum current 12.6 0.25% 0.50%
income to the extent
consistent with
stability of capital.
H-2
EXHIBIT I
FORM OF NEW ADVISORY AGREEMENT FOR
WORLDWIDE GROWTH PORTFOLIO
JANUS ASPEN SERIES
FORM OF INVESTMENT ADVISORY AGREEMENT
WORLDWIDE GROWTH PORTFOLIO
THIS INVESTMENT ADVISORY AGREEMENT (the "Agreement") is made this [1ST DAY
OF JANUARY, 2006], between JANUS ASPEN SERIES, a Delaware statutory trust (the
"Trust"), and JANUS CAPITAL MANAGEMENT LLC, a Delaware limited liability company
("JCM").
WITNESSETH:
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 Worldwide Growth Portfolio (the "Fund"); and
WHEREAS, the Trust and JCM deem it mutually advantageous that JCM should be
appointed as investment adviser of 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, and
have authority to act with respect thereto, 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
I-1
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.
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 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 1933 Act. 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.
I-2
5. Compensation. The Trust shall pay to JCM for its investment advisory
services a monthly base fee of 1/12 of 0.60% of the average daily closing net
asset value of the Fund, adjusted by a performance fee as set forth in Schedule
A. For any period less than a month during which this Agreement is in effect,
the base fee shall be prorated according to the proportion which such period
bears to a full month of 28, 29, 30 or 31 days, as the case may be.
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," as defined in the 1940 Act, of JCM; and
(b) Rental of offices of the Trust.
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," as defined in the 1940 Act, 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 with the membership of the Trust in any trade
association or other investment company organization. To the extent that JCM
shall perform any of the above described
I-3
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 JCM compensation for, or reimburse JCM for its
expenses incurred in connection with, such services as JCM and the Trust shall
agree from time to time, any other provision of this Agreement notwithstanding.
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 [JANUARY 1, 2007],
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 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 (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 [JANUARY 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 1940 Act) of any party to this Agreement 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).
I-4
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 15,
"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.
This Agreement shall supercede all prior investment advisory agreements
entered into between JCM and the Trust, on behalf of the Fund.
I-5
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:
--------------------------------------
Chief Financial Officer and Senior
Vice President
JANUS ASPEN SERIES
By:
--------------------------------------
President and Chief Executive Officer
I-6
SCHEDULE A
PERFORMANCE ADJUSTMENT
Beginning with the Base Fee payable for January 2006, the Base Fee shall be
adjusted monthly based upon the investment performance of the Fund's Service
Shares ("Class") in relation to the cumulative investment record of the Fund's
primary benchmark, the MSCI World Index (the "Index"), over the "Performance
Period" (such adjustment being referred to herein as the "Performance
Adjustment"). The "Performance Period" is defined as the shorter of (a) the
period from the date of this Agreement through the end of the month for which
the fee is being calculated, and (b) the 36 month period preceding the end of
the month for which the fee is being calculated.
The Performance Adjustment shall be calculated by subtracting the
investment record of the Index from the investment performance of the Class. If
there is less than a 0.50% difference (plus or minus) between the investment
performance of the Class and the investment record of the Index, the Fund pays
JCM the Base Fee with no adjustments. If the difference between the investment
performance of the Class and the investment record of the Index is 0.50% or
greater during any measurement period, the Base Fee will be subject to an upward
or downward performance adjustment of 0.0125% for every 0.50% increment by which
the Class outperforms or under performs the Index. The maximum Performance
Adjustment (positive or negative) to the Fund is 0.15%. The Performance
Adjustment is applied against the Fund's average daily net assets during the
Performance Period.
For purposes of computing the Base Fee and the Performance Adjustment, net
assets are averaged over different periods (average net assets during the
relevant month for the Base Fee versus average net assets during the Performance
Period for the Performance Adjustment).
The average daily net asset value of the Fund, or any class thereof, shall
be determined in the manner set forth in the Trust's Amended and Restated Trust
Instrument, Bylaws and registration statement, each as may be amended from time
to time.
The investment performance of the Class will be the sum of:
(1) the change in the Class's net asset value ("NAV") per share during
the Performance Period; plus
(2) the value of the Class's cash distributions per share accumulated
to the end of the Performance Period; plus
(3) the value of capital gains taxes per share paid or payable on
undistributed realized long-term capital gains accumulated to the end of
the Performance Period;
I-7
expressed as a percentage of the Class's NAV per share at the beginning of the
Performance Period. For this purpose, the value of distributions per share of
realized capital gains, of dividends per share paid from investment income and
of capital gains taxes per share paid or payable on undistributed realized
long-term capital gains shall be treated as reinvested in shares of the Class at
the NAV in effect at the close of business on the record date for the payment of
such distributions and dividends and the date on which provision is made for
such taxes, after giving effect to such distributions, dividends and taxes.
The investment record of the Index will be the sum of:
(1) the change in the level of the Index during the Performance
Period; plus
(2) the value, computed consistently with the Index, of cash
distributions made by companies whose securities comprise the Index
accumulated to the end of the Performance Period; expressed as a percentage
of the Index level at the beginning of the Performance Period. For this
purpose, cash distributions on the securities which comprise the Index
shall be treated as reinvested in the index at least as frequently as the
end of each calendar quarter following the payment of the dividend.
I-8
EXHIBIT J
FORM OF NEW PROPOSED ADVISORY AGREEMENT FOR
MID CAP VALUE PORTFOLIO AND
RISK-MANAGED CORE PORTFOLIO
JANUS ASPEN SERIES
FORM OF INVESTMENT ADVISORY AGREEMENT
[ ] PORTFOLIO
THIS INVESTMENT ADVISORY AGREEMENT (the "Agreement") is made this [1ST DAY
OF JANUARY, 2006] between JANUS ASPEN SERIES, a Delaware statutory trust (the
"Trust"), and JANUS CAPITAL MANAGEMENT LLC, a Delaware limited liability company
("JCM").
WITNESSETH:
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 [ ] 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 J-1
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
B-1
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 affiliates of or 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 1933 Act. 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;
J-2
MID CAP VALUE PORTFOLIO:
(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;
(d) to compensate JCM for its services and reimburse JCM for its expenses
incurred hereunder in accordance with the provisions hereof; and
(e) to compensate any subadviser engaged by JCM pursuant to the authority
granted in Section 2 hereof.
RISK-MANAGED CORE PORTFOLIO
(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
B-2
(d) to compensate JCM for its services and reimburse JCM for its
expenses incurred hereunder in accordance with the provisions hereof.
5. Compensation. MID CAP VALUE PORTFOLIO
The Trust shall pay to JCM for its investment advisory services pursuant
to this Agreement a monthly[monthly base fee]fee[ of 1/12 ][, calculated and payable
for each day that this Agreement is in effect, of 0.64%1/365 ]of 0.74% of the
average daily[average ]daily closing net asset value of the Fund, adjusted by a performance fee as set forth in Schedule A, provided that
any amounts due pursuant to Section 4(e) above shall be paid directly to such
subadviser by the Fund and shall reduce the amount payable to Janus hereunder.
For any period less than a month during which this Agreement is in effect, the
base fee shall be prorated according to the proportion which such period bears
to a full month of 28, 29, 30 or 31 days, as the case may be.
RISK-MANAGED CORE PORTFOLIO
The Trust shall pay to JCM for its investment advisory services a monthly
base fee of 1/12 of 0.50% of the average daily closing net asset value of the
Fund,Fund[, adjusted by a
performance fee as set forth in Schedule A. For any period less than a
month during which this Agreement is in effect, the base fee shall be
prorated according to the proportion which such period bears to a full
month of 28, 29, 30 or 31 days, as the case may be.] [(1/366 of 0.74% 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 and other
services under this Agreement, and the expenses which it may expressly
undertake to incur and pay under other
J-3
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:
MID CAP VALUE PORTFOLIO:
(a) Reasonable compensation, fees and related expenses of the
Trust's officers and its Trustees, except for such Trustees who are not
"interested persons," as defined in the 1940 Act, of JCM;JCM, and (b) Rental of offices of the Trust.
RISK-MANAGED CORE PORTFOLIO
(a) Reasonable compensation, fees and related expenses of the Trust's
officers and its Trustees, except for such Trustees who are not "interested
persons," as
definedotherwise provided in the 1940 Act, of JCM;
(c)Section 7;
(b) Rental of offices of the Trust; and
(d) Fees(c) Fee[s] of any subadviser engaged by JCM pursuant to the
authority granted in Section 2 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," as defined in the 1940 Act, of JCM;
compensation and related expenses of the Chief Compliance Officer of the
Trust and compliance staff, as authorized from time to time by the Trustees
of the Trust; 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
B-3
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 with the
J-4
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 [JANUARYFebruary 1,
2007]200[7][9], 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 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
(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 [JANUARY 1]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.
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 1940 Act) of any party to
this Agreement and, if required by applicable law, (ii) by the affirmative
vote of a
B-4
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
J-5
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.
B-5
This Agreement shall supercede all prior investment advisory agreements
entered into between JCM and the Trust, on behalf of the Fund.
J-6
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:
------------------------------------------------------------------------
[Loren M. Starr, Chief Financial
Officer and Senior Vice PresidentPresident]
JANUS ASPEN SERIES
By:
------------------------------------------------------------------------
[Girard C. Miller, President and
Chief Executive Officer
J-7Officer]
B-6
SCHEDULE[SCHEDULE A
PERFORMANCE ADJUSTMENT
BeginningADJUSTMENT]
[Beginning with the Base Fee payable for January 2006,2008 and in month 13
from the date of this Agreement, the Base Fee shall be adjusted monthly based
upon the investment performance of the Fund's Service Shares ("Class") in
relation to the cumulative investment record of the Fund's primary benchmark, the
[RISK-MANAGED CORE PORTFOLIO -- STANDARD & POOR'S 500
INDEX (THE "INDEX"Russell 2000(R) Value Index (the "Index")] [MID CAP VALUE PORTFOLIO -- RUSSELL MIDCAP VALUE INDEX (THE
"INDEX")], over the "Performance Period" (such
adjustment being referred to herein as the "Performance Adjustment"). The
"Performance Period" is defined as the shorter of (a) the period from the date
of this Agreement through the end of the month for which the fee is being
calculated, and (b) the 36 month period preceding the end of the month for which
the fee is being calculated.
The]
[The Performance Adjustment shall be calculated by subtracting the
investment record of the Index from the investment performance of the Class. If
there is less than a 0.50% difference (plus or minus) between the investment
performance of the Class and the investment record of the Index, the Fund pays
JCM the Base Fee with no adjustments.adjustment. If the difference between the investment
performance of the Class and the investment record of the Index is 0.50% or
greater during any measurement period,Performance Period, the Base Fee will be subject to an upward
or downward performance adjustment of 0.01875%1/12 of 0.01667% for every full 0.50%
increment by which the Class outperforms or underperforms the Index. The maximum
percentage used in calculating the Performance Adjustment (positive or negative)
to the Fundin any month is 1/12 of 0.15%. The Performance Adjustment is applied against the
Fund's average daily net assets during the Performance Period.
For]
[For purposes of computing the Base Fee and the Performance Adjustment, net
assets are averaged over different periods (average daily net assets during the
relevant month for the Base Fee versus average daily net assets during the
Performance Period for the Performance Adjustment). The Base Fee is calculated
and accrued daily. The Performance Adjustment is calculated monthly in arrears
and is accrued evenly each day throughout the month. The investment advisory fee
is paid monthly in arrears.]
[The average daily net asset value of the Fund, or any class thereof, shall
be determined in the manner set forth in the Trust's Amended and Restated Trust
Instrument, Bylaws and registration statement, each as may be amended from time
to time.
The]
[The investment performance of the Class will be the sum of:
(1)]
[(1) the change in the Class'sClass' net asset value ("NAV") per share during
the Performance Period; plus
(2)plus]
[(2) the value of the Class'sClass' cash distributions per share accumulated
to the end of the Performance Period; plus
J-8plus]
B-7
(3)[(3) the value of capital gains taxes per share paid or payable on
undistributed realized long-term capital gains accumulated to the end of
the Performance Period; expressed as a percentage of the Class'sClass' NAV per
share at the beginning of the Performance Period. For this purpose, the
value of distributions per share of realized capital gains, of dividends
per share paid from investment income and of capital gains taxes per share
paid or payable on undistributed realized long-term capital gains shall be
treated as reinvested in shares of the Class at the NAV in effect at the
close of business on the record date for the payment of such distributions
and dividends and the date on which provision is made for such taxes, after
giving effect to such distributions, dividends and taxes.
The]
[The investment record of the Index will be the sum of:
(1)]
[(1) the change in the level of the Index during the Performance
Period; plus
(2)plus]
[(2) the value, computed consistently with the Index, of cash
distributions made by companies whose securities comprise the Index
accumulated to the end of the Performance Period; expressed as a percentage
of the Index level at the beginning of the Performance Period. For this
purpose, cash distributions on the securities which comprise the Index
shall be treated as reinvested in the indexIndex at least as frequently as the
end of each calendar quarter following the payment of the dividend.
J-9
EXHIBIT K
FORM OF SUB-ADVISORY AGREEMENT
RISK-MANAGED CORE PORTFOLIO
(A SERIES OF JANUS ASPEN SERIES)
This SUB-ADVISORY AGREEMENT (the "Agreement") is entered into effective as]
[The Trustees have initially designated the Class to be used for purposes
of determining the [January 2006], by and between JANUS CAPITAL MANAGEMENT LLC, a Delaware
limited liability company ("Janus") and ENHANCED INVESTMENT TECHNOLOGIES, LLC, a
Delaware limited liability company ("INTECH").
WHEREAS, Janus has entered into an Investment Advisory Agreement (the
"Advisory Agreement") with Janus Aspen 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
Risk-Managed Core Portfolio, 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, INTECH 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 INTECH to furnish investment advisory
services with respect to the Fund, and INTECH 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 INTECH. Janus hereby engages the services of INTECH as
subadviser in furtherance of the Advisory Agreement. INTECH 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) INTECH 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 place orders
for the purchase or sale of such securities or other assets with brokers,
dealers or others, all in conformity with the investment objectives,
policies and restrictions and the other statements concerning the Fund in
the Trust's trust instrument, as amended fromPerformance Adjustment. 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
K-1
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) INTECH 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 INTECH, and the investment considerations which
have given rise to those decisions;
(c) INTECH shall maintain all books and records required to be
maintainedmay,
by INTECH 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. INTECH 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) INTECH 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) INTECH shall, on behalf of the Fund, exercise 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, 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, INTECH 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 INTECH; and
K-2
(g) INTECH will provide to Janus for regulatory filings and other
appropriate uses materially accurate and complete information relating to
INTECH as may be reasonably requested by Janus from time to time and,
notwithstanding anything herein to the contrary, INTECH 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 INTECH to Janus, provided,
however, that INTECH shall not be liable to the extent that any Damages are
based upon inaccuracies or omissions made in reliance upon information
furnished to INTECH by Janus.
2. Further Obligations. In all matters relating to the performance of this
Agreement, INTECH 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 INTECH 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 INTECH continuously and fully informed (or cause the
custodian of the Fund's assets to keep INTECH 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 INTECH 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 INTECH with any further materials or information which
INTECH may reasonably request to enable it to perform its function under
this Agreement; and
(d) To compensate INTECH for its services in accordance with the
provisions of Section 4 hereof.
K-3
4. Compensation. Janus shall pay to INTECH for its services under this
Agreement a fee, payable in United States dollars, at an annual rate of 0.26% of
the average daily net assets of the Fund, plus or minus one-half of any
performance adjustment paid to or incurred by Janus pursuant to the Advisory
Agreement between the Trust, on behalf of the Fund, and Janus. Fees paid to
INTECH 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. INTECH shall pay all its own costs and expenses incurred in
rendering its service under this Agreement.
6. Representations of INTECH. INTECH hereby represents, warrants and
covenants to Janus as follows:
(a) INTECH: (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 INTECH 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 INTECH that could have a material adverse effect upon INTECH's
ability to fulfill its obligations under this Agreement.
(b) INTECH 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 INTECH shall
certify to Janus that INTECH has complied with the requirements of Rule
17j-1 during the previous year and that there has been no violation of
INTECH'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, INTECH shall permit Janus, its employees or its
agents to examine the
K-4
reports required to be made to INTECH by Rule 17j-1(c)(1) and all other
records relevant to INTECH's code of ethics.
(c) INTECH 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. Representations of Janus. Janus hereby represents, warrants and
covenants to INTECH as follows:
(a) Janus (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 fulfilling its obligations under 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 fulfill its obligations under
this Agreement; (iv) has the legal and corporate authority to enter into
and perform this Agreement; and (v) will immediately notify INTECH of the
occurrence of any event that would disqualify Janus 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 Janus that could have a material
adverse effect upon Janus' ability to fulfill its obligations under this
Agreement.
(b) Janus has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the 1940 Act and will provide INTECH with
a copy of such code of ethics, together with evidence of its adoption.
(c) Janus has provided INTECH 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 INTECH.
8. Term. This Agreement shall become effective as of the date first set
forth above and shall continue in effect until [January 1, 2007] 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 INTECH, castvoting 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
K-5
period beginning not more than ninety (90) days prior to [January 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.
9. 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 INTECH at its
principal place of business. This Agreement may be terminated (i) by Janus or by
INTECH at any time, without penalty by giving 60 days' advance written notice of
termination to the other party, or (ii) by Janus or the Trust without advance
notice if INTECH becomes unable to discharge its duties and obligations under
this Agreement. In addition, this Agreement shall terminate, without penalty,
upon termination of the Advisory Agreement.
10. Assignment. This Agreement shall automatically terminate in the event
of its assignment.
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 a majority of the Trustees, including a majority of
the Trustees who are not interested personsparties to this Agreement or "interested persons" (as
that phrase is
defined in Section 2(a)(19) of the 1940 Act) of the Trust or Janus, INTECH or
their affiliates, and (ii) if required by applicable law, by the affirmative
voteany such parties, determine that a class of a majority of the outstanding voting securitiesshares
of the Fund (as that
phraseother than the Class is definedthe most appropriate for use in Section 2(a)(42) ofcalculating
the 1940 Act).
12. Limitation on Personal Liability. All parties to this Agreement
acknowledge and agree that the Trust isPerformance Adjustment. If 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 holderdifferent class of shares ("Successor Class")
is substituted in calculating the Performance Adjustment, the use of beneficial interestthat
Successor Class of shares for purposes of calculating the Trust shall be personally liable for any of the foregoing.
13. Limitation of Liability of INTECH. Janus will not seek to hold INTECH,
and INTECH 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
respectPerformance Adjustment
may apply 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, "INTECH" shall include any affiliate
of INTECH performing services for the Fund contemplated hereunder and directors,
officers and employees of INTECH and such affiliates.
K-6
14. Activities of INTECH. The services of INTECH hereunder are not to be
deemed to be exclusive, and INTECH is free to render services to other parties,entire Performance Period so long as its services under this Agreement aresuch Successor Class was
outstanding at the beginning of such period. If the Successor Class of shares
was not materially adversely
affectedoutstanding for all or otherwise impaired thereby. Nothinga portion of the Performance Period, it may only
be used in this Agreement shall limit or
restrictcalculating that portion of the right of any director, officer or employee of INTECH to engage in
any other business or to devote his or her time and attention in partPerformance Adjustment attributable
to the management or other aspects ofperiod during which such Successor Class was outstanding and any other business, whether of a similar or a
dissimilar nature. It is understood that Trustees, officers and shareholdersprior
portion of the Trust arePerformance Period shall be calculated using the class of shares
previously designated.]
B-8
EXHIBIT C
OTHER FUNDS MANAGED BY JANUS CAPITAL AND PWM WITH SIMILAR INVESTMENT OBJECTIVES
The following table lists certain information regarding funds with similar
investment objectives for which Janus Capital and PWM provide investment
advisory or may become interested in INTECHsubadvisory services. The table shows such fund's asset size as directors, officersof
March 31, 2008, the rate of compensation paid by that fund, and shareholders of INTECH,whether Janus
Capital has contractually agreed to waive or reduce compensation received from
that directors, officers, employeesfund.
ASSET SIZE ANNUAL RATE OF FEE WAIVERS OR
FUND OBJECTIVE (IN $ MILLIONS) COMPENSATION REDUCTIONS
- ---- --------- --------------- -------------------------- --------------
Janus Adviser High-
Yield Fund......... Seeks to obtain First $300 Million 0.65% 0.90%(1)
high current Over $300 Million 0.55%
income. Capital
appreciation is a
secondary
investment
objective when
consistent with
its
primary investment
objective.
Janus Adviser Mid Cap
Value Fund(2)...... Seeks capital 0.64%(3) 0.74%(1)
appreciation.
Janus Adviser Small
Company Value
Fund............... Seeks capital 0.74% 1.00%(1)
appreciation.
Janus Aspen Mid Cap
Value
Portfolio(2)....... Seeks capital 0.64%(4) 1.24%(5)
appreciation.
Janus High-Yield
Fund............... Seeks to obtain First $300 Million 0.65% 0.90%(6)
high current Over $300 Million 0.55%
income. Capital
appreciation is a
secondary
investment
objective when
consistent with
its
primary investment
objective.
Janus Mid Cap Value
Fund(2)............ Seeks capital 0.64%(7) (8)
appreciation.
Janus Small Cap Value
Fund(2)............ Seeks capital 0.72% (8)
appreciation.
Janus Venture Fund... Seeks capital 0.64% N/A
appreciation.
C-1
ASSET SIZE ANNUAL RATE OF FEE WAIVERS OR
FUND OBJECTIVE (IN $ MILLIONS) COMPENSATION REDUCTIONS
- ---- --------- --------------- -------------------------- --------------
ING Janus Contrarian
Portfolio.......... Seeks capital 822.9 First $100 Million 0.45% N/A
appreciation. Next $100 Million 0.40%
Next $200 Million 0.35%
Next $500 Million 0.325%
Over $900 Million 0.30%
Ohio National Small
Cap Growth
Portfolio.......... Seeks long-term 20.4 First $50 Million 0.65% N/A
capital Next $100 Million 0.60%
appreciation. Over $150 Million 0.50%
SEI Small/Mid Cap
Equity Fund........ Seeks long-term 145.4 0.50% N/A
capital
appreciation.
SEI Small Cap Fund... Seeks capital 73.5 0.50% N/A
appreciation.
SEI Small Cap Growth
Fund............... Seeks long-term 67.6 0.50% N/A
capital
appreciation.
- ---------------
(1) Janus Capital has contractually agreed to waive the Fund's total operating
expenses (excluding the distribution and shareholders of
INTECH are or may become similarly interestedshareholder servicing fees
(applicable to Class A Shares, Class C Shares, Class R Shares, and Class S
Shares), administrative services fee (applicable to Class R Shares and Class
S Shares), brokerage commissions, interest, dividends, taxes, and
extraordinary expenses including, but not limited to, acquired fund fees and
expenses) to the limit shown until at least December 1, 2009. The expense
limit is described in the Trust,respective Statement of Additional Information.
(2) Subadvised by PWC.
(3) The Fund pays an investment advisory fee rate that adjusts up or down based
upon the Fund's performance relative to its benchmark index during a
measuring period. This fee rate, as of July 31, 2007, was 0.59%.
(4) The Portfolio pays an investment advisory fee rate that adjusts up or down
based upon the Portfolio's performance relative to its benchmark index
during a measuring period. This fee rate, as of December 31, 2007, was
0.60%.
(5) Janus Capital has contractually agreed to waive the Portfolio's total
operating expenses (excluding the distribution and that INTECH may
become interestedshareholder servicing fee
(applicable to Service Shares), administrative services fee, brokerage
commissions, interest, dividends, taxes, and extraordinary expenses
including, but not limited to, acquired fund fees and expenses) to the limit
shown until at least May 1, 2009. The expense limit is described in the
Trust as a shareholder or otherwise.
15. Third Party Beneficiary. The parties expressly acknowledgerespective Statement of Additional Information.
(6) Janus Capital has contractually agreed to waive the Fund's total operating
expenses (excluding brokerage commissions, interest, dividends, taxes, and
agree
that the Trust is a third party beneficiary of this Agreementextraordinary expenses including, but not limited to, acquired fund fees and
that the Trust
shall have the full right to sue 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 INTECH by Janus, the Trust or the Fund shall not
diminish or relieve in any way the liability of INTECH for any of its duties and
responsibilities under this Agreement.
16. 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 addressedexpenses) to the partieslimit shown until at theirleast March 1, 2009. The expense
waiver is described in the respective addresses set forth below,Statement of Additional Information.
(7) The Fund pays an investment advisory fee rate that adjusts up or at such other addressdown based
upon the Fund's performance relative to its benchmark index during a
measuring period. This fee rate, as shall be designated by any party in a written noticeof October 31, 2007, was 0.58%.
(8) Janus Services LLC has contractually agreed to waive the transfer agency
fees applicable to the other party.
(a) To Janus at:
Janus Capital Management LLC
151 Detroit Street
Denver, Colorado 80206
Attention: General Counsel
Phone: (303) 333-3863
Fax: (303) 316-5728
(b) To INTECH at:
Enhanced Investment Technologies, LLC
2401 PGA Boulevard, Suite 200
Palm Beach Gardens, Florida 33410
Attention: President
Phone: (561) 775-1100
Fax: (561) 775-1150
K-7
(c) To the Trust at:
Janus Aspen Series
151 Detroit Street
Denver, Colorado 80206
Attention: General Counsel
Phone: (303) 333-3863
Fax: (303) 316-5728
17. 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.
18. 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:
--------------------------------------
ENHANCED INVESTMENT
TECHNOLOGIES, LLC
By:
--------------------------------------
K-8Fund's Institutional Shares until March 1, 2009.
C-2
EXHIBIT LD
PRINCIPAL EXECUTIVE OFFICERS AND DIRECTORS OF INTECHJANUS CAPITAL AND THEIR PRINCIPAL
OCCUPATIONS
SUBADVISER/ JANUS CAPITAL/AFFILIATED POSITION(S)POSITIONS(S) WITH SUBADVISER ORJANUS CAPITAL
NAME ENTITY NAME OR AFFILIATED ENTITY
- ---- ---------------------- ------------------------------------------------------ -------------------------------
E. Robert Fernholz.......... Enhanced InvestmentRobin C. Beery................ Janus Capital Group Inc. Chief InvestmentMarketing Officer Technologies,and
Executive Vice President
Janus Capital Management LLC Chief Marketing Officer and
Executive Vice President
Janus Distributors LLC Executive Vice President
and
Working Director
Robert A. Garvy............. Enhanced Investment Chief Executive Officer,
Technologies, LLC President and Working Director
David E. Hurley............. Enhanced Investment Chief Operating Officer and
Technologies,Janus Services LLC Executive Vice President
Gary D. Black...............
Enhanced Investment Working Director
Technologies, LLC
John H. Bluher.............. Enhanced InvestmentGary D. Black................. Janus Capital Group Inc. Chief Executive Officer and
Director
Janus Capital Management LLC Chief Executive Officer
Janus Management Holdings Corp. President and Director
Janus Distributors LLC Executive Vice President
Technologies,Janus Services LLC Steven L. Scheid............Executive Vice President
Bay Isle Financial LLC President
Enhanced Investment Working Director
Technologies, LLC
Daniel P. Charles............. Janus Capital Management LLC Senior Vice President and
Managing Director of
JanusIntech Institutional Asset
Management
Janus Distributors LLC Senior Vice President and
Managing Director of
JanusIntech Institutional Asset
Management
Janus Services LLC Senior Vice President and
Managing Director of
JanusIntech Institutional Asset
Management
Enhanced Investment Working Director
Technologies, LLC
Jonathan D. Coleman........... Janus Capital Management LLC Co-Chief Investment Officer and
Executive Vice President
D-1
JANUS CAPITAL/AFFILIATED POSITIONS(S) WITH JANUS CAPITAL
NAME ENTITY NAME OR AFFILIATED ENTITY
- ---- ------------------------ -------------------------------
Gregory A. Frost.............. Janus Capital Group Inc. Chief Financial Officer and
Executive Vice President
Janus Capital Management LLC Chief Financial Officer and
Executive Vice President
Janus Capital Asia Limited Director and Assistant
Treasurer
Janus Capital International Director and Assistant
Limited Treasurer
Janus Capital Singapore Pte. Director
Limited
Janus Distributors LLC Chief Financial Officer and
Executive Vice President
Janus Holdings Corporation Senior Vice President,
Controller, and Director
Janus International Holding LLC Executive Vice President,
Controller, and Director
Janus Management Holdings Corp. Chief Financial Officer,
Executive Vice President, and
Director
Janus Services LLC Chief Financial Officer and
Executive Vice President
Bay Isle Financial LLC Chief Financial Officer and
Senior Vice President
Berger Financial Group LLC Vice President
Capital Group Partners, Inc. Senior Vice President,
Controller, and Director
Enhanced Investment Vice President and Working
Technologies, LLC Director
Heidi W. Hardin............... Janus Capital Management LLC General Counsel, Senior Vice
President, and Secretary
Janus Distributors LLC General Counsel, Senior Vice
President, and Secretary
Janus Services LLC General Counsel, Senior Vice
President, and Secretary
Kelley Abbott Howes........... Janus Capital Group Inc. Chief Administrative Officer,
General Counsel, Executive Vice
President, and Secretary
Janus Capital Management LLC Chief Administrative Officer
and Executive Vice President
Janus Distributors LLC Chief Administrative Officer
and Executive Vice President
Janus Management Holdings Corp. Chief Administrative Officer,
General Counsel, Executive Vice
President, Director, and
Secretary
Capital Group Partners, Inc. Director
Enhanced Investment Vice President
Technologies, LLC
D-2
JANUS CAPITAL/AFFILIATED POSITIONS(S) WITH JANUS CAPITAL
NAME ENTITY NAME OR AFFILIATED ENTITY
- ---- ------------------------ -------------------------------
Dominic C. Martellaro......... Janus Capital Group Inc. Executive Vice President
Janus Capital Management LLC Executive Vice President
Janus Capital Funds Plc Director
Janus Capital Trust Manager Director
Limited
Janus Distributors LLC President
Janus Services LLC Executive Vice President
Gibson Smith.................. Janus Capital Management LLC Co-Chief Investment Officer and
Executive Vice President
Janus Distributors LLC Executive Vice President
Janus Services LLC Executive Vice President
John Zimmerman..............Zimmerman(1)............. Janus Capital Group Inc. Executive Vice President
Janus Capital Management LLC Executive Vice President
Janus Distributors LLC Executive Vice President
Janus Services LLC Executive Vice President
Enhanced Investment Working Director
Technologies, LLC
L-1- ---------------
(1) Mr. Zimmerman resigned his positions with Janus Capital Group Inc. and its
subsidiaries effective August 2007.
D-3
EXHIBIT M
5% BENEFICIAL OWNERSE
TRUSTEES AND PRINCIPAL EXECUTIVE OFFICERS OF SHARES
As of the Record Date, the following table lists those shareholders known
to own beneficially 5% or more of the outstanding shares of any class of shares
of any Portfolio.THE
PORTFOLIO AND THEIR PRINCIPAL OCCUPATIONS
TRUSTEES
PRINCIPAL
POSITION(S) OCCUPATIONS
NAME, ADDRESS, HELD WITH LENGTH OF DURING THE PAST OTHER DIRECTORSHIPS
AND ADDRESS OF NUMBER OF PERCENTAGE
NAME OFAGE THE PORTFOLIO AND CLASS BENEFICIAL OWNER SHARES OF CLASSTIME SERVED FIVE YEARS HELD BY TRUSTEE
- --------------------------- ------------------- ---------- ------------------------ ------------- ------------ ---------------------- ----------------------
Balanced Portfolio --
Institutional Shares......... NY Life Distributors 31,070,915 45.76%
169 Lackawanna Ave.
Parsippany, NJ 07054-1007
GE Life & Annuity Company 12,135,568 17.87%
6610
William F. McCalpin........... Chairman 1/08-Present Private Investor. Chairman of the Board
151 Detroit Street Formerly, Vice and Director of The
Denver, CO 80206 Trustee 6/02-Present President of Asian Investment Fund for
DOB: 1957 Cultural Council and Foundations Investment
Executive Vice Program (TIP)
President and Chief (consisting of 4
Operating Officer of funds) and the F.B.
The Rockefeller Heron Foundation (a
Brothers Fund (a private grantmaking
private family foundation).
foundation)
(1998-2006).
Jerome S. Contro.............. Trustee 11/05-Present General partner of Chairman of the Board
151 Detroit Street Crosslink Capital, a and Trustee of RS
Denver, CO 80206 private investment Investment Trust
DOB: 1956 firm (since 2008). (consisting of 40
Formerly, partner of funds) (since 2001),
Tango Group, a private and Director of
investment firm Envysion, Inc.
(1999-2008). (internet technology),
Lijit Networks Inc.
(internet technology),
and LogRhythm Inc.
(software solutions).
John W. BroadMcCarter, Jr.......... Trustee 6/02-Present President and Chief Chairman of the Board
151 Detroit Street Richmond, VA 23230-1702
Kemper Investors Life Insurance 4,505,007 6.64%
Co.
3003 77th Avenue SE
Mercer Island, WA 98040-2837
Annuity Investors Life 3,522,799 5.19%
Insurance Co.
PO Box 5423
Cincinnati, OH 45201-5423
Balanced Portfolio --
Service Shares............... GE Life & Annuity Company 5,011,855 24.18%
6610 W. BroadExecutive Officer of and Director of
Denver, CO 80206 The Field Museum of Divergence Inc.
DOB: 1938 Natural History (biotechnology firm);
(Chicago, IL) (since Director of W.W.
1997). Grainger, Inc.
(industrial
distributor); and
Trustee of WTTW
(Chicago public
television station)
and the University of
Chicago.
Dennis B. Mullen.............. Trustee 9/93-Present Chief Executive Chairman of the Board
151 Detroit Street Richmond, VA 23230-1702
NY Life Distributors 3,438,953 16.59%
169 Lackawanna Ave.
Parsippany, NJ 07054-1007
Ohio National Life Insurance 2,470,101 11.92%
Co.
PO Box 237
Cincinnati, OH 45201-0237
Lincoln Life 2,060,077 9.94%
1300 S. Clinton Street
Fort Wayne, IN 46802-3518
Travelers Insurance Co. 1,545,892 7.46%
1 Tower Square #6MS
Hartford, CT 06183-0001
Travelers Life & Annuity 1,132,721 5.46%
1 Tower Square #6MS
Hartford, CT 06183-0001
Core Equity Portfolio --
Institutional Shares......... Western Reserve Life 522,930 90.42%
PO Box 5068
Clearwater, FL 33758-5068
Great West Life & Annuity 54,996 9.51%
8515 E. Orchard Road
Englewood,Officer of Red Robin (since 2005) and
Denver, CO 80111-500280206 Gourmet Burgers, Inc. Director of Red Robin
DOB: 1943 (since 2005). Gourmet Burgers, Inc.;
Formerly, private and Director of Janus
investor. Capital Funds Plc
(Dublin-based,
non-U.S. funds).
M-1E-1
PRINCIPAL
POSITION(S) OCCUPATIONS
NAME, ADDRESS, HELD WITH LENGTH OF DURING THE PAST OTHER DIRECTORSHIPS
AND ADDRESS OF NUMBER OF PERCENTAGE
NAME OFAGE THE PORTFOLIO AND CLASS BENEFICIAL OWNER SHARES OF CLASSTIME SERVED FIVE YEARS HELD BY TRUSTEE
- --------------------------- ------------------- ---------- ------------------------ ------------- ------------ ---------------------- ----------------------
Core Equity Portfolio
James T. Rothe................ Trustee 1/97-Present Co-founder and Director of Red Robin
151 Detroit Street Managing Director of Gourmet Burgers, Inc.
Denver, CO 80206 Roaring Fork Capital
DOB: 1943 Management, LLC
(private investment in
public equity firm),
and Professor Emeritus
of Business of the
University of
Colorado, Colorado
Springs, CO (since
2004). Formerly,
Professor of Business
of the University of
Colorado (2002-2004);
and Distinguished
Visiting Professor of
Business (2001-2002)
of Thunderbird
(American Graduate
School of
International
Management), Glendale,
AZ.
William D. Stewart............ Trustee 9/93-Present Corporate Vice N/A
151 Detroit Street President and General
Denver, CO 80206 Manager of MKS
DOB: 1944 Instruments -- Service Shares............... Principal Life Insurance 37,825 83.65%
Company
711 HighHPS
Products, Boulder, CO
(a manufacturer of
vacuum fittings and
valves).
Martin H. Waldinger........... Trustee 9/93-Present Private Investor and N/A
151 Detroit Street Des Moines, IA 50392-0001
Principal Life Insurance 7,392 16.35%
Company
711 HighConsultant to
Denver, CO 80206 California Planned
DOB: 1938 Unit Developments
(since 1994).
Formerly, CEO and
President of Marwal,
Inc. (homeowner
association management
company).
Linda S. Wolf................. Trustee 12/05-Present Retired. Formerly, Director of Wal-Mart,
151 Detroit Street Des Moines, IA 50392-0001
Flexible Bond Portfolio --
Institutional Shares......... AUL Group 7,206,126 28.65%
PO Box 1995
Indianapolis, IN 46206-9102
GE Life & Annuity Company 3,915,619 15.57%
6610 W. Broad Street
Richmond, VA 23230-1702
Great West Life & Annuity 2,217,097 8.81%
8515 E. Orchard Road
Englewood,Chairman and Chief The Field Museum of
Denver, CO 80111-5002
Lincoln Benefit Life 2,135,670 8.49%
2940 S. 84th Street
Lincoln, NE 68506
Great West Life & Annuity 1,588,548 6.32%
8515 E. Orchard Road
Englewood, CO 80111-5002
AUL American Investment Trust 1,470,320 5.85%
PO Box 1995
Indianapolis, IN 46206-9102
AUL Individual Variable Annuity 1,438,441 5.72%
One American Square, Box 1995
Indianapolis, IN 46282-0020
Flexible Bond Portfolio --
Service Shares............... Mony Life Insurance Company 1,277,084 47.48%
1740 Broadway #MD6-36
New York, NY 10019-4315
Lincoln Life 489,037 18.18%
1300 S. Clinton Street
Fort Wayne, IN 46802-3518
Guardian Insurance & Annuity 309,561 11.51%
Co. Inc.
3900 Burgess Place
Bethlehem, PA 18017-9097
Principal Life Insurance 209,654 7.79%
Company
711 High Street
Des Moines, IA 50392-0001
Mony Life Insurance Company 170,069 6.32%
1740 Broadway #MD6-26
New York, NY 10019-4315
Foreign Stock Portfolio --
Service Shares............... Lincoln Benefit Life 787,792 70.31%
2940 S. 84th Street
Lincoln, NE 68506-414280206 Executive Officer of Natural History
DOB: 1947 Leo Burnett (Chicago, IL),
(Worldwide) Children's Memorial
(advertising agency) Hospital (Chicago,
(2001-2005). IL), Chicago Council
on Global Affairs, and
InnerWorkings (U.S.
provider of print
procurement
solutions).
M-2E-2
OFFICERS
TERM OF
OFFICE* AND
NAME, ADDRESS, AND ADDRESSPOSITION(S) HELD WITH LENGTH OF NUMBER OF PERCENTAGE
NAME OF PORTFOLIO AND CLASS BENEFICIAL OWNER SHARES OF CLASSPRINCIPAL OCCUPATIONS
AGE FUNDS TIME SERVED DURING THE PAST FIVE YEARS
- --------------------------- ------------------- ---------- ---------------------------- ------------------------ ------------- --------------------------
Lincoln Benefit Life 329,633 29.42%
2940 S. 84thRobin C. Beery................ President and Chief 4/08-Present Executive Vice President
151 Detroit Street Lincoln, NE 68506-4142
FortyExecutive Officer and Chief Marketing
Denver, CO 80206 Officer of Janus Capital
DOB: 1967 Group Inc. and Janus
Capital; Executive Vice
President of Janus
Distributors LLC and Janus
Services LLC; and Working
Director of Enhanced
Investment Technologies,
LLC. Formerly, President
(2002-2007) and Director
(2000-2007) of The Janus
Foundation; President
(2004-2006) and Vice
President and Chief
Marketing Officer
(2003-2004) of Janus
Services LLC; and Senior
Vice President (2003-2005)
and Vice President (1999-
2003) of Janus Capital
Group Inc. and Janus
Capital.
Stephanie Grauerholz-
Lofton...................... Chief Legal Counsel and 1/06-Present Vice President and
151 Detroit Street Secretary Assistant General Counsel
Denver, CO 80206 of Janus Capital, and Vice
DOB: 1970 Vice President 3/06-Present President and Assistant
Secretary of Janus
Distributors LLC.
Formerly, Assistant Vice
President of Janus Capital
and Janus Distributors LLC
(2006).
Jakob V. Holm................. Executive Vice President 7/05-Present Vice President of Janus
151 Detroit Street and Portfolio --
Institutional Shares......... Life of Virginia 5,283,371 25.62%
6610 W. Broad Street
Richmond, VA 23230-1702
Connecticut Mutual Life 2,749,558 13.33%
Insurance Co.
1295 State Street
Springfield, MA 01111-0001
Charles Schwab & Co. Inc. 1,754,923 8.51%
101 Montgomery Street
San Francisco, CA 94104-4122
Delaware Charter Guarantee 1,684,822 8.17%
Trust
711 High Street
Des Moines, IA 50392-0001
Mony America 1,276,098 6.19%
1740 Broadway, Suite 635
New York, NY 10019-4315
FortyManager Capital and Portfolio
-- Service
Shares....................... Nationwide Insurance Co. 9,013,995 52.61%
PO Box 182029
Columbus, OH 43218-2029
Minnesota Life 2,031,604 11.86%
400 N. Robert Street
St. Paul, MN 55101
Nationwide Insurance Co. 1,536,609 8.97%
PO Box 182029
Columbus, OH 43218-2029
Nationwide Insurance Co. 1,502,110 8.77%
PO Box 182029
Columbus, OH 43218-2029
GE Life & AnnuityDenver, CO 80206 Small Company 981,776 5.73%
6610 W. Broad Street
Richmond, VA 23230-1702
Global Life SciencesValue Manager for other Janus
DOB: 1971 Portfolio -- Institutional
Shares....................... Western Reserve Life 424,967 100.00%
PO Box 5068
Clearwater, FL 33758-5068
Global Life Sciences
Portfolio -- Service
Shares....................... GE Life & Annuity Company 2,097,728 56.42%
6610 W. Broad Street
Richmond, VA 23230-1702
Travelers Insurance Co. 1,076,740 28.96%
1 Tower Square #6MS
Hartford, CT 06183-0001
Travelers Life & Annuity 524,603 14.11%
1 Tower Square #6MS
Hartford, CT 06183-0001accounts.
M-3E-3
TERM OF
OFFICE* AND
NAME, ADDRESS, AND ADDRESSPOSITION(S) HELD WITH LENGTH OF NUMBER OF PERCENTAGE
NAME OF PORTFOLIO AND CLASS BENEFICIAL OWNER SHARES OF CLASSPRINCIPAL OCCUPATIONS
AGE FUNDS TIME SERVED DURING THE PAST FIVE YEARS
- --------------------------- ------------------- ---------- ---------------------------- ------------------------ ------------- --------------------------
Andrew J. Iseman**............ President and Chief 3/07-4/08 Executive Vice President
151 Detroit Street Executive Officer and Chief Operating
Denver, CO 80206 Officer of Janus Capital
DOB: 1964 Group, Inc. and Janus
Capital; President of
Janus Services LLC; and
Director of Capital Group
Partners, Inc. Formerly,
Senior Vice President of
Enhanced Investment
Technologies, LLC (2005-
2007); Senior Vice
President of Janus Capital
Group, Inc. (2007) and
Janus Capital (2007); and
Vice President of Janus
Capital (2003-2005) and
Janus Services LLC
(2003-2004).
David R. Kowalski............. Vice President, Chief 6/02-Present Senior Vice President and
151 Detroit Street Compliance Officer, and Chief Compliance Officer
Denver, CO 80206 Anti-Money Laundering of Janus Capital, Janus
DOB: 1957 Officer Distributors LLC, and
Janus Services LLC; Chief
Compliance Officer of Bay
Isle Financial LLC; and
Vice President of Enhanced
Investment Technologies,
LLC. Formerly, Chief
Compliance Officer of
Enhanced Investment
Technologies, LLC (2003-
2005); Vice President of
Janus Capital (2000-2005),
and Janus Services LLC
(2004-2005); and Assistant
Vice President of Janus
Services LLC (2000-2004).
Jesper Nergaard............... Chief Financial Officer 3/05-Present Vice President of Janus
151 Detroit Street Capital. Formerly,
Denver, CO 80206 Vice President, 2/05-Present Director of Financial
DOB: 1962 Treasurer, and Principal Reporting for
Accounting Officer OppenheimerFunds, Inc.
(2004-2005); Site Manager
and First Vice President
of Mellon Global
Technology Portfolio --
Institutional Shares......... Western Reserve Life 785,088 93.17%
PO Box 5068
Clearwater, FL 33758-5068
Global Technology Portfolio --
Service II Shares............ Nationwide Insurance Co. 5,077,927 78.43%
PO Box 182029
Columbus, OH 43218-2029
Nationwide Insurance Co. 1,330,752 20.55%
PO Box 182029
Columbus, OH 43218-2029
Global Technology Portfolio --
Service Shares............... Nationwide Insurance Co. 12,116,431 33.54%
PO Box 182029
Columbus, OH 43218-2029
IDS Life Insurance Corp. 8,181,722 22.65%
125 AXP Financial Center
Minneapolis, MN 55474-0001
Nationwide Insurance Co. 3,555,305 9.84%
PO Box 182029
Columbus, OH 43218-2029
GE Life & Annuity Company 3,467,673 9.60%
6610 W. Broad Street
Richmond, VA 23230-1702
Travelers Insurance Co. 2,929,762 8.11%
1 Tower Square #6MS
Hartford, CT 06183-0001
GrowthSecurities Services
(2003); and Income Portfolio --
Institutional Shares......... Jefferson National Life 648,231 33.59%
Insurance
9920 Corporate Campus Dr.,
Suite 1000
Louisville, KY 40223-4051
Western Reserve Life 612,112 31.72%
PO Box 5068
Clearwater, FL 33758-5068
Great West Life & Annuity 369,285 19.13%
8515 E. Orchard Road
Englewood, CO 80111-5002
Great West Life & Annuity 138,422 7.17%
8515 E. Orchard Road
Englewood, CO 80111-5002
GrowthDirector of
Fund Accounting, Project
Development, and Income Portfolio --
Service Shares............... Allmerica Financial Life 2,139,043 65.98%
Insurance & Annuity Co.
440 Lincoln Street
Worcester, MA 01653-0002
Travelers Insurance Co. 490,148 15.12%
1 Tower Square #6MS
Hartford, CT 06183-0001Training
of INVESCO Funds Group
(1994-2003).
M-4
NAME AND ADDRESS OF NUMBER OF PERCENTAGE
NAME OF PORTFOLIO AND CLASS BENEFICIAL OWNER SHARES OF CLASS
- --------------------------- ------------------- ---------- ----------
Travelers Life & Annuity 338,184 10.43%
1 Tower Square #6MS
Hartford, CT 06183-0001
First Allmerica Financial Life 168,572 5.20%
Insurance
440 Lincoln Street
Worcester, MA 01653-0002
International Growth
Portfolio -- Institutional
Shares....................... Pruco Life Insurance Co. of 5,659,675 34.99%
Arizona
100 Mulberry Street
Newark, NJ 07102-4056
GE Life & Annuity Company 3,497,107 21.62%
6610 W. Broad Street
Richmond, VA 23230-1702
Realistar Life Insurance Co. 1,911,889 11.82%
PO Box 20, Rte. 3806
Minneapolis, MN 55440-0020
International Growth
Portfolio -- Service II
Shares....................... Nationwide Insurance Co. 2,133,571 78.46%
PO Box 182029
Columbus, OH 43218-2029
Nationwide Insurance Co. 553,059 20.34%
PO Box 182029
Columbus, OH 43218-2029
International Growth
Portfolio -- Service
Shares....................... IDS Life Insurance Corp. 4,754,081 26.13%
125 AXP Financial Center
Minneapolis, MN 55474-0001
Nationwide Insurance Co. 3,961,052 21.77%
PO Box 182029
Columbus, OH 43218-2029
Minnesota Life 1,831,244 10.06%
400 N. Robert Street
St. Paul, MN 55101
Nationwide Insurance Co. 1,340,042 7.36%
PO Box 182029
Columbus, OH 43218-2029
Large Cap Growth Portfolio --
Institutional Shares......... Pruco Life Insurance Co. of 9,205,165 24.94%
Arizona
100 Mulberry Street
Newark, NJ 07102-4056
GE Life & Annuity Company 8,545,812 23.15%
6610 W. Broad Street
Richmond, VA 23230-1702
Kemper Investors Life Insurance 2,559,097 6.93%
Co.
3003 77th Avenue SE
Mercer Island, WA 98040-2837
M-5
NAME AND ADDRESS OF NUMBER OF PERCENTAGE
NAME OF PORTFOLIO AND CLASS BENEFICIAL OWNER SHARES OF CLASS
- --------------------------- ------------------- ---------- ----------
Jefferson National Life 1,976,340 5.35%
Insurance
9920 Corporate Campus Dr.,
Suite 1000
Louisville, KY 40223-4051
Large Cap Growth Portfolio --
Service Shares............... Allmerica Financial Life 2,227,990 27.91%
Insurance & Annuity Co.
440 Lincoln Street
Worcester, MA 01653-0002
Lincoln Life 2,163,948 27.11%
1300 S. Clinton Street
Fort Wayne, IN 46802-3518
Pruco Life Insurance Co. of 1,165,594 14.60%
Arizona
100 Mulberry Street
Newark, NJ 07102-4056
Ohio National Life Insurance 1,051,737 13.18%
Co.
PO Box 237
Cincinnati, OH 45201-0237
GE Life & Annuity Company 726,332 9.10%
6610 W. Broad Street
Richmond, VA 23230-1702
Mid Cap Growth Portfolio --
Institutional Shares......... GE Life & Annuity Company 4,823,184 25.39%
6610 W. Broad Street
Richmond, VA 23230-1702
Kemper Investors Life Insurance 2,157,983 11.36%
Co.
3003 77th Avenue SE
Mercer Island, WA 98040-2837
Lincoln Benefit Life 1,239,576 6.52%
2940 S. 84th Street
Lincoln, NE 68506-4142
Jefferson National Life 1,224,088 6.44%
Insurance
9920 Corporate Campus Dr.,
Suite 1000
Louisville, KY 40223-4051
Lincoln Benefit Life 1,190,261 6.26%
2940 S. 84th Street
Lincoln, NE 68506-4142
Western Reserve Life 1,182,117 6.22%
PO Box 5068
Clearwater, FL 33758-5068
Mony America 1,042,287 5.49%
1740 Broadway, Suite 635
New York, NY 10019-4315
Annuity Investors Life 1,017,528 5.36%
Insurance Co.
PO Box 5423
Cincinnati, OH 45201-5423
M-6
NAME AND ADDRESS OF NUMBER OF PERCENTAGE
NAME OF PORTFOLIO AND CLASS BENEFICIAL OWNER SHARES OF CLASS
- --------------------------- ------------------- ---------- ----------
Delaware Charter Guarante Trust 980,696 5.16%
711 High Street
Des Moines, IA 50392-0001
Mid Cap Growth Portfolio --
Service Shares............... Lincoln Life 1,774,793 18.97%
1300 S. Clinton Street
Fort Wayne, IN 46802-3518
IDS Life Insurance Corp. 1,607,213 17.18%
125 AXP Financial Center
Minneapolis, MN 55474-0001
Travelers Insurance Co. 1,356,898 14.50%
1 Tower Square #6MS
Hartford, CT 06183-0001
Travelers Life & Annuity 1,032,840 11.04%
1 Tower Square #6MS
Hartford, CT 06183-0001
PFL Life Insurance Company 674,647 7.21%
4333 Edgewood Road NE
Cedar Rapids, IA 52499-0001
Principal Financial Group 650,110 6.95%
711 High Street
Des Moines, IA 50392-0001
GE Life & Annuity Company 559,382 5.98%
6610 W. Broad Street
Richmond, VA 23230-1702
Mid Cap Value Portfolio --
Institutional Shares......... Western Reserve Life 696,420 100.00%
PO Box 5068
Clearwater, FL 33758-5068
Mid Cap Value Portfolio --
Service Shares............... Nationwide Insurance Co. 699,242 26.45%
PO Box 182029
Columbus, OH 43218-2029
Lincoln Benefit Life 695,078 26.29%
2940 S. 84th Street
Lincoln, NE 68506-4142
PFL Life Insurance Company 247,093 9.35%
4333 Edgewood Road NE
Cedar Rapids, IA 52499-0001
Kemper Investors Life Insurance 227,138 8.59%
Co.
3003 77th Avenue SE
Mercer Island, WA 98040-2837
PFL Life Insurance Company 191,823 7.26%
4333 Edgewood Road NE
Cedar Rapids, IA 52499-0001
Travelers Life & Annuity 182,659 6.91%
1 Tower Square #6MS
Hartford, CT 06183-0001
M-7
NAME AND ADDRESS OF NUMBER OF PERCENTAGE
NAME OF PORTFOLIO AND CLASS BENEFICIAL OWNER SHARES OF CLASS
- --------------------------- ------------------- ---------- ----------
Mony Life Insurance Co. of 140,154 5.30%
America
1740 Broadway, Suite 635
New York, NY 10019-4315
Money Market Portfolio --
Institutional Shares......... Western Reserve Life 12,534,132 100.00%
PO Box 5068
Clearwater, FL 33758-5068
Risk-Managed Core Portfolio --
Service Shares............... Nationwide Insurance Co. 292,408 23.91%
PO Box 182029
Columbus, OH 43218-2029
Lincoln Benefit Life 286,013 23.38%
2940 S. 84th Street
Lincoln, NE 68506-4142
Nationwide Insurance Co. 178,063 14.56%
PO Box 182029
Columbus, OH 43218-2029
Nationwide Insurance Co. 76,808 6.28%
PO Box 182029
Columbus, OH 43218-2029
Small Company Value
Portfolio -- Service
Shares....................... Kemper Investors Life Insurance 321,013 72.53%
Co.
3003 77th Avenue SE
Mercer Island, WA 98040-2837
Lincoln Benefit Life 44,164 9.98%
2940 S. 84th Street
Lincoln, NE 68506-4142
Federal Kemper Life Assurance 23,168 5.23%
2500 Westfield Drive
Elgin, IL 60123-7836
Worldwide Growth Portfolio --
Institutional Shares......... NY Life Distributors 14,744,955 26.49%
169 Lackawanna Avenue
Parsippany, NJ 07054-1007
Life of Virginia 7,293,313 13.10%
6610 W. Broad Street
Richmond, VA 23230-1702
Lincoln Life 6,116,912 10.99%
1300 S. Clinton Street
Fort Wayne, IN 46802-3518
AUL Group 3,737,369 6.71%
PO Box 1995
Indianapolis, IN 46206-9102
Kemper Investors Life Insurance 3,388,653 6.09%
Co.
3003 77th Avenue SE
Mercer Island, WA 98040-2837
M-8
NAME AND ADDRESS OF NUMBER OF PERCENTAGE
NAME OF PORTFOLIO AND CLASS BENEFICIAL OWNER SHARES OF CLASS
- --------------------------- ------------------- ---------- ----------
Worldwide Growth Portfolio --
Service Shares............... PFL Life Insurance Company 1,138,921 15.48%
4333 Edgewood Road NE
Cedar Rapids, IA 52499-0001
NY Life Distributors 1,009,452 13.72%
169 Lackawanna Avenue
Parsippany, NJ 07054-1007
Travelers Life & Annuity 947,511 12.88%
1 Tower Square #6MS
Hartford, CT 06183-0001
GE Life & Annuity Company 709,684 9.65%
6610 W. Broad Street
Richmond, VA 23230-1702
Ohio National Life Insurance 676,029 9.19%
Co.
PO Box 237
Cincinnati, OH 45201-0237
PFL Life Insurance Company 467,697 6.36%
4333 Edgewood Road NE
Cedar Rapids, IA 52499-0001
Travelers Insurance Co. 459,050 6.24%
1 Tower Square #6MS
Hartford, CT 06183-0001
Lincoln Life 388,349 5.28%
1300 S. Clinton Street
Fort Wayne, IN 46802-3518
To the knowledge of the Portfolios, no person beneficially owns 25% or more
of a class of shares of any Portfolio. Entities shown herein that own 25% or
more of a class of a Portfolio, unless otherwise indicated,- ---------------
* Officers are not the
beneficial owners of such shares.
M-9
EXHIBIT N
LEGAL MATTERS
In the fall of 2003, the Securities and Exchange Commission ("SEC"), the
Office of the New York State Attorney General ("NYAG"), the Colorado Attorney
General ("COAG") and the Colorado Division of Securities ("CDS") announced that
they were investigating alleged frequent trading practices in the mutual fund
industry. On August 18, 2004, Janus Capital announced that it had reached final
settlements with the SEC, the NYAG, the COAG, and the CDS related to such
regulators' investigations into Janus Capital's frequent trading arrangements.
A number of civil lawsuits were brought against Janus Capital and certain
of its affiliates, the Janus funds, and related entities and individuals based
on allegations similar to those announcedelected at least annually by the above regulatorsTrustees for a one-year term
and were filed
in several state and federal jurisdictions. Such lawsuits alleged a variety of
theoriesmay also be elected from time to time by the Trustees for recovery including, but not limited, to the federal securities
laws, other federal statutes (including ERISA), and various common law
doctrines. The Judicial Panel on Multidistrict Litigation transferred these
actions to the United States District Court for the District of Maryland (the
"Court") for coordinated proceedings. On September 29, 2004, five consolidated
amended complaints were filed in that court. These complaints are the operative
complaints in the coordinated proceedings and, as a practical matter, supersede
the previously filed complaints. The five complaints generally include: (i)
claims by a putative class of investors in the Janus funds asserting claims on
behalf of the investor class; (ii) derivative claims by investors in the Janus
funds ostensibly on behalf of the Janus funds; (iii) claims on behalf of
participants in the Janus 401(k) plan; (iv) claims brought on behalf of
shareholders ofan interim
period.
** Mr. Iseman resigned his positions with Janus Capital Group Inc. ("JCGI") on a derivative basis against
the Board of Directors of JCGI; and (v) claims by a putative class of
shareholders of JCGI asserting claims on behalf of the shareholders. Each of the
five complaints name JCGI and/or Janus Capital as a defendant. In addition, the
following are named as defendants in one or more of the actions: Janus
Investment Fund ("JIF"), Janus Aspen Series ("JAS"), Janus Adviser Series
("JAD"), Janus Distributors LLC, Enhanced Investment Technologies, LLC
("INTECH"), Bay Isle Financial LLC ("Bay Isle"), Perkins, Wolf, McDonnell and
Company, LLC ("Perkins"), the Advisory Committee of the Janus 401(k) plan, and
the current or former directors of JCGI.
On August 25, 2005, the Court entered orders dismissing most of the claims
asserted against Janus Capital and its
affiliates by fund investors (actions (i)
and (ii) described above). In the fund investor class action, the Court
dismissed all claims except one claim under Section 10(b) of the Securities
Exchange Act of 1934 and one claim under Section 36(b) of the Investment Company
Act of 1940.
N-1subsidiaries effective April 2008.
E-4
The state-law claims were dismissed with leave to amend; all other claims were
dismissed without leave to amend. In the fund derivative action, the court
dismissed all claims except one claim under Section 36(b) of the Investment
Company Act of 1940. All other claims were dismissed without leave to amend.
The Attorney General's Office for the State of West Virginia filed a
separate market timing related civil action against Janus Capital and several
other non-affiliated mutual fund companies, claiming violations under the West
Virginia Consumer Credit and Protection Act and requesting certain monetary
penalties, among other relief. Janus Capital has removed this case to federal
court and has requested that it transfer to the District of Maryland for
coordination with the lawsuits described above.
In addition to the "market timing" actions described above, one
consolidated civil lawsuit is pending in the U.S. District Court for the
District of Colorado against Janus Capital, challenging the investment advisory
fees charged by Janus Capital to certain Janus funds. The consolidated amended
complaint asserts claims under Section 36(b) of the Investment Company Act of
1940.
A lawsuit was also filed against Janus Capital and certain affiliates in
the U.S. District Court for the District of Colorado alleging that Janus Capital
failed to ensure that certain Janus funds participated in securities class
action settlements for which the funds were eligible. The complaint asserts
claims under Sections 36(a), 36(b), and 47(b) of the Investment Company Act,
breach of fiduciary duty and negligence.
Additional lawsuits may be filed against certain of the Janus funds, Janus
Capital, and related parties in the future. Janus Capital does not currently
believe that these pending actions will materially affect its ability to
continue providing services it has agreed to provide to the Janus funds.
N-2EXHIBIT F
LEGAL MATTERS -- TO BE FILED
F-1
[JANUS LOGO]
151 Detroit Street
Denver, Colorado 80206-4928
FORM OF PROXY CARD
PROXY JANUS ASPEN SERIESSMALL COMPANY VALUE PORTFOLIO PROXY
SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD [______________], 2008
THIS PROXY IS BEING SOLICITED BYON BEHALF OF THE TRUSTEES OF JANUS ASPEN SERIES
This Proxy shall be voted on the Proposals described in the accompanying Proxy
Statement as specified below.SERIES. The
undersigned, revoking any previous proxies, hereby appoints Kelley A. Howes,
GirardRobin C. MillerBeery,
Jesper Nergaard, and Jesper Nergaard,Stephanie Grauerholz-Lofton or any of them, as attorneys
and proxies, with full power of substitution to each, to vote the shares of the above-referenced Fund which
the undersigned is entitled to vote at the Special Meeting of Shareholders
("Meeting") of Janus Aspen Small Company Value Portfolio to be held at the JW
Marriott Hotel, 150 Clayton Lane, Denver, CO on November 22, 2005[___________], 2008 at 10:00[10:30
a.m.] Mountain Time and at any adjournmentsadjournment(s) or postponement(s) of such
meeting.Meeting. As to any other matter that properly comes before the meeting,Meeting or any
adjournment(s) or postponement(s) thereof, the persons appointed above may vote
in accordance with their best judgment. The undersigned hereby acknowledges
receipt of the accompanying Proxy Statement and Notice of Special Meeting.
To vote by Telephone
1) Read[VOTE VIA THE INTERNET:]
[VOTE VIA THE TELEPHONE:]
NOTE: Please sign exactly as your name(s) appears on the
Proxy. If you are signing this Proxy Statement and have this proxy card at hand.
2) Call ________________.
3) Enter the control number on this proxy card and follow the simple
instructions.
To vote by Internet
1) Read the Proxy Statement and have this proxy card at hand.
2) Go to www.proxyvote.com.
3) Enter the control number on this proxy card and follow the simple
instructions.
To vote by Mail
1) Read the Proxy Statement.
2) Check the appropriate boxes on this proxy card.
3) Sign and date the proxy card.
4) Return the proxy cardfor a corporation,
estate, trust or in the envelope provided.
TO VOTE, MARK BLOCKS IN BLUE OR BLACK INK AS FOLLOWS: KEEP THIS PORTION FOR YOUR RECORDS
DETACH AND RETURN THIS PORTION ONLY
THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
[PORTFOLIO]
THE TRUSTEES RECOMMEND VOTING "FOR" EACH PROPOSAL LISTED BELOW.
1. ELECTION OF TRUSTEES
For Withhold For All To withhold authority to vote, mark
All All Except "For All Except" and write the
nominee's number on the line
below.
01) Jerome S. Contro
02) William F. McCalpin
03) John W. McCarter, Jr.
04) Dennis B. Mullen
05) James T. Rothe
06) William D. Stewart
07) Martin H. Waldinger
08) Linda S. Wolf
09) Thomas H. Bailey
[ ] [ ] [ ]
-----------------------------------
FOR AGAINST ABSTAIN
2. APPROVAL OF AMENDMENTS TO THE TRUST'S AMENDED [ ] [ ] [ ]
AND RESTATED TRUST INSTRUMENT
3. APPROVAL OF ELIMINATION OF A FUNDAMENTAL [ ] [ ] [ ]
INVESTMENT POLICY FOR FLEXIBLE BOND PORTFOLIO
4. INVESTMENT ADVISORY AGREEMENT
(a) Approve Amendments to a Fund's Investment Advisory [ ] [ ] [ ]
Agreement Between JCM on Behalf of Certain Funds
(b) Approve New Investment Advisory Agreement Between [ ] [ ] [ ]
JCM and the Trust on Behalf of Certain Funds that
Would Introduce a Performance Incentive Investment
Advisory Fee Structure for the Funds
5. APPROVE A NEW SUB-ADVISORY AGREEMENT BETWEEN JCM, [ ] [ ] [ ]
ON BEHALF OF RISK-MANAGED CORE PORTFOLIO, AND
INTECH THAT WOULD INTRODUCE A PERFORMANCE INCENTIVE
SUBADVISORY FEE STRUCTURE
If you sign, date and return this Proxy but do not fill in a box above, we will
vote your shares "FOR" that Proposal.
Note: Please sign exactly as your name appears on the Proxy. If you are signing
this Proxy in a fiduciary capacity, for example as a trustee, please state that
capacity along with your signature.
- ---------------------------------- ---- ------------------------ ----other fiduciary capacity, for example,
as a trustee, please state that capacity or title along with
your signature.
----------------------------- --------------------
Signature (PLEASE SIGN WITHIN BOX) Date
----------------------------- --------------------
Signature (Joint Owners) Date
WHEN THIS PROXY IS PROPERLY EXECUTED, THE SHARES REPRESENTED HEREBY WILL BE
VOTED AS SPECIFIED. IF NO SPECIFICATION IS MADE, THIS PROXY WILL BE VOTED FOR
THE PROPOSALS SET FORTH BELOW.
PLEASE MARK A BOX BELOW IN BLUE OR BLACK INK AS FOLLOWS. EXAMPLE: [ ]
- APPROVE A SUBADVISORY AGREEMENT BETWEEN JANUS CAPITAL MANAGEMENT LLC AND
PERKINS, WOLF, MCDONNELL AND COMPANY, LLC, WITH RESPECT TO JANUS ASPEN
SMALL COMPANY VALUE PORTFOLIO.
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
- APPROVE AN AMENDED INVESTMENT ADVISORY AGREEMENT BETWEEN JANUS CAPITAL
MANAGEMENT LLC AND JANUS ASPEN SERIES, ON BEHALF OF JANUS ASPEN SMALL
COMPANY VALUE PORTFOLIO.
FOR AGAINST ABSTAIN
[ ] [ ] [ ]