EXHIBIT 10.1
JANUS CAPITAL GROUP INC.
MUTUAL FUND SHARE INVESTMENT PLAN
Janus Capital Group Inc. has established the Janus Capital Group Inc.
Mutual Fund Share Investment Plan for the purpose of aligning the interests of
key personnel with shareholder through the use of phantom investments in Janus
retail mutual funds.
ARTICLE 1. DEFINITIONS
1.1 Administrator means the Committee or the person or persons designated
by the Committee to administer the Plan.
1.2 Award means an amount payable in cash by the Company to a Participant
as determined by the Administrator.
1.3 Board means the Board of Directors of the Company.
1.4 Code means the Internal Revenue Code of 1986, as amended, and any
regulations or guidance issued thereunder.
1.5 A Change in Control shall be deemed to have occurred if the event set
forth in any one of the following paragraphs shall have occurred:
(a) a change in the composition of the Board such that the individuals
who, as of the effective date of the this Agreement, constitute the
Board (such Board shall be hereinafter referred to as the "Incumbent
Board") cease for any reason to constitute at least a majority of the
Board; provided, however, for purposes of this definition, that any
individual who becomes a member of the Board subsequent to the
effective date hereof, whose election, or nomination for election by
the Company's shareholders, was approved by a vote of at least a
majority of those individuals who are members of the Board and who were
also members of the Incumbent Board (or deemed to be such pursuant to
this proviso) shall be considered as though such individual were a
member of the Incumbent Board; but, provided further, that any such
individual whose initial assumption of office occurs as a result of
either an actual or threatened election contest (as such terms are used
in Rule 14a-11 of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as modified) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other
than the Board shall not be so considered as a member of the Incumbent
Board; or
(b) Consummation of a reorganization, merger or consolidation or sale
or other disposition of all or substantially all of the assets of the
Company or the acquisition of the assets or stock of another entity
("Business Combination"); excluding, however, such a Business
Combination pursuant to which (1) all or substantially all of the
individuals and entities who are the beneficial owners, respectively,
of the Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such
Business Combination will beneficially own, directly or indirectly,
more than 50% of, respectively, the outstanding shares of common stock,
and the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all the Company's
assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership, immediately
prior to such Business Combination, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities, as the case may be,
(2) no Person (other than the Company or any employee benefit plan (or
related trust) of the Company or the corporation resulting from such
Business Combination) will beneficially own, directly or indirectly,
20% or more of, respectively, the outstanding shares of common stock of
the corporation resulting from such Business Combination or the
combined voting power of the outstanding voting securities of such
corporation entitled to vote generally in the election of directors
except to the extent that such ownership existed prior to the Business
Combination; and (3) individuals who were members of the Incumbent
Board will constitute at least a majority of the members of the board
of directors of the corporation resulting form such Business
Combination; or
(c) The approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
1.6 Company means Janus Capital Group Inc., a Delaware corporation, or any
successor company.
1.7 Committee means the Compensation Committee of the Board, or a separate
committee appointed by the Board to administer the Plan.
1.8 Eligible Employee means an employee of the Company or any of its
subsidiaries that are eligible to participate in the Plan as designated
by the Committee or the Administrator.
1.9 Grant Date means the effective date on which the Committee grants the
Award.
1.10 Mutual Fund Share Investment Account means the book-keeping entry
account maintained by the Company for each Participant that reflects
such Participant's Award (including gains, losses and expenses) and
adjustments thereto.
1.11 Participant means an Employee who has been selected by the Committee,
in its sole discretion, to participate in the Plan.
1.12 Person shall have the meaning given in Section 3(a)(9) of the
Securities Exchange Act of 1934, as modified and used in Sections 13(d)
and 14(d) thereof, except that such term shall not include (i) the
Company (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company (iii) an underwriter temporarily
holding
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securities pursuant to an offering of such securities, or (iv) a
corporation owned, directly or indirectly, by the shareholders of the
Company in substantially the same proportions as their ownership of
stock of the Company.
1.13 Plan means the Janus Capital Group Inc. Mutual Fund Share Investment
Plan.
1.14 Valuation Date means the last business day of each month, or such other
date specified by the Administrator.
1.15 Vested means a Participant has a nonforfeitable interest in a portion
of his or her Mutual Fund Share Investment Account with respect to an
Award.
ARTICLE 2. ELIGIBILITY
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2.1 Eligibility. The Committee may grant Awards to any Eligible Employee,
whether or not he or she has previously received an Award.
2.2 Award Agreement. To the extent not set forth in the Plan, the terms
and conditions of each Award (which need not be the same for each Award
or for each Participant) shall be set forth in an Award Agreement.
ARTICLE 3. VESTING
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3.1 Award Amount. Except as set forth in Section 3.2 below, a Participant
will become Vested with respect to amounts credited to his or her
Mutual Fund Share Investment Account in respect of an Award in
accordance with the vesting schedule designated by the Committee and as
set forth in the Award Agreement, provided that the Participant is
employed by the Company or any of its subsidiaries on such date.
3.2 Vesting Upon Certain Events. The Participant will become fully and
immediately Vested in all amounts credited to his or her Mutual Fund
Share Investment Account upon a Change in Control.
3.3 Forfeiture. Except as otherwise set forth by the Committee, upon the
termination of a Participant's employment for any reason, the portion
of the Participant's Mutual Fund Share Investment Account which is not
Vested as of the date of such termination shall be forfeited and shall
revert in its entirety to the Company.
ARTICLE 4. PHANTOM INVESTMENT OF THE MUTUAL FUND SHARE INVESTMENT ACCOUNT
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4.1 Crediting of Awards to Mutual Fund Share Investment Accounts. A
Participant's Award shall be credited to his or her Mutual Fund Share
Investment Account as soon as administratively practicable following
the Grant Date.
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4.2 Deemed Investment Fund Allocation. Each Participant's Award shall be
deemed invested in one of the phantom investment options set forth in
Section 4.3 below.
4.3 Phantom Investment Options. The phantom investment options that are
available under this Plan for a Participant's Mutual Fund Share
Investment Account shall be designated by the Committee and shall
initially include all of those Janus mutual funds that are offered to
participants under the Company's 401(k), Profit Sharing and Employee
Stock Ownership Plan, subject to applicable prospectus requirements. An
amount transferred into one of these phantom investments is converted
to phantom units of such phantom investments by dividing such amount by
the value of a unit in the applicable fund on the date as of which the
amount is treated as invested in this phantom investment by the
Administrator. Thereafter, a Participant's interest in each such
phantom investment is valued as of a Valuation Date by multiplying the
number of phantom units credited to his or her Account on such date by
the value of a unit in the applicable fund on such date. In the event
the Participant does not make an election, the Participant shall be
deemed to have directed that the undesignated portion of the Mutual
Fund Share Investment Account be invested in a money market phantom
investment option offered under the Plan (or if no money market
investment option is offered, the investment option that most nearly
resembles a money market investment option).
4.4 Administrator Discretion. The Administrator shall have the sole
discretion to determine the phantom investment options available under
the Plan and may change, limit or eliminate an investment fund provided
hereunder from time to time. If any phantom investment option ceases to
be available under the Plan, the Administrator shall have the authority
to credit to any or all other then-available phantom investment options
all amounts previously allocated to the terminated phantom investment
option (along with deemed earnings, gains and losses relating thereto).
4.5 Phantom Investment Options Directions. In connection with a
Participant's first deferral election form submitted under the Plan,
the Participant shall specify in one (1) percent increments how the
amounts in his or her Mutual Fund Share Investment Account with respect
to an Award are to be invested in one or more of the phantom investment
options offered under this section; provided however all elections
under this Section 4.5 must meet the applicable prospectus
requirements. Thereafter, the Participant (i) may specify a different
investment direction that shall apply to his or her future Awards, and
(ii) may reallocate the investment of his or her Mutual Fund Share
Investment Account attributable to an outstanding Award by specifying,
in one (1) percent increments, how such amounts are to be invested
among the phantom investment options then offered under the Plan. The
Administrator may provide that such initial allocations or
reallocations are to be made in a different increment specified by the
Administrator. A new investment direction for future Awards and a
reallocation of a Participant's Mutual Fund Share Investment Account
attributable to outstanding Awards shall be made using the investment
procedures that are provided by the Administrator's delegate for this
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purpose. This procedure may include the use of written or electronic
forms, as well as the use of a voice-response system, as determined by
the Administrator's delegate.
4.6 Phantom Investment Options Reallocations. Any investment reallocation
of a Participant's Mutual Fund Share Investment Account attributable to
outstanding Awards shall be effective as of the next Valuation Date
that occurs at least 30 days after the date the investment reallocation
is received by the Administrator's delegate. If more than one
reallocation is received on a timely basis, the reallocation that the
Administrator's delegate determines to be the most recent shall be
followed.
4.7 Direction and Reallocation Default Rules. If the Administrator's
delegate possesses at any time investment directions as to the phantom
investment of less than all of a Participant's Mutual Fund Share
Investment Account, the Participant shall be deemed to have directed
that the undesignated portion of the Mutual Fund Share Investment
Account be invested in a money market phantom investment option offered
under the Plan (or if no money market investment option is offered, the
investment option that most nearly resembles a money market investment
option).
4.8 Earnings or Losses. As of each Valuation Date, a Participant's Mutual
Fund Share Investment Account shall be credited with earnings and gains
(and shall be debited for expenses and losses) determined as if the
amounts credited to his or her Mutual Fund Share Investment Account had
actually been invested as directed by the Participant in accordance
with this article. The Plan provides only for "phantom investments,"
and therefore such earnings, gains, expenses and losses are
hypothetical and not actual. However, they shall be applied to measure
the value of a Participant's Mutual Fund Share Investment Account and
the amount of the Company's liability to make payments to or on behalf
of the Participant.
ARTICLE 5. DISTRIBUTIONS
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5.1 General. Except as otherwise determined by the Committee in its sole
discretion, a Participant shall receive a lump sum cash distribution in
respect of the Vested portion of his or her Mutual Fund Share
Investment Account as soon as practicable following the date such
portion becomes Vested, but in no case later than 2 1/2 months
following the end of the taxable year in which such portion becomes
Vested.
5.2 Termination of Employment. If the Committee determines in the Award
Agreement or otherwise that any portion of a Participant's Mutual Fund
Share Investment Account shall become Vested upon the termination of a
Participant's employment, the portion of the Participant's Mutual Fund
Share Investment Account which is Vested on termination of employment
shall be distributed as soon as practicable following the date of such
termination of employment, but in no case later than 2 1/2 months
following the end of the taxable year in which such termination occurs.
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ARTICLE 6. BENEFICIARY DESIGNATION
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6.1 Beneficiary Designation. Each Participant shall have the right, at any
time, to designate any person or persons as beneficiary or
beneficiaries (both principal as well as contingent) to whom a lump sum
cash payment of the balance of the Participant's Mutual Fund Share
Investment Account shall be made in the event of the Participant's
death. In the event of multiple beneficiaries, such payment shall be
apportioned among the beneficiaries in accordance with the designation
forms. A beneficiary designation may be changed by a Participant by
filing such change on a form prescribed by the Administrator. The
receipt of a new beneficiary designation form will cancel all
previously filed beneficiary designations.
6.2 Failure to Designate. If a Participant fails to designate a beneficiary
as provided above, or if all designated beneficiaries predecease the
Participant, then all payments hereunder in respect of the Participant
shall be made to the Participant's estate.
ARTICLE 7. PLAN ADMINISTRATION
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7.1 Administrator. The Administrator is responsible for the administration
of the Plan. The Administrator has the authority to name one or more
delegates to carry out certain responsibilities hereunder. Any such
delegation shall state the scope of responsibilities being delegated.
7.2 Action. Action by the Administrator may be taken in accordance with
procedures that the Administrator adopts from time to time and that the
Company's Legal Department determines are legally permissible.
7.3 Powers of the Administrator. The Administrator shall administer and
manage the Plan and shall have (and shall be permitted to delegate) all
powers necessary to accomplish that purpose, including (but not limited
to) the following:
(a) To exercise its discretionary authority to construe, interpret, and
administer this Plan;
(b) To exercise its discretionary authority to make all decisions
regarding eligibility, participation and deferrals, to make allocations
and determinations required by this Plan, and to maintain records
regarding Participants' Mutual Fund Share Investment Accounts;
(c) To compute and certify to the Company the amount and kinds of
payments to Participants or their Beneficiaries, and to determine the
time and manner in which such payments are to be paid;
(d) To authorize all disbursements by the Company pursuant to this
Plan;
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(e) To maintain (or cause to be maintained) all the necessary records
for administration of this Plan;
(f) To make and publish such rules for the regulation of this Plan as
are not inconsistent with the terms hereof;
(g) To authorize its delegates to delegate to other individuals or
entities from time to time the performance of any of its delegates'
duties or responsibilities hereunder;
(h) To establish or to change the phantom investment options or
arrangements under Article IV;
(i) To hire agents, accountants, actuaries, consultants and legal
counsel to assist in operating and administering the Plan; and
(j) Notwithstanding any other provision of this Plan, the Administrator
may take any action it deems appropriate in furtherance of any policy
of the Company respecting insider trading as may be in effect from time
to time. Such actions may include, but are not limited to, altering the
effective date of allocations or distributions of the Mutual Fund Share
Investment Account.
The Administrator has the exclusive and discretionary authority to
construe and to interpret the Plan, to decide all questions of
eligibility for benefits, to determine the amount and manner of payment
of such benefits and to make any determinations that are contemplated
by (or permissible under) the terms of this Plan, and its decisions on
such matters will be final and conclusive on all parties. Any such
decision or determination shall be made in the absolute and
unrestricted discretion of the Administrator, even if (1) such
discretion is not expressly granted by the Plan provisions in question,
or (2) a determination is not expressly called for by the Plan
provisions in question, and even though other Plan provisions expressly
grant discretion or call for a determination. As a result, benefits
under this Plan will be paid only if the Administrator decides in its
discretion that the applicant is entitled to them. In the event of a
review by a court, arbitrator or any other tribunal, any exercise of
the Administrator's discretionary authority shall not be disturbed
unless it is clearly shown to be arbitrary and capricious.
7.4 Compensation, Indemnity and Liability. The Administrator will serve
without bond and without compensation for services hereunder. All
expenses of the Plan and the Administrator will be paid by the Company.
To the extent deemed appropriate by the Administrator, any such expense
may be charged against specific Participant Mutual Fund Share
Investment Accounts, thereby reducing the obligation of the Company. No
member of the Plan Committee, and no individual acting as the delegate
of the Plan Committee, shall be liable for any act or omission of any
other member or individual, nor for any act or omission on his or her
own part, excepting his or her own willful
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misconduct. The Company will indemnify and hold harmless each member of
the Plan Committee and any employee of the Company (or an affiliate, if
recognized as an affiliate for this purpose by the Administrator)
acting as the delegate of the Plan Committee against any and all
expenses and liabilities, including reasonable legal fees and expenses,
arising out of his or her membership on the Plan Committee (or his or
her serving as the delegate of the Committee), excepting only expenses
and liabilities arising out of his or her own willful misconduct.
7.5 Taxes. If the whole or any part of any Participant's Mutual Fund Share
Investment Account becomes liable for the payment of any estate,
inheritance, income, employment, or other tax which the Company or its
subsidiaries may be required to pay or withhold, the Company or the
applicable subsidiary will have the full power and authority to
withhold and pay such tax out of any moneys or other property in its
hand for the account of the Participant. To the extent practicable, the
Company will provide the Participant notice of such withholding. Prior
to making any payment, the Company may require such releases or other
documents from any lawful taxing authority as it shall deem necessary.
ARTICLE 8. CLAIMS PROCEDURES
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8.1 Claims for Benefits. If a Participant, beneficiary or other person
(hereafter, "Claimant") does not receive timely payment of any benefits
which he or she believes are due and payable under the Plan, he or she
may make a claim for benefits to the Administrator. The claim for
benefits must be in writing and addressed to the Administrator. If the
claim for benefits is denied, the Administrator will notify the
Claimant within 90 days after the Administrator initially received the
benefit claim. However, if special circumstances require an extension
of time for processing the claim, the Administrator will furnish notice
of the extension to the Claimant prior to the termination of the
initial 90-day period and such extension may not exceed one additional,
consecutive 90-day period. Any notice of a denial of benefits should
advise the Claimant of the basis for the denial, any additional
material or information necessary for the Claimant to perfect his or
her claim, and the steps which the Claimant must take to appeal his or
her claim for benefits.
8.2 Appeals of Denied Claims. Each Claimant whose claim for benefits has
been denied may file a written appeal for a review of his or her claim
by the Administrator. The request for review must be filed by the
Claimant within 60 days after he or she received the notice denying his
or her claim. The decision of the Administrator will be communicated to
the Claimant within 60 days after receipt of a request for appeal. The
notice shall set forth the basis for the Administrator's decision. If
there are special circumstances which require an extension of time for
completing the review, the Administrator's decision may be rendered not
later than 120 days after receipt of a request for appeal.
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ARTICLE 9. AMENDMENT AND TERMINATION
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9.1 Amendments. The Committee has the right in its sole discretion to amend
this Plan in whole or in part at any time and in any manner, including
the manner of making deferral elections, the terms on which
distributions are made, and the form and timing of distributions.
However, except for clarifying amendments necessary to avoid an
inappropriate windfall, no Plan amendment shall reduce the amount
credited to the Mutual Fund Share Investment Account of any Participant
as of the date such amendment is adopted. Any amendment shall be in
writing and adopted by the Committee. All Participants and
beneficiaries shall be bound by such amendment.
9.2 Termination of Plan. The Company expects to continue this Plan, but
does not obligate itself to do so. The Company, acting by the Committee
or through its Board, reserves the right to discontinue and terminate
the Plan at any time, in whole or in part, for any reason (including a
change, or an impending change, in the tax laws of the United States or
any State). Termination of the Plan will be binding on all Participants
(and a partial termination shall be binding upon all affected
Participants) and their beneficiaries, but in no event may such
termination reduce the amounts credited at that time to any
Participant's Mutual Fund Share Investment Account. If this Plan is
terminated (in whole or in part), the termination resolution shall
provide for how amounts theretofore credited to affected Participants'
Mutual Fund Share Investment Accounts will be distributed. In
accordance with these restrictions, the Company intends to have the
maximum discretionary authority to terminate the Plan and make
distributions in connection with a Change in Control, and the maximum
flexibility with respect to how and to what extent to carry this out
following a Change in Control.
9.3 409A Compliance. Notwithstanding anything to the contrary contained in
the Plan or in any Award Agreement, to the extent that the Committee
determines that the Plan or any Award is subject to Section 409A of the
Code and fails to comply with the requirements of Section 409A of the
Code, the Committee reserves the right to amend or terminate the Plan
and/or amend, restructure, terminate or replace the Award in order to
cause the Award to either not be subject to Section 409A of the Code or
to comply with the applicable provisions of such section.
ARTICLE 10. MISCELLANEOUS
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10.1 Limitation on Participant's Rights. No employee shall have any claim to
receive any Award under the Plan, and there is no obligation for
uniformity of treatment of employees under the Plan. Participation in
this Plan does not give any Participant the right to be employed by the
Company or its subsidiaries (or any right or interest in this Plan or
any assets of the Company other than as herein provided). The Company
or the applicable subsidiary reserves the right to terminate the
employment of any Participant without any liability for any claim
against the Company or its subsidiaries under this Plan, except for a
claim for payment of deferrals as provided herein.
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10.2 Unfunded Obligation of Company. The benefits provided by this Plan are
unfunded. All amounts payable under this Plan to Participants are paid
from the general assets of the Company. Nothing contained in this Plan
requires the Company to set aside or hold in trust any amounts or
assets for the purpose of paying benefits to Participants. Neither a
Participant, beneficiary, nor any other person shall have any property
interest, legal or equitable, in any specific Company asset. This Plan
creates only a contractual obligation on the part of the Company, and
the Participant has the status of a general unsecured creditor of this
Company with respect to amounts of compensation deferred hereunder.
Such a Participant shall not have any preference or priority over, the
rights of any other unsecured general creditor of the Company. No other
entity guarantees or shares such obligation, and no other entity shall
have any liability to the Participant or his or her beneficiary.
10.3 Offset. Amounts due to or in respect of Participants under the Plan
shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other
right which the Company may have against a Participant or others.
10.4 Other Plans. This Plan shall not affect the right of any Employee or
Participant to participate in and receive benefits under and in
accordance with the provisions of any other benefit plans which are now
or hereafter maintained by the Company, unless the terms of such other
benefit plan or plans specifically provide otherwise or it would cause
such other plan to violate a requirement for tax favored treatment.
10.5 Receipt or Release. Any payment to a Participant in accordance with the
provisions of this Plan shall, to the extent thereof, be in full
satisfaction of all claims against the Administrator and the Company,
and the Administrator may require such Participant, as a condition
precedent to such payment, to execute a receipt and release to such
effect.
10.6 Governing Law. This Plan shall be construed, administered, and governed
in all respects in accordance with applicable federal law and, to the
extent not preempted by federal law, in accordance with the laws of the
State of Delaware (other than its laws relating to choice of law). If
any provisions of this instrument shall be held by a court of competent
jurisdiction to be invalid or unenforceable, the remaining provisions
hereof shall continue to be fully effective.
10.7 Gender, Tense and Examples. In this Plan, whenever the context so
indicates, the singular or plural number and the masculine, feminine,
or neuter gender shall be deemed to include the other. Whenever an
example is provided or the text uses the term "including" followed by a
specific item or items, or there is a passage having a similar effect,
such passage of the Plan shall be construed as if the phrase "without
limitation" followed such example or term (or otherwise applied to such
passage in a manner that avoids limitation on its breadth of
application).
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10.8 Successors and Assigns; Nonalienation of Benefits. This Plan inures to
the benefit of and is binding upon the parties hereto and their
successors, heirs and assigns; provided, however, that the amounts
credited to the Mutual Fund Share Investment Account of a Participant
are not subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, charge, garnishment,
execution or levy of any kind, either voluntary or involuntary, and any
attempt to anticipate, alienate, sell, transfer, assign, pledge,
encumber, charge or otherwise dispose of any right to any benefits
payable hereunder, including, any assignment or alienation in
connection with a separation, divorce, child support or similar
arrangement, will be null and void and not binding on the Plan or the
Company. Notwithstanding the foregoing, the Administrator reserves the
right to make payments in accordance with a divorce decree, judgment or
other court order as and when cash payments are made in accordance with
the terms of this Plan from the Mutual Fund Share Investment Account of
a Participant. Any such payment shall be charged against and reduce the
Participant's account.
10.9 Facility of Payment. Whenever, in the Administrator's opinion, a
Participant or beneficiary entitled to receive any payment hereunder is
under a legal disability or is incapacitated in any way so as to be
unable to manage his or her financial affairs, the Administrator may
direct the Company to make payments to such person or to the legal
representative of such person for his or her benefit, or to apply the
payment for the benefit of such person in such manner as the
Administrator considers advisable. Any payment in accordance with the
provisions of this section shall be a complete discharge of any
liability for the making of such payment to the Participant or
beneficiary under the Plan.
10.10 Effective Date. The Plan shall take effect on the date of its adoption
by the Committee.
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