AMENDMENT NO. 1 TO THE
Amendment No. 1 to the , dated as of February 23, 2005 (theAmendment), by and between Janus Capital Group Inc., a Delaware corporation (theCompany) (formerly known as Stilwell Financial Inc., a Delaware corporation), and UMBBank, N.A., a national banking association organized and existing under the laws of the UnitedStates of America, as Rights Agent (the Rights Agent).
WHEREAS, on June 14, 2000, the Company and the Rights Agent entered into a (the Agreement); and
WHEREAS, pursuant to Section 26 of the Agreement, the Company has determined to modify theterms of the Agreement in certain respects.
NOW, THEREFORE, in consideration of the premises and mutual agreements herein set forth, andintending to be legally bound hereby, the parties hereto agree that the Agreement shall be andhereby is amended in the following manner:
Section 1. Amendment of Certain Definitions Section. Section 1(a) of the Agreementis hereby amended and restated in its entirety to read as follows:
Acquiring Person shall mean any Person who, together with all Affiliates andAssociates of such Person, shall be the Beneficial Owner of a Substantial Block, but shallnot include: (i) the Company; (ii) any Subsidiary of the Company; (iii) any employeebenefit plan of the Company, or of any Subsidiary of the Company, or any Person organized,appointed or established by the Company or by any Subsidiary of the Company for or pursuantto the terms of any such plan; (iv) any Person who, together with all Affiliates andAssociates of such Person, becomes the Beneficial Owner of a Substantial Block solely as aresult of a reduction in the number of shares of Common Stock of the Company outstanding,including due to the repurchase of shares of Common Stock of the Company by the Company,unless and until such Person, after becoming aware that such Person, together with allAffiliates and Associates of such Person, has become the Beneficial Owner of a SubstantialBlock, acquires beneficial ownership of additional shares of Common Stock of the Companyrepresenting one-quarter of one-percent (0.25%) or more of the shares of Common Stock ofthe Company then outstanding; or (v) any Person who, together with all Affiliates andAssociates of such Person, has reported or is required to report such ownership (but lessthan sixteen percent (16%)) on Schedule 13G under the Exchange Act (or any comparable orsuccessor report) or on Schedule 13D under the Exchange Act (or any comparable or successorreport) which Schedule 13D does not state any intention to or reserve the right to controlor influence the management or policies of the Company or engage in any of the actionsspecified in Item 4 of
such schedule (other than the disposition of the Common Stock) and, within ten (10)Business Days of being requested by the Company to advise it regarding the same, certifiesto the Company that such Person (together with all Affiliates and Associates of suchPerson) acquired shares of Common Stock of the Company in excess of 14.9% inadvertently orwithout knowledge of the terms of the Rights and who, together with all Affiliates andAssociates of such Person, thereafter does not acquire additional shares of Common Stock ofthe Company while the Beneficial Owner of a Substantial Block; provided,however, that if the Person requested to so certify fails to do so within ten (10)Business Days, then such Person shall become an Acquiring Person immediately after such10-Business Day period. It is provided, further, that, (x) any Person who,together with all Affiliates and Associates of such Person, may have become an AcquiringPerson prior to the effectiveness of Amendment No. 1 to this Agreement (theAmendment), dated February 23, 2005 (the Amendment Effective Date),solely as a result of actions taken prior to the Amendment Effective Date, pursuant to thedefinition of Acquiring Person in effect prior to the Amendment Effective Date, but whowould not have otherwise become an Acquiring Person under the definition of AcquiringPerson adopted in the Amendment, shall not be deemed to be or have become an AcquiringPerson solely as a result of such actions and any Share Acquisition Date that may haveoccurred, and any Distribution Date that might otherwise occur, solely as a result thereofshall be deemed not to have occurred or shall not occur, as applicable, and (y) from andafter the Amendment Effective Date, for all purposes (including the determination ofwhether any Person is an Acquiring Person) this Agreement shall be governed by thedefinition of Acquiring Person adopted in the Amendment as if such definition was ineffect from the original date of this Agreement in place of any prior definition.
Section 2. Agreement as Amended. The term Agreement as used in the Agreementshall be deemed to refer to the Agreement as amended hereby, and all references to the Agreementshall be deemed to include this Amendment.
Section 3. Effectiveness. This Amendment shall be effective as of the date firstwritten above, and except as set forth herein, the Agreement shall remain in full force and effectand otherwise shall be unaffected hereby.
Section 4. Governing Law. This Amendment shall be governed by and construed inaccordance with the laws of the State of Delaware applicable to contracts to be made and performedentirely within such State.
Section 5. Counterparts. This Amendment may be executed in two or more counterparts,each of which shall be deemed an original but all of which together shall constitute one and thesame instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed andattested as of the date first written above.
|JANUS CAPITAL GROUP INC.
|By:||/s/ John H. Bluher|
|Name:||John H. Bluher|
|Title:||Senior Vice President,
General Counsel, Chief Public
Affairs Officer and Secretary
|UMB BANK, N.A.
|By:||/s/ K. Scott Mathews|
|Name:||K. Scott Mathews|