Exhibit (d)(140)
FORM OF AMENDMENT TO
JANUS INVESTMENT FUND
INVESTMENT ADVISORY AGREEMENT
XXXXXXX MID CAP VALUE FUND
THIS AMENDMENT is made this 6th day of July, 2009, between JANUS INVESTMENT
FUND, a Massachusetts business trust (the "Trust"), and JANUS CAPITAL MANAGEMENT
LLC, a Delaware limited liability company ("JCM").
WITNESSETH
WHEREAS, the Trust and JCM are parties to an Amended and Restated
Investment Advisory Agreement on behalf of Xxxxxxx Mid Cap Value Fund (the
"Fund"), dated December 31, 2008 (the "Agreement");
WHEREAS, the parties desire to amend the Agreement as set forth in greater
detail below;
WHEREAS, pursuant to Section 11 of the Agreement, any amendment to the
Agreement is subject to approval (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 Investment Company Act of 1940, as amended
(the "1940 Act")) of any party to the Agreement, and (ii) if required by
applicable law, by the affirmative vote of a majority of the outstanding voting
securities of the Fund (as that phrase is defined in Section 2(a)(42) of the
1940 Act);
WHEREAS, the parties have obtained Trustee approval as set forth above, and
the parties agree that a shareholder vote is not required to amend the Agreement
on the matter herein; and
WHEREAS, the share class used for purposed of measuring the investment
performance of the Fund has been changed to Class A Shares (waiving the upfront
sales load) effective July 6, 2009.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements set forth below, the parties agree to amend the Agreement as follows:
1. Schedule A of the Agreement shall be deleted in its entirety and
replaced with the following effective July 6, 2009:
SCHEDULE A
PERFORMANCE ADJUSTMENT
(COMMENCING WITH MONTHLY FEES PAYABLE FOR JULY 2009)
The Base Fee shall be adjusted monthly based upon the investment
performance of one or more share classes of the Fund, as described below, in
relation to the cumulative investment record of the Fund's benchmark, the
Xxxxxxx Midcap(R) 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 36 month period preceding the end of the
month for which the fee is being calculated.
The Base Fee of the Fund shall be adjusted based on the investment
performance of the Fund's Class A Shares (waiving the upfront sales load)
("Class A Shares") commencing on July 6, 2009. For any measurement period prior
to July 6, 2009, the Base Fee for the Fund shall be adjusted based on the
Investor Shares of the Fund ("Investor Shares," and together with Class A
Shares, the "Shares"). Therefore, in calculating the Performance Adjustment for
any Performance Period that commences prior to July 6, 2009, the investment
performance of the Investor Shares shall be used, and, for any other Performance
Period that ends after July 5, 2009, the investment performance of the Class A
Shares shall be used for that portion of the period subsequent to that date.
The Performance Adjustment shall be calculated by subtracting the
investment record of the Index from the investment performance of the Shares. If
there is less than a 0.50% difference (plus or minus) between the investment
performance of the Shares and the investment record of the Index, the Fund pays
JCM the Base Fee with no adjustment. If the difference between the investment
performance of the Shares and the investment record of the Index is 0.50% or
greater during any Performance Period, the Base Fee will be subject to an upward
or downward performance adjustment of 1/12 of 0.01875% for every full 0.50%
increment by which the Shares outperform or underperform the Index. The maximum
percentage used in calculating the Performance Adjustment (positive or negative)
in 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 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
Agreement and Declaration of Trust, Amended and Restated Bylaws and registration
statement, each as may be amended from time to time.
The investment performance of the Shares will be the sum of:
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(1) the change in Shares' net asset value ("NAV") per share during the
Performance Period; plus
(2) the value of the Shares' 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;
expressed as a percentage of the Shares' 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 the Shares 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.
The Trustees have designated the Shares to be used for purposes of
determining the Performance Adjustment for Performance Periods as described in
this Schedule A. From time to time, the Trustees may, by vote of the Trustees of
the Trust voting in person, including a majority of the Trustees who are not
parties to this Agreement or "interested persons" (as defined in the 0000 Xxx)
of any such parties, determine that a class of shares of the Fund other than the
Shares is the most appropriate for use in calculating the Performance
Adjustment. If a different class of shares ("Successor Class") 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 Period so long as such Successor Class was outstanding at the
beginning of such period. If the Successor Class of shares was not outstanding
for all or a portion of the Performance Period, it may only be used in
calculating that portion of the Performance Adjustment attributable to the
period during which such Successor Class was outstanding and any prior portion
of the Performance Period shall be calculated using the class of shares
previously designated.
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IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Amendment as of the date first above written.
JANUS CAPITAL MANAGEMENT LLC
By:
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Xxxxx X. Xxxxxx
Senior Vice President, General
Counsel and Secretary
JANUS INVESTMENT FUND
By:
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Xxxxxxxxx Xxxxxxxxxx-Xxxxxx
Vice President, Chief Legal Counsel
and Secretary
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