EXHIBIT 10.3
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is made and entered
into as of the 16th day of March, 2004 by and between Janus Capital Group Inc.,
a Delaware corporation ("Assignor"), and Capital Group Partners, Inc., a New
York corporation ("Assignee"). Capitalized terms otherwise not defined herein
shall have the meanings ascribed to such terms in the offering memorandum of
Assignor dated the date hereof and attached hereto as Exhibit A (the "Offering
Memorandum").
W I T N E S S E T H:
THAT, WHEREAS, Assignor will make exchange offers pursuant to which
Assignor will offer to exchange any or all of its 2006 Notes and any or all of
its 2009 Notes for New Notes (the "Exchange Offers") as further described in the
Offering Memorandum;
WHEREAS, the Indenture (the "Indenture") governing the New Notes that are
to be issued pursuant to the Exchange Offers will provide, among other things,
that Assignor may redeem from the holders of New Notes, on a pro rata basis, an
aggregate principal amount of New Notes up to the Purchase Limit on the Call
Date (such redemption right, the "Call Right");
WHEREAS, the Indenture will also provide, among other things, that, in the
event Assignor fails to exercise the Call Right or exercises the Call Right with
respect to less than the Purchase Limit, holders of the New Notes may require
Assignor to purchase from the holders of the New Notes, on a pro rata basis, an
aggregate principal amount of New Notes up to the Put Limit on the Put Date
(such right, the "Put Right"); and
WHEREAS, Assignor and Assignee have determined that the difference between
the value of portion of the Call Right to be assigned hereunder and the value of
the portion of the Put Right to be assumed hereunder is not more than $24,060.
NOW THEREFORE, the parties hereto agree as follows:
1. Assignment and Assumption.
(a) For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor hereby contributes,
conveys, transfers and assigns to Assignee the right of Assignor to purchase up
to the first $450,000,000 aggregate principal amount of New Notes under the Call
Right. Assignee hereby accepts the foregoing assignment and, in consideration
for the assignment of a portion of Assignor's rights under the Call Right
pursuant to this Section 1 and the receipt of the cash contribution pursuant to
Section 2 below, Assignee assumes and agrees to pay, perform and/or discharge
all of the obligations of Assignor arising under the Put Right solely with
respect to the purchase of up to $450,000,000 aggregate principal amount of New
Notes. The parties hereto agree that, while nothing in this Agreement shall
relieve Assignor from its obligations to holders of the New Notes (the
"Holders") under the Put Right, if Assignor receives a notice from the Holders
exercising the Put Right, Assignee will satisfy all obligations of Assignor
arising under the Put Right with respect to the purchase of up to $450,000,000
aggregate principal amount of New Notes.
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(b) The assignment and assumption set forth in Section 1(a) shall
have no effect on Assignor's rights and obligations under the Call Right and Put
Right with respect to the purchase of New Notes in excess of $450,000,000
aggregate principal amount.
(c) The parties further agree that (i) if Assignee notifies
Assignor that it wishes to exercise the Call Right, Assignor will promptly
provide to the Trustee the notice required by the Indenture; and (ii) Assignor
will promptly furnish to Assignee any notice relating to the Put Right that
Assignor receives from the Trustee.
(d) The parties further agree that following any purchase of New
Notes by Assignee under the Call Right or satisfaction of the Assignor's
obligation to purchase New Notes under the Put Right, Assignor will direct the
Trustee to deliver such New Notes to or at the direction of the Assignee.
2. Consideration. The aggregate contribution by Assignor to Assignee is
an amount of cash equal to $24,060. Such amount shall be transferred to the
account of Assignee upon the effectiveness of the assignment and assumption set
forth in Section 1 hereof.
3. Effectiveness. Assignee and Assignor hereby acknowledge and agree
that the assignment and assumption set forth in Section 1 hereof are conditioned
on, and will become effective upon, the issuance of the New Notes under the
Indenture on the Settlement Date.
4. Cooperation. Assignor and Assignee each agree to execute such other
documents and take such other actions as may be reasonably necessary or
desirable to confirm or effectuate the assignments and assumptions contemplated
by this Agreement.
5. Third Party Beneficiaries. This Agreement shall inure to the benefit
of and be binding upon Assignee, Assignor and their respective legal
representatives, successors and assigns. The parties hereto acknowledge and
agree that the Trustee on behalf of the Holders shall be an express third-party
beneficiary (and not merely an incidental third-party beneficiary) of this
Agreement and the obligations of each party under this Agreement. As such, the
Trustee shall be entitled to enforce this Agreement against any party hereto on
behalf of the Holders and otherwise shall be afforded all remedies available
hereunder or otherwise afforded by law against the parties hereto to redress any
damage or loss incurred by the Holders.
6. Governing Law. This Agreement shall be construed in accordance with,
and governed by, the laws of the State of New York without regard to the
principles of conflicts of laws.
7. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which, when taken together,
shall constitute one and the same instrument.
8. Facsimile Signature. This Agreement may be executed by facsimile
signature and a facsimile signature shall constitute an original signature for
all purposes.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first above written.
ASSIGNOR:
JANUS CAPITAL GROUP INC.
/s/ Xxxxx X. Xxxxx
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By: Xxxxx X. Xxxxx
Title: SVP and CFO
ASSIGNEE:
CAPITAL GROUP PARTNERS, INC.
/s/ Xxxxxxx X. Xxxxx
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By: Xxxxxxx X. Xxxxx
Title: VP and Controller
