EXHIBIT 10.30
TRANSITION AGREEMENT
This agreement ("AGREEMENT") is entered into as of February 2, 2004
(the "EFFECTIVE DATE"), by and between Janus Capital Group, Inc. (the "COMPANY")
and Xxxxxx X. Early ("EXECUTIVE") (each a "PARTY," and together, the "PARTIES").
WITNESSETH:
WHEREAS, Executive currently serves in the capacities of Senior Vice
President, General Counsel, Chief Corporate Affairs Officer, and Secretary of
the Company pursuant to an Employment Agreement between the Company and
Executive entered into as January 1, 2003 (the "EMPLOYMENT AGREEMENT");
WHEREAS, the Parties are parties to a Change of Control Agreement dated
as of February 10, 2003 (the "CHANGE OF CONTROL AGREEMENT"),
WHEREAS, Executive has decided to resign his employment, effective as
of the Termination Date set forth below;
WHEREAS, the Parties wish to provide for, among other things,
Executive's continued service to the Company through the Termination Date set
forth below, Executive's cooperation in certain matters, and the payment to
Executive of certain benefits as set forth below;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound hereby, agree as
follows:
1. Resignation. Effective as of the Termination Date (as defined
below), Executive's employment with the Company shall terminate, and Executive
shall be deemed to have resigned from all offices and directorships held with
the Company or any of its affiliates or companies advised by the Company or its
affiliates, all effective as of the Termination Date. Executive shall promptly
execute such documents as the Company may deem necessary or desirable to
effectuate the foregoing. As used herein, the term "TERMINATION DATE" shall mean
the earliest of: (a) the date 5 days following the date on which the Company
notifies Executive in writing of its desire that Executive terminate his
employment with the Company; (b) the close of business on the date of the
Company's Annual Meeting of Shareholders in 2004; or (c) June 30, 2004. As used
herein, the term "TRANSITION PERIOD" shall mean the period between the Effective
Date and the Termination Date.
2. Services, Compensation and Benefits During the Transition Period.
During the Transition Period:
(a) The Company shall continue to employ Executive, and
Executive shall continue to serve, as the Company's Senior Vice President,
General Counsel, Chief Corporate Affairs Officer, and Secretary; and
(b) Excluding periods of disability and vacation and sick
leave to which Executive is entitled, the Executive shall devote substantially
all of his business time and attention to the business and affairs of the
Company and, to the extent necessary to discharge the Executive's
responsibilities hereunder, use his reasonable best efforts to perform such
responsibilities. During the Transition Period, it shall not be a violation of
this Agreement for the Executive to: (i) serve on corporate, civic or charitable
boards or committees; (ii) deliver lectures, fulfill speaking engagements or
teach at educational institutions; or (iii) manage personal investments; all so
long as such activities do not significantly interfere with the performance of
the Executive's responsibilities as an employee of the Company in accordance
with this Agreement; and, in the case of Executive's management of his personal
investments, so long as all such investment management activities comply with
the Company's personal trading policies and, otherwise, with applicable law. It
is expressly understood and agreed that to the extent that any such activities
have been conducted by Executive prior to the Effective Date, the continued
conduct of such activities (or the conduct of activities similar in nature and
scope thereto) subsequent to the Effective Date shall not thereafter be deemed
to interfere with the performance of the Executive's responsibilities to the
Company; provided that in all events Executive shall comply with all Company
policies and procedures relating to personal investment activities, irrespective
of when implemented.
(c) The Company shall pay Executive a base salary of
$57,941.67 per month, effective as of January 1, 2004, with the difference
between such salary and the salary actually paid to Executive between January 1,
2004, and the Effective Date to be included in Executive's first paycheck
following the Effective Date; and
(d) Executive and his spouse and dependents shall be entitled
to participate in the Welfare Benefit Plans described at Paragraph 3(b)(v) of
the Employment Agreement on the same basis as he participated immediately before
the Effective Date; and
(e) All cash and equity long-term incentive award or other
incentive awards granted to Executive, including any unvested shares of limited
liability company interests, in the Company, Janus Capital Management LLC or in
any of their affiliated companies (the "EQUITY INCENTIVES"), shall continue to
vest in accordance with and subject to the terms set forth in the plans,
agreements and certificates, as applicable, under which such Equity Incentives
were granted; and
(f) Executive shall continue to be reimbursed for reasonable
business expenses on the same terms and conditions described in Paragraph
3(b)(vi) of the Employment Agreement; and
(g) Except as otherwise expressly provided in this Agreement,
Executive shall not be entitled to participate in or receive any compensation,
incentive or benefit of any kind in
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connection with his work or employment during the Transition Period,
notwithstanding any Company plan, document, policy or procedure; and
(h) With respect to any contributions made on Executive's
behalf pursuant to the Janus 401(k), Profit Sharing and Employee Stock Ownership
Plan (the "PLAN") that remain unvested as of the Termination Date, Executive
will be one hundred percent (100%) vested in any such contributions on the
Termination Date.
3. 2003 Bonus. No later than ten (10) business days following the
Effective Date, the Company shall pay Executive, in cash, the gross amount of
$600,000 (the "2003 BONUS"). Executive acknowledges and agrees that upon his
receipt of the 2003 Bonus, Executive shall not be entitled to any other or
further bonus, incentive or other compensation of any kind in connection with
his work during 2003.
4. No Admission of Liability. This Agreement, the Company's offer
to Executive of this Agreement and the payments set forth herein are not
intended as, and shall not be construed as, an admission of liability by or to,
or of improper conduct on the part of, either the Company or Executive.
5. Transition Benefit. No later than ten (10) business days
following the Effective Date, the Company shall pay Executive, in cash, the
gross amount of $500,000 (the "INITIAL TRANSITION PAYMENT"). In addition, if,
following the Termination Date, Executive executes and returns to the Company a
Supplemental Legal Release in the form attached hereto as Exhibit A (the
"SUPPLEMENTAL RELEASE"), does not thereafter revoke the Supplemental Legal
Release in the manner described therein, and otherwise complies with his
obligations under this Agreement, then the Company shall promptly execute and
return to Executive a copy of the Supplemental Release and shall provide
Executive with the following payments and benefits, which shall collectively be
referred to herein as the "TRANSITION BENEFIT":
(a) No later than 10 days after the Company has received the
Supplemental Release executed by Executive, the Company shall pay Executive, in
a cash, a lump sum in the gross amount of $3,500,000; and
(b) For the three (3)-year period commencing on the
Termination Date: (i) the Company shall continue to provide such health benefits
to Executive and his spouse and dependents on the same basis such benefits were
provided to Executive immediately before the Termination Date, provided however
that the cost of such coverage shall be treated as taxable income to the
Executive; or (ii) if the Company ceases to maintain a program of health
benefits under which such benefits can be provided, then the Company shall
provide Executive with the lump sum cash equivalent thereof, grossed up for
taxes; and
(c) From the conclusion of such three (3)-year period through
the earlier of: (i) the end of the month in which Executive becomes eligible for
health care coverage under Medicare (provided that in all events Executive shall
promptly take all actions necessary to attain such eligibility); or (ii) the
date on which Executive and his spouse and dependents, if any, become
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eligible to participate in any group health insurance program or plan
substantially equivalent to that provided by the Company for the Executive's
benefit as of the time immediately preceding the Termination Date; or (iii) the
date, if any, on which the Company ceases to maintain a program of retiree
health benefits; the Company shall, in accordance with the Action By Unanimous
Consent In Lieu Of Special Meeting Of Directors dated November 25, 2002 (the
"CONSENT"), continue to provide Executive (for himself and his spouse and
dependents) with special continuing health benefits coverage or retiree medical
coverage under arrangements substantially similar to those provided generally to
the Company's employees, provided that Executive shall bear all costs associated
with such coverage on an after-tax basis at a rate commensurate with that
charged to other former employees receiving coverage pursuant to the Consent;
(d) The Parties acknowledge and agree that the benefits
provided herein are not in lieu of any rights under the Consolidated Omnibus
Budget Reconciliation Act ("COBRA") that Executive, his spouse, and/or
dependents might otherwise have as the result of any loss of the coverage
provided for herein; and
(e) Effective as of ten (10) days after the Termination Date
(the "VESTING DATE") all Equity Incentives held by Executive or by the Company
on behalf of Executive, shall immediately vest and/or be paid, as applicable, in
full, and any stock options shall, from and after such vesting, remain
exercisable for the remainder of their respective terms, in accordance with and
subject to the terms set forth in the plans, agreements and certificates, as
applicable, under which such Equity Incentives were granted. Notwithstanding the
foregoing, as of the Vesting Date, all Equity Incentives that are vested as of
the Effective Date, vest pursuant to Paragraph 2(e), or vest pursuant to this
Paragraph 5(e) will no longer be subject to any transfer restrictions (except
applicable securities laws including those governing xxxxxxx xxxxxxx).
6. Vesting Issues. The Company acknowledges that Exhibit B accurately
sets forth the number of vested and unvested shares of Company stock and the
number of Company stock options held by Executive or by the Company on behalf of
Executive. With respect to unvested shares of Company stock which vest pursuant
to Paragraph 2(e) or Paragraph 5(e), the Company further acknowledges and agrees
that with respect to such shares ("TRANSITION SHARES") Executive shall continue
to be eligible for and participate in, and has provided to the Company all
documentation necessary to participate in, the Company's Share Withholding
Program, under which the Company shall purchase from Executive shares sufficient
to pay any withholding on income and employment taxes payable by Executive as a
result of the vesting of Transition Shares. Executive shall in his discretion
have the right, but no obligation, to meet any withholding obligations relating
to the vesting of the Transition Shares by tendering cash to the company in lieu
of participating in the Share Withholding Program. Executive shall timely
provide to the Company all information necessary to make Form 4 and other
filings, if any, associated with the vesting of Transition Shares, and the
Company shall complete all such filings. The Company acknowledges and agrees
that all vested Transition Shares not sold pursuant to the Share Withholding
Program will be transferred to Executive's individual Schwab account on the date
on which they vest pursuant to this Agreement.
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7. Acknowledgement Concerning Other Compensation. Executive
acknowledges that the payments and benefits referred to in this Agreement are in
lieu of, and in full satisfaction of, any other benefits or compensation of any
kind to which Executive was or could have been entitled in connection with his
relationship with and work for the Company and any affiliates, whether under the
Employment Agreement, the Change of Control Agreement, or otherwise.
8. Payment of Transition Benefit in the Event of Executive's Death. In
the event of Executive's death, any unpaid remaining portion of the Transition
Benefit shall be paid to Executive's surviving spouse, or in the event of her
death, to Executive's estate.
9. Legal Releases.
(a) In consideration of the Transition Benefit and the
Company's other covenants and agreements contained herein, Executive, on his own
behalf and on behalf of his heirs, personal representatives, executors,
administrators and assigns, knowingly and voluntarily releases and forever
discharges the Company and its affiliates and any of their respective parents,
subsidiaries and affiliates, together with all of their respective past and
present directors, members, managers, officers, shareholders, partners,
employees, agents, attorneys and servants, and each of their affiliates,
predecessors, successors and assigns (collectively, the "COMPANY RELEASEES")
from any and all claims, charges, complaints, promises, agreements,
controversies, liens, demands, causes of action, obligations, damages and
liabilities of any nature whatsoever, known or unknown, suspected or
unsuspected, that Executive or his heirs, executors, administrators, or assigns
ever had, now have, or may hereafter claim to have against any of the Company
Releasees by reason of any matter, cause or thing whatsoever from the beginning
of time through the date hereof, whether or not previously asserted before any
state or federal court, agency or governmental entity or any arbitral body. This
release includes, without limitation, any rights or claims relating in any way
to Executive's employment relationship with the Company or any of the Company
Releasees, or his separation therefrom, or arising under any statute or
regulation, including Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1991, Age Discrimination in Employment Act of 1967 ("ADEA"), the
Americans with Disabilities Act of 1990, the Employee Retirement Income Security
Act of 1974, and the Family Medical Leave Act of 1993, each as amended, or any
other federal, state or local law, regulation, ordinance, or common law, or
under any policy, agreement, understanding or promise, written or oral, formal
or informal, between Executive and the Company or any of the Company Releasees;
provided, however, that notwithstanding the foregoing or anything else contained
in this Agreement, Executive's release shall not extend to: (i) any rights
arising under this Agreement; (ii) any rights arising under any grant, plan or
agreement pursuant to which Executive was awarded the stock and stock options
reflected Exhibit B hereto, the provisions of which are incorporated by this
reference to the extent not inconsistent with this Agreement; (iii) any unpaid
salary or accrued vacation, reimbursement for any previously incurred expenses
in accordance with the Company's policies in effect on the date hereof, or any
benefits or claims for benefits under any Welfare Benefit Plans accrued as of
the date hereof; and (iv) any rights arising under COBRA. Executive represents
that he has not commenced or joined in any claim, charge, action or proceeding
whatsoever against the Company or any of the Company Releasees arising out of or
relating to any of the matters released in this
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Paragraph 9(a). Executive further agrees that he will not seek or be entitled to
any personal recovery in any claim, charge, action or proceeding whatsoever
against the Company or any of the Company Releasees for any of the matters
released in this Paragraph 9(a).
(b) In consideration of Executive's release set forth in
Paragraph 9(a), above, and Executive's other covenants and agreements contained
herein, the Company and its affiliates hereby forever release and discharge
Executive and his heirs, executors, administrators and assigns from any and all
claims, charges, complaints, promises, agreements, controversies, liens,
demands, causes of action, obligations, damages and liabilities of any nature
whatsoever, known or unknown, suspected or unsuspected, which against Executive
or his heirs, executors, administrators, or assigns the Company or any of its
affiliates ever had, now have, or may hereafter claim to have by reason of any
matter, cause or thing whatsoever from the beginning of time through the date
hereof, whether or not previously asserted before any state or federal court,
agency or governmental entity or any arbitral body; provided, however, that
notwithstanding the foregoing or anything else contained in this Agreement, the
Company's release shall not extend to any rights arising under this Agreement or
to any claim against Executive arising from: (i) Executive's knowing and
intentional commission of a felony crime involving fraud and relating to his
employment with the Company; (ii) a breach of fiduciary duty relating to
Executive's employment with the Company that renders Executive ineligible for
indemnification pursuant to paragraph 13 of this Agreement; or (iii) Executive's
knowing and intentional violation of any federal or state law regulating xxxxxxx
xxxxxxx relating to his employment with the Company. The Company represents that
neither it nor any of its affiliates has commenced or joined in any claim,
charge, action or proceeding whatsoever against Executive arising out of or
relating to any of the matters released in this Paragraph 9(b). The Company
further agrees that neither it nor any of its affiliates will seek or be
entitled to any recovery in any claim, charge, action or proceeding whatsoever
against Executive for any of the matters released in this Paragraph 9(b).
(c) In order to provide a full and complete release, each of
the Parties understands and agrees that this Agreement is intended to include
all claims, if any, covered under this Paragraph 9 that such Party may have and
not now know or suspect to exist in his or its favor against any other Party and
that this Agreement extinguishes such claims. Thus, each of the Parties
expressly waives all rights under any statute or common law principle in any
jurisdiction that provides, in effect, that a general release does not extend to
claims which the releasing party does not know or suspect to exist in his favor
at the time of executing the release, which if known by him must have materially
affected his settlement with the party being released.
10. Termination.
(a) The Company may terminate Executive's employment and this
Agreement for Cause. For purposes of this Agreement, "CAUSE" for termination
shall mean Executive's knowing and intentional commission of a felony crime
involving fraud and relating to his employment with the Company, or Executive's
knowing and intentional violation of any federal or state law regulating xxxxxxx
xxxxxxx relating to his employment with the Company, either or both as
determined in accordance with Paragraph 10(c), below.
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(b) The Company warrants and represents that it currently is
unaware of any facts giving rise to a basis to terminate Executive's employment
for Cause as that term is defined in this Agreement or the Employment Agreement
and that it has no present intention to terminate Executive's employment for
Cause. Absent the disclosure of material facts of which the Company was unaware
as of the Effective Date, the Company agrees that it shall make no effort to
terminate Executive's employment for Cause. The Company shall bear the burden,
in any dispute between the parties, of proving by clear and convincing evidence
that as of the Effective Date it was unaware of any facts alleged by the Company
to give rise to a right to terminate Executive's employment for Cause.
(c) Notwithstanding any other provision of this Agreement:
(i) The cessation of employment of Executive shall not
be deemed to be for Cause unless and until: (A) there shall have been delivered
to Executive a copy of a resolution duly adopted by the affirmative vote of not
less than the entire membership of the Company's Board of Directors ("BOARD")
(not including Executive) at a meeting of the Board called and held for such
purpose (after reasonable notice is provided to Executive and Executive is given
an opportunity, together with counsel, to be heard by the Board, and after the
Board has conferred with counsel), finding that the Board has a reasonable basis
to believe that Executive is guilty of the conduct described in Paragraph 10(a),
above, and specifying the particulars thereof in detail; and (B) there has been
a final determination in accordance with the procedure set forth in Paragraph
10(c)(ii), below, that Executive in fact is guilty of the conduct described in
Paragraph 10(a), above.
(ii) In the event of any dispute concerning the existence
of Cause to terminate Executive's employment pursuant to this Paragraph 10 (a
"CAUSE DISPUTE"), the provisions of Paragraph 21 shall not apply to such
dispute. Instead, any Cause Dispute shall be resolved as follow:
(A) All Cause Disputes shall be resolved by
arbitration in the Denver, Colorado, metropolitan area by a single arbitrator
who is a member of the panel of former judges affiliated with the Judicial
Arbiter Group (the "JAG"). The Parties further understand and agree that this
Agreement evidences a transaction involving commerce within the meaning of 9
U.S.C. Section 2, and that this Agreement shall therefore be governed by the
Federal Arbitration Act, 9 U.S.C. Sections 1, et seq.
(B) To commence an arbitration pursuant to this
Paragraph 10(c)(ii), a Party shall serve a written arbitration demand (the
"DEMAND") on the other Party in the manner specified in Paragraph 24, below, and
at the same time submit a copy of the Demand to the JAG, together with a check
payable to the JAG in the amount of JAG's then-current arbitration filing fee.
The claimant shall attach a copy of this Agreement to the Demand, which shall
also describe the dispute in sufficient detail to advise the respondent and
arbitrator of the nature of the dispute. Within fifteen (15) days after
receiving the Demand, the respondent shall mail to the claimant a written
response to the Demand (the "RESPONSE"), and submit a copy of the Response to
the JAG.
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(C) Promptly after service of the Response, the
Parties shall confer in good faith to attempt to agree upon a suitable
arbitrator. If the Parties are unable to agree upon an arbitrator, then the
Parties each shall submit to the other a list of three names of proposed
arbitrators from the JAG panel, from which the other Party shall strike up to
two names, and JAG shall select the arbitrator from the remaining names, based,
if possible, on his or her expertise with respect to the subject matter of the
Cause Dispute, or randomly.
(D) Notwithstanding the choice-of-law principles
of any jurisdiction, the arbitrator shall be bound by and shall resolve all
Cause Disputes in accordance with the substantive law of the State of Colorado
and Colorado rules relating to the admissibility of evidence, including, without
limitation, all relevant privileges and the attorney work product doctrine.
(E) The Parties shall to the greatest extent
practicable expedite all proceedings relating to any arbitration commenced
pursuant to this Paragraph 10(c)(ii), including the scheduling and completion of
the final hearing on the merits, which shall be held within six (6) months from
the date of appointment of the arbitrator, unless the Parties agree to a later
date or the arbitrator on his or her own initiative sets a later date not to
exceed nine (9) months from the date of such appointment.
(F) The Parties shall engage in such discovery
as is necessary to a full and fair arbitration hearing, with an expedited
schedule to conduct such discovery being established by the arbitrator if the
Parties are unable to agree to a schedule among themselves.
(G) Within twenty (20) days after the
arbitration hearing is closed, the arbitrator shall issue a written award
setting forth his or her decision and the reasons therefore (the "INITIAL
AWARD").
(H) Any Party who believes that the Initial
Award is based upon or encompasses an error of fact or law such as would, in
civil litigation, give rise to an appeal under the substantive and procedural
law of the State of Colorado shall have the right to appeal the Initial Award as
set forth in this Paragraph 10(c)(ii)(H). A Party desiring to take an appeal
from the Initial Award shall serve on the opposing Party and JAG a written
notice of appeal no later than 20 days after that Party's receipt of the Initial
Award. The appeal shall be heard by a panel of three (3) JAG arbiters (not
including the arbiter who entered the Initial Award) selected by the Parties or,
if the Parties are unable to agree upon the composition of the appeal panel,
then appointed randomly by JAG. The appeal shall be governed by the provisions
of the Colorado Appellate Rules, and shall be subject to the same substantive
legal requirements and standards of review as would apply had the arbitration
been conducted instead as a civil action in a Colorado State District Court and
appealed to the Colorado Court of Appeals. Within 90 days following the issuance
of the Initial Award, the appeal panel shall issue a written award setting forth
its decision and the reasons therefore (the "FINAL AWARD").
(I) In the event that, at any time before the
Cause Dispute is fully and finally resolved pursuant to this Paragraph
10(c)(ii), JAG ceases to conduct business as a private
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dispute resolution service, then the Parties shall confer in good faith in an
effort to identify a suitable replacement dispute resolution service. If they
are unable to do so, then the arbitrator and/or appeal arbitrators shall be
selected as follows. The Parties shall request a list of 10 arbitrators on the
American Arbitration Association's Commercial Arbitration Panel for the Denver,
Colorado metropolitan area, the cost of which shall be paid by the Company.
Starting with the Executive, the Parties shall alternate striking names from the
list until the list is reduced to three (3) names, or one (1) name, depending
upon whether the Parties are at the initial arbitration hearing stage or the
appeal stage.
(J) The Final Award, or if no appeal is timely
taken pursuant to Paragraph 10(c)(ii)(H), above, then the Initial Award, shall
be final, nonappealable and binding upon the Parties, subject only to the
provisions of 9 U.S.C. Sections 10 and 11, and may be entered as a judgment in
any court of competent jurisdiction.
(K) The Parties agree that reliance upon courts
of law and equity can add significant costs and delays to the process of
resolving disputes. Accordingly, they recognize that an essence of this
Agreement is to provide for the submission of all Cause Disputes to binding
arbitration. Therefore, if any court concludes that any provision of this
Paragraph 10(c)(ii) is void or voidable, the Parties understand and agree that
the court shall reform each such provision to render it enforceable, but only to
the extent absolutely necessary to render the provision enforceable and only in
view of the Parties' express desire that Cause Disputes be resolved by
arbitration and, to the greatest extent permitted by law, in accordance with the
principles, limitations and procedures set forth in this Paragraph 10(c)(ii).
(d) Any cash portion of the Transition Benefit that has not
been paid as of the effective date of any purported termination for Cause shall
be held in an interest-bearing escrow pending a final resolution of the Cause
Dispute and shall be subject to forfeiture by Executive upon any final
determination that Cause exists reached in accordance with Paragraph 10(c)(ii);
provided, however, that if Executive prevails in the initial arbitration
proceeding, then such funds, together with any interest thereon, shall be
released to him from escrow, subject to Executive executing an undertaking to
repay such funds should the Company ultimately prevail as the result of the
appeal described in Paragraph 10(c)(ii), above.
11. No Transfer of Rights or Claims. Each of the Parties represents and
warrants that it has not heretofore assigned or transferred, or purported to
assign or transfer, to any person or entity, any of the claims released herein
and agrees to indemnify and hold harmless the other Party against any claim,
demand, debt, obligation, liability, cost, expense, right of action or cause of
action based on, arising out of, or with regard to any such assignment or
transfer.
12. Nondisparagement Covenants and Limitations on Public Comment.
(a) Executive covenants never to disparage or speak ill of
Company or any Company product or service, or of any past or present employee,
officer or director of Company, nor shall Executive at any time harass or behave
unprofessionally toward any past or present Company employee, officer or
director.
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(b) Company covenants that neither any Company officer, nor
any member of the Company's Management Committee ("MC") or Board, shall, while
employed by or while serving on the Board or MC, as the case may be, disparage
or speak ill of Executive, nor shall any such person, while employed by or while
serving on the Board or MC, as the case may be, at any time harass or behave
unprofessionally toward Executive.
(c) Executive agrees to refer all inquiries from prospective
employers to the Company's Chief Operating Officer and not to any other
individual employed by or affiliated with the Company or its affiliates, and the
Company agrees that only the Chief Operating Officer or his personally chosen
designate will respond to such inquiries. Any statement by the Company to any
prospective employer of Executive, Company employees, or any third party shall
be consistent with Exhibit C hereto.
(d) If the Company elects in its discretion to distribute a
written announcement of Executive's separation to the media or to Company
employees, it shall do so using text that is not inconsistent with that set
forth in Exhibit C. Without limiting the generality of the foregoing, in
response to all media inquiries, the Company will not state or intentionally
imply or suggest that Executive's separation from the Company was the result of
disciplinary action against or wrongdoing by Executive, nor shall the Company or
state or imply that it has reservations concerning Executive's integrity.
(e) This Agreement shall not be construed or applied so as to
limit any person from giving truthful testimony in any lawsuit or action or from
providing candid, truthful information to any governmental or regulatory body or
any self-regulatory organization.
13. Indemnification.
(a) The Company shall indemnify the Executive to the fullest
extent permitted under law from and against any expenses (including but not
limited to attorneys' fees, expenses of investigation and preparation and fees
and disbursements of the Executive's accountants or other experts), judgments,
fines, penalties and amounts paid in settlement actually and reasonably incurred
by the Executive in connection with any proceeding in which the Executive was or
is made party or was or is involved (for example, as a witness) by reason of the
fact the Executive was or is employed by the Company. Such indemnification is
subject to:
(i) the indemnifying party promptly receiving
written notice that a claim or liability has been asserted or threatened
("NOTICE OF CLAIM"), provided that the Notice of Claim tendered by the Executive
and dated as of September 17, 2003, shall remain effective as to the matters
addressed therein and as to related matters that have subsequently arisen;
(ii) the indemnified party providing reasonable
cooperation and assistance in the defense or settlement of a claim; and
(iii) the indemnifying party being afforded the
opportunity to have the sole control over the defense or settlement of such
claim or liability.
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(b) Unless within ten (10) days after receiving the Notice of
Claim, the indemnifying party notifies in writing the indemnified party of its
intent to defend against such claim or liability, the indemnified party may
defend, settle and/or compromise any such claim or liability, and be indemnified
for all losses resulting from such defense, settlement and/or compromise. Any
indemnified party also may participate in such defense at its own cost and
expense.
(c) Such indemnification shall continue as to the Executive
during Executive's employment with the Company and for ten years from the
Termination Date with respect to acts or omissions that occurred prior to his
cessation of employment with the Company and shall inure to the benefit of the
Executive's heirs, executors and administrators. The Company shall advance to
the Executive all costs and expenses incurred by him in connection with any
proceeding covered by this provision within 20 calendar days after receipt by
the Company of a written request for such advance. Such request shall include an
undertaking by the Executive to repay the amount of such advance if it shall
ultimately be determined that he is not entitled to be indemnified against such
costs and expenses.
(d) The Company agrees to continue and maintain directors' and
officers' liability insurance policies covering the Executive to the extent that
the Company provides such coverage for its other executive officers. Such
insurance coverage shall continue as to the Executive even if he has ceased to
be a director, member, employee or agent of the Company with respect to acts or
omissions which occurred prior to his cessation of employment with the Company.
Not withstanding the foregoing, however, if the Company shall cease to maintain
directors' and officers' liability insurance policies covering the Executive and
other executive officers by reason of: (i) a consolidation, merger, sale or
other reorganization of the Company; (ii) any person or entity or group of
persons or entities acting in concert acquiring management control of the
Company; or (iii) the insurers providing such insurance canceling or refusing to
renew such insurance, then the Executive shall have coverage only to the extent
provided in any run-off policies extending the period during which the Company
or the Executive may give the insurers notice of a claim under the terminated
directors' and officers' liability insurance policies. The Company shall take
all reasonable actions to ensure that it obtains such run-off policies and that
such run-off policies extend the claims reporting period through any applicable
statutes of limitations, but nothing in this paragraph shall obligate the
Company to obtain extraordinary insurance coverage for the Executive. Insurance
contemplated under this Paragraph 13(d) shall inure to the benefit of the
Executive's heirs, executors and administrators.
(e) Without limiting the generality of the foregoing Paragraph
13(a) through (d), the Company acknowledges and agrees that its indemnification
obligation to Executive shall extend to (but not be limited to) his performance
of his duties as an officer or director on behalf of the Company or its
affiliates, or companies advised by the Company or its affiliates, during the
Transition Period, as well as to his past performance of all duties as an
officer or director on behalf of the Company or its affiliates, or companies
advised by the Company or its affiliates.
11
(f) So long as any other similarly situated current or former
officer or director of the Company has separate counsel, at Company expense, in
connection with the existing shareholder litigation against the Company and
others or any similar cases that may yet be filed, then notwithstanding anything
to the contrary in this Agreement and to the extent permitted under law, the
Company will pay reasonable attorneys' fees and costs associated with
Executive's continued representation in such litigation by separate counsel of
his choosing.
14. No Mitigation Obligation. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-offs, counterclaim, recoupment,
defense, or other claim, right or action that the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and, such amounts
shall not be reduced whether or not the Executive obtains other employment.
15. Attorneys Fees and Costs. The Company agrees to pay as incurred
(within 10 days following the Company's receipt of an invoice from the
Executive), to the full extent permitted by law, all legal fees and expenses
that the Executive may reasonably incur as a result of any contest (regardless
of the outcome thereof unless the Executive's claim is determined by a court to
have been frivolous or made in bad faith, in which case the Executive shall make
prompt reimbursement of such fees and expenses to the extent already paid by the
Company and received by the Executive) by the Company, the Executive, or others
of the validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof (including as a result of any
contest by Executive about the amount of any payment pursuant to this
Agreement), plus, in each case, interest on any delayed payment at the
applicable federal rate provided for in Section 7872(f)(2)(A) of the Internal
Revenue Code of 1986, as amended. Without limiting the generality of the
foregoing, the Company shall reimburse the Executive for the attorneys fees and
costs that he has incurred in connection with the negotiation and drafting of
this Agreement.
16. Restrictive Covenants.
(a) The Executive acknowledges that his employment as a senior
officer of the Company creates a relationship of confidence and trust between
the Executive and the Company with respect to confidential and proprietary
information applicable to the business of the Company and its clients. The
Executive further acknowledges the highly competitive nature of the business of
the Company. Accordingly, it is agreed that the restrictions contained in this
Paragraph 16 are reasonable and necessary for the protection of the interests of
the Company and that any violation of these restrictions would cause substantial
and irreparable injury to the Company.
(b) During the Executive's employment with the Company, and
for a period of one year following the termination of Executive's employment,
the Executive shall not (nor shall the Employee cause, encourage or provide
assistance to, anyone else to):
(i) Interfere with any relationship which may
exist from time to time between the Company, or any affiliate of the Company,
and any of its employees, consultants,
12
agents or representatives; or
(ii) Employ or otherwise engage, or attempt to
employ or otherwise engage, in or on behalf of any Competitive Business, any
person who is employed or engaged as an employee, consultant, agent or
representative of the Company or any affiliate of the Company, or any person who
was employed or engaged as an employee, consultant, agent or representative of
the Company or any affiliate of the Company within the two-year period
immediately preceding the Employee's termination; or
(iii) Solicit directly or indirectly on behalf of
the Executive or a Competitive Business, the customer business or account of any
investment advisory or investment management client to which the Company or any
affiliate of the Company shall have rendered service during the one-year period
immediately preceding the Executive's termination; or
(iv) Directly or indirectly divert or attempt to
divert from the Company or any affiliate of the Company any business in which
the Company or any affiliate of the Company has been actively engaged during the
term hereof or interfere with any relationship between the Company, or any
affiliate of the Company, and any of its clients.
(c) "COMPETITIVE BUSINESS" means any business which provides
investment advisory or investment management services. For the purposes of this
Paragraph 16, "AFFILIATE" means any corporation, partnership, limited liability
company, trust, or other entity which controls, is controlled by or is under
common control with the Company.
(d) If any court shall determine that the duration, geographic
limitations, subject or scope of any restriction contained in this Paragraph 16
are unenforceable, it is the intention of the parties that this Paragraph 16
shall not thereby be terminated but shall be deemed amended to the extent
required to make it valid and enforceable, such amendment to apply only with
respect to the operation of this Paragraph 16 in the jurisdiction of the court
that has made the adjudication.
(e) The Executive acknowledges that the restrictive covenants
of Paragraph 16 are reasonable and that irreparable injury will result to the
Company and to its business and properties in the event of any breach by the
Executive of any of those covenants, and that the Executive's continued
employment is predicated on the commitments undertaken by the Executive pursuant
to Paragraph 16. In the event any of the covenants of Paragraph 16 is breached,
the Company shall be entitled, in addition to any other remedies and damages
available, to injunctive relief to restrain the violation of such covenants by
the Executive or by any person or persons acting for or with the Executive in
any capacity whatsoever.
(f) Notwithstanding the foregoing, the parties understand and
agree that the foregoing restrictive covenants may be limited by Colorado Rule
of Professional Conduct 5.6 ("RULE 5.6"), and that, to the extent that any of
the foregoing restrictive covenants is regulated by Rule 5.6, such covenant(s)
shall be deemed reformed to the extent necessary to comply with Rule 5.6, and
shall thereafter be enforceable as thus reformed.
13
17. Recoupment.
Any and all cash Transition Benefits to Executive pursuant to
this Agreement shall cease and Executive will be required to repay all such cash
amounts (after tax) paid under this Agreement, up to an aggregate cash benefit
loss or reimbursement by Executive of $2,000,000, if: (a) Executive is found in
a final, unappealable judgment in a judicial or administrative proceeding to
have "willfully" (as defined in the Employment Agreement): (i) violated any law,
rule or regulation prohibiting fraudulent conduct including xxxxxxx xxxxxxx
based on his conduct during his employment with the Company prior to the
Termination Date, provided that such liability must arise from Executive's own
conduct, and not solely from the conduct of persons other than Executive; (ii)
committed a breach of fiduciary duty relating to Executive's employment with the
Company that renders Executive ineligible for indemnification pursuant to
paragraph 13 of this Agreement; or (iii) made a knowing and material false
representation in connection with any investigation of the Company's trading
practices or activities by any federal or state regulatory or law enforcement
body, or any self-regulatory organization; or (b) Executive enters into a
consent agreement or similar agreement with any state or federal regulator, or
with any self-regulatory organization, that admits any willful fraudulent
conduct and/or breach of fiduciary duty by Executive relating to the performance
of Executive's duties in his employment by the Company prior to the Termination
Date.
18. Additional Documents. Executive agrees that he shall do such acts,
and execute and deliver to the Company such additional documents or instruments
not inconsistent herewith, as may be reasonably required to effect the purposes
of this Agreement and shall cooperate fully with the Company to implement this
Agreement and any business transactions of the Company or any litigation that
may have arisen or arise in connection therewith.
19. Cooperation in Proceedings and Continuing Representation.
(a) Executive agrees that he shall fully cooperate with the
Company and its counsel with respect to any claim, litigation or judicial,
arbitral or investigative proceeding initiated by any private party or by any
regulator, governmental entity, or self-regulatory organization, that relates to
or arises from any matter with which Executive was involved during his
employment with the Company, or that concerns any matter of which Executive has
information or knowledge (collectively, a "PROCEEDING"). Executive's duty of
cooperation includes, but is not limited to: (i) meeting with the Company's
attorneys by telephone or in person at mutually convenient times and places in
order to state truthfully Executive's recollection of events; (ii) appearing at
the Company's request as a witness at depositions or trials, without the
necessity of a subpoena, in order to state truthfully Executive's knowledge of
matters at issue; and (iii) signing at the Company's request declarations or
affidavits that truthfully state matters of which Executive has knowledge.
(b) Following the Termination Date, if then mutually agreeable
to the Parties, Executive shall continue to serve as a consultant to the
Company, on an as-needed basis, as and when reasonably requested by the Company.
In connection with such services, the Company shall
14
compensate Executive at the hourly rate of $480 and shall reimburse Executive
for his reasonable, documented out-of-pocket expenses, all on a monthly basis in
arrears. Executive and the Company shall exercise their respective best efforts
to minimize any conflicts between the Company's need for Executive's services
and Executive's other commitments, consistent with meeting the Company's
requirements in a timely manner.
20. Confidentiality.
(a) Executive and the Company mutually agree that they, and
each of them, will keep the terms of this Agreement strictly confidential, will
not disclose such terms in any way other than as provided herein, and will not
make any representation or other communication (orally or in writing) regarding
the terms of this Agreement to anyone, for any reason whatsoever, without the
express written consent of the other, unless the disclosure, representation or
communication: (i) is compelled by law; (ii) is to an attorney and/or a
financial advisor of Executive and/or the Company and is necessary for the
rendition of professional advice to Executive or the Company (the restrictions
stated in this Paragraph shall automatically apply to the attorney and/or
financial advisor of the Executive or the Company, which shall so advise the
attorney and/or financial advisor); (iii) if by the Executive, is to Executive's
immediate family (the restrictions stated in this Paragraph shall automatically
apply to the immediate family member and Executive shall so advise the immediate
family member); or (iv) if by the Company, is to its employees, to any state or
federal tribunal or regulatory agency, to any insurer and/or, consistent with
business necessity, to any other person or entity. Executive and the Company
shall not be entitled to make any disclosure pursuant to subpart (i), above,
unless he or it has first given the other Party, through its counsel, written
notice of, and a copy of, any subpoena or other legal process purporting to
require the disclosure of information rendered confidential by this Paragraph,
as soon as practicable after Executive or the Company receives such subpoena or
other legal process.
(b) Notwithstanding any other provision of this Agreement, any
Party to this Agreement (and each employee, representative, or other agent of
such party) may disclose to any and all persons, without limitation of any kind,
the tax treatment and tax structure of the transaction and all materials of any
kind (including opinions and other tax analyses) that are provided to the Party
relating to such tax treatment and tax structure, provided that, in connection
with any such disclosure, all references to the amounts paid pursuant to this
Agreement, and other figures from which such amounts may be estimated or
calculated, shall be redacted.
(c) The Company and the Executive may disclose any terms or
conditions of this Agreement as required or reasonably determined by each of
them to be necessary or appropriate in any civil, criminal and/or administrative
proceeding, or in discovery related to any such proceeding, in which case the
notice provisions of Paragraph 20(a) above shall be applicable.
21. Disputes. Except as provided in Paragraph 10(c), the Parties agree
that any dispute arising under or relating in any way to this Agreement will be
submitted to arbitration in Denver, Colorado, or such other venue as the Parties
may mutually determine, in front of a single arbitrator
15
who is a member of the panel of former judges affiliated with the Judicial
Arbiter Group (the "JAG"), in accordance with the JAG rules, as the exclusive
remedy for such dispute. Each Party shall submit a list of three names of
proposed arbitrators from the JAG panel. If the Parties cannot mutually agree on
an arbitrator from such lists, each Party shall strike two names from the other
Party's list, and the arbitrator shall then be chosen at random by the JAG from
the two remaining names. The Parties agree that such arbitration will be
confidential and that no details, descriptions, settlements, or other facts
concerning such arbitration shall be disclosed or released to any third party
without the specific written consent of the other Party, unless required by law
or in connection with enforcement of any decision in such arbitration. Any
damages awarded in such arbitration shall be limited to the contract measure of
damages, and shall not include punitive damages. The award of the arbitrator may
be entered as a judgment in any court of competent jurisdiction.
22. Severability. It is the desire and intent of the Parties that the
provisions of this Agreement shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. In the event that any one or more of the provisions or
parts thereof of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remainder of
this Agreement shall not in any way be affected or impaired thereby. Moreover,
if any one or more of the provisions or parts thereof contained in this
Agreement is held to be excessively broad as to duration, scope, activity or
subject, such provisions shall be construed by limiting and reducing them so as
to be enforceable to the maximum extent allowed by applicable law.
23. Entire Agreement. This Agreement sets forth the entire agreement
and understanding of the Parties regarding the subject matter hereof and may not
be modified without the express written consent of the Parties. This Agreement
supersedes all prior discussions, agreements, arrangements, understandings and
negotiations, written or oral, between the Parties regarding the subject matter
hereof.
24. Notices. Any notice required or permitted under this Agreement
shall be given in writing and shall be deemed effectively given upon the
earliest of personal delivery, actual receipt or the third (3rd) full business
day following deposit in the United States mail with postage and fees prepaid,
addressed to the other Party hereto at such Party's address shown below or at
such other address as such Party may designate by ten (10) calendar days'
advance written notice to the other Party hereto. The addresses for notices are
as follows:
For the Company: Janus Capital Group, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Chief Operating Officer
16
With a copy to: Xxxxx & Xxxxxxx LLP
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx, 00000
Attn: Xxxxx X. Xxx
For Executive: Xxxxxx X. Early
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
With a copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxx
25. Waiver. The failure of either Party to this Agreement to enforce
any of its terms, provisions or covenants shall not be construed as a waiver of
the same or of the right of such Party to enforce the same. Waiver by either
Party hereto of any breach or default by the other Party of any term or
provision of this Agreement shall not operate as a waiver of any other breach or
default.
26. Governing Law. This Agreement and all rights, duties and remedies
hereunder shall be governed by and construed and enforced in accordance with the
laws of the State of Colorado, without reference to its conflict of law rules.
27. Successors and Assigns. This Agreement shall be binding upon, and
shall inure to the benefit of, the Parties and their respective heirs,
administrators, representatives, executors, successors and assigns.
Notwithstanding the foregoing, Executive shall not assign any of his rights or
delegate any of his obligations under this Agreement without obtaining the prior
express written consent of the Company. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
28. Authority. Each of the Parties has full authority to enter into and
to bind itself or himself to this Agreement.
29. Tax Withholdings. The Company may withhold from any amount payable
to Executive under this Agreement such Federal, state, local or foreign taxes as
shall be required to be withheld pursuant to any applicable law or regulation.
30. Nonreliance. Each Party understands and agrees that he or it
assumes all risk that the facts or law may be, or become, different than the
facts or law as believed by the Party at the time he or it executes this
Agreement. The Parties acknowledge that the character of their relationship as
of the Effective Date precludes any affirmative obligation of disclosure, and
expressly disclaim
17
all reliance upon information supplied or concealed by the adverse Party or its
counsel in connection with the negotiation and/or execution of this Agreement.
31. Construction. The parties acknowledge that they and their
respective counsel have reviewed this Agreement in its entirety and have had a
full and fair opportunity to negotiate its terms. Each party therefore waives
all applicable rules of construction that any provision of this Agreement should
be construed against its drafter, and agrees that all provisions of the
Agreement shall be construed as a whole, according to the fair meaning of the
language used.
32. Burden of Proof. Any party contesting the validity or
enforceability of any term of this Agreement shall be required to prove by clear
and convincing evidence fraud, concealment, failure to disclose material
information, unconscionability, misrepresentation or mistake of fact or law.
33. Counterparts. This Agreement 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 the same instrument.
34. Prior Agreements and Other Agreements. This Agreement supercedes
the Change of Control Agreement and the Employment Agreement, which therefore
shall be of no further force or effect except to the extent expressly
incorporated by reference herein. Defined terms herein shall have the meanings
set forth in the Employment Agreement, unless otherwise specified. The Parties
acknowledge and agree that the Company's obligations to Executive under this
Agreement shall not be subject to reduction or limitation by or as a consequence
of any agreement that the Company may reach with any other party, whether
private, governmental or self-regulatory, and that any such agreement by the
Company shall not impair any right the Executive might otherwise have, unless
the Executive consents.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE EACH READ THIS AGREEMENT AND
UNDERSTAND ITS TERMS. BY SIGNING THIS AGREEMENT, THE PARTIES ACKNOWLEDGE AND
AGREE THAT THEY ENTER INTO THIS AGREEMENT KNOWINGLY, VOLUNTARILY AND WITHOUT
COERCION, THAT THEY HAVE HAD SUFFICIENT OPPORTUNITY TO CONSULT WITH LEGAL
COUNSEL OF THEIR CHOICE, AND THAT THEY DO NOT RELY, AND HAVE NOT RELIED, ON ANY
FACT, REPRESENTATION, STATEMENT OR ASSUMPTION OTHER THAN AS SPECIFICALLY SET
FORTH IN THIS AGREEMENT.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date first written above.
[SIGNATURES FOLLOW]
18
JANUS CAPITAL GROUP, INC. EXECUTIVE
By: /s/ Xxxx X. Xxxxxxx /s/ Xxxxxx X. Early
------------------------------- -------------------------------
Xxxxxx X. Early
Date: Feb. 2, 2004 Date: Feb. 2, 2004
19
EXHIBIT A
SUPPLEMENTAL LEGAL RELEASE
This Supplemental Legal Release ("SUPPLEMENTAL RELEASE") is between
Janus Capital Group, Inc. (the "COMPANY") and Xxxxxx X. Early ("EXECUTIVE")
(each a "PARTY," and together, the "PARTIES").
RECITALS
1. Executive and the Company are parties to a Transition Agreement to
which this Supplemental Release is appended as Exhibit A (the "TRANSITION
AGREEMENT").
2. Executive wishes to receive the Transition Benefit defined in the
Transition Agreement.
3. Executive and the Company wish to resolve, except as specifically
set forth herein, all claims between them arising from or relating to any act or
omission predating the Final Effective Date defined below.
AGREEMENT
The Parties agree as follows:
1. Confirmation of Transition Benefit Obligation The Company shall pay
or provide to the Executive the entire Transition Benefit, as, when and on the
terms and conditions specified in the Transition Agreement.
2. Legal Releases
(a) In consideration of the Transition Benefit and the
Company's other covenants and agreements contained herein, Executive, on his own
behalf and on behalf of his heirs, personal representatives, executors,
administrators and assigns, knowingly and voluntarily releases and forever
discharges the Company and its affiliates and any of their respective parents,
subsidiaries and affiliates, together with all of their respective past and
present directors, members, managers, officers, shareholders, partners,
employees, agents, attorneys and servants, and each of their affiliates,
predecessors, successors and assigns (collectively, the "COMPANY RELEASEES")
from any and all claims, charges, complaints, promises, agreements,
controversies, liens, demands, causes of action, obligations, damages and
liabilities of any nature whatsoever, known or unknown, suspected or
unsuspected, which against them Executive or his heirs, executors,
administrators, or assigns ever had, now have, or may hereafter claim to have
against any of the Company Releasees by reason of any matter, cause or thing
whatsoever from the beginning of time through the date hereof, whether or not
previously asserted before any state or federal court, agency or governmental
entity or any arbitral body. This release includes, without limitation, any
rights or claims relating in any way to Executive's employment relationship with
the Company or any of the
20
Company Releasees, or his separation therefrom, or arising under any statute or
regulation, including Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1991, Age Discrimination in Employment Act of 1967 ("ADEA"), the
Americans with Disabilities Act of 1990, the Employee Retirement Income Security
Act of 1974, and the Family Medical Leave Act of 1993, each as amended, or any
other federal, state or local law, regulation, ordinance, or common law, or
under any policy, agreement, understanding or promise, written or oral, formal
or informal, between Executive and the Company or any of the Company Releasees;
provided, however, that notwithstanding the foregoing or anything else contained
in this Supplemental Release, Executive's release shall not extend to (i) any
rights arising under the Transition Agreement; (ii) any rights arising under any
grant, plan or agreement pursuant to which Executive was awarded the stock and
options reflected Exhibit B to the Transition Agreement, the provisions of which
are incorporated by this reference to the extent not inconsistent with this
Supplemental Release; (iii) any benefits or claims for benefits under any
Welfare Benefit Plans (as defined in the Transition Agreement) accrued as of the
date hereof; and (iv) any rights arising under COBRA. Executive represents that
he has not commenced or joined in any claim, charge, action or proceeding
whatsoever against the Company or any of the Company Releasees arising out of or
relating to any of the matters released in this Paragraph 2(a). Executive
further agrees that he will not seek or be entitled to any personal recovery in
any claim, charge, action or proceeding whatsoever against the Company or any of
the Company Releasees for any of the matters released in this Paragraph 2(a).
(b) In consideration of Executive's release set forth in
Paragraph 2(a), above, and Executive's other covenants and agreements contained
herein, the Company and its affiliates hereby forever release and discharge
Executive and his heirs, executors, administrators and assigns from any and all
claims, charges, complaints, promises, agreements, controversies, liens,
demands, causes of action, obligations, damages and liabilities of any nature
whatsoever, known or unknown, suspected or unsuspected, which against Executive
or his heirs, executors, administrators, or assigns the Company or any of its
affiliates ever had, now have, or may hereafter claim to have by reason of any
matter, cause or thing whatsoever from the beginning of time through the date
hereof, whether or not previously asserted before any state or federal court,
agency or governmental entity or any arbitral body; provided, however, that
notwithstanding the foregoing or anything else contained in this Supplemental
Release, the Company's release shall not extend to any rights arising under the
Transition Agreement or to any claim against Executive arising from: (i)
Executive's knowing and intentional commission of a felony crime involving fraud
and relating to his employment with the Company; (ii) a breach of fiduciary duty
relating to Executive's employment with the Company that renders Executive
ineligible for indemnification pursuant to paragraph 13 of the Transition
Agreement; or (iii) Executive's knowing and intentional violation of any federal
or state law regulating xxxxxxx xxxxxxx relating to his employment with the
Company. The Company represents that neither it nor any of its affiliates has
commenced or joined in any claim, charge, action or proceeding whatsoever
against Executive arising out of or relating to any of the matters released in
this Paragraph 2(b). The Company further agrees that neither it nor any of its
affiliates will seek or be entitled to any recovery in any claim, charge, action
or proceeding whatsoever against Executive for any of the matters released in
this Paragraph 2(b).
21
(c) In order to provide a full and complete release, each of
the Parties understands and agrees that this Supplemental Release is intended to
include all claims, if any, covered under this Paragraph 2 that such Party may
have and not now know or suspect to exist in his or its favor against any other
Party and that this Supplemental Release extinguishes such claims. Thus, each of
the Parties expressly waives all rights under any statute or common law
principle in any jurisdiction that provides, in effect, that a general release
does not extend to claims which the releasing party does not know or suspect to
exist in his favor at the time of executing the release, which if known by him
must have materially affected his settlement with the party being released.
(d) Executive acknowledges that he consulted with an attorney
of his choosing before signing this the Transition Agreement and this
Supplemental Release, and that the Company provided him with no fewer than
twenty-one (21) days during which to consider the provisions of the Transition
Agreement and this Supplemental Release and, specifically the release set forth
at Paragraph 2(a), above, although Executive may sign and return the
Supplemental Release sooner if he so chooses. Executive further acknowledges
that he has the right to revoke this Supplemental Release for a period of seven
(7) days after signing it and that this Supplemental Release shall not become
effective until such seven (7)-day period has expired (the "FINAL EFFECTIVE
DATE"). Executive acknowledges and agrees that if he wishes to revoke this
Supplemental Release, he must do so in writing, and that such revocation must be
signed by the Executive and received by the Company in care of its Chief
Operating Officer no later than 5 p.m. (Mountain Time) on the seventh (7th) day
after Executive has signed this Supplemental Release. Executive acknowledges and
agrees that, in the event that he revokes this Supplemental Release, he shall
have no right to receive the Transition Benefit. Executive represents that he
has read this Supplemental Release, including the release set forth in Paragraph
2(a), above, affirms that this Supplemental Release and the Transition Agreement
provide him with benefits to which he would not otherwise be entitled, and
understands its terms and that he enters into this Supplemental Release freely,
voluntarily, and without coercion.
3. Executive acknowledges that he has received all compensation to
which he is entitled for his work up to his last day of employment with the
Company, and that he is not entitled to any further pay or benefit of any kind,
for services rendered or any other reason, other than the Transition Benefit.
4. Executive agrees that the only thing of value that he will receive
by signing this Supplemental Release is the Transition Benefit.
5. The Parties agree that their respective rights and obligations under
the Transition Agreement shall survive the execution of this Supplemental
Release.
[SIGNATURES FOLLOW]
22
NOTE: DO NOT SIGN THIS SUPPLEMENTAL LEGAL RELEASE UNTIL AFTER
EXECUTIVE'S FINAL DAY OF EMPLOYMENT.
JANUS CAPITAL GROUP, INC. EXECUTIVE
By:_________________________ ______________________________
Xxxxxx X. Early
Date: ______________________ Date: _________________________
23
EXHIBIT B
Option Status as of Effective Date(1)
FUTURE
STRIKE SHARES EXPIRATION VESTING VESTING AT
GRANT DATE PRICE COVERED EXERCISED VESTED UNVESTED DATE DATES THAT TIME
----------------------------------------------------------------------------------------------------------------
1/26/99 $ 21.31 200 0 200 0 1/25/09
----------------------------------------------------------------------------------------------------------------
1/28/02 $ 25.71 8,204 0 1,641 6,563 1/27/12
----------------------------------------------------------------------------------------------------------------
1/28/04 1,641
----------------------------------------------------------------------------------------------------------------
1/28/05 1,641
----------------------------------------------------------------------------------------------------------------
1/28/06 1,641
----------------------------------------------------------------------------------------------------------------
1/28/07 1,640
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
TOTALS 8,404 0 1,841 6,563
----------------------------------------------------------------------------------------------------------------
Stock Status as of Effective Date
FUTURE
VESTING VESTING AT THAT
GRANT CODE GRANT DATE SHARES GRANTED COST BASIS VESTED UNVESTED DATES TIME
---------------------------------------------------------------------------------------------------------------
Class B 3/12/03 7,940 $9.71 7,940 0
---------------------------------------------------------------------------------------------------------------
Class C1 3/12/03 13,266 $9.71 13,266 0
---------------------------------------------------------------------------------------------------------------
Class C3 3/12/03 26,371 $9.71 19,779 6,592
---------------------------------------------------------------------------------------------------------------
12/31/04 6,592
---------------------------------------------------------------------------------------------------------------
Class D1 3/12/03 32,160 $9.71 32,160 0
---------------------------------------------------------------------------------------------------------------
Class D2 3/12/03 22,914 $9.71 22,914 0
---------------------------------------------------------------------------------------------------------------
Class E 3/12/03 157,685 $9.71 31,537 126,148
---------------------------------------------------------------------------------------------------------------
3/31/04 31,537
---------------------------------------------------------------------------------------------------------------
3/31/05 31,537
---------------------------------------------------------------------------------------------------------------
3/31/06 31,537
---------------------------------------------------------------------------------------------------------------
3/31/07 31,537
---------------------------------------------------------------------------------------------------------------
Class F 3/12/03 21,165 $9.71 8,467 12,698
---------------------------------------------------------------------------------------------------------------
12/31/04 4,233
---------------------------------------------------------------------------------------------------------------
12/31/05 4,233
---------------------------------------------------------------------------------------------------------------
12/31/06 4,232
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
TOTALS 281,501 136,063(2) 145,438(3)
---------------------------------------------------------------------------------------------------------------
-------------------
(1.) All options held in records of the Company.
(2.) Of these 136,063 shares, as of the Effective Date 82,970 had been
transferred to Executive's Schwab account, 40,920 were held by the Company on
behalf of Executive, and 12,173 had been sold to pay taxes on behalf of
Executive.
(3.) All 145,438 shares are held in records of the Company.
24
EXHIBIT C
Xxx Xxxxx, Senior Vice President, General Counsel and a member of Janus'
Management Committee, has announced his intention to retire. To ensure a smooth
transition of his responsibilities, Early is expected to remain as general
counsel until at least mid-May, 2004. Janus CEO Xxxx Xxxxxxx said, "During the
past six years, Xxx has been a strong member of our management team and we
appreciate his significant contributions to Janus."
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