EXHIBIT 10.2
RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT (the "Agreement"), dated as of
the 23rd day of August, 2004, between Janus Capital Group Inc., a Delaware
corporation (the "Company"), and Xxxx X. Xxxxxx (the "Employee").
WITNESSETH
In consideration of the mutual promises and covenants made herein and
the mutual benefits to be derived herefrom, the parties hereto agree as follows:
1. Grant and Vesting of Restricted Stock.
(a) Subject to the provisions of this Agreement and to the provisions of the
Company's 2004 Employment Inducement Award Plan, effective as of April 26, 2004
(the "Plan"), the Company hereby grants to the Employee as of August 23, 2004
(the "Grant Date"), 73,584 shares (the "Restricted Stock") of common stock of
the Company, par value $.01 per share ("Common Stock"). All capitalized terms
used herein, to the extent not defined, shall have the meaning set forth in the
Plan, a copy of which is included with this Agreement.
(b) Subject to the terms and conditions of this Agreement, a percentage of the
Restricted Stock shall vest and no longer be subject to any restriction in
accordance with the schedule set forth below:
Percentage of Restricted Stock Vesting
Vesting Dates On Each Specified Vesting Date
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June 30, 2005 33-1/3%
June 30, 2006 33-1/3%
June 30, 2007 33-1/3%
(c) Notwithstanding the provisions of Paragraph 1(b), if the Employee's
employment is terminated with the Company due to Retirement, death or
Disability, the Restricted Stock shall vest in full.
(d) Except as provided above, in the event that the employment of the Employee
with the Company shall terminate, all unvested shares of Restricted Stock shall
be forfeited by the Employee effective immediately upon such termination. For
purposes of this Agreement, employment with the Company shall include employment
with the Company's Consolidated Subsidiaries and its successors. Nothing in this
Agreement or the Plan shall confer upon the Employee any right to continue in
the employ of the Company, its Consolidated Subsidiaries or
any of its affiliates, or interfere in any way with the right of the Company,
its Consolidated Subsidiaries or any such affiliates to terminate the Employee's
employment at any time.
2. Issuance of Shares.
Subject to Paragraph 3 and Paragraph 8 (pertaining to the withholding
of taxes), as soon as practicable after each vesting event under Paragraph 1(b)
or, if the Employee's employment is terminated pursuant to Paragraph 1(c), as
soon as practicable after such termination (in each case, provided there has
been no prior forfeiture of the Restricted Stock pursuant to the terms of this
Agreement and the Plan), the Company shall issue (or cause to be delivered) to
the Employee one or more unlegended stock certificates with respect to the
Restricted Stock vesting or as a result of such termination, as the case may be
(or shall take other appropriate steps to reflect the Employee's unrestricted
ownership of all or a portion of the Restricted Stock that is subject to this
Agreement).
3. Nontransferability of the Restricted Stock.
During the Employee's employment with the Company, the Employee cannot
sell more than fifty percent (50%) of his vested shares in excess of the
cumulative number of applicable shares issued to the Employee, subject to any
proper share withholding election. Any unvested shares of the Restricted Stock
shall not be transferable by the Employee by means of sale, assignment,
exchange, encumbrance, pledge or otherwise.
4. Rights as a Stockholder.
Except as otherwise specifically provided in this Agreement, the
Employee shall have all the rights of a stockholder with respect to the
Restricted Stock, including without limitation the right to vote the Restricted
Stock and the right to receive dividend payments. Dividends and distributions
other than regular cash dividends, if any, may result in an adjustment pursuant
to Paragraph 5.
5. Adjustment in the Event of Change in Stock; Change in Control.
(a) In the event that the Committee determines that any dividend or other
distribution (whether in the form of cash, Common Stock, other securities, or
other property), recapitalization, stock split, reverse stock split,
subdivision, consolidation or reduction of capital, reorganization, merger,
scheme of arrangement, split-up, spin-off or combination involving the Company
or repurchase or exchange of Common Stock or other rights to purchase Common
Stock or other securities of the Company, or other similar corporate transaction
or event that affects the Common Stock such that an adjustment is determined by
the Committee to be appropriate to prevent dilution or enlargement of the
benefits or potential benefits intended to be made available under the Plan,
then the Committee shall, in such manner as it may deem equitable, adjust the
number and type of shares, or, if deemed appropriate, make provision for a cash
payment to the Employee or the substitution of other property for shares of
Restricted Stock; provided, that the number of shares of Restricted Stock shall
always be a whole number.
(b) If a Change of Control (as defined on Exhibit A hereto) occurs, then the
shares of Restricted Stock that were forfeitable shall thereupon become
non-forfeitable.
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6. Payment of Transfer Taxes, Fees and Other Expenses.
The Company agrees to pay any and all original issue taxes and stock
transfer taxes that may be imposed on the issuance of shares received by an
Employee in connection with the Restricted Stock, together with any and all
other fees and expenses necessarily incurred by the Company in connection
therewith.
7. Other Restrictions.
The Restricted Stock shall be subject to the requirement that, if at
any time the Committee shall determine that (i) the listing, registration or
qualification of the shares of Common Stock subject or related thereto upon any
securities exchange or under any state or federal law, or (ii) the consent or
approval of any government regulatory body, or (iii) an agreement by the
Employee with respect to the disposition of shares of Common Stock is necessary
or desirable as a condition of, or in connection with, the delivery or purchase
of shares pursuant thereto, then in any such event, the grant of Restricted
Stock shall not be effective unless such listing, registration, qualification,
consent, approval or agreement shall have been effected or obtained free of any
conditions not acceptable to the Committee.
8. Taxes and Withholding.
No later than the date as of which an amount first becomes includible
in the gross income of the Employee for federal income tax purposes with respect
to any Restricted Stock, the Employee shall pay all federal, state, local and
foreign taxes that are required by applicable laws and regulations to be
withheld by either: (i) participating in the Company's program to have shares
withheld by the Company's transfer agent (provided that it will not result in
adverse accounting consequences to the Company), or (ii) making other payment
arrangements satisfactory to the Company. The obligations of the Company under
this Agreement shall be conditioned on compliance by the Employee with this
Paragraph 8. It is intended that the foregoing provisions of this paragraph
shall normally govern the payment of withholding taxes; however, if withholding
is not accomplished under the preceding provisions of this paragraph, the
Company shall, to the extent permitted by law, have the right to deduct any such
taxes from any payment otherwise due to the Employee, including the delivery of
the Restricted Stock that gives rise to the withholding requirement.
9. Notices.
All notices and other communications under this Agreement shall be in
writing and shall be given by hand delivery to the other party or by facsimile,
overnight courier, or registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Employee:
Xxxx X. Xxxxxx
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
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If to the Company:
Janus Capital Group Inc.
Attn: Xxxxx X. Xxxxx
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
or to such other address or facsimile number as any party shall have furnished
to the other in writing in accordance with this Paragraph 9. Notice and
communications shall be effective when actually received by the addressee.
10. Effect of Agreement.
Except as otherwise provided hereunder, this Agreement shall be binding
upon and shall inure to the benefit of any successor or successors of the
Company.
11. Laws Applicable to Construction.
The interpretation, performance and enforcement of this Agreement shall
be governed by the laws of the State of
Delaware without reference to principles
of conflict of laws, as applied to contracts executed in and performed wholly
within the State of
Delaware. In addition to the terms and conditions set forth
in this Agreement, the Restricted Stock is subject to the terms and conditions
of the Plan, which is hereby incorporated by reference.
12. Severability.
The invalidity or enforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
13. Conflicts and Interpretation.
In the event of any conflict between this Agreement and the Plan, the
Plan shall control except with respect to the definition of Change of Control
(attached hereto as Exhibit A). In the event of any ambiguity in this Agreement,
or any matters as to which this Agreement is silent, the Plan shall govern
including, without limitation, the provisions thereof pursuant to which the
Committee has the power, among others, to (i) interpret the Plan, (ii)
prescribe, amend and rescind rules and regulations relating to the Plan, and
(iii) make all other determinations deemed necessary or advisable for the
administration of the Plan.
14. Amendment.
This Agreement may not be modified, amended or waived except by an
instrument in writing signed by both parties hereto. The waiver by either party
of compliance with any provision of this Agreement shall not operate or be
construed as a waiver of any other provision of this Agreement, or of any
subsequent breach by such party of a provision of this Agreement.
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15. Headings.
The headings of paragraphs herein are included solely for convenience
of reference and shall not affect the meaning or interpretation of any of the
provisions of this Agreement.
16. Counterparts.
This Agreement may be executed in counterparts, which together shall
constitute one and the same original.
IN WITNESS WHEREOF, as of the date first above written, the Company has
caused this Agreement to be executed on its behalf by a duly authorized officer,
and the Employee has hereunto set the Employee's hand.
JANUS CAPITAL GROUP INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: V.P., Controller
--------------------------------
EMPLOYEE
/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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EXHIBIT A
A "Change of Control" shall mean the first to occur of any of the following:
(1) An acquisition by any Person of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act") of 35% or more of either (A) the
then outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (B) the combined voting power of
the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); excluding, however, the following: (i) any acquisition by
the Company; (ii) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any entity
controlled by the Company; or (iii) any acquisition pursuant to a
transaction which complies with clauses (A), (B) and (C) of subsection
(3) of this definition; or
(2) A change in the composition of the Company's Board of Directors (the
"Board") such that the individuals who, as of the first day of any
two-year period (the "Determination Date"), constitute the Board (such
Board shall be hereinafter referred to as the "Incumbent Board") cease
for any reason to constitute at least a majority of the Board as of any
date prior to the second anniversary of the Determination Date;
provided, however, for purposes of this definition, that any individual
who becomes a member of the Board subsequent to the effective date
hereof, whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a majority of those
individuals who are members of the Board and who were also members of
the Incumbent Board (or deemed to be such pursuant to this proviso)
shall be considered as though such individual were a member of the
Incumbent Board; but, provided further, that any such individual whose
initial assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other accrual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board shall not be so considered as a member of
the Incumbent Board; or
(3) Consummation of a reorganization, merger or consolidation or sale or
other disposition of all or substantially all of the assets of the
Company or the acquisition of the assets or stock of another entity
("Business Combination"); excluding, however, such a Business
Combination pursuant to which (A) all or substantially all of the
individuals and entities who are the beneficial owners, respectively,
of the Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination (the "Company
Holders") will each beneficially own, directly or indirectly, the
outstanding shares of common stock and other voting securities entitled
to vote generally in the election of directors, as the case may be, of
the corporation resulting from such Business Combination (including,
without limitation, a corporation which as a result of such transaction
owns the Company or all or substantially all the Company's assets
either directly or through one or more subsidiaries) in substantially
the same proportions (relative to the other Company Holders) as their
ownership, immediately prior to such Business Combination, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be; (B) no Person (other than
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the Company or any employee benefit plan (or related trust) of the
Company or the corporation resulting from such Business Combination)
will beneficially own, directly or indirectly, 35% or more of,
respectively, the outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting power
of the outstanding voting securities of such corporation entitled to
vote generally in the election of directors except to the extent that
such ownership existed prior to the Business Combination; and (C)
individuals who were members of the Incumbent Board will constitute at
least a majority of the members of the board of directors of the
corporation resulting form such Business Combination; or
(4) The approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
For purposes of this definition, "person" shall mean any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act).
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