EXHIBIT 10.31
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of the Effective Date specified below
(this "Agreement") by and between Janus Capital Group Inc., a Delaware
corporation (the "Company") and Xxxx Xxxxx (the "Executive").
1. Effective Date. The "Effective Date" shall mean the date, to
be mutually agreed upon by the parties, when Executive commences employment with
the Company.
2. Employment Period. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to commence and then remain in the
employ of the Company, on the terms and subject to the conditions of this
Agreement, for the period commencing on the Effective Date and ending on the
third anniversary thereof (the "Initial Period"). Following the Initial Period,
this Agreement shall automatically renew for one-year periods ("Renewal
Period"), unless either party gives notice of non-renewal at least 90 days prior
to the end of the Initial Period or any Renewal Period, as applicable. For
purposes of this Agreement, the "Employment Period" shall include the Initial
Period and any subsequent Renewal Period.
3. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period the Executive
shall serve as the Company's President and Chief Investment Officer, with
duties, authorities and responsibilities commensurate with such titles and
offices. The Executive shall report directly to the Company's Chief Executive
Officer ("CEO"), and shall be a member of the Company's senior-most management
body (other than the Company's Board of Directors (the "Board")), which as of
the Effective Date was the Company's Management Committee ("MC"). Nothing in
this Agreement shall preclude Executive's future service on the Board, if duly
nominated and elected.
(ii) During the Employment Period, and excluding
any periods of disability and vacation and sick leave to which the Executive is
entitled, the Executive agrees to devote substantially all of his attention and
time during normal business hours to the business and affairs of the Company
and, to the extent necessary to discharge the Executive's responsibilities
hereunder, to use the Executive's reasonable best efforts to perform such
responsibilities. During the Employment Period, it shall not be a violation of
this Agreement for the Executive to: (A) serve on corporate, civic or charitable
boards or committees; (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions; and (C) 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 personal investment management activities
comply with the Company's personal trading policies and, otherwise, with
applicable law.
(b) Compensation.
(i) Base Salary. During the Employment Period,
the Executive shall receive an annual base salary ("Annual Base Salary") of no
less than $500,000. The Annual Base Salary shall be reviewed by the Compensation
Committee (the "Committee") of the Company's Board of Directors (the "Board") no
less frequently than annually and may be increased (but not decreased) at the
discretion of the Committee or the Board. If the Executive's Annual Base Salary
is increased, the increased amount shall be the Annual Base Salary for the
remainder of the Employment Period, and shall be reviewed by the Compensation
Committee (the "Committee") of the Company's Board of Directors (the "Board") no
less frequently than annually and may be increased (but not decreased) at the
discretion of the Committee or the Board. The Annual Base Salary shall be
payable in installments, consistent with the Company's payroll procedures in
effect from time to time, provided that such installments shall be no less
frequent than monthly.
(ii) Annual Bonus. In addition to the Annual
Base Salary, the Executive shall be eligible to earn, for each calendar year
ending during the Employment Period, an annual bonus (an "Annual Bonus") on
terms and conditions, including performance goals, as set forth in the Executive
Bonus Plan (the "Bonus Plan") approved by the Company's Compensation Committee
at periodic meetings of that Committee. As approved by the Compensation
Committee, the Annual Bonus is performance driven. Depending upon the
performance of these Company factors, and the application of a 33.3% negative
discretionary factor available to the Compensation Committee, the Annual Bonus
can range from a low of $0 to a high of $4,000,000. The Committee shall annually
certify, to the extent required by Section 162(m) of the Internal Revenue Code
of 1986, as amended (the "Code"), whether the Executive has met the performance
goals necessary for the payment of an Annual Bonus and in the amount calculated
under the Executive Bonus Plan. Subject to Paragraph 3(b)(xvi), below, for his
work in each of the calendar years 2004 and 2005, Executive's Annual Bonus shall
be no less than $4,000,000 (which awards shall be made in 2005 and 2006,
respectively, on the same grant schedule that applies to other Peer Executives).
With respect to the bonus payable for 2004 and 2005, the negative discretionary
factor, if any, otherwise applicable to bonus payouts to other members of the MC
(the "Peer Executives") shall not be applied to reduce Executive's bonus payout.
(iii) Long-Term Incentive Compensation. At the
discretion of the Committee, the Executive shall be entitled to participate in
the Company's long term incentive ("LTI") compensation arrangements on terms and
conditions no less favorable than the terms and conditions generally applicable
to Peer Executives, as in effect from time to time. LTI awards may in the
Company's discretion be granted in the form of stock options, restricted stock,
stock units, Janus fund units, or any combination thereof. Subject to Paragraph
3(b)(xvi), below, for his work in each of the calendar years 2004 and 2005, his
awards shall be payable on dates in 2005 and 2006, respectively, when such
payments are customarily made to other Peer Executives, and in those years
Executive's LTI award shall be valued at no less than $2 million.
(iv) Special Restricted Stock Award. On the
Effective Date or as soon thereafter as is practicable (the "Stock Grant Date"),
the Company shall grant Executive a
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one-time initial allocation of Janus Capital Group ("JNS") restricted stock (the
"Restricted Stock Grant") valued at $4.7 million, based upon the fair market
price of JNS on the Stock Grant Date, which fair market value is defined under
the Company's Long Term Incentive Plan as the average of the high and low
trading price of JGC stock on the New York Stock Exchange ("NYSE") on the date
of the grant. Subject to Paragraph 3(b)(xvi), one-third (33.3%) of the
Restricted Stock Grant shall vest each year upon the satisfaction of the
Performance Criteria established by the Company as specified in Paragraph
3(b)(xvi), below, as calculated on December 31, 2004, December 31, 2005 and
December 31, 2006, respectively, all in accordance with the terms and conditions
set forth in separate documents evidencing and underlying the grant, including
without limitation the LTI Plan and Executive's restricted stock award
agreement, and shall in all respects be subject to such terms and conditions,
except as expressly modified by this Agreement.
(v) Non-Qualified Stock Option Award.
(A) On the Effective Date or as soon
thereafter as is practicable (the "Option Grant Date"), the Company shall grant
Executive a one-time Non-Qualified Stock Option Award consisting of an option to
purchase JNS stock (the "Initial Option"). The Initial Option shall be valued at
$8 million, calculated using the methodology applicable generally to stock
option grants made by the Company to Peer Executives. The Initial Option shall
have an exercise price equal to the fair market value of JNS Stock on the day of
the grant, which fair market value is defined under the Company's Long Term
Incentive Plan as the average of the high and low trading price of JGC stock on
the NYSE on the date of the grant. The Initial Option shall vest over three
years, in equal installments on December 31, 2004, December 31, 2005 and
December 31, 2006, and otherwise in accordance with the terms and conditions set
forth in separate documents evidencing and underlying the grant (so that the
grant is fully vested no later than December 31, 2006), including without
limitation the LTI Plan and Executive's nonqualified stock option award
agreement. The Initial Option shall in all respects be subject to such terms and
conditions unless such terms and conditions are expressly modified by this
Agreement. For clarity and notwithstanding any other provision of this Agreement
this Agreement shall not be construed or applied so as to give Executive more
time to exercise any vested stock option, following the termination of his
employment, than the period specified in the separate documents evidencing and
underlying the grant for the exercise of any such stock option.
(B) In the event that ninety (90) days
after the Option Grant Date the ("Provisional Period"), the fair market value of
the Company's common stock is at least ten percent (10%) lower than the fair
market value on the Option Grant Date, and, in the reasonable opinion of the
Compensation Committee, the decline in fair market value during the Provisional
Period is attributable primarily to causes, events, conditions or circumstances
that existed prior to the Effective Date of this Agreement, then the Company
shall grant Executive an additional non-qualified stock option to purchase JNS
stock (the "Supplemental Option"). The Supplemental Option shall be valued at a
sum that in the reasonable opinion of the Compensation Committee is adequate to
compensate Executive for the diminution in the value of the Initial Option
during the Provisional Period, and shall be subject to the same terms and
conditions as the Initial Option.
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(vi) Management Incentive Mutual Fund Share
Award. On the Effective Date or as soon thereafter as is practicable, the
Company shall grant Executive a one-time Management Incentive Mutual Fund Share
Award (the "Share Award") with a gross value of $2 million that will be deferred
into a Janus-family mutual fund account under a Compensation Committee-approved
deferred compensation plan, to be invested in such Janus-branded mutual fund(s)
as Executive directs (subject to the terms of the applicable prospectus(es) and
Company policies governing personal investment activities). Until the Share
Award is vested, Executive shall have the right to self-direct the investment of
the funds comprising the Share Award and any appreciation thereon among
Janus-branded mutual fund(s) of Executive's choosing, subject only to applicable
law, fund prospectus terms and Company policies governing personal investment
activities, but shall not have the right to redeem, transfer or encumber the
mutual fund shares comprising the Share Award or any appreciation thereon.
Subject to Paragraph 3(b)(xvi), one-third of the Share Award (together with any
appreciation thereon) shall vest each year upon satisfaction of the Performance
Criteria as will be established by the Company as specified in Paragraph
3(b)(xvi), below, as calculated on December 31, 2004, December 31, 2005 and
December 31, 2006, respectively, at which time the Executive shall have the
right to redeem, transfer out of the Company Funds, or otherwise encumber or
utilize the vested portion of the Share Award in his sole discretion and subject
only to applicable law, fund prospectus terms and Company policies governing
personal investment activities. Except in circumstances to which Executive is
entitled to accelerated vesting under Paragraph 4(f)(iii)(C) or Paragraph
5(c)(iii) this Agreement, below, any unvested Share Award shall be forfeited
upon the termination of Executive's employment.
(vii) Fund Performance Incentive. The Executive
shall be eligible to receive a special one-time fund performance incentive award
(a "Fund Performance Award") based on the average asset-weighted performance of
all branded funds, institutional separate accounts, sub-advised funds and
commingled pools managed or advised by the Company or its affiliates
(collectively, "Company Funds") during the two and three-fourths year period
beginning April 1, 2004, and ending on December 31, 2006 (the "Performance
Measurement Period"), as well as the performance, during the Performance
Measurement Period, of the Janus Fund, Janus Twenty Fund and Janus Worldwide
Fund (such three funds to be collectively referred to as the "Flagship Funds"),
as follows:
(A) If during the Performance
Measurement Period the asset-weighted average performance of all Company Funds
exceeds the 40th percentile as compared to peer-group funds, measured by Lipper;
and if the at the end of the Performance Measurement Period the
then-current performance of one, two or three of the Flagship Funds exceeds the
40th percentile as compared to peer-group funds, measured by Lipper; and if
Executive remains actively employed by the Company as of the end of the
Performance Measurement Period, then the Company shall grant the Executive a
Fund Performance Award in the following amount: (x) if at the end of the
Performance Management Period one Flagship Fund's then-current performance meets
or exceeds the 40th percentile, then the Fund Performance Award shall be valued
at $2 million; and (y) if at the end of the Performance Management Period two
Flagship Funds' then-current performance meets or exceeds the 40th percentile,
then the Fund
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Performance Award shall be valued at $4 million; and (z) if at the end of the
Performance Management Period three Flagship Funds' then-current performance
meets or exceeds the 40th percentile, then the Fund Performance Award shall be
valued at $6 million. Without limiting the foregoing and for purposes of
illustration only, if the asset-weighted average performance of all Company
Funds during the Performance Measurement Period is in the 23rd percentile, the
performance of the Janus Fund at the end of the Performance Measurement Period
is in the 21st percentile and the performance of the remaining two Flagship
Funds at the end of the Performance Management Period is below the 40th
percentile, then the Executive's Fund Performance Incentive would have a value
of $2 million, whereas if the asset-weighted average performance of all Company
Funds during the Performance Measurement Period is in the 31st percentile, but
the performance, at the end of the Performance Management Period, of each of the
three Flagship Funds is not at least in the 40th percentile, then Executive
would be entitled to no Fund Performance Incentive. No Fund Performance
Incentive shall be payable unless each and every condition of this Paragraph is
fully met. Without limiting the generality of the foregoing, no pro rata or
partial Fund Performance Award shall be payable under any circumstances. For
clarity, as used in this Agreement: percentile references for the Company Funds
generally shall be computed on an asset-weighted basis across all Company Funds;
and shall refer to the top, not bottom percentile, so, for example, performance
in the 40th percentile refers to performance in the top 40 percent.
(B) Any Fund Performance Award shall be
made in the form of shares in Janus-branded mutual fund(s), issued as follows.
The Company shall issue a payroll payment to Executive in the gross amount of
the Fund Performance Incentive earned by Executive, withhold required taxes, and
deposit the after-tax remainder in such Janus-branded mutual fund(s) as
Executive directs (subject to applicable law, the terms of the applicable
prospectus(es) and Company policies governing personal investment activities).
The Fund Performance Award shall be fully vested as of the date of the award but
shall be subject to a two-year holding period (which two year holding period
shall exist only if the Executive is employed by the Company during that two
year period) during which, subject to applicable law, fund prospectus terms and
written Company policies concerning personal investment activities, the
Executive shall have the right to self-direct the investment of the shares
comprising the Fund Incentive Award and any appreciation thereon among
Janus-branded mutual fund(s) of Executive's choosing, subject only to applicable
law, fund prospectus terms and Company policies governing personal investment
activities, but shall not have the right to redeem or otherwise withdraw or
transfer the shares comprising the Fund Incentive Award or any appreciation or
derivative thereof. If the Executive is no longer employed by the Company at the
beginning of, or during the two year holding period, such restrictions shall not
apply.
(viii) Apartment. During the Employment Period, the
Company shall pay reasonable expenses associated with Executive's leasing and
occupancy of an apartment in the Denver, Colorado metropolitan area.
(ix) Office and Executive Assistant. During the
Employment Period, the Company shall pay reasonable expenses associated with
Executive's maintenance of an office and employment of an executive assistant in
the New York metropolitan area.
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(x) Incentive, Savings and Retirement Plans.
During the Employment Period, the Executive shall be entitled to participate in
all other incentive plans, practices, policies and programs, and all savings and
retirement plans, practices, policies and programs, in each case on terms and
conditions no less favorable than the terms and conditions generally applicable
to the Peer Executives.
(xi) Welfare Benefit Plans. During the Employment
Period, the Executive and the Executive's spouse and dependents, as the case may
be, shall be eligible for participation in and shall receive all benefits under
welfare benefit plans, practices, policies and programs provided by the Company
and its affiliates (including, without limitation, medical, prescription,
dental, disability, employee life, group life, accidental death and travel
accident insurance plans and programs) on terms and conditions no less favorable
than the terms and conditions generally applicable to the Peer Executives.
Following the Employment Period, the Executive and the Executive's spouse and
dependents, shall be eligible for participation in, and shall receive all
benefits under the Company's or its affiliates' Health Benefits For Retirees
plan, unless such plan is modified or terminated by the Company with respect to
the Peer Executives.
(xii) Expenses. During the Employment Period, the
Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in accordance with the Company's most
favorable policies, practices and procedures in effect for Peer Executives.
(xiii) Fringe Benefits. During the Employment
Period, the Executive shall be entitled to fringe benefits on the same basis as
those provided generally at any time thereafter to the Peer Executives. Without
limitation, such benefits shall include periodic use of the Company's corporate
jet for business purposes, in accordance with the Company's policies and
practices.
(xiv) Vacation. During the Employment Period, the
Executive shall be entitled to paid vacation in accordance with the plans,
policies, programs and practices of the Company as in effect for the Peer
Executives, but in no event less than four weeks.
(xv) Relocation Benefit. If Executive notifies
the Company in writing of his intention to relocate his primary personal
residence to the Denver, Colorado metropolitan area during the Employment Period
in connection with is employment by the Company, Executive shall be eligible for
a relocation benefit under the Company's executive relocation program.
(xvi) Section 162(m) Performance Criteria. The
Parties acknowledge and agree that compensation payable to Executive under this
Agreement, including without limitation cash (other than base pay), the
Restricted Stock Grant and Share Award, shall be subject to and conditioned upon
such terms and conditions as are required to obtain full deductibility under
Section 162(m) of the Internal Revenue Code, including without limitation the
establishment, and Executive's attainment of, performance-based benchmarks (the
"Performance Criteria"). The Performance Criteria for 2004 shall be established
in the reasonable discretion of
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the Compensation Committee after consultation with Executive, and for following
years, the Performance Criteria shall be established in the reasonable
discretion of the Compensation Committee after consultation with Executive, and
shall be provided, during the first quarter of each year following calendar year
2004.
(xvii) Satisfaction of Withholding Requirements.
All grants and payments to Executive under this Agreement are subject to and
conditioned upon satisfaction of all applicable tax withholding requirements.
The Executive agrees to use his best efforts to ensure satisfaction of all such
withholding requirements, and shall execute all documents and take all action
reasonably deemed necessary by the Company to ensure compliance with all such
withholding requirements.
4. Termination of Employment.
(a) Death or Disability. The Executive's employment shall
terminate automatically upon the Executive's death during the Employment Period.
If the Company determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may provide to the Executive written notice in accordance
with Paragraph 11(b) of this Agreement of its intention to terminate the
Executive's employment. In such event, the Executive's employment with the
Company shall terminate effective on the 30th day after receipt of such notice
by the Executive (the "Disability Effective Date"), provided that, within the 30
days after the receipt of such notice, the Executive shall not have returned to
full-time performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the Executive's duties
with the Company on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness, which is determined to
be total and permanent by a physician selected by the Company or its insurers
and reasonably acceptable to the Executive or the Executive's legal
representative.
(b) Cause. The Company may terminate the Executive's
employment during the Employment Period with or without Cause. For purposes of
this Agreement, "Cause" shall mean:
(i) the continued failure of the Executive,
during any period after the one-year anniversary of the Effective Date, to
perform substantially the Executive's duties with the Company (other than any
such failure resulting from incapacity due to physical or mental illness, but
including a failure by Executive for any other reason to meet reasonable,
material performance expectations that are not measured by Company economic
performance, or that are not measured by unsatisfactory investment performance
that is not specifically attributable primarily to Executive's acts or
omissions), after a written demand for substantial performance is delivered to
the Executive by the Board or its representative, which specifically identifies
the manner in which the Board believes that the Executive has not substantially
performed the Executive's duties and which gives the Executive no fewer than 120
(one-hundred twenty) days to cure the deficiency noted therein; or
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(ii) the willful engaging by the Executive in
illegal conduct or gross misconduct that is materially and demonstrably
injurious to the Company; or
(iii) conviction of a felony (other than a traffic
related felony) or guilty or nolo contendere plea by the Executive with respect
thereto; or
(iv) a material breach by the Executive of any
material provision of this Agreement; provided that, if such breach is promptly
curable, the Company shall not have the right to terminate Executive's
employment for Cause pursuant to this Paragraph 4(b)(iv) unless Executive,
having received written notice of the breach, fails to cure the breach within a
reasonable time; or
(v) a willful or reckless violation of a
material regulatory requirement, or of any material written Company policy or
procedure, that is materially and demonstrably injurious to the Company; or
(vi) Executive's failure to obtain or maintain,
or inability to qualify for, any license required for the performance of
Executive's material job responsibilities, or the suspension or revocation of
any such license held by the Executive.
(c) No act or failure to act on the part of the Executive
shall be considered "willful" unless it is done, or omitted to be done, by the
Executive in bad faith or without reasonable belief that the Executive's act or
omission was in the best interests of the Company. Any act, or failure to act,
based upon express authority given pursuant to a resolution duly adopted by the
Board with respect to such act or omission or based upon the advice of counsel
for the Company shall be conclusively presumed to be done, or omitted to be
done, by the Executive his good faith and in the best interests of the Company.
(d) Termination Procedures.
(i) If the Company desires to terminate
Executive's employment for Cause pursuant to Paragraph 4(ii), (iii), (iv), (v)
or (vi), above, the cessation of employment of the Executive shall not be deemed
to be for Cause unless and until there shall have been delivered to the
Executive a copy of a resolution duly adopted by the affirmative vote of not
less than two-thirds of the entire membership of the Board (not including the
Executive) at a meeting of the Board called and held for such purpose (after
reasonable notice is provided to the Executive and the Executive is given an
opportunity, together with counsel, to be heard before the Board) (a "Two-Thirds
Board Vote"), finding that, in the good faith opinion of the Board, the
Executive is guilty of the conduct described in Paragraph 4(ii), (iii), (iv),
(v) or (vi), above, and specifying the particulars thereof in detail.
(ii) If the Company desires to terminate
Executive's employment for Cause pursuant to Paragraph 4(i), above, the
cessation of employment of the Executive shall not be deemed to be for Cause due
to Executive's failure to meet the Company's reasonable, material performance
expectations that are not measured by the Company's economic performance or that
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are not measured by unsatisfactory performance that is not specifically
attributable primarily to Executive's act or omissions, except pursuant to a
resolution duly adopted by the affirmative vote of not less the entire
membership of the Board (not including the Executive) less one (meaning, for
example, that at least 11 of 12 Board Members, or at least 5 of 6, must vote in
support of the resolution) at a meeting of the Board called and held for such
purpose (after reasonable notice is provided to the Executive and the Executive
is given an opportunity, together with counsel, to be heard before the Board),
finding that, in the good faith opinion of the Board, the Executive failed to
timely cure the performance deficiency in question.
(e) Good Reason. The Executive may terminate his
employment for Good Reason and such a termination shall be treated as a
termination "not for Cause." For purposes of this Agreement, "Good Reason" shall
mean in the absence of a written consent of the Executive:
(i) a significant and non-temporary reduction in
Executive's authority, title or duties, or the assignment to Executive of
material duties that are inconsistent with Executive's position, in either case
of a magnitude that changes the fundamental character of Executive's job to such
an extent as to constitute a de facto demotion, and in either case excluding for
this purpose any action not taken in bad faith and that is remedied by the
Company promptly after receipt of notice hereof given by the Executive as
provided in Paragraph 4(e), below, and in either case further excluding any
reduction or change consisting of a mere change of the Company's organizational
chart, and in either case further excluding any change in organizational
structure or reporting relationships that is ordered or precipitated by any
applicable regulator or judicial officer, or that is specified in any agreement
between the Company and any regulator to resolve any pending dispute or
regulatory enforcement proceeding;
(ii) Executive's removal from the position of
President or Chief Investment Officer of the Company, or removal from the
Company's senior-most management body (other than the Company's Board of
Directors); or
(iii) any material reduction in the overall value
of the Executive's compensation and benefits package, other than a reduction not
occurring in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive as provided in Paragraph 4(e),
below, and excluding any reduction applicable equally to all Peer Executives,
unless such reduction follows a Change of Control (as defined below) (in which
case such a reduction would constitute Good Reason) or an extraordinary decline
in the Company's earnings, share price or public image; provided that Good
Reason shall include a non-consensual material reduction in the overall value of
the Executive's compensation and benefits package that is applicable equally to
all Peer Executives and that precedes a Change of Control and that follows an
extraordinary decline in the Company's earnings, share price or public image if,
but only if, in the reasonable opinion of the Compensation Committee the
extraordinary decline in the Company's earnings, share price or public image
relates to causes, events, conditions or circumstances that existed prior to the
Effective Date; or
(iv) any failure by the Company to comply with
and satisfy Paragraph 9(c) of this Agreement, excluding for this purpose any
action not taken in bad faith and which is
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remedied by the Company promptly after receipt of notice hereof given by the
Executive as provided in Paragraph 4(e), below; or
(v) any change in Executive's reporting
relationship that results in Executive's reporting to someone other than the
Company's Chief Executive Officer or, under the circumstances contemplated in
Paragraph 4(f)(i), below, to the Chairman of the Company's Board; or
(vi) continuing, after reasonable notice from
Executive, to direct Executive to take any action that in Executive's
good-faith, considered and informed judgment violates any applicable legal or
regulatory requirement; or
(vii) requiring Executive to relocate outside of
the New York metropolitan area (excepting only as anticipated in Paragraph
4(f)(iii), below).
The Executive's mental or physical incapacity following the occurrence
of an event described above in clauses (i) through (vii) shall not affect the
Executive's ability to terminate employment for Good Reason.
(e) Sunset on Right to Terminate for Good Reason. If
circumstances arise giving Executive the right to terminate this Agreement for
Good Reason, the Executive shall within 120 days notify the Company in writing
of the existence of such circumstances, and the Company shall have an additional
30 days within which to investigate and remedy the circumstances, after which 30
days the Executive shall have an additional 60 days within which to exercise the
right to terminate for Good Reason. If Executive does not timely do so the right
to terminate for Good reason shall lapse and be deemed waived, and the Executive
shall not thereafter have the right to terminate for Good Reason unless further
circumstances occur giving rise independently to a right to terminate for Good
Reason, in which case the provisions of this Paragraph 4(e) shall once again
apply, but in which case no consideration shall be given to other, prior
circumstances that precipitated a notice by Executive of a purported right to
terminate for Good Reason.
(f) Termination By Executive Due to a Qualifying
Reporting Change.
(i) If, during the 6 (six) months following the
Effective Date, Xxxx Xxxxxxx ceases to serve as the Company's CEO and the
Company requires Executive to report, during such six (6) month period, to
someone other than Xxxxx Xxxxxx, in his capacity as the Chairman of the Board
and/or, if applicable, CEO (collectively, a "Qualifying Reporting Change"), then
Executive may terminate his employment due to a Qualifying Reporting Change and
receive the benefits specified in this Paragraph 4(f).
(ii) Notwithstanding any other provision of this
Agreement, Executive shall not have the right to terminate his employment due to
a Qualifying Reporting Change:
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(A) earlier than 9 (nine) months, or later
than 12 (twelve) months (such three month period to be referred to herein as the
"Transition Period"), following the date upon which the Qualifying Reporting
Change became effective; or
(B) if the Company offers to Executive,
and Executive declines, employment as the Company's CEO to be effective no later
than the end of the Transition Period and on terms and conditions substantially
similar to those applicable, as of the Effective Date, to Xx. Xxxxxxx in his
capacity as the Company's CEO (which terms shall include a requirement that
Executive relocate to Colorado).
(iii) If Executive terminates his employment due to
a Qualifying Reporting Change in conformity with this Paragraph 4(f), then the
Company shall make the payments specified in Paragraph 5(a), below, and in
addition, conditioned upon Executive's execution (and if applicable
non-revocation) of a Conforming Legal Release (as defined in Paragraph 5(c),
below), the Company shall:
(A) pay to the Executive, in a lump sum
and in cash, severance compensation in gross amount of $3.5 million, which shall
be payable no later than ten (10) days after the Date of Termination; and
(B) for the 12 (twelve) months following
the Date of Termination, the Company shall continue to provide the benefits
described in Paragraph 3(b)(xi) to the Executive and his spouse and dependents
on the same basis such benefits were provided to the Executive immediately prior
to the Date of Termination, and, if such benefits cannot be provided, a lump sum
cash equivalent thereof, grossed-up for taxes (collectively "Welfare Benefits");
and
(C) Executive shall receive 1 (one) year
of accelerated vesting credit with respect to the awards set forth in Paragraph
3(b)(iv), 3(b)(v) and 3(b)(vi), above, all subject to and as limited by the
terms of the agreement(s), certificate(s) and/or equity incentive plans
underlying each such grant (except as expressly modified by this Agreement); and
(D) Executive shall be entitled to the
Accrued Benefits defined in paragraph 5(a), below, and any other compensation
owed, earned or vested in or from prior years, all to the extent not yet paid,
but shall not be deemed to have earned, and shall be ineligible to receive, any
form of severance pay or other compensation or Company-provided benefit of any
kind, expect as specified in this Paragraph 4(f)(iii).
(g) Notice of Termination. Any termination by the Company
for Cause, or by the Executive for Good Reason, or by the Executive due to a
Qualifying Reporting Change, shall be communicated by Notice of Termination to
the other party hereto given in accordance with Paragraph 11(b) of this
Agreement. For purposes of this Agreement, a "Notice of Termination" means a
written notice which: (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated and (iii) if the
Date of Termination (as defined below) is other than the date of receipt of
11
such notice, specifies the termination date (which date shall be not more than
thirty days after the giving of such notice). The failure by the Executive or
the Company to set forth in the Notice of Termination any fact or circumstance
which contributes to a showing of Good Reason, Cause, or a Qualifying Reporting
Change, shall not constitute a waiver of any right of the Executive or the
Company, respectively, hereunder or preclude the Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing the
Executive's or the Company's rights hereunder.
(h) Date of Termination. "Date of Termination" means (i)
if the Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, or by the Executive due to a Qualifying Reporting
Change, the date of receipt of the Notice of Termination or any later date
specified therein within 30 days of such notice, as the case may be, (ii) if the
Executive's employment is terminated by the Company other than for Cause or
Disability, the Date of Termination shall be the date on which the Company
notifies the Executive of such termination and (iii) if the Executive's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the Disability
Effective Date, as the case may be.
5. Obligations of the Company upon Termination.
(a) Upon any termination of Executive's employment, the
Company shall pay to the Executive, in a lump sum in cash within 30 days after
the Date of Termination, the "Accrued Obligations," which shall be the sum of:
(i) the Executive's Annual Base Salary through
the Date of Termination; and
(ii) any fully earned but as-yet unpaid Annual
Bonus with respect to the fiscal year of the Company prior to the Date of
Termination.
(b) For purposes of this Agreement, "Change of Control"
shall mean:
(i) 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 Paragraph 1(d); or
(ii) A change in the composition of the Board
such that the individuals who, as of the first day of any two year period (the
"Determination Date"), constitute the Board
12
(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 Paragraph 1(d), 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
(iii) 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 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
from such Business Combination; or
(iv) 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).
(c) Severance Pay. If, during the Employment Period, the
Company terminates the Executive's employment other than for Cause, death or
Disability, or the Executive terminates his employment for Good Reason pursuant
to Paragraph 4(c)(i)(vii) (but, for clarity,
13
not if Executive terminates his employment due to a Qualifying Reporting
Change), then, conditioned upon Executive's execution (and if applicable
non-revocation) of a legal release in a form reasonably satisfactory to Company
in its discretion (but not in any event imposing upon Executive any restrictive
covenant different than those set forth in Paragraph 8, below) upon Executive
and drafted and executed so as to ensure a final, complete and enforceable
release of all claims that Executive has or may have against Company relating to
or arising in any way from Executive's employment with Company and/or the
termination thereof (but excepting claims for indemnification or defense,
whether under contract or otherwise), and complete and continuing
confidentiality of Company's proprietary information and trade secrets, and, at
the Company's discretion, the circumstances of Executive's separation from
Company and/or compensation received by Executive in connection with that
separation (collectively, a "Conforming Legal Release"), the Company shall:
(i) pay to the Executive, in a lump sum,
severance compensation in an amount equal to the amount that Executive would
have earned under Paragraphs 3(b)(i) and 3(b)(ii), above, if Executive had
remained employed through the end of the Initial Term, if applicable, any
then-current Renewal Period, and it shall be assumed that Executive has attained
or will attain all 162(m) performance targets and without application of a
negative discretionary factor. Without limiting the generality of the foregoing
and for purposes of illustration only, if Executive's employment is terminated
eighteen months after the Effective Date under circumstances that entitle
Executive to severance pay under this Paragraph, then the amount of severance
pay to be paid to Executive will equal 1.5 multiplied by the sum of Executive's
then-current Annual Base Salary plus Executive's then-current Annual Bonus
target; and
(ii) for the a period commencing on the Date of
Termination and concluding on the final day of the Initial Period, or, if
applicable, any then-current Renewal Period, the Company shall continue to
provide the benefits described in Paragraph 3(b)(xi) to the Executive and his
spouse and dependents on the same basis such benefits were provided to the
Executive immediately prior to the Effective Date, and, if such benefits cannot
be provided, a lump sum cash equivalent thereof, grossed-up for taxes
(collectively "Welfare Benefits"); and
(iii) all unvested cash and equity long-term
incentive award and other incentive awards granted to the Executive, including
without limitation unvested shares of JNS restricted stock, unvested options to
purchase JNS stock, and awards consisting of unvested mutual fund share
allocations, including without limitation the Share Award and the grants made
pursuant to Paragraph 3(b)(iii), 3(b)(iv), 3(b)(v) and 3(b)(vi) shall
immediately vest and/or be paid, as applicable, in full, it shall be assumed
that Executive has attained or will attain all applicable 162(m) performance
targets and without application of a negative discretionary factor, and any
stock options shall, from and after such vesting, remain exercisable for the
remainder of their respective terms, subject to and as limited by the terms of
the agreement(s), certificate(s) and/or equity incentive plans underlying each
such grant; and
(iv) to the extent not theretofore paid or
provided, the Company shall timely pay or provide to the Executive any Other
Benefits (as defined in Paragraph 6); and
14
(v) the severance pay described in the
foregoing clauses (i), (ii), (iii) and (iv) shall be paid in a lump sum in cash
(as applicable) on the later of (A) any day within the first 30 days following
the Date of Termination, or (B) if not within the first 30 days following the
Date of Termination, on the first day following such 30th day when the Company's
deduction for the payment or accrual of the severance pay described above is not
subject to the deduction limitations of Section 162(m).
(e) Death. If the Executive's employment is terminated by
reason of the Executive's death during the Employment Period, the Company shall
provide the Executive's estate or beneficiaries with the Accrued Obligations and
the timely payment or delivery of the Other Benefits (as defined in Paragraphs 5
and 6) and shall provide the Welfare Benefits to the Executive's spouse and
dependents for a three-year period commencing as of the Date of Termination, and
shall have no other severance obligations under this Agreement. In addition, all
Retention and Incentive Awards shall be treated as described in Paragraph 5(c)
(iii), above. The Accrued Obligations shall be paid to the Executive's estate or
beneficiary, as applicable, in a lump sum in cash within 30 days of the Date of
Termination. With respect to the provision of the Other Benefits, the term
"Other Benefits" as utilized in this Paragraph 5(e) shall include, and the
Executive's estate and /or beneficiaries shall be entitled to receive, benefits
at least equal to death benefits as in effect on the date of the Executive's
death with respect to Peer Executives of the Company and their beneficiaries.
(f) Disability. If the Executive's employment is
terminated by reason of the Executive's Disability during the Employment Period,
the Company shall provide the Executive with the Accrued Obligations and the
timely payment or provision of the Other Benefits (as defined in Paragraph 5 and
6) and the provision of Welfare Benefits to the Executive, his spouse and
dependents for a three- year period commencing as of the Date of Termination.
All Retention and Incentive Awards shall be treated as described in Paragraph
5(c)(iii), above. The Accrued Obligations shall be paid to the Executive in a
lump sum in cash within 30 days of the Date of Termination. With respect to the
provision of Other Benefits, the term "Other Benefits" as utilized in this
Paragraph 5(f) shall include, and the Executive shall be entitled after the
Disability Effective Date to receive, disability and other benefits as in effect
at any time thereafter generally with respect to Peer Executives of the Company
and their families.
(g) Cause; Other than for Good Reason. If the Company
terminates Executive's employment for Cause or the Executive terminates his
employment without Good Reason during the Employment Period, this Agreement
shall terminate without further obligations to the Executive other than the
obligation to pay to the Executive the Accrued Obligations (as defined in
paragraph 5(a)) and the Other Benefits (as defined in Paragraph 6), in each case
to the extent theretofore unpaid. In the event of a termination for cause under
4(b)(1), the Executive shall receive the compensation set forth in
3(b)(i)(ii)(iii)(iv)(v) and (vi), without forfeiture, the accrued obligations,
and, upon signing a release, the severance in 5(c)(i).
(h) At the end of the Employment Period or thereafter. If
the Executive's employment shall terminate at the end of the Employment Period
by virtue of the expiration of this Agreement or for any other reason
thereafter, the Company shall pay to the Executive the
15
Accrued Obligations; any accrued and unpaid vacation, if any; and the Other
Benefits (as defined in Paragraph 6), in each case to the extent theretofore
unpaid.
(i) Excise Tax. Notwithstanding any other language to the
contrary in this Agreement or in this Paragraph 5, the Company shall not be
obligated to pay and shall not pay that portion of any payment or distribution
in the nature of compensation within the meaning of Section 280G(b)(2) of the
Code to the benefit of the Executive otherwise due or payable the Executive
under this Agreement or this Paragraph 5 if that portion would cause any excise
tax imposed by Section 4999 of the Code to become due and payable by the
Executive.
6. Non-exclusivity of Rights. Except as otherwise specifically
provided in this Agreement, nothing in this Agreement shall prevent or limit the
Executive's continuing or future participation in any plan, program, policy or
practice provided by the Company for which the Executive may qualify, nor shall
anything herein limit or otherwise negatively affect such rights as the
Executive may have under any contract or agreement with the Company or any of
its affiliated companies. Amounts that are vested benefits, consisting of any
compensation previously deferred by the Executive, or that the Executive is
otherwise entitled to receive under any plan, policy, practice or program of or
any contract or agreement with the Company at or subsequent to the Date of
Termination ("Other Benefits") shall be payable in accordance with such plan,
policy, practice or program or contract or agreement except as explicitly
modified by this Agreement. Notwithstanding any other provision of this
Agreement, the Executive shall not be entitled to receive any payments or
benefits under any severance program other than that which are described and
anticipated under this Agreement or under any Change of Control Agreement.
7. Full Settlement. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall be subject to any lawful indebtedness owed by the Executive to
the Company. 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.
8. 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 8 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) Protection of Confidential Information.
16
(i) Definition of "Confidential Information."
"Confidential Information" means all nonpublic information (whether in paper or
electronic form, or contained in Executive's memory, or otherwise stored or
recorded) relating to or arising from Company's business, including, without
limitation, trade secrets used, developed or acquired by Company in connection
with its business. Without limiting the generality of the foregoing,
"Confidential Information" shall specifically include all information concerning
the manner and details of Company's operation, organization and management;
financial information and/or documents and nonpublic policies, procedures and
other printed, written or electronic material generated or used in connection
with Company's business; Company's business plans and strategies; the identities
of Company's customers and the specific individual customer representatives with
whom Company works; the details of Company's relationship with such customers
and customer representatives; the identities of distributors, contractors and
vendors utilized in Company's business; the details of Company's relationships
with such distributors, contractors and vendors; the nature of fees and charges
made to Company's customers; nonpublic forms, contracts and other documents used
in Company's business; all information concerning Company's employees, agents
and contractors, including without limitation such persons' compensation,
benefits, skills, abilities, experience, knowledge and shortcomings, if any; the
nature and content of computer software used in Company's business, whether
proprietary to Company or used by Company under license from a third party; and
all other information concerning Company's concepts, prospects, customers,
employees, agents, contractors, earnings, products, services, equipment,
systems, and/or prospective and executed contracts and other business
arrangements. "Confidential Information" does not include information that is in
the public domain through no wrongful act on the part of Executive, nor does it
include information, knowledge and know-how already within Executive's
possession or memory before the Effective Date. In the event of a dispute
concerning whether Executive had Confidential Information within his possession
or memory before the Effective Date, the Company shall have the burden of
proving that the Confidential Information in question was not in the Executive's
memory before the Effective Date, and that Executive used or disclosed such
Confidential Information in violation of this Agreement.
(ii) Executive's Use of Confidential Information.
Except in connection with and in furtherance of Executive's work on Company's
behalf, Executive shall not, without Company's prior written consent, at any
time, directly or indirectly: (i) use any Confidential Information for any
purpose; or (ii) disclose or otherwise communicate any Confidential Information
to any person or entity.
(iii) Records Containing Confidential Information.
"Confidential Records" means all documents and other records, whether in paper,
electronic or other form, that contain or reflect any Confidential Information.
All Confidential Records prepared by or provided to Executive are and shall
remain Company's property. Except in connection with and in furtherance of
Executive's work on Company's behalf or with Company's prior written consent,
Executive shall not, at any time, directly or indirectly: (i) copy or use any
Confidential Record for any purpose; or (ii) show, give, sell, disclose or
otherwise communicate any Confidential Record or the contents of any
Confidential Record to any person or entity. Upon the termination of Executive's
employment with Company, or upon Company's request, Executive shall immediately
17
deliver to Company or its designee (and shall not keep in Executive's possession
or deliver to any other person or entity) all Confidential Records and all other
Company property in Executive's possession or control
(c) During the Executive's employment with the Company,
and for a period of one year following the Date of Termination for any reason,
the Executive shall not (nor shall the Executive 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, 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 six month period
immediately preceding the Executive'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 six month 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.
(d) "Competitive Business" means any business which
provides investment advisory or investment management services. For the purposes
of this Paragraph 8, "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.
(e) For clarity and without limiting the generality of
the foregoing, this Agreement shall not be applied so as to prohibit Executive
from returning, at any time, to work for Xxxxxxx Xxxxx Asset Management,
Alliance Xxxxxxxxx or any other financial services business or financial
institution, public or private, so long as, in performing services for such a
subsequent employer, Executive complies with his obligations, under Paragraph
8(b), above, to refrain from misusing or disclosing the Company's Confidential
Information," interfering with the Company's human resource and business
relationships, and diverting Company business opportunities, all as detailed in
Paragraph 8(b), above.
(f) If any court shall determine that the duration,
geographic limitations, subject or scope of any restriction contained in this
Paragraph 8 is unenforceable, it is the intention
18
of the parties that this Paragraph 8 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 8 in the
jurisdiction of the court that has made the adjudication.
(g) The Executive acknowledges that the restrictive
covenants of Paragraph 8 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 8. In the event any of the covenants of Paragraph 8 are 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.
9. Successors.
(a) This Agreement is personal to the Executive and
without the prior written consent of the Company shall not be assignable by the
Executive otherwise than by Will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company shall 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. As used in this Agreement, "Company" shall mean the
Company as hereinbefore defined and any successor to its business and/or assets
as aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
10. Indemnification and Directors and Officers' Insurance.
(a) Scope of Indemnification.
(i) General Indemnification The Company shall
indemnify and defend the Executive to the fullest extent permitted under
Delaware law (including without limitation the Delaware Corporation law and the
Company's Certificate of Incorporation and By Laws) 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 (collectively "Indemnified Liabilities") 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.
19
(ii) Special Indemnification. In addition to
Executive's rights to indemnification as set forth above and in the by laws of
the Company, the Company shall indemnify Executive and hold Executive harmless
from and against any and all liabilities, suits, claims, actions, causes of
action, judgments, settlements, debts and expenses (including attorneys fees) of
any kind whatsoever and arising from and in connection with any events that
occurred at the Company prior to the commencement of Executive's employment on
the Effective Date (collectively, "Preexisting Matters"); provided that with
respect to Indemnified Liabilities relating to or arising from Executive's acts
and omissions following the Effective Date, whether or not such Indemnified
Liabilities related in whole or part to any Preexisting Matter, Executive shall
be entitled to indemnification only as specified in Paragraph 10(a)(i), above,
and not under the provisions of this Paragraph 10(a)(ii), which shall apply only
to claims and liabilities arising from events, acts and omissions in which
Executive played no role because they predated his employment by the Company.
(b) Indemnification Limitations and Procedures.
(i) Such indemnification is subject to:
(A) the indemnifying party promptly
receiving written notice that a claim or liability has been asserted or
threatened ("Notice of Claim"); and
(B) the indemnified party providing
reasonable cooperation and assistance in the defense or settlement of a claim;
and
(C) the indemnifying party being
afforded the opportunity to have the sole control over the defense or settlement
of such claim or liability.
(ii) Unless within ten 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.
(iii) Such indemnification shall continue as to
the Executive during the Employment Period and for ten years from the Date of
Termination with respect to acts or omissions which 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.
20
(c) 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
termination 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 section
shall obligate the Company to obtain extraordinary insurance coverage for the
Executive. Insurance contemplated under this Paragraph 10(c) shall inure to the
benefit of the Executive's heirs, executors and administrators.
11. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect, This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall
be in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive: At the most recent address on
file at the Company,
And with a copy to:
Xxxxxx Xxxxxxx
Xxxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
xxx@xxxxxxxxxxxx.xxx
If to the Company:
Janus Capital Group Inc.
21
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn.: General Counsel
or to such other address as either party shall have furnished to the
other in writing in accordance herewith, Notice and communications shall be
effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The Company may withhold from any amounts payable
under this Agreement such Federal, state, local or foreign taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist
upon strict compliance with any provision of this Agreement or the failure to
assert any right the Executive or the Company may have hereunder shall not be
deemed to be a waiver of such provision or right or any other provision or right
of this Agreement.
(f) In the event of any dispute relating to or arising
from this Agreement, the party substantially prevailing shall recover from the
other party its costs, including reasonable attorneys' fees.
(g) In the event of any dispute relating to or arising
from this Agreement, the forum in which the dispute shall be tried shall be
determined by the judge assigned to the first-filed such action, who shall
resolve the dispute in accordance with the law generally governing such matters
but who also shall give particular emphasis to the location of relevant
witnesses, records and events, and who shall presume that each party has
adequate economic and other resources to litigate this matter fully and fairly
in any otherwise appropriate forum.
[SIGNATURES FOLLOW]
22
Xxxx Xxxxx Janus Capital Group Inc.
Signed: /s/ XXXX XXXXX By: /s/ XXXX X. XXXXXXX
------------------------------ -----------------------------
Date: March 12, 2004 Date: March 12, 2004
-------------------------------- ---------------------------
23
