TRANSITION AGREEMENT
Exhibit 10.2
[Execution Copy]
THIS TRANSITION AGREEMENT (the “Agreement”) is entered into as of September 5, 2007 (the
“Effective Date”), by and among Calamos Asset Management, Inc., a Delaware corporation (“CAM”),
Calamos Advisors LLC, a Delaware limited liability company (“Advisors”) and wholly-owned subsidiary
of its sole managing member, Calamos Holdings LLC (“Holdings”) (together with each of its
successors and assigns permitted under this Agreement sometimes referred to herein as the
“Company”), and Xxxxx X. Xxxxxx, Xx. (“Executive”).
RECITALS
WHEREAS, the Executive has been employed by the Company or its predecessor since 1998 and
currently serves as Executive Vice President, General Counsel and Secretary of the Company;
WHEREAS, the Company and Executive have mutually agreed that Executive will separate from
employment and all positions with the Company on September 14, 2007, or such earlier date provided
below;
WHEREAS, the Company desires to provide for an orderly transition of Executive’s duties and
responsibilities and Executive desires to assist the Company in obtaining an orderly transition;
WHEREAS, the Company and the Executive are parties to an Executive Employment Agreement dated
as of October 26, 2004 (the “Employment Agreement ”); and
WHEREAS, the Company and Executive now desire to enter into an agreement setting forth the
terms of Executive’s separation from employment and the rights and duties of the parties after
entering into this Agreement;
NOW THEREFORE, the parties agree as follows:
1. Defined Terms. To the extent not otherwise defined in this Agreement, capitalized
terms shall have the same meaning ascribed to them in the Employment Agreement.
2. Duties, Separation; Consulting Period. During the period beginning on the
Effective Date and ending with the Separation Date, the Executive will continue to have the same
titles, duties and responsibilities as he has as of the Effective Date. The Executive’s employment
shall terminate as of the close of business on September 14, 2007, or such earlier date determined
by the Company and communicated to the Executive with no less than seven (7) days advance written
notice and this Agreement shall constitute Executive’s resignation from all positions with the
Company and all of its affiliates as of such date (the “Separation Date”). During the period
beginning on the day following the Separation Date and ending on the earlier of: (a) a date
mutually agreed to by the Executive and the Company, (b) a date determined by the Company and
communicated to the Executive with no less than seven (7) days advance written notice, (c) the date
of the Executive’s death or (d) December 31, 2007 (such period referred to as the “Transition
Period”), the Executive agrees to provide advisory services to and otherwise assist the
Company
with respect to the transition of the duties and responsibilities currently discharged by
Executive. The Executive’s advisory duties during the Transition Period shall be those reasonably
requested by the President and Chief Executive Officer (or his designee) and shall be provided at
the Company’s offices, or by telephone or e-mail, as the President and Chief Executive Officer (or
his designee) and Executive shall mutually agree. The Company and Executive acknowledge that during
the Transition Period, Executive’s role will be that of an adviser and he will not have any
authority to act on behalf of the Company.
3. Compensation. In recognition of the Executive’s contributions to the Company and
as consideration for the release and the other promises of Executive contained in this Agreement,
which shall be deemed to include Executive’s agreement to provide advisory services as outlined
above through the last day of the Transition Period, the Company will provide Executive with the
following compensation and benefits; provided, further, that Executive timely signs and returns
this Agreement and the release attached as Exhibit A hereto, and timely signs and returns the
identical general release, pursuant to Paragraph 8 below:
(a) Base Salary and Benefit Plan Participation. During the period from the Effective
Date through the Separation Date, the Executive will continue to (i) receive his Base Salary as in
effect on the Effective Date and (ii) participate in the pension and welfare benefit plans,
perquisite programs, expense reimbursement and vacation policies pursuant to the Employment
Agreement.
(b) Transition Payments. The Company shall pay to Executive two transition payments
of $650,000 each ($1,300,000 in total) as follows: (i) the first payment shall be made on the
payroll date coinciding with or next following the Separation Date, and (ii) the second payment
shall be made on the first payroll date next following the last day of the Transition Period.
4. Effect of Breach by Executive. In the event Executive breaches his promises
hereunder, including those set forth in Section 3, then any amount described in Paragraph 3(b)
above which has not been paid as of the date of such breach shall be forfeited and no longer
payable to Executive.
5. No Additional Entitlements; Cancellation of Equity Awards. Executive understands
and acknowledges that he will have no further entitlements, other than those included in this
Agreement and except with respect to rights, if any, that have vested as of the last day of his
employment under the Company’s pension or welfare plans, rights to maintain COBRA coverage, and
such rights which he has under the indemnification provisions described in the Employment
Agreement. For avoidance of doubt, Executive understands and agrees that after the Effective Date
he will not be entitled to any bonus or other payments or grants or awards under the Long Term
Incentive Programs and all of the stock options and restricted stock units held by Executive shall
be cancelled and forfeited as of the Effective Date and shall not hereafter vest or become
exercisable.
6. Withholding. All payments required to be made by the Company hereunder to the
Executive shall be subject to withholding of such amounts relating to taxes as the Company may
reasonably determine it should withhold pursuant to any applicable law or regulation.
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7. Section 409A Compliance. It is intended that any amounts payable under this
Agreement and the Company’s and Executive’s exercise of authority or discretion hereunder shall
comply with the provisions of Internal Revenue Code Section 409A and the treasury regulations and
guidance thereunder (“Section 409A”) so as not to subject the Executive to the payment of interest
and tax penalty which may be imposed under Section 409A. Notwithstanding anything contained herein
to the contrary, if, at the Executive’s separation from service, (a) Executive is a specified
employee as defined in Section 409A and (b) any of the payments or benefits provided hereunder
constitute deferred compensation under Section 409A, then, and only to the extent required by such
provisions, the date of payment of such payments or benefits otherwise provided shall be delayed
for a period of six (6) months following the separation from service.
8. Execution of Agreement; Release of Claims. The payments and benefits to the
Executive pursuant to this Agreement are contingent upon (i) the Executive executing and delivering
to the Company this Agreement and a release of claims in the form attached to this Agreement as
Attachment A (the “Release”) by 5:00 p.m. (CDT) on Friday, September 7, 2007, and (ii) the
Executive executing and delivering to the Company on the last day of the Transition Period a
release of claims in substantially the same form as the Release, effective as of that date.
9. Entire Agreement. Executive acknowledges and agrees that this Agreement includes
the entire agreement and understanding between the parties and supercedes any prior agreements,
written or oral, including the Employment Agreement, with respect to the subject matter hereof,
including the termination of Executive’s employment after the Effective Date and all amounts to
which Executive shall be entitled whether prior to the Separation Date, the Transition Period or
thereafter; provided, however, the Company and Executive acknowledge and agree that the provisions
of Section 9 (Arbitration of Disputes), Section 11 (Executive’s Covenants), Section 12
(Indemnification), Section 13 (Successors), Section 14 (Amendment; Waiver) and paragraphs 15(c)
through 15(i) of the Employment Agreement shall continue to apply to the Company and Executive as
if fully set forth in this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, each of the parties hereto has duly executed this Transition Agreement as
of the date and year first set forth above.
| CALAMOS ADVISORS LLC | ||||||
| By: | /s/ Xxxx X. Xxxxxxx Xx. | |||||
| Its: | ||||||
| CALAMOS ASSET MANAGEMENT, INC. | ||||||
| By: | /s/ Xxxx X. Xxxxxxx, Xx. | |||||
| Its: | /s/ President and Chief Executive Officer | |||||
| EXECUTIVE | ||||||
| /s/ Xxxxx X. Xxxxxx, Xx. | ||||||
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Exhibit A
GENERAL RELEASE OF ALL CLAIMS
1. For valuable consideration, the adequacy of which is hereby acknowledged, the
undersigned (“Executive”), for himself, his spouse, heirs, administrators, children,
representatives, executors, successors, assigns, and all other persons claiming through
Executive, if any (collectively, “Releasers”), does hereby release, waive, and forever
discharge Calamos Asset Management, Inc., Calamos Holdings LLC and Calamos Advisors, LLC
(collectively, “Company”), Company’s Subsidiaries, parents, affiliates, related
organizations, employees, officers, directors, attorneys, successors, and assigns
(collectively, the “Releasees”) from, and does fully waive any obligations of Releasees to
Releasers for, any and all liability, actions, charges, causes of action, demands, damages,
or claims for relief, remuneration, sums of money, accounts or expenses (including
attorneys’ fees and costs) of any kind whatsoever, whether known or unknown or contingent or
absolute, which heretofore has been or which hereafter may be suffered or sustained,
directly or indirectly, by Releasers in consequence of, arising out of, or in any way
relating to Executive’s employment with Company or any of its affiliates and the termination
of Executive’s employment. The foregoing release and discharge, waiver and covenant not to
xxx includes, but is not limited to, all claims and any obligations or causes of action
arising from such claims, under common law including wrongful or retaliatory discharge,
breach of contract (including but not limited to any claims under the Executive Employment
Agreement between the Company and Executive, dated as of October 24, 2004, as amended from
time to time (the “Employment Agreement”), the Transition Agreement between the Company and
the Executive (the “Transition Agreement”), with respect to which this is the Release
referred to in Section 8 thereof, and any claims under any stock option and restricted stock
unit agreements between Executive and the Company) and any action arising in tort including
libel, slander, defamation or intentional infliction of emotional distress, and claims under
any federal, state or local statute including Title VII of the Civil Rights Act of 1964, the
Civil Rights Act of 1866 and 1871 (42 U.S.C. § 1981), the National Labor Relations Act, the
Fair Labor Standards Act, the Americans with Disabilities Act of 1990, the Rehabilitation
Act of 1973, the Illinois Human Rights Act, or the discrimination or employment laws of any
state or municipality, and/or any claims under any express or implied contract which
Releasers may claim existed with Releasees. This also includes a release by Executive of
any claims for breach of contract, wrongful discharge and all claims for alleged physical or
personal injury, emotional distress relating to or arising out of Executive’s employment
with Company or the termination of that employment; and any claims under the WARN Act or any
similar law, which requires, among other things, that advance notice be given of certain
work force reductions. This release and waiver does not apply to any claims or rights that
may arise after the date Executive signs this General Release. The foregoing release does
not apply to (a) any claims or rights for compensation, benefits, indemnification and any
other surviving rights now existing under the Transition Agreement, the organization
documents of the Company or any other agreement providing for indemnification regardless of
when any claim is filed, or (b) any claims or rights under directors and officers liability
insurance.
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2. Excluded from this release and waiver are any claims which cannot be waived by law,
including but not limited to the right to participate in an investigation conducted by
certain government agencies. Executive does, however, waive Executive’s right to any
monetary recovery should any agency (such as the Equal Employment Opportunity
Commission) pursue any claims on Executive’s behalf. Executive represents and warrants that
Executive has not filed any complaint, charge, or lawsuit against the Releasees with any
government agency or any court.
3. Executive agrees never to xxx Releasees in any forum for any claim covered by the
above waiver and release language. If Executive violates this General Release by suing
Releasees, other than as set forth in Section 1 hereof, Executive shall be liable to the
Company for its reasonable attorneys’ fees and other litigation costs incurred in defending
against such a suit.
4. Executive acknowledges and recites that:
(a) Executive has executed the Transition Agreement and this General Release
knowingly and voluntarily;
(b) Executive has read and understands the Transition Agreement and this
General Release in its entirety;
(c) Executive has been advised and directed orally and in writing (and this
subparagraph (c) constitutes such written direction) to seek legal counsel and any
other advice he wishes with respect to the terms of the Transition Agreement and
this General Release before executing it; and
(d) Executive’s execution of the Transition Agreement and this General Release
has not been forced by any employee or agent of the Company, and Executive has had
an opportunity to negotiate about the terms of the Transition Agreement and this
General Release.
5. This General Release shall be governed by the internal laws (and not the choice of
laws) of the State of Illinois, except for the application of pre-emptive Federal law.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
Date:
|
Executive: | |||||||||
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