EXHIBIT NO. 10.34
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of January 1, 2003, (this "Agreement") by and
between Janus Capital Group Inc., a Delaware corporation (the "Company") and
Xxxx X. Xxxxxxx (the "Executive").
WHEREAS, the Board of Directors of the Company (the "Board"), has
determined that it is in the best interests of the Company and its stockholders
for the Company to have the continued dedication and services of the Executive;
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Effective Date. The "Effective Date" shall mean January 1, 2003.
2. Employment Period. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to continue 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 December 31, 2005 (the
"Initial Period"); provided that commencing on January 1, 2006 and as of January
1 of each year thereafter (a "Renewal Date"), this Agreement shall automatically
renew for additional one-year periods (each, a "Renewal Period", and as renewed,
the "Employment Period"), unless either party gives notice of non-renewal at
least 90 days prior to the next Renewal Date.
3. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period, (A) the Executive shall serve
as Chief Executive Officer of the Company, reporting directly to the Board of
Directors of the Company, as a member of the Board and as Vice-Chairman of the
Board, with duties, authorities and responsibilities commensurate with such
title and office and (B) the Executive's services shall be performed in Denver,
Colorado. Effective January 1, 2004, the Executive shall serve as Chairman of
the Board.
(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, 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. It is expressly understood and agreed that to the extent that any
such activities have been conducted by the Executive prior to the Effective
Date, the continued
conduct of such activities (or the conduct of activities similar in nature and
scope thereto) subsequent to the Effective Date shall not thereafter be deemed
to interfere with the performance of the Executive's responsibilities to the
Company.
(b) Compensation.
(i) Base Salary. During the Employment Period, the Executive
shall receive an annual base salary ("Annual Base Salary") of no less than
$600,000. The Annual Base Salary shall be reviewed by the Compensation Committee
of the Board (the "Committee") 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. 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 fiscal 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 approved
by the Company's Compensation Committee at its March 17, 2003, meeting. As
approved by the Compensation Committee, the Annual Bonus is performance driven
and dependent upon Company factors of operating income, fund performance and
gross new sales. Depending upon the performance of these Company factors, and
the application of a possible - 33.3 % negative discretionary factor available
to the Compensation Committee, the Annual Bonus can range from a low of $0 to a
high of $11,460,000. The Committee shall annually certify, to the extent
required by Section 162(m) of the Internal Revenue Code of 1986, as amended (the
"Code"), that 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.
(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 compensation arrangements on terms and conditions no less
favorable than the terms and conditions generally applicable to other members of
the Company's Management Committee (the "Peer Executives"), as in effect from
time to time.
(iv) 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.
(v) 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
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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.
(vi) 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.
(vii) 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.
(viii) 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.
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 Section 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 willful and continued failure of the Executive to
perform substantially the Executive's duties with the Company (other than any
such failure resulting from incapacity due to physical or mental illness), 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; or
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(ii) the willful engaging by the Executive in illegal conduct
or gross misconduct which 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
provisions of this Agreement; or
(v) a willful violation of a material regulatory requirement
which is materially and demonstrably injurious to the Company.
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 in good faith and in the best interests of the Company. 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 subparagraph (i), (ii), (iii), (iv) or (v) above, and specifying
the particulars thereof in detail.
(c) Good Reason. The Executive's employment may be terminated by the
Executive for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean in the absence of a written consent of the Executive:
(i) the failure to have authority, duties or responsibilities
consistent with the Executive's position (including status, offices, titles and
reporting requirements) as contemplated by the Agreement, or any action by the
Company which results in a material diminution in such position, authority,
duties or responsibilities, or the assignment to the Executive of material
duties inconsistent with the Executive's position as Vice Chairman of the Board
and Chief Executive Officer of the Company, and beginning January 1, 2004,
Chairman of the Board and Chief Executive Officer of the Company, excluding for
this purpose any action not taken in bad faith and which is remedied by the
Company promptly after receipt of notice hereof given by the Executive; or
(ii) any failure by the Company to comply with any of the
provisions of Section 3(b) of this Agreement, other than a failure not occurring
in bad faith and which is remedied by the Company promptly after receipt of
notice thereof given by the Executive; or
(iii) the Company's requiring the Executive to be based at any
office or location other than that provided in Section 3(a)(i)(B) hereof; or
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(iv) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by this Agreement;
or
(v) any failure by the Company to comply with and satisfy
Section 9 (c) of this Agreement.
(vi) the failure of the Executive to continue, except pursuant
to his voluntary resignation or the failure of the Company shareholders to
approve his reelection, to serve as a member of the Board; or
(vii) the failure of the Executive to continue, except pursuant
to his voluntary resignation, to serve as Vice Chairman of the Board or,
beginning January 1, 2004, except pursuant to his voluntary resignation, the
failure of the Executive to serve as Chairman of the Board.
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. For purposes of
this Section 4(c), any good faith determination of Good Reason made by the
Executive, and not overturned by a Two-Thirds Board Vote, shall be conclusive.
The failure of the Executive to be a member of the Board or the Vice Chairman
or, beginning January 1, 2004, the Chairman of the Board shall constitute Good
Reason only if such failure satisfies the provisions of Section 4(c) (vi) or
Section 4(c) (vii).
(d) Notice of Termination. Any termination by the Company for Cause, or
by the Executive for Good Reason, shall be communicated by Notice of Termination
to the other party hereto given in accordance with Section 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 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 or Cause 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.
(e) 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 without Good Reason, 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.
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(f) Without Good Reason. The Executive's employment may be terminated
by the Executive without Good Reason.
5. Obligations of the Company upon Termination. (a) Other Than for
Cause, Death or Disability; Good Reason. If, during the Employment Period, (i)
the Company shall terminate the Executive's employment other than for Cause,
death or Disability, or (ii) the Executive shall terminate his employment for
Good Reason pursuant to Section 4(c)(i)-(vii):
(i) the Company shall pay to the Executive in a lump sum in
cash within 30 days after the Date of Termination, the aggregate of the
following amounts:
A. the sum of (1) the Executive's Annual Base Salary through
the Date of Termination, (2) any unpaid Annual Bonus with respect to
the fiscal year of the Company prior to the Date of Termination , (3)
any accrued and unpaid vacation, if any, and (4) the product of (x) the
Annual Bonus with respect to the fiscal year of the Company prior to
the Date of Termination or, if none, any annual bonus paid with respect
to the fiscal year of the Company prior to the Date of Termination
(actual sales commissions paid to be treated as an annual bonus for
this purpose) and (y) a fraction, the numerator of which is the number
of days in the fiscal year in which the Date of Termination occurs
through the Date of Termination, and the denominator of which is 365,
in each case to the extent not theretofore paid (the sum of the amounts
described in clauses (1), (2), (3) and (4), shall be hereinafter
referred to as the "Accrued Obligations"); and
B. an amount equal to the product of (1) three and (2) the sum
of (a) the Annual Base Salary and (b) the average of the actual sales
commissions paid, if any, for the last three full fiscal years prior to
the Date of Termination (including fiscal years prior to the Effective
Date), and for any of the three such fiscal years for which a sales
commission was not paid, the Annual Bonus with respect to such fiscal
year; and
(ii) for the three-year period commencing on the Date of
Termination, the Company shall continue to provide the benefits described in
Section 3(b) (v) 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) any unvested cash and equity long-term incentive award or
other incentive awards granted to the Executive, including any unvested shares
of limited liability company interests, in the Company, Janus Capital Management
LLC or in any of their affiliated companies held by the Executive (collectively,
"Retention and Incentive Awards"), shall immediately vest and/or be paid, as
applicable, in full and any stock options shall, from and after such vesting,
remain exercisable for the remainder of their respective terms; 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 Section 6).
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(b) 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 Section 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 Section
5(a) (iii). 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 Section
5(b) 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.
(c) 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
Section 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 Section 5(a) (iii). 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 Section 5(c)
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.
(d) Cause; Other than for Good Reason. If the Executive's
employment shall be terminated 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 (i) his Annual Base
Salary through the Date of Termination, (ii) any accrued and unpaid
vacation, if any, and (iii) the Other Benefits (as defined in Section
6), in each case to the extent theretofore unpaid. Notwithstanding any
other provisions of this Agreement, including without limitation the
provisions of Section 2 and of the prior sentence, in the event that
the Executive elects within 60 days before October 1, 2004, to
terminate his employment with the Company as of December 31, 2004 (an
"Executive Termination"), the Company shall pay to the Executive, in
addition to the amounts set forth in the prior sentence, any unpaid
Annual Bonus with respect to the fiscal year in which the Executive
Termination occurs and with respect to any fiscal year of the Company
prior to the Executive Termination.
(e) 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 (i) his
Annual Base Salary through the Date of Termination, (ii) any unpaid
Annual Bonus with respect to the fiscal year in which the Date of
Termination occurs and with respect to any fiscal year of the Company
prior to the Date of Termination; (iii) any accrued and unpaid
vacation, if
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any, and (iv) the Other Benefits (as defined in Section 6), in each case to the
extent theretofore unpaid.
(f) Excise Tax. Notwithstanding any other language to the contrary in
this Agreement or in this Section 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 to the Executive under this Agreement
or this Section 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 or the Affiliated Companies for which the
Executive may qualify, nor shall anything herein limit or otherwise affect such
rights as the Executive may have under any contract or agreement with the
Company or any of its affiliated companies. Amounts which are vested benefits,
which consist of any compensation previously deferred by the Executive, or which
the Executive is otherwise entitled to receive under any plan, policy, practice
or program of or any contract or agreement with the Company or with the
Affiliated Companies 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 not be affected by any set-offs, counterclaim, recoupment,
defense, or other claim, right or action that the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and, such amounts
shall not be reduced whether or not the Executive obtains other employment. The
Company agrees to pay as incurred (within 10 days following the Company's
receipt of an invoice from the Executive), to the full extent permitted by law,
all legal fees and expenses that the Executive may reasonably incur as a result
of any contest (regardless of the outcome thereof unless the Executive's claim
is determined by a court to have been frivolous or made in bad faith, in which
case the Executive shall make prompt reimbursement of such fees and expenses to
the extent already paid by the Company and received by the Executive) by the
Company, the Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement or any guarantee of performance
thereof (including as a result of any contest by the Executive about the amount
of any payment pursuant to this Agreement), plus, in each case, interest on any
delayed payment at the applicable federal rate provided for in Section
7872(f)(2)(A) of the Code.
8. Restrictive Covenants. (a) The Executive acknowledges that
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
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competitive nature of the business of the Company. Accordingly, it is agreed
that the restrictions contained in this Section 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) 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 Employee cause, encourage or provide
assistance to, anyone else to):
(i) Interfere with any relationship which may exist from time
to time between the Company, or any affiliate of the Company, and any of its
employees, consultants, agents or representatives; or
(ii) Employ or otherwise engage, or attempt to employ or
otherwise engage, in or on behalf of any Competitive Business, any person who is
employed or engaged as an employee, consultant, agent or representative of the
Company or any affiliate of the Company, or any person who was employed or
engaged as an employee, consultant, agent or representative of the Company or
any affiliate of the Company within the two-year period immediately preceding
the Employee's termination; or
(iii) Solicit directly or indirectly on behalf of the Executive
or a Competitive Business, the customer business or account of any investment
advisory or investment management client to which the Company or any affiliate
of the Company shall have rendered service during the one-year period
immediately preceding the Executive's termination; or
(iv) Directly or indirectly divert or attempt to divert from
the Company or any affiliate of the Company any business in which the Company or
any affiliate of the Company has been actively engaged during the term hereof or
interfere with any relationship between the Company, or any affiliate of the
Company, and any of its clients.
Notwithstanding the foregoing, the provisions of Section 8 (b) shall not apply
following termination of Executive's employment: (aa) by the Company without
Cause; (bb) by the Executive for Good Reason; or (cc) at the end of the
Employment Period by virtue of the expiration of this Agreement or for any
reason at any time thereafter. Further notwithstanding the foregoing, the
provisions of Section 8(b) shall only apply for a period of: six months
following (aa) an expiration of the Agreement caused by the Executive's
non-renewal of this Agreement, or (bb) a termination of the Executive's
employment as a result of an Optional Termination.
(c) "Competitive Business" means any business which provides investment
advisory or investment management services. For the purposes of this Section 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.
(d) If any court shall determine that the duration, geographic
limitations, subject or scope of any restriction contained in this Section 8 is
unenforceable, it is the intention of the parties that this Section 8 shall not
thereby be terminated but shall be deemed amended to
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the extent required to make it valid and enforceable, such amendment to apply
only with respect to the operation of this Section 8 in the jurisdiction of the
court that has made the adjudication.
(e) The Executive acknowledges that the restrictive covenants of
Section 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 Section 8.
In the event any of the covenants of Section 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 will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
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) During the Employment Period and thereafter, the Company shall
indemnify the Executive to the fullest extent permitted under law from and
against any expenses (including but not limited to attorneys' fees, expenses of
investigation and preparation and fees and disbursements of the Executive's
accountants or other experts), judgments, fines, penalties and amounts paid in
settlement actually and reasonably incurred by the Executive in connection with
any proceeding in which the Executive was or is made party or was or is involved
(for example, as a witness) by reason of the fact the Executive was or is
employed by the Company.
Such indemnification is subject to:
(i) the indemnifying party promptly receiving written notice
that a claim or liability has been asserted or threatened ("Notice of Claim");
(ii) the indemnified party providing reasonable cooperation and
assistance in the defense or settlement of a claim; and
(iii) the indemnifying party being afforded the opportunity to
have the sole control over the defense or settlement of such claim or liability.
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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.
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.
(b) 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.
Notwithstanding 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 terminating
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 Section 10(b) 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.
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(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.
With a copy to: Xxxxx X.X. Xxxxxxx
Xxxxxx & Xxxxxxx LLP
000 X. Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
If to the Company: Janus Capital Group Inc
000 Xxxxxxxx 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, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 4(c) (i) - (vii) of this Agreement, shall not be deemed to
be a waiver of such provision or right or any other provision or right of this
Agreement.
(f) From and after the Effective Date this Agreement shall supersede
any other employment agreement between the parties with respect to the subject
matter hereof (including the Employment Agreement between the Company and the
Executive dated as of January 1, 2001), except as expressly provided herein. In
the event of the occurrence of a Change of Control, as defined in the Change of
Control Agreement between the Company and the Executive, dated February 10,
2003, or any subsequent change of control agreement (a "Change of Control
Agreement"), the terms of the Change of Control Agreement shall supercede the
terms and provisions of this Agreement provided that the provisions of Section 8
of this Agreement shall continue to apply and survive (provided however that the
defined terms contained in the first sentence of the paragraph following Section
8(b)(iv) shall have the meanings set forth in the Change of Control Agreement),
and the provisions of the third sentence of Section 7 of this Agreement shall
continue to apply and survive with respect to any disputes under Section 8 of
the Agreement.
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
/s/ Xxxx X. Xxxxxxx
-------------------------------------------
Xxxx X. Xxxxxxx
JANUS CAPITAL GROUP INC.
By /s/ Xxxxx X. Xxxxx
----------------------------------------
