SEPARATION AND RELEASE AGREEMENT
Exhibit 10.1
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement (the “Agreement”) between Xxxxxxx Xxxx (“you” or “your”) and Xxxxx Xxxxxxxxx Investors US LLC (“Employer” and together with you, “Parties”) sets forth in its entirety the terms and conditions of the Parties’ agreement related to the termination of your employment with Employer.
For purposes of this Agreement, “Employer” includes Xxxxx Xxxxxxxxx Investors US LLC and any company related to Xxxxx Xxxxxxxxx Investors US LLC, in the past or present (including, without limitation Xxxxx Xxxxxxxxx Group plc, Xxxxx Xxxxxxxxx US (Holdings) Inc., and Xxxxx Xxxxxxxxx Distributors US LLC); the past and present officers, directors, employees, attorneys, agents and representatives of any entity within Employer; any present or past employee benefit plan sponsored by any entity within Employer and/or the officers, directors, trustees, administrators, employees, attorneys, agents and representatives of any such plan; and any person who acted on behalf of any entity within Employer or on instruction from any entity within Employer.
| 1. | Termination Date and Role. You will be leaving Employer effective July 15, 2022 (the “Termination Date”). All communications regarding the separation by either Party, with the exception of those required by law or regulation, shall take the form of, or be materially consistent with a statement reviewed by you and Employer (“Statement”), a copy of which will be attached hereto as Exhibit B upon effectiveness of this Agreement. |
| a. | Until the Termination Date, you will continue to serve as Global Head of Distribution, with duties, authorities and responsibilities commensurate with such title and/or as may reasonably be assigned to you by the Chief Executive Officer or Interim Chief Executive Officer, or such other person as designated by Employer. Until the Termination Date, and excluding any periods of disability, vacation and sick leave to which you are entitled, you agree to devote your attention and time during normal business hours to the business and affairs of Employer as reasonably directed or specified by Employer, and to use your reasonable best efforts to perform such responsibilities to the extent necessary to discharge your responsibilities hereunder. |
| b. | You and Employer acknowledge and agree many of your principal responsibilities may be transferred to other Employer employees, and that, therefore, your day-to-day job functions may change substantially as the period progresses until the Termination Date. You and Employer also acknowledge and agree that while you will remain a member of Employer’s senior executive team and in that capacity will be required and expected to perform only executive level job functions, it may be inappropriate or unnecessary to include you in all executive team meetings that Employer may conduct. |
| c. | As of the Termination Date, you shall be deemed to have resigned from all positions with Employer, with any fund or account managed by Employer, and all affiliates thereof, including without limitation, employment, directorships, non-executive roles, officers and committee memberships. You agree to take all actions deemed |
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| reasonably necessary by Employer to effectuate or evidence such resignations. Thereafter, you shall not be deemed an employee of Employer or any affiliate or fund, and except as provided in this Agreement shall not be entitled to participate in any Employer benefit program of any kind. |
| b. | Upon providing the Employer with verification of you and your dependents enrollment in the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the Employer will establish a COBRA subsidy to directly pay the monthly cost on your behalf for up to 12 months following your Termination Date, provided such payments are permitted by law. In the event that you are no longer covered by COBRA during the 12 months following your Termination Date, the Employer will terminate any remaining subsidy payments. You are responsible for any payment of taxes, interest and/or penalty resulting from this subsidy. |
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You acknowledge that the foregoing payments and benefits, set forth in the subparagraph(s) above are more than you might otherwise have received had you not signed this Agreement. You acknowledge and agree that these payments and benefits constitute adequate legal consideration for the promises and representations made by you in this Agreement.
| 4. | Janus 401(k), Profit Sharing and Employee Stock Ownership Plan. This Agreement shall not diminish or otherwise affect your vested rights under the Janus Capital Group 401(k), Profit Sharing and Employee Stock Ownership Plan (the “Plan”). The Parties expressly agree that after the Termination Date, no Employer Entity shall make any contribution on your behalf to the Plan, excepting only such contributions as are expressly required by the terms of the Plan. |
| 5. | Expense Reimbursement. Employer shall reimburse you for your reasonable and authorized business expenses related to your employment with Employer through the Termination Date, consistent with Employer’s policies, and conditioned on your presentation to Employer, before the Effective Date (defined below), of documentation verifying such expenses. |
| 6. | Taxes. You agree that it shall be your exclusive obligation to pay all amounts, if any, that may be determined to be due and owing by you as taxes, interest and penalties arising out of the payments and benefits set forth in paragraphs 2 and 3 above. You shall defend and indemnify Employer from and against any claim (including legal fees and costs) for tax liability that Employer may incur as a result of taxes owed by you, as a result of consideration provided to you pursuant to paragraph 2 of this Agreement. This provision does not extend to any deductions and withholdings required by law to be made by Employer. Vesting of the deferred portion of the 2022 Award will be reported on applicable federal and state Forms W-2 and will be paid in accordance with Employer’s normal payroll processes and state reporting requirements as determined by Employer. |
| 7. | References. In response to requests for references from prospective employers, Employer will provide only the dates of your employment and positions held and may refer parties to public statements made in accordance with the Statement. |
| 8. | Consideration for Payments and Benefits. In consideration for the payments and benefits described in paragraph 2, you agree to the following: |
| a. | Assent and Release: |
| i. | You agree that you have entered into this Agreement on a purely voluntary basis, you understand it, and, in consideration for the provision of the payments and benefits described in paragraph 2, you further agree to, and do hereby, release Employer together with its respective present or former members, managers, officers, directors, employees, owners, parent companies, subsidiaries, representatives, insurers, successors, assigns, counsel, |
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| shareholders and agents (each an “Employer Party”), from any and all claims, lawsuits, damages and/or liabilities whatsoever (including, but not limited to, claims of employment discrimination under federal, state or local laws, rules, regulations or executive orders) arising out of or in connection with your employment relationship with Employer and/or he conclusion of said relationship or otherwise. The agreements set forth in this paragraph are effective, and the Agreement itself is effective, as of the date which is eight (8) days after you sign this Agreement, provided this Agreement has not been revoked by you as of that time (the “Effective Date”). |
| ii. | You expressly acknowledge and agree that, by entering into this Agreement, you are waiving any and all rights or claims that you may have arising under the Age Discrimination in Employment Act of 1967, the Older Workers Benefits Protection Act of 1990, the Americans with Disabilities Act of 1990, Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, as amended, the Civil Rights Acts of 1866 and 1871, as amended, the Equal Pay Act, the Family and Medical Leave Act, the Occupational Safety and Health Act, the Federal False Claims Act, the Employee Retirement Income Security Act (ERISA), the Worker Adjustment and Retraining Notification Act, the Colorado Anti-Discrimination Act, the Colorado Civil Rights Act, the Colorado Labor Peace Act, and the common law of the State of Colorado, for compensation, damages, tort, breach of express or implied employment contract, breach of an express or implied covenant of good faith and fair dealing, discrimination, harassment, wrongful discharge, intentional infliction of emotional distress, invasion of privacy, attorneys’ fees, defamation or injuries incurred on the job or incurred as a result of loss of employment, or any other claim as of the date you execute this Agreement. The agreements set forth in this paragraph are effective upon the Effective Date. |
| iii. | You acknowledge that, by signing this Agreement, you are releasing and waiving, among other things, claims which you do not know or suspect to exist through the date of your execution of this Agreement, including claims, which if known by you, might have affected your decision to enter into this Agreement. You are not waiving any rights to claims that may arise after the date this Agreement is executed. |
| iv. | This Agreement shall not be construed to waive or release your rights under Employer’s employee benefit plans applicable to you as of the Termination Date, nor shall this Agreement and Release be construed to waive any rights you may have to apply for and collect unemployment benefits. |
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| extend to any future claims relating to your employment prior to your Termination Date. |
| vi. | You agree and acknowledge that you will not be entitled to any monetary or equitable relief or remedies pursuant to any claims referenced or released by this paragraph 8. If you or an attorney acting on your behalf files any civil action in any court or files any charge or complaint with an administrative agency, asserting any claims against Employer or any Employer Party, and seeking personal relief or remedies for you, this Agreement may be used by Employer or any Employer Party as a complete defense to your claims and the personal relief or remedies. You shall be obligated to pay all costs, expenses, and attorney fees incurred by Employer or any Employer Party in defending against your claims in any such court action or agency, and tender back any monies paid pursuant to this Agreement. Nothing in this Agreement shall prohibit either Party from bringing an action to enforce this Agreement or prohibit you from filing a timely charge or complaint with the U.S. Equal Employment Opportunity Commission (“EEOC”) or participating in any investigation or proceeding conducted by the EEOC, although by signing this Agreement you waive and relinquish any right to personal recovery of any type or personal injunctive relief in connection with any such charge or complaint. |
| b. | Additional Acknowledgements. You further expressly acknowledge and agree that: |
x.Xxx have no current entitlement to the payments and benefits described in paragraph 2 of this Agreement, and therefore, in exchange for waiving and releasing any claims or rights under the Age Discrimination in Employment Act and/or other statutes, laws, rules or executive orders described in this Agreement, you will receive compensation and benefits beyond that which you were entitled to receive before entering into this Agreement.
xx.Xx the extent permitted by law and except with respect to your attorney, your financial advisor, or your spouse, as noted in paragraph 11 below, you will keep all terms of this Agreement confidential.
xxx.Xxx hereby are advised by Employer in writing to consult with an attorney before signing this Agreement.
xx.Xxx have 21 days from the receipt of this Agreement to decide whether to agree to it. To accept the Agreement, you must sign it and return it to Xxxxxxx Xxxxxxx, HR, Xxxxx Xxxxxxxxx Investors, 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000 by close of business on the 21st day after you received this Agreement. If Employer has not received a signed Agreement by that time, any offer herein to make the payments and provide the benefits described in paragraph 2 will automatically expire and no longer be available to you. By executing, dating and returning this Agreement to Employer prior to the end of the 21-day period, you will be voluntarily waiving this 21-day review period. You also agree that changes in this Agreement will not restart the running of the 21-day period.
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x.Xxx have seven (7) days after signing this Agreement to revoke it. The release agreed to in this Agreement will not be effective until the 7-day period has expired, and the payments and benefits described in paragraph 2 will not be paid until expiration of the 7-day period following execution and effectiveness of the Supplemental Release. To revoke this Agreement, you must provide written notice of revocation to Xxxxxxx Xxxxxxx, HR, Xxxxx Xxxxxxxxx Investors, 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000, no later than close of business on the seventh day after you sign this Agreement. If you revoke this Agreement, it will not become effective or enforceable and you will not receive the payments and benefits described in paragraph 2.
vi. Reaffirmation. You and Employer agree to execute the attached Supplemental Release on or within twenty-one days after the Termination Date in order to extend and reaffirm the promises and covenants made by you in this Agreement, including but not limited to the waiver and release of all claims. If you fail to execute the Supplemental Release on or within twenty-one days after the Termination Date or if you timely revoke the acceptance of the Supplemental Release, you shall not receive the payment and benefits set forth in paragraph 2.
| 10. | No Claims Assigned. By signing this Agreement, you warrant that you have not assigned or transferred to any person any portion of any claims which are released, waived and discharged in paragraph 8. |
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| would be difficult to ascertain. Therefore, if you violate paragraph 11, you shall be liable to Employer for liquidated damages, not a penalty, in the amount of $25,000 for each violation. |
| 12. | Non-Disclosure. You agree that, at all times from the date of this Agreement, you will hold and treat as confidential any and all Confidential Information provided to you by or which you obtained from Employer or any person or entity affiliated with Employer during your employment regarding any aspect of the business of Employer or any entity affiliated with Employer. |
“Confidential Information” means any proprietary information of any kind that it is marked or identified as confidential or is disclosed under circumstances that would lead a reasonable person to believe such information is confidential and that is related to the business of Employer or any entity affiliated with Employer and that derives independent economic value from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use, and is subject to efforts by Employer that are reasonable under the circumstances to maintain its secrecy, including but not limited to Employer’s trade secrets. Examples of Confidential Information include, but are not limited to, (1) inventions, discoveries, concepts and ideas (whether patentable or not) relating to the markets, products and services or potential markets, products and services of Employer; (2) the terms of any agreements, draft agreements or other legal documents including this Agreement; (3) information concerning employees, including salary information; (4) technological information related to Employer’s markets, products and services, including but not limited to business processes; (5) Employer’s software and computer programs and interface programs and improvements thereto and access codes and passwords, electronic codes or other coding; (6) Employer’s technology, research, trade secrets, and know-how; (7) Employer’s sales techniques, product development, projections, sales records, contract terms, business plans, sales tools, and product and service pricing information; (8) Employer’s customer lists or names and addresses and other information concerning customers and potential customers, including information concerning customer requirements or preferences, customer contacts and decision-makers and decision-making processes, customer budgeting processes, customer business processes and information processing techniques, customer marketing strategies and business plans; (9) Employer’s marketing strategies, product and market development strategies, strategic business plans and market information; and (10) financial analysis, financial data and reports, financial projections, profits, margins, and all other financial information.
Notwithstanding the foregoing, “Confidential Information” does not include information that: (i) was publicly available or in the public domain at the time disclosed; (ii) was or became publicly available or entered the public domain through no fault or action by you; (iii) was rightfully communicated to you by persons not bound by confidentiality obligations with respect thereto; (iv) was already in your possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) was independently developed by you without access to the Confidential Information; (vi) was – or is – approved for release or disclosure by Employer in writing without restriction, or (vii) is provided in accordance with the Government Agency Claims Exception set forth above in paragraph 9.
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| 13. | Non-Solicitation. You acknowledge that your role as a senior executive of Employer creates a relationship of confidence and trust between you and Employer, any parent company, affiliate or subsidiary (each, a “Janus Entity” and collectively, the “Janus Entities”), with respect to confidential and proprietary information applicable to the business of the Janus Entities and their clients. You further acknowledge the highly competitive nature of the business of the Janus Entities. To protect Employer’s trade secrets and Confidential Information, for a period of twelve (12) months following the Termination Date, you shall not, without Employer’s prior written consent, for any reason, directly or indirectly, either alone or jointly with or on behalf of any other person, firm or company (i) solicit the services of, hire, or endeavor to entice away from a Janus Entity for which you worked in the period of 12 months prior to the Termination Date, any director, employee or consultant of the Janus Entity with whom you worked or had dealings during the course of your employment; or (ii) solicit, canvass, approach or accept any approach from any Customer of a Janus Entity with a view to obtain their custom or supply for a Competitor. For purposes of this paragraph, “Customer” means any person, firm or company which at or within a period of two years prior to the Termination Date has done business with a Janus Entity as a customer, client or supplier, or which the Janus Entity is or was in the process of negotiating with a view to such person, firm or company becoming a customer, client or supplier, and with whom you worked or had dealings with in the course of your employment and with whom or which you first had contact or otherwise developed a relationship while employed by Employer; and “Competitor” means an actual or prospective competitor of any business carried on by the Janus Entity in which you worked at any time during the period of one year prior to the Termination Date and with whom or which you first had contact or otherwise developed a relationship while employed by Employer. |
| 15. | Employer Property. You agree that, except with the written consent of Employer, you have returned or will immediately return all Employer property in your possession and control, including all keys, access cards, policy and procedures manuals, software, computers, tablets, hardware, cell phones, disks, files, electronic files or other materials (including, without limitation, those documents, electronic files or other materials that Employer or an Employer Party has designated as confidential, proprietary or privileged, or which by their nature should be recognized as such). If you later learn that you have any Employer property, you agree that you will promptly notify Employer and make arrangements to immediately return all such property, except as allowed with Employer’s written consent. Failure to timely return property belonging to Employer may cause Employer to offset the value of such property or the costs of replacing such property against any remaining payments to which you are otherwise entitled under this Agreement. |
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| 16. | Cooperation with Litigation or Other Legal Matters. You acknowledge that you may have factual information or knowledge that may be useful to Employer in connection with current or future legal, regulatory or administrative proceedings. You will cooperate to a reasonable extent with Employer in the defense or prosecution of any such claims. Your cooperation shall include being reasonably available to meet with counsel to prepare for discovery or trial and to testify truthfully as a witness. Employer will not compensate you for testifying as a fact witness, but it may reimburse you for reasonable expenses associated with travel, meals, lodging, or other out-of-pocket expenses. |
| 17. | Injunctive and Other Relief. You agree and acknowledge that any violation of any provision of paragraphs 8-14 of this Agreement shall constitute a material breach of this Agreement that will cause irreparable harm to Employer. Therefore, you agree that any such breach or threatened breach by you shall give Employer the right to specific performance through injunctive relief, without the need for Employer to prove irreparable harm, requiring you to comply with your obligations under this Agreement in addition to any other relief or damages allowed by law. In addition, if Employer has reason to seek injunctive or other legal relief to enforce any provision of paragraphs 8-14, it may suspend any payments or other consideration otherwise payable to you at that time and may seek recovery of any payments or other consideration already paid to you. Any suspension of the payments or other consideration to be paid, or any recovery of paid payments or other paid consideration, shall not void your release of claims under this Agreement, which shall remain in full force and effect. |
| 18. | Severability. If any provision of this Agreement or the application thereof is held invalid, the invalidity shall not affect other provisions or applications of this Agreement which can be given effect without the invalid provisions or application, and to this end the provisions of this Agreement are declared to be severable. The Parties agree that any such invalid provision may be modified by an arbitrator or court in such a manner as to be enforced to the maximum extent possible to effectuate the intentions of the Parties hereto. However, should a court of competent jurisdiction declare the waiver and release of claims contained herein to be invalid or unenforceable, you agree to execute a valid waiver and release of claims or to return in full within 10 days of such declaration all payments and benefits provided to you pursuant to paragraph 2, at Employer’s election. |
| 19. | Colorado Laws and Jurisdiction; Dispute Forum. This Agreement shall be construed in accordance with the laws of the State of Colorado, without regard to its conflict of laws rules. Any and all claims, disputes, or controversies between you and Employer or any and all Employer Parties or Janus Entities, including but not limited to those arising out of or related to this Agreement, shall be tried only in the state or federal courts situated in the Denver, Colorado metropolitan area. Such claims, disputes or controversies shall be tried to a court without a jury. |
| 20. | No Waiver of Breach. No waiver of any breach of any term or provision of this Agreement shall be binding unless in writing and signed by the Party waiving the breach. No waiver of any breach of any term or provision of this Agreement shall be construed to be, nor shall be, a waiver of any other breach of this Agreement. |
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| 21. | Knowing and Voluntary. You have carefully read and fully understand all of the provisions of this Agreement. You knowingly and voluntarily entered into this Agreement. |
| 22. | Further Assurances. The Parties agree to cooperate fully and to execute any and all supplementary documents and to take all additional actions that may be necessary or appropriate to give full force to the terms of this Agreement. |
| 23. | Entirety. This Agreement embodies the entire agreement and understanding between the Parties and, unless stated otherwise, supersedes all prior agreements and understandings related to the subject matter hereof. No amendment to this Agreement will be effective unless it is in writing and signed by both Parties. |
| 24. | Not an Admission. Nothing contained in this Agreement is intended to be, or shall be construed to be, an admission of any liability by any Party or an admission of the existence of any facts upon which liability could be based. |
| 25. | Interpretation of Agreement; Headings. The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against either. The descriptive headings in this Agreement are for convenience of reference only and shall not be deemed to affect the meaning or construction of any of the provisions hereof. |
| 26. | Execution in Counterparts. This Agreement may be signed in multiple counterparts, each of which shall be deemed to be an original for all purposes. |
[Signatures on following page.]
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If this Agreement is satisfactory to you, please so signify by signing in the place provided below and return all original pages to Employer, attention Xxxxxxx Xxxxxxx. If you do not revoke this Agreement as set forth in paragraph 8, then it will be deemed effective immediately after the revocation period expires, after which a fully-executed copy of this Agreement will be delivered to you.
By:
Name:Xxxxxxx Xxxxxxx
Title:Global Head of Human Resources
Date:June 15, 2022
I ACKNOWLEDGE THAT I HAVE READ THIS AGREEMENT, THAT I HAVE BEEN ADVISED THAT I SHOULD CONSULT WITH AN ATTORNEY BEFORE I EXECUTE THIS AGREEMENT, AND THAT I UNDERSTAND ALL OF ITS TERMS, INCLUDING THOSE TERMS THAT CAUSE A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS INCLUDING THOSE PURSUANT TO THE AGE DISCRIMINATION IN EMPLOYMENT ACT, AS AMENDED, AND OTHER LAWS PROHIBITING DISCRIMINATION IN EMPLOYMENT AND THAT I EXECUTE THIS AGREEMENT VOLUNTARILY WITH FULL KNOWLEDGE OF ITS SIGNIFICANCE AND THE CONSEQUENCES THEREOF.
Signed this 15th day of June, 2022 by:
Xxxxxxx Xxxx
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EXHIBIT A
Supplemental Release
This Supplemental Release ("Supplemental Release") is between Xxxxx Xxxxxxxxx Investors US LLC (the "Employer") and Xxxxxxx Xxxx (“you”) (each a "Party," and together, the "Parties").
Recitals
You and Employer are Parties to a Separation and Release Agreement to which this Supplemental Release is appended as Exhibit A and is incorporated herein by reference (the “Separation Agreement”).
You wish to receive the payment and benefits described in paragraph 2 of the Separation Agreement (the “Package”) and therefore must sign this Supplemental Release after the Termination Date.
You and Employer wish to resolve, except as specifically set forth herein, all claims between you arising from or relating to any act or omission predating the Effective Date defined below.
Agreement
The Parties agree as follows:
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[SIGNATURES FOLLOW]
XXXXX XXXXXXXXX INVESTORS US LLC By:_________________________ Date: _______________________ | ______________________________ Suzanne Cain Date: _________________________ |
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