EXHIBIT 10.2
AGREEMENT
THIS AGREEMENT, dated as of February 20, 2004 (this "Agreement")
is by and between Janus Capital Group Inc., a Delaware corporation (the
"Company" or "JCG") and Xxxxx X. Xxxxx (the "Executive").
WHEREAS, the Executive and the Company are parties to an Employment
Agreement, dated as of January 1, 2003 ("Original Agreement").
WHEREAS, the parties believe that it is in the best interest of the
Company and its shareholders to revise certain terms of the Original Agreement.
WHEREAS, the parties wish to have Executive's annual cash bonus for
2003 (the "2003 Bonus") as set forth in the Executive Bonus Plan be placed for a
two-year holding period in a separate Janus retail mutual fund account.
WHEREAS, the Executive desires to enter into this Agreement under his
or her own volition and free will.
Accordingly, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Effective Date. The "Effective Date" shall mean February 20, 2004.
2. 2003 Bonus. Under the terms of the Original Agreement, the Executive
would have been entitled to receive an annual cash bonus for 2003 in two
separate payments (the "2003 Bonus") as set forth in the Executive Bonus Plan
approved by the Compensation Committee ("Committee") at its March 17, 2003,
meeting ("Bonus Plan"), subject to performance benchmarks in accordance with
Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code") and
the application of a negative discretionary factor up to 33.3% available to the
Compensation Committee. As of the Effective Date, the parties agree that all
amounts approved by the Committee and payable to Executive are in full accord
and satisfaction of all 2003 Bonus payments entitled to Executive under the
Bonus Plan. Such payments, net of applicable withholding requirements, shall be
deposited and transferred by the Company into a Janus retail mutual fund account
on behalf of, and in the name of, Executive (the "Account") until the two-year
holding period set forth in Section 3 is satisfied in such manner and at such
times as specified in this Agreement.
3. Two-Year Holding Period. For a two-year holding period commencing on
the Effective Date and so long as Executive is employed by the Company or one of
its affiliates, all amounts deposited and transferred by the Company into the
Account in accordance with Section 2 and all gains or other income realized from
such investment in the Account, shall remain invested in the Account as directed
by the Executive or his or her properly designated agent. No amounts in the
Account may be withdrawn or transferred into another account by the Company or
the Executive until February 20, 2006, and all income received in the Account,
net of expenses and
taxes, shall be accumulated and reinvested. In the event Executive is no longer
employed by the Company during the two-year holding period, all transfer
restrictions provided for in this Section 3 shall terminate.
4. Executive's Investment Discretion. Except as otherwise provided
herein, the amounts transferred and deposited into the Executive's Account in
accordance with this Agreement shall be invested in one or more of the mutual
funds (each an "Investment Fund") provided by Janus Investment Fund ("JIF"),
subject to the compliance with all Company policies and the terms of the
respective Investment Fund's prospectus. The proportions in which the total
balance deposited into Executive's Account are to be allocated from time to time
among the Investment Funds shall be as directed by the Executive in his or her
sole discretion ("Investment Election"). Executive may change his or her
then-current Investment Election from time to time; provided, however, in no
event shall Executive make changes to his or her Investment Election more than
four (4) times per calendar year.
Executive hereby acknowledges and agrees that (i) his or her Account
balance are subject to any net appreciation or depreciation accruing from time
to time based on the investment allocation of the Account balance in accordance
with Executive's Investment Election(s) in effect from time to time, (ii)
Executive is solely responsible for any net appreciation or net depreciation in
the balance of his or her Account resulting from Executive's Investment
Elections, and (iii) neither the Company nor JIF guarantees or represents in any
manner whatsoever that Executive will realize any appreciation in the balance of
the Account as a result of allocating the Account balance for investments in the
Investment Funds. Executive further agrees and acknowledges that he or she is
under no obligation to make an Investment Election in any particular JIF mutual
fund, and, if no such Investment Election is made, that the balance in the
Account shall be deposited into the Janus Money Market Fund.
5. Limitation of Liability. To the maximum extent permitted by law, the
Company shall have no duty, liability or responsibility (i) to advise with
respect to, or inquire as to the propriety of, any Investment Election, or (ii)
for any liabilities, losses, expenses or claims related to, arising from, or
caused by Investment Elections made by the Executive. Executive hereby releases,
and agrees to indemnify and hold harmless the Company, its subsidiaries and
affiliates, and their respective agents, representatives, officers, directors,
employees, successors, assigns and insurers, hereinafter referred to
collectively as "the Released Parties," from any and all liability, losses, tax
consequences, claims, demands or actions or causes of action whatsoever, whether
foreseen or unforeseen, directly related to, arising from, or caused by
Investment Elections made by the Executive or the terms of this Agreement. This
release and agreement shall be binding upon Executive, his or her heirs,
successors, assigns, administrators and executors.
6. No Enlargement of Executive Rights. Nothing in this Agreement shall
be construed to confer upon Executive any right to continued employment with
Company, or to restrict in any way the right of Company to terminate his or her
employment.
7. Successors. 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 Company and
its successors and assigns.
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8. 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 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 or her 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.
(c) 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.
(d) From and after the Effective Date, this Agreement shall
supersede any other conflicting term(s) under any agreement between the parties
with respect to the subject matter hereof (including, without limitation, the
Original Agreement and/or the Bonus Plan), except as expressly provided herein.
(e) 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.
(f) All disputes relating to or arising from this Agreement
shall be tried only in the state or federal courts situated in the Denver,
Colorado metropolitan area.
(g) For convenience, this Agreement may be executed in any
number of identical counterparts, each of which shall be deemed a complete
original in itself and may be introduced in evidence or used for any other
purpose without the production of any other counterparts.
EXECUTIVE
/s/ Xxxxx X. Xxxxx
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JANUS CAPITAL GROUP INC.
By:/s/ Xxxxxxx X. Xxxxx
Title: Vice President and Controller
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