EXHIBIT 10.16
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
August 30, 2002
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is hereby made
and entered into by and between Stilwell Financial, Inc., a Delaware corporation
("Stilwell") and Gwen E. Royle, an individual ("Executive") to be effective as
of August 30, 2002 (the "Effective Date").
WHEREAS, prior to June 12, 2000, Executive was employed by Kansas City Southern
Industries, Inc. ("KCSI"), and on June 12, 2000, Stilwell and Executive entered
into an employment agreement ("Prior Agreement") to be effective as of July 12,
2000, the date that all of the issued and outstanding stock of Stilwell was
distributed to the shareholders of KCSI which had been the parent of Stilwell
since its formation on January 23, 1998 (the "Spin-off Distribution"), for
Stilwell to continue to employ Executive on the terms and conditions set forth
in the Prior Agreement; and
WHEREAS, as of the Effective Date, Stilwell and Executive desire for Stilwell to
continue to employ Executive on the terms and conditions set forth in this
Agreement and to provide an incentive to Executive to remain in the employ of
Stilwell hereafter, particularly in the event of any Change in Control (as
herein defined) of Stilwell or any Significant Subsidiary (as herein defined),
thereby establishing and preserving continuity of management of Stilwell.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, it is agreed by and between Stilwell and Executive as follows:
1. Position and Responsibilities. Stilwell hereby employs and appoints
Executive during the term of the Agreement as Vice President of Administration,
Human Resources and Legal Matters and Corporate Secretary. During the term of
the Agreement, Executive shall
devote substantially all of her business time, attention and effort to the
affairs of Stilwell, and shall use her reasonable best efforts to promote the
best interests of Stilwell. Executive shall be responsible for the
administration, human resources, legal and compliance functions. Executive shall
report on her responsibilities directly to the Chief Executive Officer of
Stilwell. During the term of the Agreement, and excluding any periods of
disability, vacation, or sick leave to which Executive is entitled, Executive
agrees to devote her full attention and time to the business and affairs of
Stilwell.
2. Compensation.
(a) Base Compensation. Stilwell shall pay Executive, in
accordance with the normal payroll practices of Stilwell, an annual base salary
at the rate of $310,000.00 per year ("Base Salary"). Base Salary shall be
reviewed at least annually and may be increased (but not decreased) from time to
time as shall be determined by the Stilwell Board. Any increase in Base Salary
shall not limit or reduce any other obligation of Stilwell to Executive under
this Agreement. Once Base Salary shall have been increased, it shall be treated
for all purposes of this Agreement as Executive's Base Salary. Base Salary shall
not be decreased at any time without the express written consent of Executive.
(b) Incentive Compensation. For the year 2002 and the six
months ending June 30, 2003, Executive shall not be entitled to participate in
any Stilwell incentive compensation plan.
3. Benefits and Stock Ownership.
(a) Benefits. During the period of her employment hereunder,
Stilwell shall provide Executive with coverage under such benefit plans and
programs as are made generally available to similarly situated employees of
Stilwell, provided (a) Stilwell shall have no obligation with respect to any
plan or program if Executive is not eligible for coverage thereunder, and (b)
Executive acknowledges that stock options and other stock and equity
participation awards are granted in the discretion of the Stilwell Board or the
Compensation Committee of the Stilwell Board and that Executive has no right to
receive stock options or other equity participation awards or any particular
number or level of stock options or other awards. In determining contributions,
coverage and benefits under any disability insurance policy and under any cash
compensation-based plan provided to Executive by Stilwell, it shall be assumed
that the value of Executive's annual compensation pursuant to this Agreement is
175% of Executive's Base Salary. Executive acknowledges that all rights and
benefits under benefit plans and programs shall be governed by the official text
of each such plan or program and not by any summary or description thereof or
any provision of this Agreement (except to the extent this Agreement expressly
modifies such benefit plans or programs) and that Stilwell is not under any
obligation to continue in effect or to fund any such plan or program, except as
provided in Paragraphs 4(e) and 7 hereof. Stilwell also shall reimburse
Executive for ordinary and necessary travel and other business expenses in
accordance with policies and procedures established by Stilwell.
(b) Stock Ownership. During the period of her employment
hereunder, Executive shall retain ownership in herself or in members of her
immediate family of at least a majority of the number of shares of (i) Stilwell
stock received by Executive or members of her immediate family in the Spin-off
Distribution, and (ii) Stilwell stock acquired upon the exercise of stock
options, but excluding from such number of shares any such shares transferred to
Stilwell or sold to pay the purchase price upon the exercise of stock options or
to pay or satisfy tax obligations resulting from such exercise.
4. Termination.
(a) Termination by Executive. Executive may terminate this
Agreement and her employment hereunder by at least thirty (30) calendar days
advance written notice to Stilwell.
(b) Death or Disability. This Agreement and Executive's
employment hereunder shall terminate automatically on the death or disability of
Executive, except to the extent employment is continued under Stilwell's
disability plan. For purposes of this Agreement, Executive shall be deemed to be
disabled if she qualifies for disability benefits under Stilwell's long-term
disability plan.
(c) Termination by Stilwell for Cause.
(i) Subject to the provisions of Paragraph 4(c)(ii),
Stilwell may terminate this Agreement and Executive's employment for
Cause (as defined below). For purposes of this Agreement (except for
Paragraph 7), termination for "Cause" shall mean termination based upon
any one or more of the following:
(A) Executive's willful or intentional
material breach of her material obligations under this Agreement;
(B) Executive's commission of a felony;
(C) willful or intentional material
misconduct by Executive in the performance of her duties under this
Agreement;
(D) Executive's commission of a misdemeanor
involving fraud, dishonesty or moral turpitude; or
(E) the willful or intentional failure by
Executive to materially comply (to the best of her ability) with a
specific, written direction of the Chief Executive Officer of Stilwell
that is not inconsistent with this Agreement and Executive's
responsibilities hereunder, provided that such refusal or failure (1)
is not cured to the best of Executive's ability within ten (10)
business days after the delivery of such direction to Executive, and
(2) is not based on Executive's good faith belief, as expressed by
written notice to the Chief Executive Officer of Stilwell given within
such ten (10) business day
period, that the implementation of such direction of the Chief
Executive Officer of Stilwell would be unlawful or unethical.
(ii) Executive's employment may not be terminated for
Cause unless:
(A) Stilwell provides Executive with written
notice (the "Notice of Consideration") of its intent to consider the
termination of Executive's employment for Cause, including a detailed
description of the specific reasons which form the basis for such
consideration;
(B) on a date not less than thirty (30)
calendar days after the date Executive receives the Notice of
Consideration, Executive shall have the opportunity to appear before
the Stilwell Board, with or without legal representation, at
Executive's election, to present arguments and evidence on her own
behalf;
(C) the Stilwell Board by the affirmative
vote of at least seventy-five percent (75%) of its members (excluding
Executive as a member of the Stilwell Board, and any other member of
the Stilwell Board reasonably believed to be involved in the events
leading the Stilwell Board to seek to terminate Executive for Cause),
determines at or after the meeting of the Stilwell Board, that the
actions or inactions of Executive specified in the Notice of
Consideration occurred, that such actions or inactions constitute
Cause, and that Executive's employment should accordingly be terminated
for Cause; and
(D) the Stilwell Board provides Executive
with a written determination (a "Notice of Termination for Cause")
setting forth in specific detail the basis of Executive's termination
of employment. The Notice of Termination for Cause shall not be based
upon any reason or reasons other than one or more reasons set forth in
the Notice of Consideration.
If Executive disputes any purported termination of Executive
for Cause, the Stilwell Board shall have the burden of proof to
establish by a preponderance of the evidence, both (1) its full
compliance with the substantive and procedural requirements of this
Paragraph 4(c)(ii) prior to a termination of employment for Cause, and
(2) that Executive's action or inaction specified in the Notice of
Termination for Cause did occur and constituted Cause. If the Stilwell
Board does not meet such burden of proof, any termination of employment
shall be deemed a termination without Cause for all purposes of this
Agreement, including Executive's entitlement to severance benefits and
payments.
If the Stilwell Board determines by a vote of seventy-five
percent (75%) of its members (excluding Executive as a member of the
Stilwell Board and any other member of the Stilwell Board reasonably
believed to be involved in the events leading the Stilwell Board to
seek to terminate Executive for Cause), that it is in the best
interests of Stilwell to suspend Executive from performing her duties
with respect to Stilwell under this Agreement pending resolution of the
Notice of Consideration, then Executive shall be suspended from
performing such duties, and such suspension shall not be considered to
constitute Good Reason or a breach of this Agreement on the part of
Stilwell; provided however, that the obligations (including payments of
compensation to Executive) of Stilwell and of Executive under this
Agreement, other than Executive's obligations under Paragraph 1 hereof,
shall continue in full force and effect during such period of
suspension.
(d) Termination by Stilwell Other than for Cause or by
Executive for Good Reason.
(i) Stilwell may terminate this Agreement and
Executive's employment other than for Cause immediately upon notice to
Executive, or Executive may terminate this Agreement and Executive's
employment for Good Reason (as defined
in Paragraph 4(d)(iii) below) upon notice to Stilwell in accordance
with the provisions of Paragraph 4(d)(iv), and in any such event,
Stilwell shall provide severance benefits to Executive in accordance
with Paragraph 4(d)(ii) below (unless Paragraph 4(e) applies).
(ii) Unless the provisions of Paragraph 7 of this
Agreement are applicable, if Executive's employment is terminated under
Paragraph 4(d)(i), Stilwell (a) shall pay as soon as reasonably
possible but not later than thirty (30) calendar days after Executive's
termination date, a lump sum amount in immediately available funds
equal to the product (discounted to the then present value on the basis
of a rate of five percent (5%) per annum) of (A) 165% of Base Salary
multiplied by (B) two, and, (b) for this two-year period, to reimburse
Executive for the cost (including state and federal income taxes
payable with respect to this reimbursement) of continuing the health
insurance coverage provided pursuant to this Agreement or obtaining
health insurance coverage comparable to the health insurance provided
pursuant to this Agreement, and obtaining coverage comparable to the
life insurance provided pursuant to this Agreement, unless Executive is
provided comparable health or life insurance coverage in connection
with other employment. The foregoing obligations of Stilwell shall
continue until the end of such two (2) year period notwithstanding the
death or disability of Executive during said period (except, in the
event of death, the obligation to reimburse Executive for the cost of
life insurance shall not continue). In addition, Stilwell shall use its
best efforts to cause all outstanding options held by Executive under
any stock option plan of Stilwell or its affiliates to become
immediately exercisable on the termination date, and such options shall
remain exercisable through the earlier to occur of (1) five (5) years
after the termination date, or (2) the expiration of the term of the
options. To the extent that such options are not vested and are
subsequently forfeited, Executive shall receive a lump-sum cash payment
within five (5) business days after the options are forfeited equal to
the
difference between the fair market value of the shares of stock subject
to the non-vested, forfeited options determined as of the date such
options are forfeited and the exercise price for such options. In the
year in which termination of employment occurs, Executive shall be
eligible to receive benefits under the Stilwell Incentive Compensation
Plan and the Stilwell Executive Plan (if such Plans then are in
existence and Executive was entitled to participate immediately prior
to termination) in accordance with the provisions of such plans then
applicable, and severance pay received in such year shall be taken into
account for the purpose of determining benefits, if any, under the
Stilwell Incentive Compensation Plan but not under the Stilwell
Executive Plan. After the year in which termination occurs, Executive
shall not be entitled to accrue or receive benefits under the Stilwell
Incentive Compensation Plan or the Stilwell Executive Plan with respect
to the severance pay provided herein, notwithstanding that benefits
under the Stilwell Incentive Compensation Plan or the Stilwell
Executive Plan with respect to the severance pay provided herein are
still generally available to executive employees of Stilwell. After
termination of employment, Executive shall not be entitled to accrue or
receive benefits under any other employee benefit plan or program,
except that Executive shall be entitled to participate in the Stilwell
Employee Stock Ownership Plan and the Stilwell Section 401(k) Plan with
Profit Sharing Plan Portion in the year of termination of employment
only if Executive meets all requirements of such plans for
participation in such year.
(iii) "Good Reason" means the occurrence of any one
of the following events unless Executive specifically consents in
writing that such event shall not be Good Reason:
(A) any material breach of this Agreement by
Stilwell of any of its material obligations under this Agreement,
including any of the following occurrences which shall be deemed to
constitute a material breach of Stilwell's material obligations:
(1) failure to pay Base Salary as required
by Paragraph 2(a); or
(2) any material adverse change in the
status, position, responsibilities, and
duties of Executive as compared to
Executive's status, position,
responsibilities, and duties as set forth in
Paragraph 1,
(B) the failure of Stilwell to assign this
Agreement to a successor, or the failure of such successor to
explicitly assume and agree to be bound by this Agreement,
(C) Stilwell's requiring Executive to be
principally based at any office or location that is more than forty
(40) miles from the office or location where Executive was located as
of the Effective Date,
(D) the Stilwell Board gives a Notice of
Consideration pursuant to Paragraph 4(c)(ii) (of the intent to consider
terminating Executive for Cause) and fails within a period of ninety
(90) calendar days thereafter to terminate Executive for Cause in
compliance with all the substantive and procedural requirements of
Paragraph 4(c)(ii), or
(E) after the Restructuring Date (as defined
in Paragraph 4(e)(i)), any material adverse change in the status,
position, responsibilities and duties of Executive as a member of the
group of Stilwell employees designated to effect the transition of
Stilwell's ongoing matters and duties to other Company executives as
part of the Restructuring (as defined in Paragraph 4(e)(1))
("Transition Team Members") until
December 31, 2003. Executive's position as a Transition Team Member is
as a non-officer and her responsibilities and duties are to transition
her responsibilities for the administration, human resources, legal and
compliance functions and any other responsibilities consistent with the
foregoing designated by the Chief Executive Officer of Stilwell to the
appropriate officers of the Company.
(iv) Executive's termination of employment shall not
be considered to be for Good Reason unless:
(A) not more than ninety (90) calendar days
after the occurrence (or, if later, not more than ninety (90) calendar
days after Executive becomes aware) of the event or events alleged to
constitute Good Reason, Executive provides Stilwell with written notice
(the "Notice of Good Reason") of her intent to consider termination for
Good Reason, including a detailed description of the specific reasons
which form the basis for such consideration, and demanding that such
event or events be cured not later than ten (10) business days after
Stilwell receives the Notice of Good Reason (the "Cure Period");
(B) Stilwell shall have failed to cure such
event or events during the Cure Period; and
(C) not more than ninety (90) calendar days
following the expiration of the Cure Period, Executive shall have given
Stilwell a second notice (a "Notice of Termination for Good Reason")
stating that such cure has not occurred and that, as a result,
Executive is terminating her employment for Good Reason on the date
(after the end of the Cure Period) specified in the Notice of
Termination for Good Reason. A Notice of Termination for Good Reason
shall not be based upon any reason or reasons other than one or more
reasons set forth in the Notice of Good Reason.
(e) Termination due to the Restructuring of Stilwell pursuant
to that certain Agreement and Plan of Merger dated August 30,
2002.
(i) If Stilwell terminates Executive's employment
other than for Cause, or Executive terminates his
employment hereunder for Good Reason as defined in
Paragraph 4(d)(ii) hereof, in connection with the
restructuring of Stilwell (a "Restructuring
Termination") as contemplated by that certain
Agreement and Plan of Merger dated August 30, 2002
between Stilwell and Janus Capital Corporation (the
"Restructuring"), then Stilwell shall pay or provide
to Executive severance and retention benefits
pursuant to the Severance and Retention Policy
adopted and approved by the Stilwell Organization and
Compensation Committee on August 21, 2002, as
described in detail on Exhibit A to this Agreement
("Restructuring Severance and Retention Benefits").
The effective date of the Restructuring, which is
expected to be on or around December 31, 2002, shall
be the Restructuring Date. Any termination of
Executive's employment by Stilwell prior to or within
three years after the Restructuring Date and any
termination by Executive for Good Reason within three
years after the Restructuring Date shall be
conclusively deemed to be a Restructuring
Termination. However, if within one year of the
Restructuring Date Executive should become a
permanent, full-time employee of Janus or any of its
50% or more owned affiliates, Executive shall not
receive the severance portion of the Restructuring
Severance and Retention Benefits. If any such
benefits shall have been paid to Executive prior to
the time of such employment with Janus or any of its
50% or more owned affiliates, Executive shall return
the full amount of any such severance benefits so
received to the Company.
(ii) Unless Executive should voluntarily terminate
her employment with Stilwell before December 31,
2003, Executive shall continue to receive her Base
Salary and Benefits described in Paragraph 3 through
December 31, 2003.
(iii) Upon the Restructuring Date, Paragraphs 1 and
3(b) of this Agreement shall be of no further force
or effect, and Executive shall serve solely as a
Transition Team Member until December 31, 2003. Such
changes shall not constitute Good Reason under
Paragraph 4(d)(iii)(A)(2) or 4(d)(iii)(E).
5. Non-Disclosure. During the term of this Agreement and at all times
after any termination of this Agreement, Executive shall not, either directly or
indirectly, use or disclose any Stilwell Trade Secret, except to the extent
necessary for Executive to perform her duties for Stilwell while an employee.
For purposes of this Agreement, the term "Stilwell Trade Secret" shall mean any
information regarding the business or activities of Stilwell or any subsidiary
or affiliate, including any formula, pattern, compilation, program, device,
method, technique, process, customer list, technical information or other
confidential or proprietary information, that (a) derives independent economic
value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic
value from its disclosure or use, and (b) is the subject of efforts of Stilwell
or its subsidiary or affiliate that are reasonable under the circumstance to
maintain its secrecy. In the event of any breach of this Paragraph 5 by
Executive, Stilwell shall be entitled to terminate any and all remaining
severance benefits under Paragraph 4(d)(ii) and shall be entitled to pursue such
other legal and equitable remedies as may be available.
6. Duties Upon Termination; Survival.
(a) Duties. Upon termination of this Agreement by Stilwell or
Executive for any reason, Executive shall immediately return to Stilwell all
Stilwell Trade Secrets which exist
in tangible form and shall sign such written resignations from all positions as
an officer, director or member of any committee or board of Stilwell and all
direct and indirect subsidiaries and affiliates of Stilwell as may be requested
by Stilwell and shall sign such other documents and papers relating to
Executive's employment, benefits and benefit plans as Stilwell may reasonably
request.
(b) Survival. The provisions of Paragraphs 5, 6(a) and 7 of
this Agreement shall survive any termination of this Agreement by Stilwell or
Executive, the provisions of Paragraph 4(d)(ii) shall survive any termination of
this Agreement by Stilwell or Executive under Paragraph 4(d)(i) and the
provisions of Paragraph 4(e)(ii) shall survive any termination of this Agreement
by Stilwell or Executive under Paragraph 4(e)(i).
7. Continuation of Employment Upon Change in Control of Stilwell.
(a) Continuation of Employment. Subject to the terms and
conditions of this Paragraph 7, in the event of a Change in Control (as defined
in Paragraph 7(d)) at any time during the term of this Agreement, Executive
agrees to remain in the employ of Stilwell for a period of three (3) years (the
"Three-Year Period") from the date of such Change in Control (the "Control
Change Date"). Stilwell agrees to continue to employ Executive for the
Three-Year Period. During the Three-Year Period, (i) Executive's position
(including offices, titles, reporting requirements and responsibilities),
authority and duties shall be at least commensurate in all material respects
with the most significant of those held, exercised and assigned at any time
during the twelve (12) calendar month period immediately before the Control
Change Date and (ii) Executive's services shall be performed at the location
where Executive was employed immediately before the Control Change Date or at
any other location less than 40 miles from such former location. During the
Three-Year Period, Stilwell shall continue to pay to Executive Base Salary on
the same basis and at the same intervals as in effect immediately prior to the
Control Change Date.
(b) Benefits. During the Three-Year Period, Executive shall be
entitled to participate, on the basis of her executive position, in each of the
following Stilwell plans (together, the "Specified Benefits") in existence, and
in accordance with the terms thereof, at the Control Change Date:
(i) any benefit plan, and trust fund associated
therewith, related to (a) life, health, dental, disability, accidental
death and dismemberment insurance or accrued but unpaid vacation time,
(b) profit sharing, thrift or deferred savings (including deferred
compensation, such as under Section 401(k) plans), (c) retirement or
pension benefits, (d) ERISA excess benefits and similar plans and (e)
tax favored employee stock ownership (such as under ESOP, and Employee
Stock Purchase programs); and
(ii) any other benefit plans hereafter made generally
available to executives of Executive's level or to the employees of
Stilwell generally.
In addition, Stilwell shall use its best efforts to cause all outstanding
options held by Executive under any stock option plan of Stilwell or its
affiliates to become immediately exercisable on the Control Change Date, and
such options shall remain exercisable through the earlier to occur of (1) five
(5) years after the Control Change Date, or (2) the expiration of the term of
the options. To the extent that such options are not vested and are subsequently
forfeited, Executive shall receive a lump-sum cash payment within five (5)
business days after the options are forfeited equal to the difference between
the fair market value of the shares of stock subject to the non-vested,
forfeited options determined as of the date such options are forfeited and the
exercise price for such options. During the Three-Year Period Executive shall be
entitled to participate, on the basis of her executive position, in any
incentive compensation plan of Stilwell in accordance with the terms thereof at
the Control Change Date; provided that if under Stilwell programs or Executive's
employment agreement in existence immediately prior to the Control Change Date,
there are written limitations on participation for a designated time period in
any incentive compensation plan, such limitations shall continue after the
Control Change Date to the extent so provided for prior to the Control Change
Date.
If the amount of contributions or benefits with respect to the Specified
Benefits or any incentive compensation is determined on a discretionary basis
under the terms of the Specified Benefits or any incentive compensation plan
immediately prior to the Control Change Date, the amount of such contributions
or benefits during the Three-Year Period for each of the Specified Benefits
shall not be less than the average annual contributions or benefits for each
Specified Benefit for the three plan years ending prior to the Control Change
Date and, in the case of any incentive compensation plan, the amount of the
incentive compensation during the Three-Year Period shall not be less than
75% of the maximum that could have been paid to Executive under the terms of the
incentive compensation plan.
(c) Payment. With respect to any plan or agreement under which
Executive would be entitled at the Control Change Date to receive Specified
Benefits or incentive compensation as a general obligation of Stilwell which has
not been separately funded (including specifically, but not limited to, those
referred to under Paragraph 7(b)(i) and (ii) above), Executive shall receive
within five (5) business days after such date full payment in cash (discounted
to the then present value on the basis of a rate of seven percent (7%) per
annum) of all amounts to which she is then entitled thereunder.
(d) Change in Control. Except as provided in the last sentence
of this Paragraph 7(d), for purposes of this Agreement, a "Change in Control"
means any one or more of the following:
(i) the acquisition or holding by any person, entity
or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934 (the "Exchange Act"), other than by
Stilwell or any Subsidiary (as defined below), or any employee benefit
plan of Stilwell or a Subsidiary (and other than by KCSI prior to the
Spin-off Distribution), of beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act) of 20% or more of the
then-outstanding common stock or the combined voting power of the
then-outstanding voting securities ("Voting Power") of Stilwell;
provided, however, that no Change in Control shall occur solely by
reason of any such acquisition by a corporation with respect to which,
after such acquisition, more than 60% of both the then-outstanding
common shares and the then-outstanding Voting Power of such corporation
are then beneficially owned, directly or indirectly, by the persons who
were the beneficial owners of the then-outstanding common stock and
Voting Power of Stilwell immediately before such acquisition, in
substantially the same
proportions as their respective ownership, immediately before such
acquisition, of the then-outstanding common stock and Voting Power of
Stilwell; or
(ii) individuals who, as of the date of the Spin-off
Distribution, constitute the Stilwell Board (the "Incumbent Board")
cease for any reason to constitute at least 75% of the Stilwell Board;
provided that any individual who becomes a director after the Spin-off
Distribution whose election or nomination for election by the
stockholders of Stilwell was approved by at least 75% of the Incumbent
Board (other than an election or nomination of an individual whose
initial assumption of office is in connection with an actual or
threatened "election contest" relating to the election of the directors
of Stilwell (as such terms are used in Rule 14a-11 under the Exchange
Act) or "tender offer" (as such term is used in Section 14(d) of the
Exchange Act) or a proposed Extraordinary Transaction (as defined
below)) shall be deemed to be a member of the Incumbent Board; or
(iii) any one or more of the following:
(A) consummation of a merger,
reorganization, consolidation or similar transaction (any of the
foregoing, an "Extraordinary Transaction") with respect to which
persons who were the respective beneficial owners of the
then-outstanding common stock and Voting Power of Stilwell immediately
before such Extraordinary Transaction would not beneficially own,
directly or indirectly, more than 60% of both the then-outstanding
common shares and the then-outstanding Voting Power of the corporation
resulting from such Extraordinary Transaction, in substantially the
same relative proportions as their respective ownership, immediately
before such Extraordinary Transaction, of the then-outstanding common
stock and Voting Power of Stilwell,
(B) approval by the shareholders of Stilwell
of a liquidation or dissolution of Stilwell, or
(C) consummation of a sale or other
disposition of all or substantially all of the assets of Stilwell in
one transaction or a series of related transactions; or
(iv) the sale or other disposition by Stilwell,
directly or indirectly, whether by merger, consolidation, combination,
lease, exchange, spin-off, split-off, or other means, of any
Significant Subsidiary or any reduction in Stilwell's direct or
indirect beneficial ownership of any Significant Subsidiary to less
than 50% of the Voting Power of such entity.
For purposes of this Agreement, "Subsidiary" shall mean any entity of which at
least 50% of the Voting Power is beneficially owned, directly or indirectly, by
Stilwell and "Significant Subsidiary" shall mean (A) any Subsidiary which
contributed 30% or more of the total combined revenues of Stilwell and all
Subsidiaries for the prior calendar year, and (B) any one or more entities,
businesses or groups of assets directly or indirectly sold or disposed of by
Stilwell (within the meaning of paragraph 7(d)(iv)) within any two (2) year
period that contributed 30% or more of such total combined revenues or would
have contributed such 30% based on revenues of such entities, businesses or
groups of assets for the calendar year prior to their sale or disposition.
Notwithstanding the foregoing provisions of this Paragraph 7(d) to the contrary,
the Spin-off Distribution shall not constitute a Change in Control.
(e) Termination After Control Change Date. Notwithstanding any
other provision of this Paragraph 7, at any time after the Control Change Date,
Stilwell may terminate the employment of Executive (the "Termination"), but
unless such Termination is for Cause as defined in subparagraph (g) or for
disability, within five (5) business days of the Termination Stilwell shall pay
to Executive her full Base Salary through the Termination, to the extent not
theretofore paid, plus a lump sum amount (the "Special Severance Payment") equal
to the product (discounted to the then present value on the basis of a rate of
five percent (5%) per
annum) of (i) 175% of Base Salary specified in Paragraph 7(a) multiplied by (ii)
three, and Specified Benefits (excluding any incentive compensation) to which
Executive was entitled immediately prior to Termination shall continue until the
end of the three (3) year period ("Benefits Period") beginning on the date of
Termination. If any plan pursuant to which Specified Benefits are provided
immediately prior to Termination would not permit continued participation by
Executive after Termination, then Stilwell shall pay to Executive within five
(5) business days after Termination a lump sum payment equal to the amount of
Specified Benefits Executive would have received under such plan if Executive
had been fully vested in the average annual contributions or benefits in effect
for the three plan years ending prior to the Control Change Date (regardless of
any limitations based on the earnings or performance of Stilwell) and a
continuing participant in such plan to the end of the Benefits Period. Following
the end of the Benefits Period, Stilwell shall continue to provide to Executive
and Executive's family the following benefits ("Post-Period Benefits"): (1)
prior to Executive's attainment of age sixty (60), health, prescription and
dental benefits equivalent to those then applicable to active peer executives of
Stilwell and their families, as the same may be modified from time to time, and
(2) following Executive's attainment of age sixty (60) (and without regard to
Executive's period of service with Stilwell), health and prescription benefits
equivalent to those then applicable to retired peer executives of Stilwell and
their families, as the same may be modified from time to time. The cost to
Executive of such Post-Period Benefits shall not exceed the cost of such
benefits to active or retired (as applicable) peer executives, as the same may
be modified from time to time. Notwithstanding the preceding two sentences of
this Paragraph 7(e), if Executive is covered under any health, prescription or
dental plan provided by a subsequent employer, then the corresponding type of
plan coverage (i.e., health, prescription or dental) required to be provided as
Post-Period Benefits under this Paragraph 7(e) shall cease. Executive's rights
under this Paragraph 7(e) shall be in addition to, and not in lieu of, any
post-termination continuation
coverage or conversion rights Executive may have pursuant to applicable law,
including without limitation continuation coverage required by Section 4980B of
the Internal Revenue Code (the "Code"). Nothing in this Paragraph 7(e) shall be
deemed to limit in any manner the reserved right of Stilwell, in its sole and
absolute discretion, to at any time amend, modify or terminate health,
prescription or dental benefits for active or retired employees generally.
(f) Resignation After Control Change Date. In the event of a
Change in Control as defined in Paragraph 7(d), thereafter, upon Good Reason (as
defined below), Executive may, at any time during the three (3) year period
following the Change in Control, subject to the provisions of this Paragraph
7(f), terminate her employment with Stilwell (the "Resignation"). Within five
(5) business days of such a Resignation, Stilwell shall pay to Executive her
full Base Salary through the effective date of such Resignation, to the extent
not theretofore paid, plus a lump sum amount equal to the Special Severance
Payment (computed as provided in the first sentence of Paragraph 7(e), except
that for purposes of such computation all references to "Termination" shall be
deemed to be references to "Resignation"). Upon Resignation of Executive,
Specified Benefits to which Executive was entitled immediately prior to
Resignation shall continue on the same terms and conditions as provided in
Paragraph 7(e) in the case of Termination (including equivalent payments
provided for therein), and Post-Period Benefits shall be provided on the same
terms and conditions as provided in Paragraph 7(e) in the case of Termination.
For purposes of Paragraph 7, "Good Reason" means the occurrence of any of the
events enumerated in Paragraph 4(d)(iii) of this Agreement, or any of the
following events, subject to the provisions of Paragraph 4(d)(iv), except that
the provisions of Paragraph 4(d)(iv) shall not apply if twelve (12) calendar
months have lapsed after the date of the occurrence (or if later, after
Executive becomes aware) of the event or events alleged to constitute Good
Reason, and in any case, the provisions of Paragraph 4(d)(iv) shall not apply to
clause (iii) below of this Paragraph 7(f):
(i) a material reduction or elimination of any
component of Executive's incentive payment, benefits or perquisites
which Executive was receiving immediately prior to a Change in Control;
(ii) any failure by Stilwell to comply with any of
the provisions of Paragraph 7; or
(iii) a termination of employment by Executive for
any reason or no reason during the sixty (60) calendar day period
commencing twelve (12) calendar months after the Control Change Date.
(g) Termination for Cause After Control Change Date.
Notwithstanding any other provision of this Paragraph 7, at any time after the
Control Change Date, Executive may be terminated by Stilwell for Cause subject
to Stilwell's compliance with the provisions of Paragraph 4(c)(ii). "Cause"
shall have the meaning set forth in Paragraph 4(c)(i), except that Cause shall
not mean:
(i) bad judgment or negligence;
(ii) any act or omission believed by Executive in
good faith to have been in or not opposed to the interest of Stilwell
(without intent of Executive to gain, directly or indirectly, a profit
to which Executive was not legally entitled);
(iii) any act or omission with respect to which a
determination could properly have been made by the Stilwell Board that
Executive met the applicable standard of conduct for indemnification or
reimbursement under Stilwell's by-laws, any applicable indemnification
agreement, or applicable law, in each case in effect at the time of
such act or omission; or
(iv) any act or omission of which any member of the
Stilwell Board who is not a party to the act or omission has had actual
knowledge for at least six (6) calendar months.
(h) Gross-up for Certain Taxes. If it is determined (by the
reasonable computation of Stilwell's independent auditors, which determinations
shall be certified to by such auditors and set forth in a written certificate
("Certificate") delivered to Executive) that any benefit received or deemed
received by Executive from Stilwell pursuant to this Agreement or otherwise
(collectively, the "Payments") is or will become subject to any excise tax under
Section 4999 of the Code or any similar tax payable under any United States
federal, state, local or other law (such excise tax and all such similar taxes
collectively, "Excise Taxes"), then Stilwell shall, immediately after such
determination, pay Executive an amount (the "Gross-up Payment") equal to the
product of:
(i) the amount of such Excise Taxes;
multiplied by
(ii) the Gross-up Multiple (as defined in Paragraph
7(k)).
The Gross-up Payment is intended to compensate
Executive for the Excise Taxes and any federal, state, local or other
income or excise taxes or other taxes payable by Executive with respect
to the Gross-up Payment.
Stilwell shall cause the preparation and delivery to
Executive of a Certificate upon request at any time. Stilwell shall, in
addition to complying with this Paragraph 7(h), cause all
determinations and certifications under Paragraphs 7(h)-(o) to be made
as soon as reasonably possible and in adequate time to permit Executive
to prepare and file Executive's individual tax returns on a timely
basis.
(i) Determination by Executive.
(i) If Stilwell shall fail (a) to deliver a
Certificate to Executive or (b) to pay to Executive the amount of the
Gross-up Payment, if any, within fourteen (14) calendar days after
receipt from Executive of a written request for a Certificate, or if at
any time following receipt of a Certificate Executive disputes the
amount of the Gross-up
Payment set forth therein, Executive may elect to demand the payment of
the amount which Executive, in accordance with an opinion of counsel to
Executive ("Executive Counsel Opinion"), determines to be the Gross-up
Payment. Any such demand by Executive shall be made by delivery to
Stilwell of a written notice which specifies the Gross-up Payment
determined by Executive and an Executive Counsel Opinion regarding such
Gross-up Payment (such written notice and opinion collectively, the
"Executive's Determination"). Within fourteen (14) calendar days after
delivery of the Executive's Determination to Stilwell, Stilwell shall
either (a) pay Executive the Gross-up Payment set forth in the
Executive's Determination (less the portion of such amount, if any,
previously paid to Executive by Stilwell) or (b) deliver to Executive a
Certificate specifying the Gross-up Payment determined by Stilwell's
independent auditors, together with an opinion of Stilwell's counsel
("Stilwell Counsel Opinion"), and pay Executive the Gross-up Payment
specified in such Certificate. If for any reason Stilwell fails to
comply with clause (b) of the preceding sentence, the Gross-up Payment
specified in the Executive's Determination shall be controlling for all
purposes.
(ii) If Executive does not make a request for, and
Stilwell does not deliver to Executive, a Certificate, Stilwell shall,
for purposes of Paragraph 7(j), be deemed to have determined that no
Gross-up Payment is due.
(j) Additional Gross-up Amounts. If, despite the initial
conclusion of Stilwell and/or Executive that certain Payments are neither
subject to Excise Taxes nor to be counted in determining whether other Payments
are subject to Excise Taxes (any such item, a "Non-Parachute Item"), it is later
determined (pursuant to subsequently-enacted provisions of the Code, final
regulations or published rulings of the Internal Revenue Service (the "IRS"),
final IRS determination or judgment of a court of competent jurisdiction or
Stilwell's independent auditors) that any of the Non-Parachute Items are subject
to Excise Taxes, or are to be counted in
determining whether any Payments are subject to Excise Taxes, with the result
that the amount of Excise Taxes payable by Executive is greater than the amount
determined by Stilwell or Executive pursuant to Paragraph 7(h) or Paragraph
7(i), as applicable, then Stilwell shall pay Executive an amount (which shall
also be deemed a Gross-up Payment) equal to the product of:
(i) the sum of (a) such additional Excise Taxes and
(b) any interest, fines, penalties, expenses or other costs incurred by
Executive as a result of having taken a position in accordance with a
determination made pursuant to Paragraph 7(h);
multiplied by
(ii) the Gross-up Multiple.
(k) Gross-up Multiple. The Gross-up Multiple shall equal a
fraction, the numerator of which is one (1.0), and the denominator of which is
one (1.0) minus the sum, expressed as a decimal fraction, of the rates of all
federal, state, local and other income and other taxes and any Excise Taxes
applicable to the Gross-up Payment; provided that, if such sum exceeds 0.8, it
shall be deemed equal to 0.8 for purposes of this computation. (If different
rates of tax are applicable to various portions of a Gross-up Payment, the
weighted average of such rates shall be used.)
(l) Opinion of Counsel. "Executive Counsel Opinion" means a
legal opinion of nationally recognized executive compensation counsel that there
is a reasonable basis to support a conclusion that the Gross-up Payment
determined by Executive has been calculated in accordance with this Paragraph 7
and applicable law. "Stilwell Counsel Opinion" means a legal opinion of
nationally recognized executive compensation counsel that (i) there is a
reasonable basis to support a conclusion that the Gross-up Payment set forth in
the Certificate of Stilwell's independent auditors has been calculated in
accordance with this Paragraph 7 and applicable law, and (ii) there is no
reasonable basis for the calculation of the Gross-up Payment determined by
Executive.
(m) Amount Increased or Contested. Executive shall notify
Stilwell in writing of any claim by the IRS or other taxing authority that, if
successful, would require the payment by Stilwell of a Gross-up Payment. Such
notice shall include the nature of such claim and the date on which such claim
is due to be paid. Executive shall give such notice as soon as practicable, but
no later than ten (10) business days, after Executive first obtains actual
knowledge of such claim; provided, however, that any failure to give or delay in
giving such notice shall affect Stilwell's obligations under this Paragraph 7
only if and to the extent that such failure results in actual prejudice to
Stilwell. Executive shall not pay such claim less than thirty (30) calendar days
after Executive gives such notice to Stilwell (or, if sooner, the date on which
payment of such claim is due). If Stilwell notifies Executive in writing before
the expiration of such period that it desires to contest such claim, Executive
shall:
(i) give Stilwell any information that it reasonably
requests relating to such claim;
(ii) take such action in connection with contesting
such claim as Stilwell reasonably requests in writing from time to
time, including, without limitation, accepting legal representation
with respect to such claim by an attorney reasonably selected by
Stilwell;
(iii) cooperate with Stilwell in good faith to
contest such claim; and
(iv) permit Stilwell to participate in any
proceedings relating to such claim; provided, however, that Stilwell
shall bear and pay directly all costs and expenses (including
additional interest and penalties) incurred in connection with such
contest and shall indemnify and hold Executive harmless, on an
after-tax basis, for any Excise Tax or income tax, including related
interest and penalties, imposed as a result of such representation and
payment of costs and expenses. Without limiting the foregoing, Stilwell
shall control all proceedings in connection with such contest and, at
its sole
option, may pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct
Executive to pay the tax claimed and sue for a refund or contest the
claim in any permissible manner. Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a
court of initial jurisdiction and in one or more appellate courts, as
Stilwell shall determine; provided, however, that if Stilwell directs
Executive to pay such claim and sue for a refund, Stilwell shall
advance the amount of such payment to Executive, on an interest-free
basis and shall indemnify Executive, on an after-tax basis, for any
Excise Tax or income tax, including related interest or penalties,
imposed with respect to such advance; and further provided that any
extension of the statute of limitations relating to payment of taxes
for the taxable year of Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Stilwell's control of the contest shall be limited to issues with
respect to which a Gross-up Payment would be payable. Executive shall
be entitled to settle or contest, as the case may be, any other issue
raised by the IRS or other taxing authority.
(n) Refunds. If, after the receipt by Executive of an amount
advanced by Stilwell pursuant to Paragraph 7(m), Executive receives any refund
with respect to such claim, Executive shall (subject to Stilwell's complying
with the requirements of Paragraph 7(m)) promptly pay Stilwell the amount of
such refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by Executive of an amount advanced by
Stilwell pursuant to Paragraph 7(m), a determination is made that Executive
shall not be entitled to a full refund with respect to such claim and Stilwell
does not notify Executive in writing of its intent to contest such determination
before the expiration of thirty (30) calendar days after such determination,
then the applicable part of such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-up Payment required to be paid. Any
contest of a denial of refund shall be controlled by Paragraph 7(m).
(o) Expenses. If any dispute should arise under this Agreement
after the Control Change Date involving an effort by Executive to protect,
enforce or secure rights or benefits claimed by Executive hereunder, Stilwell
shall pay (promptly upon demand by Executive accompanied by reasonable evidence
of incurrence) all reasonable expenses (including attorneys' fees) incurred by
Executive in connection with such dispute, without regard to whether Executive
prevails in such dispute except that Executive shall repay Stilwell any amounts
so received if a court having jurisdiction shall make a final, nonappealable
determination that Executive acted frivolously or in bad faith by such dispute.
To assure Executive that adequate funds will be made available to discharge
Stilwell's obligations set forth in the preceding sentence, Stilwell has
established a trust and upon the occurrence of a Change in Control shall
promptly deliver to the trustee of such trust to hold in accordance with the
terms and conditions thereof that sum which the Stilwell Board shall have
determined is reasonably sufficient for such purpose.
(p) Prevailing Provisions. On and after the Control Change
Date, the provisions of this Paragraph 7 shall control and take precedence over
any other provisions of this Agreement which are in conflict with or address the
same or a similar subject matter as the provisions of this Paragraph 7.
8. Mitigation and Other Employment. After a termination of Executive's
employment pursuant to Paragraph 4(d)(i), 4(e) or a Change in Control as defined
in Paragraph 7(d), Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise,
and except as otherwise specifically provided in Paragraph 4(d)(ii) with respect
to health and life insurance and in
Paragraph 7(e) with respect to health, prescription and dental benefits, no such
other employment, if obtained, or compensation or benefits payable in connection
therewith shall reduce any amounts or benefits to which Executive is entitled
hereunder. Such amounts or benefits payable to Executive under this Agreement
shall not be treated as damages but as severance compensation to which Executive
is entitled because Executive's employment has been terminated.
9. Payment of Interest. If Stilwell fails to pay any amount provided
under this Agreement when due, Stilwell shall pay interest on such amount at a
rate equal to the greater of (A) or (B), where (A) is (i) the highest rate of
interest charged by the lender of Stilwell for maintaining a revolving line of
credit, or (ii) in the absence of a revolving line of credit, 200 basis points
over the prime commercial lending rate announced by Citibank, N.A. on the date
such amount is due or, if no such rate shall be announced on such date, the
immediately prior date on which Citibank, N.A. announced such a rate, and (B) is
five percent (5%); provided, however, that if the interest rate determined in
accordance with this Paragraph 9 exceeds the highest legally permissible
interest rate, then the interest rate shall be the highest legally-permissible
interest rate.
10. Legal Fees.
(a) If Executive incurs legal, accounting, expert witness or
other fees and expenses in an effort to establish, in connection with any
dispute with Stilwell, Executive's entitlement to compensation and benefits
under this Agreement, Stilwell shall, regardless of the outcome of such effort,
reimburse Executive for such fees and expenses, to the extent the amounts
thereof are reasonable, except to the extent limited by Paragraph 10(b). In
addition, Stilwell shall pay Executive an additional amount in respect to any
federal, state and local income and other taxes ("Taxes") incurred by Executive
with respect to such reimbursement of fees and expenses in an amount such that
after Executive's payment of Taxes on such additional
amount, there remains a balance sufficient to pay the Taxes being reimbursed.
Stilwell shall reimburse Executive for such fees and expenses on a monthly basis
upon Executive's request for reimbursement accompanied by evidence that the fees
and expenses were incurred.
(b) If Executive's position in such dispute (i) had no
reasonable basis and was maintained in bad faith, or (ii) was frivolous, no
further reimbursement for legal fees and expenses shall be due to Executive and
Executive shall refund any amounts previously reimbursed hereunder with respect
to such action.
11. Notice. Notices and all other communications to either party
pursuant to this Agreement shall be in writing and shall be deemed to have been
given when personally delivered, delivered by facsimile or deposited in the
United States mail by certified or registered mail, postage prepaid, addressed,
in the case of Stilwell, to Stilwell at 920 Main, 21st Floor, Kansas City,
Missouri 64105, Attention: Secretary, or, in the case of Executive, to her at
6945 North National Drive, Parkville, MO 64152, or to such other address as a
party shall designate by notice to the other party.
12. Amendment. No provision of this Agreement may be amended, modified,
waived or discharged unless such amendment, waiver, modification or discharge is
agreed to in a writing signed by Executive and Stilwell. No waiver by any party
hereto at any time of any breach by another party hereto of, or compliance with,
any condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the time or at any prior or subsequent time.
13. Successors in Interest. The rights and obligations of Stilwell
under this Agreement shall inure to the benefit of and be binding in each and
every respect upon the direct and indirect successors and assigns of Stilwell,
regardless of the manner in which such successors or assigns shall succeed to
the interest of Stilwell hereunder, and this Agreement shall not be terminated
by the voluntary or involuntary dissolution of Stilwell or by any merger or
consolidation or acquisition involving Stilwell or upon any transfer of all or
substantially all of Stilwell's assets, or terminated otherwise than in
accordance with its terms. In the event of any such merger or consolidation or
transfer of assets, the provisions of this Agreement shall be binding upon and
shall inure to the benefit of the surviving corporation or the corporation or
other person to which such assets shall be transferred. Neither this Agreement
nor any of the payments or benefits hereunder may be pledged, assigned or
transferred by Executive either in whole or in part in any manner, without the
prior written consent of Stilwell.
14. Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
15. Controlling Law and Jurisdiction. The validity, interpretation and
performance of this Agreement shall be subject to and construed under the laws
of the State of Missouri, without regard to principles of conflicts of law.
16. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and terminates and
supersedes all other prior agreements and understandings including without
limitation the Prior Agreement, both written and oral, between the parties with
respect to the terms of Executive's employment or severance arrangements.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the Effective Date.
STILWELL FINANCIAL, INC.
By /s/ Landon H. Rowland
----------------------------------------
Name: Landon H. Rowland
Title: Chief Executive Officer
EXECUTIVE
/s/ Gwen E. Royle
-------------------------------------------
Gwen E. Royle