EXHIBIT 10.34.2
AMENDMENT TO
CHANGE OF CONTROL AGREEMENT
This Amendment to Change of Control Agreement (this "Amendment") is
entered into as of December 18, 2003, by and between Janus Capital Group Inc., a
Delaware corporation (the "Company") and Mark B. Whiston (the "Executive").
Capitalized terms used herein but not otherwise defined herein shall have the
respective meaning ascribed to them in the Change of Control Agreement (as
defined below).
WHEREAS, the Company and the Executive previously entered into that
certain Change of Control Agreement, dated as of February 10, 2003 (the
"Agreement"); and
WHEREAS, the parties now desire to amend the Agreement as hereinafter
provided;
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth below, the Company and the Executive hereby agree as follows:
1. Section 3(b)(2) is hereby amended and restated in its entirety as
follows:
"(2) ANNUAL BONUS AND COMMISSION PAY. In addition to the Annual Base
Salary, the Executive shall be awarded, for each fiscal year ending
during the Employment Period, an annual bonus (the "Annual Bonus") in
cash at least equal to the Target Bonus as defined and described in
SCHEDULE A hereto. To the extent that any such Annual Bonus shall not
be deductible when otherwise accrued pursuant to Section 162(m) of the
Internal Revenue Code of 1986, as amended ("Section 162(m)"), the
Company shall credit an account in the Executive's name under a
deferred compensation plan to be established by the Company on or
before March 31, 2004 (the "Deferred Compensation Plan"), which account
shall be distributable to the Executive or his beneficiaries no earlier
than the first date when the Company's accrual of the compensation
deduction attributable to the payment of the balance in such deferred
compensation account is not subject to the deduction limitations of
Section 162(m)."
2. The following new Section 3(b)(9) is hereby added to the Agreement:
"(9) (A) If at the Effective Date the Annual Bonus for 2003 has not yet
been paid in full in accordance with Section 3(b)(ii) of that certain
Employment Agreement dated as of January 1, 2003 and amended as of even
date herewith, by and between the Company and the Executive (as so
amended, the "Employment Agreement"), any unpaid portion shall be paid
in accordance with the provisions of said Section 3(b)(ii) and other
applicable provisions of the Employment Agreement.
(B) If at the Effective Date any components of the One-Year
Retention Bonus and/or the Eighteen-Month Retention Bonus (as such
terms are defined in the Employment Agreement) have not yet vested or,
if vested, have not yet been paid to the Executive, all such unvested
and unpaid components shall continue to be subject to vesting and
payment in accordance with the provisions of
Section 3(b)(ix)(A) or Section 3(b)(ix)(B) of the Employment Agreement,
whichever may be applicable, and other applicable provisions of the
Employment Agreement. In addition, the provisions of Section 3(b)(x) of
the Employment Agreement with respect to the stock grants under Section
3(b)(ix) of the Employment Agreement shall continue to apply with
respect to the stock grants granted to the Executive as provided for
under said Section 3(b)(ix) of the Employment Agreement.
(C) The provisions of the Employment Agreement relating to the
payment of the 2003 Annual Bonus, the One-Year Retention Bonus and the
Eighteen-Month Retention Bonus (as such terms are defined in the
Employment Agreement) shall survive the Effective Date for such time as
is necessary or appropriate to give effect to the provisions of the
foregoing subsections (A) and (B)."
3. Section 4(c)(7) is hereby amended and restated in its entirety as
follows:
"(7) the failure of the Executive to continue, except pursuant
to his voluntary resignation or the failure of the Company shareholders
to approve his reelection to serve as a member of the Board, to serve
as Vice Chairman of the Board."
4. Section 5(a)(1) is hereby amended and restated in its entirety as
follows:
"(1) the Company shall pay to the Executive the aggregate of
the following amounts:
(A) the sum of (1) the Executive's Annual Base Salary through
the Date of Termination, (2) any unpaid bonus with respect to the
fiscal year of the Company prior to the Date of Termination and
calculated pursuant to the Executive's then current employment
agreement, if any, or if no employment agreement is in effect, then the
Target Bonus ("Current Bonus"), (3) any accrued and unpaid vacation,
and (4) the product of (x) the Current Bonus and (y) a fraction, the
numerator of which is the number of days in the fiscal year in which
the Date of Termination occurs through the Date of Termination, and the
denominator of which is 365, in each case to the extent not theretofore
paid (the sum of the amounts described in clauses (1), (2), (3) and (4)
shall be hereinafter referred to as the "Accrued Obligations"); the
Accrued Obligations described in the foregoing clauses (1), (2) and (3)
shall be paid in a lump sum in cash within 30 days following the Date
of Termination, and the Accrued Obligations described in the foregoing
clause (4) shall be paid in a lump sum in cash on the later of (aa) any
day within the first 30 days following the Date of Termination, or (bb)
if not within the first 30 days following the Date of Termination, on
the first day following such 30th day when the Company's deduction for
the payment or accrual of the amount described in such clause (4) is
not subject to the deduction limitations of Section 162(m); and
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(B) If the Date of Termination is on or before December 31,
2005, an amount equal to the product of (1) three and (2) the sum of
(x) the Annual Base Salary and (y) the average of the actual sales
commissions and Annual Bonuses paid to the Executive by the Company and
its predecessor with respect to the 2001 through 2003 fiscal years,
minus the following amounts if the Executive shall have fully vested in
and shall have received or shall be entitled to receive the One-Year
Retention Bonus and/or the Eighteen-Month Retention Bonus (as such
terms are defined in the Employment Agreement): (aa) with respect to
the One-Year Retention Bonus, $2,500,000 for the stock grant pursuant
to Section 3(b)(ix)(A)(1) of the Employment Agreement and $1,500,000
for the deferred compensation credit pursuant to Section 3(b)(ix)(A)(2)
of the Employment Agreement, and (bb) with respect to the
Eighteen-Month Retention Bonus, $1,000,000 for the stock grant pursuant
to Section 3(b)(ix)(B)(1) of the Employment Agreement and $500,000 for
the deferred compensation credit pursuant to Section 3(b)(ix)(B)(2) of
the Employment Agreement. Such payment shall be made to the Executive
on the later of (aa) any day within the first 30 days following the
Date of Termination, or (bb) if not within the first 30 days following
the Date of Termination, on the first day following such 30th day when
the Company's deduction for the payment or accrual of the severance
payment provided for hereunder is not subject to the deduction
limitations of Section 162(m).
(C) If the Date of Termination is after December 31, 2005, an
amount equal to the product of (1) two and (2) the sum of (x) the
Annual Base Salary and (y) the average of the actual sales commissions
and Annual Bonuses paid to the Executive by the Company and its
predecessor with respect to the two fiscal years immediately prior to
the Date of Termination, minus the following amounts if the Executive
shall have fully vested in and shall have received or shall be entitled
to receive the One-Year Retention Bonus and/or the Eighteen-Month
Retention Bonus (as such terms are defined in the Employment
Agreement): (aa) with respect to the One-Year Retention Bonus,
$2,500,000 for the stock grant pursuant to Section 3(b)(ix)(A)(1) of
the Employment Agreement, and $1,500,000 for the deferred compensation
credit pursuant to Section 3(b)(ix)(A)(2) of the Employment Agreement,
and (bb) with respect to the Eighteen-Month Retention Bonus, $1,000,000
for the stock grant pursuant to Section 3(b)(ix)(B)(1) of the
Employment Agreement and $500,000 for the deferred compensation credit
pursuant to Section 3(b)(ix)(B)(2) of the Employment Agreement. Such
payment shall be made to the Executive on the later of (aa) any day
within the first 30 days following the Date of Termination, or (bb) if
not within the first 30 days following the Date of Termination, on the
first day following such 30th day when the Company's deduction for the
payment or accrual of the severance payment provided for hereunder is
not subject to the deduction limitations of Section 162(m)."
5. Section 5(a)(3) is hereby amended and restated in its entirety as
follows:
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"(3) any unvested cash and equity long-term incentive award or other
incentive awards granted to the Executive, including any unvested
shares of limited liability company interests, in the Company, Janus
Capital Management LLC or in any of their affiliated companies held by
the Executive (collectively, "Retention and Incentive Awards") shall
immediately vest and/or be paid, as applicable, in full and any stock
options shall, from and after such vesting, remain exercisable for the
remainder of their respective terms, provided, however, in the case of
a resignation for Good Reason described in the second-to-last sentence
of Section 4(c), consisting of a resignation during the 30-day period
following the first anniversary of the Effective Date, there shall be
no accelerated vesting with respect to any of the components of the
One-Year Retention Bonus and the Eighteen-Month Retention Bonus, as
such terms are defined in the Employment Agreement; and"
6. The second and third sentences of Section 5(b) are hereby amended
and restated in their entirety as follows:
"In addition, all Retention and Incentive Awards shall immediately
vest and/or be paid, as applicable, provided, however, in the case of
the One-Year Retention Bonus and the Eighteen-Month Retention Bonus (as
such terms are defined in the Employment Agreement), such bonuses shall
be paid on the first date after December 31, 2004 or June 30, 2005,
whichever may be applicable, when the Company's accrual of the
compensation deduction attributable to the payment of shares of Common
Stock to the Executive or the payment of the balance in the deferred
compensation account, whichever may be applicable, is not subject to
the deduction limitations of Section 162(m). The Accrued Obligations
shall be paid to the Executive's estate or beneficiary, as applicable,
within the time periods specified in Section 5(a)(1)(A)."
7. The second and third sentences of Section 5(c) are hereby amended
and restated in their entirety as follows:
"In addition, all Retention and Incentive Awards, shall immediately
vest and/or be paid, as applicable, provided, however, in the case of
the One-Year Retention Bonus and the Eighteen-Month Retention Bonus (as
such terms are defined in the Employment Agreement), such bonuses shall
be paid on the first date after December 31, 2004 or June 30, 2005,
whichever may be applicable, when the Company's accrual of the
compensation deduction attributable to the payment of shares of Common
Stock to the Executive or the payment of the balance in the deferred
compensation account, whichever may be applicable, is not subject to
the deduction limitations of Section 162(m). The Accrued Obligations
shall be paid to the Executive within the time periods specified in
Section 5(a)(1)(A)."
8. The following sentence is hereby added at the end of Section 5(d):
"(d) Notwithstanding the foregoing, in the event that the
Executive elects at any time during October 2004 to terminate his
employment with the
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Company as of January 1, 2005 (an "Optional Termination"), the Company
shall pay to the Executive, in addition to the amounts set forth in the
prior sentence, his Annual Bonus for 2004 and any unpaid Annual Bonus
with respect to any prior fiscal year of the Company."
9. Unless otherwise indicated, all references in this Amendment to
designated "Sections" are to the designated Sections of the Agreement.
10. Except as modified by the foregoing, the terms and conditions of
the Agreement shall remain unaffected and shall continue in full force and
effect after the date hereof.
11. This Amendment may be executed by one or more of the parties to
this Amendment on any number of separate counterparts (including counterparts
delivered by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. Any such counterpart delivered
by telecopy shall be effective as an original for all purposes.
12. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of Delaware regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
13. This Amendment shall be effective as of the date hereof.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
the date first set forth above.
JANUS CAPITAL GROUP INC.
By: /s/ LOREN M. STARR
--------------------------------
Its: Senior Vice President and
Chief Financial Officer
MARK B. WHISTON
/s/ MARK B. WHISTON
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