EXHIBIT 10.1
[JOHN P. CALAMOS, SR.]
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "AGREEMENT") is entered into as
of October 26, 2004 (the "EFFECTIVE DATE"), by and among Calamos Asset
Management, Inc., a Delaware corporation ("CAM"), Calamos Advisors LLC, a
Delaware limited liability company ("ADVISORS") and wholly owned subsidiary of
its sole managing member, Calamos Holdings LLC ("HOLDINGS")(together with each
of its successors and assigns permitted under this Agreement sometimes referred
to herein as the "COMPANY"), and John P. Calamos, Sr. ("EXECUTIVE").
RECITALS
WHEREAS, the Executive currently serves as Chairman, Chief Executive
Officer and Co-Chief Investment Officer of Calamos Family Partners, Inc. (f/k/a
Calamos Holdings, Inc.) ("CFP");
WHEREAS, pursuant to certain formation transactions, CFP has transferred
to Holdings, and its limited liability company subsidiaries, including Advisors
(the "SUBSIDIARIES") have assumed, the business theretofore conducted by CFP and
its corporate subsidiaries;
WHEREAS, CFP has also established CAM, an entity which following the
public offering of shares of its Class A Common Stock (the "IPO") and purchase
of membership interests in Holdings, will become the sole managing member of
Holdings, and, indirectly, of the Subsidiaries; and
WHEREAS, the Company desires to employ Executive, and Executive desires to
serve as, Chairman, Chief Executive Officer and Co-Chief Investment Officer of
the Company;
NOW THEREFORE, the parties agree as follows:
1. Term. Subject to earlier termination as provided herein, the Company
hereby agrees to continue Executive in its employ, and Executive hereby agrees
to remain in the employ of the Company, for the period commencing on the
Effective Date and ending on December 31, 2007; provided, however, that
commencing on January 1, 2006, and on each January 1 thereafter, the term of
Executive's employment under this Agreement shall be extended automatically for
one (1) additional year, creating a new three (3)-year term commencing as of
such January 1 until such date on which either the Board of Directors of CAM
(the "BOARD"), on behalf of Holdings, or Executive gives written notice to the
other, in accordance with SECTION 15(d), below, that such automatic extension of
Executive's employment under this Agreement shall cease, in which event, as of
the effective date of such notice, the term of employment shall become a fixed
term ending on the December 31 of the calendar year in which the second
anniversary of the date of such notice falls. Any such notice shall be effective
immediately upon delivery. The term of Executive's employment as provided in
this SECTION 1 shall be hereinafter referred to as the "TERM."
2. Duties.
(a) Executive's Positions and Titles. Executive's positions and
titles shall be Chairman, Chief Executive Officer, President and Co-Chief
Investment Officer of Advisors. Executive shall also serve as Chairman, Chief
Executive Officer and Co-Chief Investment Officer of
CAM, and in such positions with Holdings and/or the Subsidiaries to which
Executive may be appointed.
(b) Executive's Duties. Executive shall have such power and
authority to act for and in the name of the Company, as provided in the
operating agreement of Advisors, the By-laws of CAM or resolutions of the
manager of Advisors (the "MANAGER") or the Board. The duties and
responsibilities of Executive are and shall continue to be of an executive
nature as shall be required by the Company in the conduct of its business and
shall include the performance of such lawful and reasonable duties and
responsibilities as the Board or the Manager may from time to time assign to
Executive not inconsistent with Executive's position(s) and shall include acting
as one of the Advisors' primary investment officers for the Company's business.
Executive recognizes that during the period of Executive's employment hereunder,
Executive owes an undivided duty of loyalty to the Company, and Executive will
use Executive's good faith efforts to promote and develop the business of the
Company. However, the Company recognizes that during the period of Executive's
employment hereunder, Executive will provide certain services to CFP and its
affiliates and related entities and maintain a passive investment in Calim
Private Equity, LLC, and the Company acknowledges and agrees that Executive's
provision of such services and passive investment shall not be in breach of this
Agreement so long as the provision of such services and passive investment does
not (i) interfere with Executive's primary duties and responsibilities hereunder
and (ii) involve Executive providing investment advisory services except as may
be approved by the Compensation Committee of CAM (the "Compensation Committee")
(each such services a "Permitted Activity"). Recognizing and acknowledging that
it is essential for the protection and enhancement of the name and business of
the Company and the goodwill pertaining thereto, Executive shall perform his
duties under this Agreement professionally, in accordance with the applicable
laws, rules and regulations and such standards, policies and procedures
established by Employer and the industry from time to time. Executive will not
perform any duties for any other business, other than a Permitted Activity
without the prior written consent of the Compensation Committee, but may engage
in charitable, civic or community activities, provided that such duties or
activities do not materially interfere with the proper performance of
Executive's duties under this Agreement.
(c) Board Service. Executive will be nominated for reelection as a
member of the Board at each annual meeting of stockholders during the Term at
which the class of directors to which he belongs is up for election. If so
elected, Executive agrees that he will serve as a member of the Board and/or the
board of directors or managers, as applicable, of any of its subsidiaries and
affiliates, as well as to serve as a member of any committee of any of said
boards, to which Executive may be elected or appointed.
3. Compensation and Benefits.
(a) Base Salary. During the Term, Executive shall receive a base
salary ("BASE SALARY"), paid in accordance with the normal payroll practices of
the Company, at an annual rate of $650,000. The Base Salary shall be reviewed
from time to time in accordance with the Company's policies and practices, but
no less frequently than once annually and may be increased, but not decreased,
at any time and from time to time by action of the Board or the Compensation
Committee. The term "Base Salary" shall include any such increases to the Base
Salary from time to time.
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(b) Annual Bonus Programs. In addition to the Base Salary,
Executive shall be eligible to participate throughout the Term in such annual
bonus plans and programs ("ANNUAL BONUS PROGRAMS"), as may be in effect from
time to time in accordance with the Company's compensation practices and the
terms and provisions of any such plans or programs; provided that Executive's
eligibility for and participation in each Annual Bonus Program shall be at a
level and on terms and conditions no less favorable than those for other senior
executives, including, but not limited to, the Portfolio Managers Incentive Plan
applicable to senior executives of the Company with portfolio management
responsibilities. If Executive achieves his target performance goals, as
determined by the Compensation Committee on an annual basis, Executive shall
have a target annual bonus ("TARGET BONUS") under such Annual Bonus Programs
equal to not less than 600% of his Base Salary and a maximum annual bonus
opportunity equal to not less than 150% of such Target Bonus.
(c) Long-term Incentive Programs. In addition to the Base Salary
and participation in the Annual Bonus Programs, Executive shall be eligible to
participate throughout the Term in such long term bonus plans and programs
including stock option, restricted stock unit, restricted shares, performance
stock unit and other similar programs ("LONG TERM INCENTIVE PROGRAMS"), as may
be in effect from time to time in accordance with the Company's compensation
practices and the terms and provisions of any such plans or programs; provided
that Executive's participation in each Long Term Incentive Program shall be at a
level and on terms and conditions no less favorable than participation by other
senior executives of the Company; and, provided further that subject to the
discretion of the Compensation Committee based upon the performance of the
Company and the Executive and competitive pay practices, it is expected that the
Executive shall receive annually Long Term Incentive Program awards with a value
equal to 300% of Base Salary.
(d) Other Incentive Plans. During the Term, Executive shall be
eligible to participate, subject to the terms and conditions thereof, in all
other incentive plans and programs, including such cash and deferred bonus
programs as may be in effect from time to time with respect to senior executives
employed by the Company on as favorable a basis as provided to other similarly
situated senior executives so as to reflect Executive's responsibilities.
(e) Pension and Welfare Benefit Plans. During the Term, Executive
and Executive's dependents, as the case may be, shall be eligible to participate
in all pension and similar benefit plans (qualified, non-qualified and
supplemental), profit sharing, 401(k), as well as all medical and dental,
disability, group and executive life, accidental death and travel accident
insurance, and other similar welfare benefit plans and programs of the Company,
subject to the terms and conditions thereof, as in effect from time to time with
respect to senior executives employed by the Company so as to reflect
Executive's responsibilities.
(f) Perquisites. During the Term, Executive shall be entitled to
participate in perquisite programs, as such are made available to senior
executives of the Company.
(g) Expenses. During the Term, Executive shall be entitled to
receive prompt reimbursement for all reasonable expenses incurred by him in
accordance with the policies and practices of the Company as in effect from time
to time.
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(h) Vacation. During the Term, Executive shall be entitled to paid
vacation in accordance with the policies and practices of the Company as in
effect from time to time with respect to senior executives employed by the
Company, but in no event shall such vacation time be less than four (4) weeks
per calendar year.
(i) Certain Amendments. Nothing herein shall be construed to
prevent the Company from amending, altering, eliminating or reducing any plans,
benefits or programs so long as Executive continues to receive compensation and
benefits consistent with SECTIONS 3(a) through (i).
4. Termination.
(a) Permanent Disability. Either Executive or the Company may
terminate Executive's employment, after having established Executive's Permanent
Disability, by giving notice of his or its intention to terminate Executive's
employment. For purposes of this Agreement, Executive shall be deemed to have a
"Permanent Disability" for purposes of this Agreement if Executive has any
medically determinable physical or mental impairment that has lasted for a
period of not less than six (6) months in any twelve (12) month period and that
renders Executive unable to perform the duties required under the Agreement.
Such determination shall be made by written certification ("CERTIFICATE") of
Executive's Permanent Disability by a physician jointly selected by the Company
and the Executive; provided that if the Company and Executive cannot reach
agreement on the physician, the Certification shall be by a panel of physicians
consisting of one physician selected by the Company, one physician selected by
the Executive and a third physician jointly selected by those two physicians.
(b) Cause.
(i) The Company may terminate Executive's employment at any
time for Cause, if Cause as defined below exists.
(ii) For purposes of this Agreement, "CAUSE" means with
respect to Executive the occurrence of any of the following events:
(A) Executive's conviction of any felony or other
serious crimes;
(B) Executive's material breach of any of the terms of
the Agreement or any other written agreement or material Company
policy to which Executive and the Company are parties or are bound,
if such breach shall be willful and shall continue beyond a period
of twenty (20) days immediately after written notice thereof by the
Company to Executive;
(C) Wrongful misappropriation by Executive of any
money, assets, or other property of the Company or a client of the
Company;
(D) Willful actions or failures to act by the
Executive which subject the Executive or the Company to censure by
the Securities and Exchange Commission as described in and pursuant
to Section 203(e) or 203(f) of the
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Investment Advisers Act of 1940 or Section 9(b) of the Investment
Company Act of 1940 or to censure by a state securities
administrator pursuant to applicable state securities laws or
regulations;
(E) Executive's commission of fraud or gross moral
turpitude; or
(F) Executive's continued willful failure to
substantially perform Executive's duties under this Agreement after
receipt of written notice thereof and an opportunity to so perform.
(iii) Cause shall be determined by the affirmative vote of at
least seventy five percent (75%) of the members of the Board (excluding
the Executive, if a Board member, and excluding any member of the Board
involved in events leading to the Board's consideration of terminating
Executive for Cause). Executive shall be given twenty (20) days written
notice of the Board meeting at which Cause shall be decided (which notice
shall be deemed to be notice of the existence of Cause if Cause is found
to exist by the Board), and shall be given an opportunity prior to the
vote on Cause to appear before the Board, with or without counsel, at
Executive's election, to present arguments on his own behalf. The notice
to Executive of the Board meeting shall include a description of the
specific reasons for such consideration of Cause. The pendency of the
notice period described herein shall not prevent or delay the Company's
ability to enforce the Restrictive Covenants contained herein.
(iv) For purposes of this SECTION 4(b), no act or failure to
act, on the part of Executive, shall be considered willful if it is done,
or omitted to be done, by him in good faith and with a reasonable belief
that his action or omission was in the best interests of the Company.
(c) Good Reason.
(i) Executive may terminate Executive's employment at any
time for Good Reason, if:
(A) (1) An event or condition occurs which constitutes
any of (B)(1) through (B)(5) below; (2) Executive provides the
Company with written notice pursuant to SECTION 15(d) that he
intends to resign for Good Reason and such written notice includes
(I) a designation of at least one of (B)(1) through (B)(5) below
(the "DESIGNATED SECTION") and (II) specifically describes the
events or conditions Executive is relying upon to satisfy the
requirements of the Designated Section(s); (3) as of the twentieth
(20th) day following the date notice is given by Executive to the
Company, such events or conditions have not been corrected in all
material respects; and (4) Executive's resignation is effective
within ninety (90) days of the date Executive first has actual
knowledge of the occurrence of the first event or condition upon
which Executive relies upon to satisfy any of the Designated
Section(s).
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(B) "GOOD REASON" shall mean the occurrence of any of
the following without the express written consent of Executive:
(1) any material breach by the Company of the
Agreement (including any reduction in Executive's Base Salary,
Target Bonus opportunity or maximum bonus opportunity);
(2) any material adverse change in the status,
position or responsibilities of Executive, including a change
in Executive's reporting relationship so that he no longer
reports to the Board or the removal from or failure to
re-elect Executive as a member of the Board;
(3) assignment of duties to Executive that are
materially inconsistent with Executive's position and
responsibilities described in this Agreement;
(4) the failure of the Company to assign this
Agreement to a successor to the Company or failure of a
successor to the Company to explicitly assume and agree to be
bound by this Agreement;
(5) requiring Executive to be principally based
at any office or location more than forty (40) miles from the
current offices of the Company in Naperville, Illinois; or
(6) delivery by the Company of written notice
to Executive to cease the automatic extension provision set
forth in Section 1 above.
(d) Termination by Executive Without Good Reason. Executive may,
at any time without Good Reason, by at least thirty (30) days' prior notice,
voluntarily terminate this Agreement without liability.
(e) Termination by the Company Without Cause. The Company may
terminate Executive's employment at any time without Cause.
(f) Notice of Termination. Any termination of Executive's
employment by the Company for Permanent Disability or for or without Cause, or
by Executive for Disability or for or without Good Reason, shall be communicated
by a Notice of Termination to the other party hereto given in accordance with
SECTION 15(d). For purposes of this Agreement, a "NOTICE OF TERMINATION" means a
written notice which (i) indicates the specific termination provision in this
Agreement relied upon; (ii) sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated; and (iii) specifies the Date of
Termination (defined below); provided, such Notice of Termination may be
conditional if coupled with a notice of the Board's consideration of "Cause" or
Executive's intention to resign for "Good Reason," as the case may be, as
provided above.
(g) Date of Termination. "DATE OF TERMINATION" means the date
Notice of Termination is given pursuant to SECTION 15(d) or any later date
specified therein; provided, (i) any
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Notice of Termination pursuant to SECTION 4(a) shall be effective ninety (90)
days after the date given, (ii) any Notice of Termination pursuant to SECTION
4(b) or SECTION 4(c) shall be effective not less than twenty (20) days after the
date given, (iii) any Notice of Termination pursuant to SECTION 4(d) shall be
effective not less than thirty (30) days after the date given, and (iv) in every
other case any Notice of Termination shall be effective not more than fifteen
(15) days after the date given. Executive's Date of Termination shall be the
date of his death if applicable.
5. Obligations of the Company upon Termination. Executive's
entitlements upon termination of employment are set forth below. Except to the
extent otherwise provided in this Agreement, all benefits, including stock
option grants, restricted shares, restricted stock units and awards under the
Long Term Incentive Programs, shall be subject to the terms and conditions of
the plan or arrangement under which such benefits accrue, are granted or are
awarded. For purposes of this SECTION 5, the term "ACCRUED OBLIGATIONS" shall
mean, as of the Date of Termination, (i) Executive's full Base Salary through
the Date of Termination, at the rate in effect at the time Notice of Termination
is given (disregarding any reduction constituting Good Reason), to the extent
not theretofore paid, (ii) the amount of any bonus, incentive compensation,
deferred compensation and other cash compensation earned (and not forfeited
hereunder) by Executive as of the Date of Termination to the extent not
theretofore paid, and (iii) any vacation pay, expense reimbursements and other
cash entitlements accrued by Executive as of the Date of Termination to the
extent not theretofore paid. For purposes of determining an Accrued Obligation
under this SECTION 5, amounts shall be deemed to accrue ratably over the period
during which they are earned (and not forfeited hereunder), but no discretionary
compensation shall be deemed earned or accrued until it is specifically approved
by the Board or the Compensation Committee in accordance with the applicable
plan, program or policy.
(a) Death. If Executive's employment is terminated by reason of
Executive's death, then this Agreement shall terminate without further
obligations by the Company to Executive's legal representatives under this
Agreement, except as set forth in this SECTION 5(a) or as contained in an
applicable Company plan or program which takes effect at the date of his death,
but in no event shall the Company's obligations be less than those provided by
this Agreement:
(i) Executive's Accrued Obligations not theretofore paid;
(ii) from and after the Date of Termination, Executive's
surviving spouse, other named beneficiaries or other legal
representatives, as the case may be, shall be entitled to receive those
benefits payable to them under the provisions of any plan or program
described in SECTION 3 above;
(iii) Executive's eligible dependents shall receive
continuation of medical benefits upon the same terms as exist immediately
prior to the termination of employment for the eighteen (18)-month period
immediately following the Date of Termination; and
(iv) all unexercised stock options and all unpaid restricted
shares, restricted stock units and other equity-incentive compensation
awards theretofore granted to Executive shall be vested or forfeited, as
the case may be, and any vested stock options shall be exercisable, in
accordance with the provisions of the applicable agreement or award.
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(b) Permanent Disability. If Executive's employment is terminated
by reason of Executive's Disability, then Executive shall be entitled to receive
as of the Date of Termination:
(i) Executive's Accrued Obligations not theretofore paid;
(ii) disability benefits, if any, at least equal to those
then provided by the Company to disabled executives and their families;
(iii) Executive and Executive's eligible dependents shall be
entitled to receive those benefits payable to them under the provisions of
any applicable plan or program described in SECTION 3 and above and shall
receive continuation of medical benefits upon the same terms as exist
immediately prior to the termination of employment for the eighteen (18)
month period immediately following the Date of Termination; and
(iv) all unexercised stock options and all unpaid restricted
shares, restricted stock units and other equity-incentive compensation
awards theretofore granted to Executive shall be vested or forfeited, as
the case may be, and any vested stock options shall be exercisable, in
accordance with the provisions of the applicable agreement or award.
(c) Cause/Other Than for Good Reason. If Executive's employment is
terminated for Cause by the Company or if Executive terminates Executive's
employment without Good Reason, then the Company shall pay Executive all Accrued
Obligations. All unexercised stock options and all unpaid restricted shares,
restricted stock units and other equity-incentive compensation awards
theretofore awarded to Executive shall be vested or forfeited, as the case may
be, and any vested stock options shall be exercisable, in accordance with the
provisions of the applicable agreement or award.
(d) Other Than for Cause, Death or Permanent Disability; For Good
Reason. If the Company terminates Executive's employment other than for Cause or
Permanent Disability or if Executive terminates; Executive's employment for Good
Reason, then:
(i) The Company shall pay to Executive the following
amounts:
(A) Executive's Accrued Obligations not theretofore
paid; and
(B) an amount (subject to reduction as provided in
SECTION 5(b)(iv) equal to three (3) times the Executive's annual
Base Salary at the rate in effect at the time the Notice of
Termination is given (disregarding any reduction constituting Good
Reason), which amount shall be payable in thirty-six (36) monthly
installments commencing with the month following the Date of
Termination (such thirty-six month period, the "Salary Continuation
Period").
(ii) the Company shall provide to Executive the health and
welfare benefits (or, if such benefits are not available, the value
thereof in cash) specified in SECTION 3(e) To which Executive is entitled
as of the Date of Termination during the Salary Continuation Period,
provided that the amount of the monthly payments pursuant to
SECTION 5(d)(i)(B) above shall be reduced by the employee's portion of the
cost of such
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benefits, which Executive would be required to pay if he were actually
employed during such period; provided that, such benefits will cease when
such Salary Continuation Period ends, at which time a COBRA qualifying
event shall be deemed to occur;
(iii) all unexercised stock options and all unpaid restricted
shares, restricted stock units and other equity-incentive compensation
awards theretofore granted to Executive shall be vested or forfeited, as
the case may be, and any vested stock options shall be exercisable, in
accordance with the provisions of the applicable agreement or award;
(iv) in the event the Executive shall commence employment
with or otherwise provide compensated services on a full time basis during
the Salary Continuation Period to any person or entity, other than the
Company or CAM or in connection with any Permitted Activity, then the
Executive shall notify the Company in writing and the monthly payments
described in paragraph (i)(B) above shall cease, and in lieu of monthly
payments then remaining to be paid, the Company shall pay a lump sum cash
payment within ten (10) business days to Executive equal to fifty percent
(50%) of the aggregate amount of such remaining payments; and
(v) the compensation and benefits described in this
SECTION 5(d) shall be in lieu of compensation and benefits provided under
any severance plan or agreement of the Company.
(e) Qualified Change of Control.
(i) If (I) Executive is terminated by the Company without
Cause or Executive resigns for Good Reason during the period commencing on
a Qualified Change of Control and ending on the second (2nd) anniversary
of the Qualified Change of Control (such two (2)-year period being the
"PROTECTION PERIOD" hereunder), or (II) Executive reasonably demonstrates
that such termination of employment (or event constituting Good Reason)
prior to a Qualified Change of Control was at the request of a third party
who was taking steps reasonably calculated to effect a Qualified Change of
Control and a Qualified Change of Control actually occurs, (each a
"QUALIFYING TERMINATION"), then Executive shall be entitled to receive:
(A) a pro-rata annual and, if applicable, long term
cash, bonus for the year of termination based on the Target Bonus
amount or target incentive amount;
(B) an amount in cash equal to three (3) times the sum
of Executive's annual Base Salary (disregarding any reduction
constituting Good Reason) and annual Target Bonus (or, if greater,
the actual bonus earned with respect to the fiscal year immediately
preceding the Change in Control); and
(C) continuation of medical benefits and dental until
the second anniversary of the Date of Termination upon the same
terms as exist for Executive immediately prior to the Date of
Termination.
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(ii) The Company shall continue to have all other rights
available hereunder (including all rights under the Restrictive Covenants
and any restrictive covenants set forth in any plan, award and agreement
applicable to Executive, at law or in equity).
(iii) The amounts described in SECTION 5(e)(i)(A) and (B)
shall be paid in a lump sum within ten (10) days after the Date of
Termination. Such amounts or benefits shall not be subject to mitigation
or offset, except that medical benefits may be offset by comparable
benefits obtained by Executive in connection with subsequent employment.
(iv) Anything set forth in any equity plan, equity award or
any other provision of this Agreement between the Company and Executive to
the contrary notwithstanding, all of Executive's outstanding equity grants
shall fully vest upon the occurrence of a Qualified Change of Control (to
the extent not previously vested). In addition, on the Date of
Termination, all options theretofore granted to Executive and not
exercised by Executive shall become fully vested and all other
equity-based compensation (including restricted shares and restricted
stock units) granted to Executive prior to the Date of Termination which
had not vested shall become fully vested and non-forfeitable, and shall be
exercisable or payable in accordance with the terms of the applicable
award or agreement.
(v) "QUALIFIED CHANGE OF CONTROL" shall be deemed to have
occurred in the event that any person, entity or group shall become the
beneficial owner of such number of shares of Class A and/or Class B Common
Stock, and/or any other class of stock of CAM, then outstanding that is
entitled to vote in the election of directors (or is convertible into
shares so entitled to vote) as together possess more than fifty percent
(50%) of the voting power of all of the then outstanding shares of all
such classes of voting stock of CAM so entitled to vote. For purposes of
the preceding sentence, "person, entity or group" shall not include (i)
any employee benefit plan of the Company, or (ii) the Calamos Family; and
for purposes of this paragraph (v) "group" shall mean persons who act in
concert as described in Section 14(d)(2) of the 1934 Act and "Calamos
Family" shall mean John P. Calamos, Sr., Nick P. Calamos and/or John P.
Calamos, Jr., and their respective spouses and lineal descendants, and
each corporation, trust or other entity controlled by any of the foregoing
individuals.
(vi) The compensation and benefits described in SECTION 5(e)
shall be in lieu of compensation and benefits provided otherwise for a
termination under SECTION 5(d) of this Agreement and any other severance
plan or agreement of the Company.
(f) General Release. Executive acknowledges and agrees that
Executive's right to receive severance pay and other benefits pursuant to
SECTION 5(d) or (e) of this Agreement (other than his Accrued Obligations) is
contingent upon Executive's compliance with the Restrictive Covenants set forth
in SECTION 11 of this Agreement and Executive's execution and acceptance of the
terms and conditions of, and the effectiveness of, a general release in a form
substantially similar to that attached hereto as EXHIBIT A with such changes as
may be necessary under then-existing law (the "RELEASE"). If Executive fails to
comply with the covenants set forth in SECTION 11 or if Executive fails to
execute the Release or revokes the Release during the seven (7)-day period
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following his execution of the Release, then Executive shall not be entitled to
any severance payments or other benefits to which Executive would otherwise be
entitled under SECTION 5(d) or (e).
6. Additional Payments. If it is determined that any amount, right or
benefit paid or payable (or otherwise provided or to be provided) to Executive
by the Company or any of its affiliates under this Agreement or any other plan,
program or arrangement under which Executive participates or is a party
(collectively, the "PAYMENTS"), would constitute an "excess parachute payment"
within the meaning of Section 280G of the Internal Revenue Code of 1986, as
amended from time to time (the "CODE"), subject to the excise tax imposed by
Section 4999 of the Code, as amended from time to time (the "EXCISE TAX"), then
Executive shall be entitled to receive an additional payment from the Company (a
"GROSS-UP PAYMENT") in an amount such that, after payment by Executive of all
taxes (including any interest or penalties imposed with respect to such taxes),
including any income and employment taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment
(and any interest and penalties imposed with respect thereto), Executive retains
an amount of the Gross-Up Payment equal to the Excise Tax (including any
interest and penalties imposed with respect thereto) imposed upon the Payments.
All determinations required to be made under this SECTION 6, including whether
and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by an independent, nationally recognized accounting firm mutually acceptable to
the Company and Executive (the "AUDITOR"). The Auditor shall provide detailed
supporting calculations to both the Company and Executive within fifteen (15)
business days of the receipt of notice from Executive or the Company that there
has been a Payment, or such earlier time as is requested by the Company. All
fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up
Payment, as determined pursuant to this SECTION 6, shall be paid by the Company
to Executive within five (5) days of the receipt of the Auditor's determination.
All determinations made by the Auditor shall be binding upon the Company and
Executive; provided that if, notwithstanding the Auditor's initial
determination, the Internal Revenue Service (or other applicable taxing
authority) determines that an additional Excise Tax is due with respect to the
Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment
based upon the determinations made by the Internal Revenue Service (or other
applicable taxing authority) after taking into account any additional interest
and penalties (the "RECALCULATED AMOUNT") and the Company shall pay to Executive
the excess of the Recalculated Amount over the Gross-Up Payment initially paid
to Executive within five (5) days of the receipt of the Auditor's recalculation
of the Gross-Up Payment.
7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit Executive's continuing or future participation in any benefit, bonus,
incentive or other plan or program provided by the Company and for which
Executive may qualify, nor shall anything herein limit or otherwise affect such
rights as Executive may have under any stock option, restricted shares or other
agreement with the Company or any of its affiliated companies. Except as
otherwise provided herein, amounts and benefits which are vested benefits or
which Executive is otherwise entitled to receive under any plan, program,
agreement or arrangement of the Company at or subsequent to the Date of
Termination shall be payable in accordance with such plan or program.
8. No Set-Off; No Mitigation. Except as provided herein, the Company's
obligation to make the payments provided for in this Agreement and otherwise to
perform its obligations
11
hereunder shall not be affected by any circumstances, including any set-off,
counterclaim, recoupment, defense or other right which the Company may have
against Executive or others. In no event shall Executive be obligated to seek
other employment or take any other action by way of mitigation of the amounts
payable to Executive under any of the provisions of this Agreement, and such
amounts shall not be reduced whether or not Executive obtains other employment,
other than as provided in SECTION 5(d)(iv).
9. Arbitration of Disputes. Except as set forth in SECTION 11(g), any
controversy or claim arising out of or related to (A) this Agreement, (B) the
breach thereof or (C) Executive's employment with the Company or the termination
of such employment shall be settled by arbitration in Chicago, Illinois before a
single arbitrator administered by the American Arbitration Association ("AAA")
under its National Rules for the Resolution of Employment Disputes, effective as
of January 1, 2004 (the "EMPLOYMENT RULES"), and judgment on the award rendered
by the arbitrator may be entered in any court having jurisdiction thereof.
Notwithstanding the foregoing, Rule R-34 of the AAA's Commercial Arbitration
Rules amended and restated as of July 1, 2003 (instead of Rule 27 of the
Employment Rules), shall apply to interim measures. References herein to any
arbitration rule(s) shall be construed as referring to such rule(s) as amended
or renumbered from time to time and to any successor rules. References to the
AAA include any successor organization.
10. Entire Agreement. Executive acknowledges and agrees that this
Agreement includes the entire agreement and understanding between the parties
and supersedes any prior agreements, written or oral, with respect to the
subject matter hereof, including the termination of Executive's employment
during the Term and all amounts to which Executive shall be entitled whether
during the Term or thereafter and all restrictive covenants to which Executive
may be subject. Executive also acknowledges and agrees that Executive's right to
receive severance pay and other benefits pursuant to SECTION 5(d)(i)(B),
SECTION 5(d)(ii), SECTION 5(d)(iv), and SECTION 5(e)(i)(B) AND (C) of this
Agreement is contingent upon Executive's compliance with the Restrictive
Covenants set forth in SECTION 11 of this Agreement.
11. Executive's Covenants.
(a) Executive's Acknowledgment. Executive agrees and acknowledges
that in order to assure the Company that it will retain its value and that of
the Business as a going concern, it is necessary that Executive not utilize
special knowledge of the Business and its relationships with customers to
compete with the Company. For purposes of this Agreement, "BUSINESS" means the
provision of investment management, investment advisory, portfolio management,
financial analysis, research or similar services relating to the investment of
international or domestic equity or debt securities or other activities or
services of the type provided by the Company or its affiliates to its clients on
a worldwide basis including, without limitation, open-end and closed-end,
registered and unregistered, investment companies ("Funds"), and the direct and
indirect sale and/or distribution of equity interests in the Funds; and
"COMPETING ACTIVITY" or "COMPETING ACTIVITIES" means engaging in the Business.
Executive further acknowledges that:
(i) the Company is and will be engaged in the Business
during the Term and thereafter;
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(ii) Executive will occupy a position of trust and confidence
with the Company, and during the Term, Executive will become familiar with
the Company's trade secrets and with other proprietary and Confidential
Information concerning the Company and the Business;
(iii) the agreements and covenants contained in this
SECTION 11 are essential to protect the Company, the near permanent client
relationships and the goodwill of the Business and compliance with such
agreements and covenants will not impair Executive's ability to procure
subsequent and comparable employment; and
(iv) Executive's employment with the Company has special,
unique and extraordinary value to the Company and the Company would be
irreparably damaged if Executive were to provide services to any person or
entity in violation of the provisions of this Agreement.
(b) Confidential Information. For purposes of this Agreement,
"Confidential Information" shall mean trade secrets and other proprietary
information concerning the products, processes or services of the Company or any
of its affiliates, which information (i) has not been made generally available
to the public, and is useful or of value to Company's current or anticipated
business activities or of those of any affiliate or client of Company; or (ii)
has been identified to Executive as confidential, either orally or in writing,
including, but not limited to: computer programs; research and other statistical
data and analyses; marketing, organizational or other research and development,
or business plans; personnel information, including the identity of other
Executives of the Company, their responsibilities, competence, abilities, and
compensation; financial, accounting and similar records of Company, its
affiliates and/or any Fund or account managed by the Company or its affiliates
(such Funds or accounts referred to herein as "Company Funds"); current and
prospective client lists and information on clients and their Executives; client
investment objectives, the nature of their investment portfolios and contractual
agreements with the Company or its affiliates; information concerning planned or
pending investment products, acquisitions or divestitures; and information
concerning the marketing and/or sale or distribution of equity interests in the
Funds. Confidential Information shall not include information which: (a) is in
or hereafter enters the public domain through no fault of Executive; (b) is
obtained by Executive from a third party having the legal right to use and
disclose the same; or (c) is in the possession of Executive prior to receipt
from the Company (as evidenced by Executive's written records pre-dating the
date of employment). All notes, reports, plans, published memoranda or other
documents created, developed, generated or held by Executive during employment,
concerning or related to the Company's or its affiliates business, and whether
containing or relating to Confidential Information or not, and all tangible
personal property of the Company or its affiliates entrusted to Executive or in
Executive's direct or indirect possession or control, are the property of the
Company, and will be promptly delivered to the Company and not thereafter used
by Executive upon termination of Executive's employment for any reason
whatsoever.
(c) Non-Disclosure. Executive agrees that during employment with
the Company (including any employment following the Term) and at all times
thereafter, Executive shall not reveal to any competitor or other person or
entity (other than current employees of the Company) any Confidential
Information regarding Clients (as defined herein) that Executive obtains while
13
performing services for the Company, except as may be required in Executive's
reasonable judgment to fulfill his duties hereunder.
(d) Non-Compete. During the term of Executive's employment with
the Company and, after such termination of employment, for a period after such
termination ending upon the later of the fifth anniversary of the IPO or this
third anniversary of the Date of Termination (such period the "POST-TERMINATION
NON-COMPETE PERIOD"), Employee shall not engage in, or own or control any
interest in, or act as an officer, director or employee of, or consultant,
advisor or lender to any firm, corporation, institution, business or entity
(each an "Entity") directly or indirectly engaged in the Business.
(e) "Calamos" Name. Employee understands that Company's name, the
name of any Funds and accounts managed by the Company (such proprietary Funds,
accounts and any other client account managed by the Company, the "COMPANY
ACCOUNTS") and the investment performance of any Company Account and Company's
relationships with its clients and employees are extremely valuable and are the
result of the expenditure of substantial time, effort and resources by the
Company. Therefore, during the period of Executive's employment and the
Post-Termination Non-Compete Period, Employee agrees that he will not, directly
or indirectly, on his or her behalf or another's behalf:
(i) solicit the Company's or its affiliates' clients to
provide, offer to provide, or provide to any such clients, services or
products of the kind generally offered or provided by Company or its
affiliates; or
(ii) solicit, induce or encourage any person who is then in
the employ of the Company to leave his or her employment, agency or office
with Company, or employ or be employed with any such person or persons,
for the purpose of providing or offering to provide, services or products
of the kind generally offered by Company or its affiliates; or
(iii) refer to the Company, "Calamos", "Calamos Investments"
or "Calamos Asset Management" or any other name used by the Company, any
Company Account or the investment performance thereof, or Executive's
prior association with the Company or its affiliates or any Company
Account in any public filing or in any advertisement or marketing of any
service or product which is a Competing Activity; or
(iv) maintain a relationship of the type described in
paragraph (d) above with any Entity which refers to the Company, any
Company Account or the investment performance thereof, or Executive's
prior association with Company or any Company Account in any public filing
or in any advertisement or marketing of any service or product which is a
Competing Activity.
(f) Notwithstanding the foregoing, nothing in paragraph (d) or (e)
of this SECTION 11 shall prohibit Executive from engaging in Permitted
Activities or prohibit Executive or any other person or Entity from referring to
information described in said paragraphs, provided such reference is not made in
advertising or marketing in newspapers, magazines, trade journals or other
public media, or direct advertising or marketing materials, and such information
is limited to the
14
extent that (i) such information is contained in any SEC filings previously
made by the Company, or (ii) reference to such information is otherwise required
by law. The Company and Employee agree that, based on applicable rules,
regulations and court decisions in effect as of the date this Agreement is
entered into, information relating to the investment performance of any Company
Account is not information reference to which "is otherwise required by law"
within the meaning of said clause (ii). In addition, this SECTION 11 shall not
prohibit the Executive from being a passive owner of not more than two percent
(2%) of the outstanding shares of any class of securities of an Entity whose
securities are publicly traded, so long as Executive does not have any active
participation in the business of such Entity.
(g) Non-Exclusive Remedy for Restrictive Covenants. Executive
acknowledges and agrees that the covenants set forth in this SECTION 11
(collectively, the "RESTRICTIVE COVENANTS") are reasonable and necessary for the
protection of the Company's business interests, that irreparable injury will
result to the Company if Executive breaches any of the terms of the Restrictive
Covenants, and that in the event of Executive's actual or threatened breach of
any such Restrictive Covenants, the Company will have no adequate remedy at law.
Executive accordingly agrees that in the event of any actual or threatened
breach by him of any of the Restrictive Covenants, the Company shall be entitled
to immediate temporary injunctive and other equitable relief, without the
necessity of showing actual monetary damages or the posting of bond. Nothing
contained herein shall be construed as prohibiting the Company from pursuing any
other remedies available to it for such breach or threatened breach, including
the recovery of damages. The duration of a Restrictive Covenant shall be
extended by such time during which such breach or threatened breach continues
without cure by Executive.
12. Indemnification.
(a) The Company agrees that if Executive is made a party to or
involved in, or is threatened to be made a party to or otherwise to be involved
in, any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "PROCEEDING"), by reason of the fact that he is or was a
director, officer or employee of the Company or is or was serving at the request
of the Company as a director, officer, member, employee or agent of another
corporation, limited liability corporation, partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans,
whether or not the basis of such Proceeding is Executive's alleged action in an
official capacity while serving as a director, officer, member, employee or
agent, Executive shall be indemnified and held harmless by the Company against
any and all liabilities, losses, expenses, judgments, penalties, fines and
amounts reasonably paid in settlement in connection therewith, and shall be
advanced reasonable expenses (including attorneys' fees) as and when incurred in
connection therewith, to the fullest extent legally permitted or authorized by
the Company's By-laws or, if greater, by the laws of the State of Delaware, as
may be in effect from time to time. The rights conferred on Executive by this
SECTION 12(a) shall not be exclusive of any other rights which Executive may
have or hereafter acquire under any statute, the By-laws, agreement, vote of
stockholders or disinterested directors, or otherwise. The indemnification and
advancement of expenses provided for by this SECTION 12 shall continue as to
Executive after he ceases to be a director, officer or employee and shall inure
to the benefit of his heirs, executors and administrators.
15
(b) During the Term and thereafter for the duration of any statute
of limitations or other period during which a claim might be successfully
brought against Executive, Executive shall be covered to the same extent as
directors by any directors' and officers' liability insurance policy maintained
by the Company from time to time.
13. Successors.
(a) This Agreement is personal to Executive and, without the prior
written consent of the Company, shall not be assignable by Executive otherwise
than by will or the laws of descent and distribution. This Agreement shall inure
to the benefit of and be enforceable by Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors. It shall not be assignable by the Company
or its successors except in connection with the sale or other disposition of all
or substantially all the assets or business of the Company. The Company shall
require any successor to all or substantially all of the business or assets of
the Company, whether direct or indirect, by purchase, merger, consolidation,
acquisition of stock, or otherwise, by an agreement in form and substance
reasonably satisfactory to Executive, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent as the Company would be
required to perform if no such succession had taken place.
14. Amendment; Waiver. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and may be
amended, modified or changed only by a written instrument executed by Executive
and the Company. No provision of this Agreement may be waived except by a
writing executed and delivered by the party sought to be charged. Any such
written waiver will be effective only with respect to the event or circumstance
described therein and not with respect to any other event or circumstance,
unless such waiver expressly provides to the contrary.
15. Miscellaneous.
(a) The provisions of SECTION 5 (Obligations of the Company upon
Termination), SECTION 8 (No Set-Off; No Mitigation), SECTION 9 (Arbitration of
Disputes), SECTION 11 (Executive's Covenants), SECTION 12 (Indemnification),
SECTION 13 (Successors), SECTION 14 (Amendment; Waiver) and this SECTION 15(a)
shall survive the termination Executive's employment with the Company for any
reason, or the expiration of the Term of the Agreement pursuant to SECTION 1,
and shall thereafter remain in full force and effect.
(b) In the event of any inconsistency between this Agreement and
any other agreement, plan, program, policy or practice (collectively, "OTHER
PROVISION") of the Company, the terms of this Agreement shall control unless
such Other Provision provides otherwise by a specific reference to this
SECTION 15(b).
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois (except SECTION 12 which shall
be governed by the laws of the State of
16
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.
(d) All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been duly given (i) the following business
day after deposit from within the United States with a reputable express courier
service (charges prepaid), (ii) three (3) days after mailing by certified or
registered mail, return receipt requested and postage prepaid, or (iii) upon
receipt in all other cases. Such notices, demands and other communications shall
be sent to the addresses indicated below:
If to the Company:
Calamos Advisors LLC
Calamos Asset Management, Inc.
1111 E. Warrenville Road
Naperville, IL 60563
Attn: General Counsel
If to Executive:
Address per the Company records
or to such other address or to the attention of such other person as the
recipient party shall have specified by prior written notice to the sending
party.
(e) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction will not invalidate or render unenforceable such provision in any
other jurisdiction.
(f) All compensation payable to Executive from the Company shall
be subject to all applicable withholding taxes, normal payroll withholding and
any other amounts required by law to be withheld.
(g) This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same Agreement.
(h) The descriptive headings in this Agreement are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement. The use of the word "including"
in this Agreement shall be by way of example rather than by limitation.
(i) The language used in this Agreement will be deemed to be the
language chosen by the parties hereto to express their mutual intent, and no
rule of strict construction will be applied against any party hereto. Neither
Executive nor the Company shall be entitled to any
17
presumption in connection with any determination made hereunder in connection
with any arbitration, judicial or administrative proceeding relating to or
arising under this Agreement.
[SIGNATURE PAGE FOLLOWS]
18
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Executive Employment Agreement as of the date and year first set forth above.
CALAMOS ADVISORS LLC
By: Calamos Holdings LLC, its Manager
By: Calamos Family Partners, Inc., its Manager
By: /s/ Nick P. Calamos
------------------------------
Nick P. Calamos, Executive Vice
President
CALAMOS ASSET MANAGEMENT, INC.
By: /s/ Nick P. Calamos
---------------------------------
Nick P. Calamos, Executive Vice President
EXECUTIVE
/s/ John P. Calamos, Sr.
--------------------------------
John P. Calamos, Sr.
19
EXHIBIT A
GENERAL RELEASE OF ALL CLAIMS
1. For valuable consideration, the adequacy of which is hereby
acknowledged, the undersigned ("EXECUTIVE"), for himself, his spouse, heirs,
administrators, children, representatives, executors, successors, assigns, and
all other persons claiming through Executive, if any (collectively,
"RELEASERS"), does hereby release, waive, and forever discharge Calamos Asset
Management, Inc., Calamos Holdings LLC and Calamos Advisors, LLC (collectively
"COMPANY"), Company's Subsidiaries, parents, affiliates, related organizations,
employees, officers, directors, attorneys, successors, and assigns
(collectively, the "RELEASEES") from, and does fully waive any obligations of
Releasees to Releasers for, any and all liability, actions, charges, causes of
action, demands, damages, or claims for relief, remuneration, sums of money,
accounts or expenses (including attorneys' fees and costs) of any kind
whatsoever, whether known or unknown or contingent or absolute, which heretofore
has been or which hereafter may be suffered or sustained, directly or
indirectly, by Releasers in consequence of, arising out of, or in any way
relating to Executive's employment with Company or any of its affiliates and the
termination of Executive's employment. The foregoing release and discharge,
waiver and covenant not to sue includes, but is not limited to, all claims and
any obligations or causes of action arising from such claims, under common law
including wrongful or retaliatory discharge, breach of contract (including but
not limited to any claims under the Executive Employment Agreement between the
Company and Executive, dated _____________, as amended from time to time (the
"EMPLOYMENT AGREEMENT") and any claims under any stock option and restricted
shares agreements between Executive and the Company) and any action arising in
tort including libel, slander, defamation or intentional infliction of emotional
distress, and claims under any federal, state or local statute including Title
VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866 and 1871 (42
U.S.C. Section 1981), the National Labor Relations Act, the Age Discrimination
in Employment Act (ADEA), the Fair Labor Standards Act, the Americans with
Disabilities Act of 1990, the Rehabilitation Act of 1973, the Illinois Human
Rights Act, or the discrimination or employment laws of any state or
municipality, and/or any claims under any express or implied contract which
Releasers may claim existed with Releasees. This also includes a release by
Executive of any claims for breach of contract, wrongful discharge and all
claims for alleged physical or personal injury, emotional distress relating to
or arising out of Executive's employment with Company or the termination of that
employment; and any claims under the WARN Act or any similar law, which
requires, among other things, that advance notice be given of certain work force
reductions. This release and waiver does not apply to any claims or rights that
may arise after the date Executive signs this General Release. The foregoing
release does not apply to (a) any claims or rights for severance pay, benefits,
indemnification and any other surviving rights now existing under the Employment
Agreement, the organization documents of the Company or any other agreement
providing for indemnification regardless of when any claim is filed, (b) any
claims or rights under directors and officers liability insurance.
2. Excluded from this release and waiver are any claims which cannot be
waived by law, including but not limited to the right to participate in an
investigation conducted by certain government agencies. Executive does, however,
waive Executive's right to any monetary recovery
A-1
should any agency (such as the Equal Employment Opportunity Commission) pursue
any claims on Executive's behalf. Executive represents and warrants that
Executive has not filed any complaint, charge, or lawsuit against the Releasees
with any government agency or any court.
3. Executive agrees never to sue Releasees in any forum for any claim
covered by the above waiver and release language, except that Executive may
bring a claim under the ADEA to challenge this General Release. If Executive
violates this General Release by suing Releasees, other than under the ADEA or
as otherwise set forth in SECTION 1 hereof, Executive shall be liable to the
Company for its reasonable attorneys' fees and other litigation costs incurred
in defending against such a suit. Nothing in this General Release is intended to
reflect any party's belief that Executive's waiver of claims under ADEA is
invalid or unenforceable, it being the interest of the parties that such claims
are waived.
4. Executive acknowledges and recites that:
(a) Executive has executed this General Release knowingly and
voluntarily;
(b) Executive has read and understands this General Release in its
entirety;
(c) Executive has been advised and directed orally and in writing
(and this subparagraph (c) constitutes such written direction) to seek
legal counsel and any other advice he wishes with respect to the terms of
this General Release before executing it;
(d) Executive's execution of this General Release has not been
forced by any employee or agent of the Company, and Executive has had an
opportunity to negotiate about the terms of this General Release; and
(e) Executive has been offered twenty-one (21) calendar days after
receipt of this General Release to consider its terms before executing it.
5. This General Release shall be governed by the internal laws (and not
the choice of laws) of the State of Illinois, except for the application of
preemptive Federal law.
6. Executive shall have seven (7) days from the date hereof to revoke
this General Release by providing written notice of the revocation to the
Company, as provided in SECTION 15(d) of the Employment Agreement, in which
event this General Release shall be unenforceable and null and void.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN
AND UNKNOWN CLAIMS.
Date:________________________________ Executive: __________________________
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