STOCK PURCHASE AGREEMENT
------------------------
This STOCK PURCHASE AGREEMENT (this "Agreement") is entered into and
effective as of the 19th day of November, 1999, by and among KANSAS CITY
SOUTHERN INDUSTRIES, INC., a Delaware corporation ("KCSI"), ▇▇▇▇▇▇▇▇
FINANCIAL, INC., a Delaware corporation ("▇▇▇▇▇▇▇▇"), and JANUS CAPITAL
CORPORATION, a Colorado corporation ("JCC").
WHEREAS, JCC has 9,990,400 shares of common stock ("JCC Common Stock"),
$.0l par value per share, issued and outstanding, of which ▇▇▇▇▇▇▇▇ owns
8,202,408 shares; and
WHEREAS, ▇▇▇▇▇▇▇▇ desires to sell to JCC, and JCC desires to purchase,
192,408 shares (the "Shares") of the JCC Common Stock held by ▇▇▇▇▇▇▇▇.
NOW, THEREFORE, in consideration of the above recitals and of the
mutual covenants and agreements contained in this Agreement, the parties
agree as follows:
ARTICLE I. PURCHASE AND SALE OF THE SHARES
1.1. GENERAL. Subject to the terms and conditions set forth in this
Agreement, at the Closing provided for in Section 2.1, JCC shall purchase
from ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇ shall sell, assign, transfer, convey and deliver
to JCC, the Shares, free and clear of all liens, claims and encumbrances,
except as provided in Section 7.3 below.
1.2 PURCHASE PRICE. The purchase price to be paid to ▇▇▇▇▇▇▇▇ by
JCC for each Share shall be equal to fifteen times the Net After Tax Earnings
("NATE") per share of JCC Common Stock issued and outstanding (computed on a
fully-diluted basis in accordance with generally accepted accounting
principles in effect for the applicable period ("GAAP")), calculated for the
calendar year of JCC ending on December 31, 1999. NATE shall mean the net
income of JCC calculated in accordance with GAAP, applied on a consistent
basis, and as adjusted in the manner set forth below. For purposes of
calculating NATE, adjustments for discontinued operations, cumulative effect
of changes in accounting principles, extraordinary items, and prior period
adjustments shall be excluded from the determination of NATE. For purposes
of such calculation, no charge made to JCC by ▇▇▇▇▇▇▇▇ or any affiliate of
▇▇▇▇▇▇▇▇ for any services furnished to JCC by ▇▇▇▇▇▇▇▇ or any such affiliate
shall be taken into account unless such services have been approved by the
President of JCC, which approval shall not be unreasonably withheld. If JCC
files a consolidated federal income tax return with another company or group
of companies, the tax rate to be applied to net earnings to determine the
NATE of JCC shall be the federal income tax rate which would be applicable to
JCC if no such consolidation were to have occurred. The total purchase price
for all Shares is referred to hereinafter as the "Total Purchase Price" and
shall be payable in immediately available funds.
ARTICLE II. CLOSING AND POST-CLOSING PAYMENTS
2.1 CLOSING TIME, DATE AND PLACE. Subject to the fulfillment of all
conditions set forth in this Agreement, the closing of the purchase and sale
of the Shares provided for herein (the "Closing") shall be held at the
offices of KCSI, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ at 10:00
a.m. local time, on January 3, 2000 (the "Closing Date"), or at such other
time, date or place as the parties may agree.
2.2 CLOSING TRANSACTIONS. At the Closing:
(a) ▇▇▇▇▇▇▇▇ shall deliver to JCC the certificates for the Shares,
duly endorsed in blank, or with stock powers (reasonably satisfactory to JCC)
attached duly endorsed in blank.
(b) ▇▇▇▇▇▇▇▇ and KCSI each shall deliver to JCC (i) a closing
certificate referred to in Section 5.1 and (ii) such other documents relating
to the purchase and sale of the Shares as JCC shall reasonably request not
later than three (3) days before the Closing.
(c) JCC shall deliver to ▇▇▇▇▇▇▇▇ by wire transfer of immediately
available funds (in accordance with instructions received from ▇▇▇▇▇▇▇▇ given
not later than three (3) days prior to the Closing), payable to ▇▇▇▇▇▇▇▇ in
the amount of Eighty Million Dollars ($80,000,000).
(d) JCC shall deliver to KCSI and ▇▇▇▇▇▇▇▇ (i) the closing
certificate referred to in Section 6.1 and (ii) such other documents relating
to the purchase and sale of the Shares as KCSI and ▇▇▇▇▇▇▇▇ shall reasonably
request not later than three (3) days before the Closing.
2.3 POST CLOSING PAYMENTS.
(a) By not later than February 15, 2000, JCC shall deliver to
▇▇▇▇▇▇▇▇ by wire transfer of immediately available funds (in accordance with
instructions from ▇▇▇▇▇▇▇▇), a payment equal to any excess of (i) the Total
Purchase Price over (ii) $80,000,000, plus interest on such payment from the
Closing Date at a rate per annum equal to the prime rate as announced from
time to time by Chase Bank, New York, New York. By no later than February
10, 2000, JCC shall provide ▇▇▇▇▇▇▇▇ with a detailed computation of the Total
Purchase Price and thereafter shall provide such information relating thereto
as ▇▇▇▇▇▇▇▇ may reasonably request.
(b) Notwithstanding the purchase and sale of the Shares contemplated
herein, ▇▇▇▇▇▇▇▇ shall be entitled to and shall be paid, at the same time as
the other holders of JCC Common Stock, all dividends and other distributions
paid by JCC after the Closing on JCC Common Stock with respect to earnings of
JCC through December 31, 1999 or with respect to periods prior to and
including December 31, 1999 to which ▇▇▇▇▇▇▇▇ would have been entitled had it
owned the Shares on the record dates for such dividends and distributions.
Except as set forth in the preceding sentence, in no event shall ▇▇▇▇▇▇▇▇ be
entitled to any dividend or other distribution with respect to the Shares to
which holders of JCC Common Stock are entitled to due to their ownership of
JCC Common Stock on a record date after the Closing Date.
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF
KCSI AND ▇▇▇▇▇▇▇▇
KCSI and ▇▇▇▇▇▇▇▇, individually and collectively, hereby represent and
warrant to JCC as follows:
3.1 STOCK OWNERSHIP. The Shares owned by ▇▇▇▇▇▇▇▇ are not subject
to, nor collateral for, any pledge, loan or other agreement, and ▇▇▇▇▇▇▇▇ is
the lawful owner of, and has full right, title and interest in and to, the
Shares, free and clear of all liens, claims and encumbrances, and ▇▇▇▇▇▇▇▇
has full power and authority to transfer such Shares to JCC as contemplated
in this Agreement.
3.2 AUTHORIZATION. The execution, delivery and performance of this
Agreement by KCSI and ▇▇▇▇▇▇▇▇ have been duly and validly authorized by all
necessary action on the part of KCSI and ▇▇▇▇▇▇▇▇, and this Agreement is a
valid and binding obligation upon KCSI and ▇▇▇▇▇▇▇▇, enforceable against each
of them in accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium and other laws affecting the enforcement of creditors'
rights generally and except to the extent enforcement may be limited by
general equitable principles (regardless of whether enforcement is sought at
law or in equity).
3.3 NO VIOLATIONS, CONFLICTS OR DEFAULTS. Neither the execution nor
the delivery or performance of this Agreement will (i) violate or conflict
with, or result in a breach of any provisions of, either KCSI or ▇▇▇▇▇▇▇▇'▇
Certificate of Incorporation or Bylaws, or constitute a material default
under, or result in the termination of, any note, bond, mortgage, indenture,
deed of trust, license, agreement, or other instrument or obligation to which
either KCSI or ▇▇▇▇▇▇▇▇ is a party, which default or termination would have a
material adverse effect on the business or financial condition of either KCSI
or ▇▇▇▇▇▇▇▇, (ii) violate any order, writ, injunction or decree applicable to
either KCSI or ▇▇▇▇▇▇▇▇, or (iii) violate any applicable law or any order,
rule or regulation of any regulatory or governmental authority having
jurisdiction over KCSI or ▇▇▇▇▇▇▇▇.
3.4 FINDER'S FEE. Neither KCSI nor ▇▇▇▇▇▇▇▇ have entered into any
agreement, arrangement or understanding with any person or firm which will
result in an obligation of JCC to pay any finder's fee, brokerage commission,
or similar payment in connection with the transactions contemplated by this
Agreement.
3.5 SURVIVAL. The representations and warranties contained in this
Article III shall survive the Closing and remain in effect for a period of
five (5) years from the Closing Date.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF JCC
JCC hereby represents and warrants to KCSI and ▇▇▇▇▇▇▇▇ as follows:
4.1 AUTHORIZATION. The execution, delivery and performance of this
Agreement by JCC have been duly and validly authorized and approved by all
necessary action on its part, and this Agreement is a valid and binding
obligation upon JCC, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium and other laws
affecting the enforcement of creditors' rights generally and except to the
extent enforcement may be limited by general equitable principles (regardless
of whether enforcement is sought at law or in equity).
4.2 NO VIOLATIONS, CONFLICTS OR DEFAULTS. Neither the execution nor
the delivery or performance by JCC of this Agreement will (i) violate or
conflict with, or result in a breach of any provisions of, JCC's Articles of
Incorporation or Bylaws or constitute a material default under, or result in
the termination of, any note, bond, mortgage, indenture, deed of trust,
license, agreement or other instrument or obligation to which JCC is a party,
which default or termination would have a material adverse effect on JCC's
business or financial condition, (ii) violate any order, writ, injunction or
decree applicable to JCC, or (iii) violate any applicable law or any order,
rule, or regulation of any regulatory or governmental authority having
jurisdiction over JCC.
4.3 FINDER'S FEE. JCC has not entered into and will not enter into
any agreement, arrangement or understanding with any person or firm which
will result in an obligation of either KCSI, ▇▇▇▇▇▇▇▇ or JCC to pay any
finder's fee, brokerage commission, or similar payment in connection with the
transactions contemplated by this Agreement.
4.4 SURVIVAL. The representations and warranties contained in this
Article IV shall survive the Closing and remain in effect for a period of
five (5) years from the Closing Date.
ARTICLE V. CONDITIONS TO CLOSING OBLIGATIONS OF JCC
The obligation of JCC under this Agreement to purchase the Shares as set
forth in Sections 1.1 and 1.2 hereof shall be subject to the fulfillment on
or prior to the Closing of each of the following conditions:
5.1 TRUTH AND CORRECTNESS OF REPRESENTATIONS AND WARRANTIES The
representations and warranties of KCSI and ▇▇▇▇▇▇▇▇ contained in this
Agreement shall be true and correct in all material respects at the Closing
Date as if made on and as of that date. KCSI and ▇▇▇▇▇▇▇▇ shall have
performed and complied with all of the material agreements, covenants and
conditions required by this Agreement to be performed and complied with by
them on or prior to the Closing. JCC shall have been furnished at the
Closing with individual certificates dated the Closing Date in the form
attached hereto as EXHIBIT A, signed by the respective President or a Vice
President of KCSI and ▇▇▇▇▇▇▇▇, certifying to the best of their knowledge the
fulfillment of the foregoing conditions.
5.2 LITIGATION OR PROCEEDINGS. There shall not have been instituted
any suit, action or proceeding seeking to restrain or invalidate the
transactions contemplated by this Agreement, or seeking damages from or to
impose obligations upon either JCC, KCSI or ▇▇▇▇▇▇▇▇ which would have a
material adverse effect on any of them.
5.3 DELIVERY OF CERTIFICATES. At the Closing, ▇▇▇▇▇▇▇▇ shall
deliver to JCC the certificates for the Shares, free and clear of all liens,
claims and encumbrances, except as provided in Section 7.3 below.
ARTICLE VI. CONDITIONS TO CLOSING OBLIGATIONS OF
KCSI AND ▇▇▇▇▇▇▇▇
The obligations of ▇▇▇▇▇▇▇▇ under this Agreement to sell the Shares as
set forth in Sections 1.1 and 1.2 hereof shall be subject to the fulfillment
on or prior to the Closing of each of the following conditions:
6.1 TRUTH AND CORRECTNESS OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of JCC contained in this Agreement shall be
true and correct in all material respects at the Closing Date as if made on
and as of that date. JCC shall have performed and complied with all of the
material agreements, covenants and conditions required by this Agreement to
be performed and complied with by it on or prior to the Closing. KCSI and
▇▇▇▇▇▇▇▇ shall have been furnished at the Closing with a certificate dated
the Closing Date in the form attached hereto as EXHIBIT B, signed by the
President or a Vice President of JCC, certifying to the best of his knowledge
the fulfillment of the foregoing conditions.
6.2 LITIGATION OR PROCEEDINGS. There shall not have been instituted
any action, suit or proceeding seeking to restrain or invalidate the
transactions contemplated by this Agreement or seeking damages from or to
impose obligations upon either KCSI or ▇▇▇▇▇▇▇▇ which would have a material
adverse effect on either of them.
6.3 PAYMENT FOR SHARES BEING SOLD. JCC shall deliver to ▇▇▇▇▇▇▇▇
its payment of Eighty Million Dollars ($80,000,000).
ARTICLE VII. OTHER AGREEMENTS
7.1 WAIVER OF CERTAIN RIGHTS. Except as provided in EXHIBIT C or in
any stock option agreement referred to in Section 7.3, ▇▇▇▇▇▇▇▇ and KCSI,
individually and collectively, hereby relinquish and waive any rights of
first refusal, other rights to purchase the Shares, and all other consents or
approvals with respect to any transfer, reissuance or grant of the Shares
after the Closing Date, as may exist in stock purchase agreements, restricted
stock agreements or other agreements applicable to the Shares.
7.2 LIMITATION ON OTHER COMPENSATION PLANS. JCC agrees that so long
as the Shares or other shares of JCC Common Stock are available for sale or
grant to JCC employees or officers by the JCC Board of Directors and
Compensation Committee, it shall not award, issue or grant stock
appreciation rights or phantom stock or any similar rights that provide
compensation to JCC Employees (defined below) based upon, in whole or in
part, changes in the value of JCC Common Stock.
7.3 TRANSFERS OF THE SHARES TO JCC EMPLOYEES. Subject to Section
7.1 above, the parties agree that the Shares shall, when reissued by JCC, be
reissued or granted solely to then current officers or employees of JCC or
its wholly-owned subsidiaries (collectively, "JCC Employees") who are
approved by the JCC Board of Directors and Compensation Committee. Except
as set forth herein or pursuant to applicable law or regulations, JCC shall
have the unrestricted right to grant or sell any of the Shares to JCC
Employees, as approved by the JCC Board of Directors and Compensation
Committee. All sales and grants of the Shares to JCC Employees shall be made
only if, before or contemporaneously with such sale or grant, the purchasing
or grantee employee (the "Grantee") executes, and only pursuant to the terms
and conditions of, a Restricted Stock Agreement in the form attached hereto
as EXHIBIT C ("Restricted Stock Agreement") or a stock option agreement with
terms and provisions identical to Exhibit C except only to the extent changes
are required to reflect a stock option rather than a stock grant ("Stock
Option Agreement"). ▇▇▇▇▇▇▇▇ hereby agrees to promptly endorse and execute
individual Restricted Stock Agreements and Stock Option Agreements for each
Grantee in connection with the transactions contemplated in this Section 7.3.
7.4 REMEDIES. JCC acknowledges and agrees that a breach or
threatened breach by JCC of the provisions of Sections 7.2 or 7.3 of this
Agreement will cause ▇▇▇▇▇▇▇▇ irreparable injury and damage which cannot be
reasonably or adequately compensated in monetary damages, and therefore
expressly agrees that ▇▇▇▇▇▇▇▇ shall be entitled to injunctive and other
equitable relief (without posting a bond or other security) to prevent or end
a breach of Sections 7.2 or 7.3 or to secure the enforcement of Sections 7.2
or 7.3, in addition to any other remedy to which ▇▇▇▇▇▇▇▇ may be entitled.
Any and all of ▇▇▇▇▇▇▇▇'▇ remedies for the breach of Sections 7.2 or 7.3
shall be cumulative and the pursuit of one remedy shall not be deemed to
exclude any and all other remedies to which ▇▇▇▇▇▇▇▇ may be entitled.
ARTICLE VIII. MISCELLANEOUS
8.1 NOTICE. All notices and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to
have been fully given if delivered by hand or mailed by registered or
certified mail, postage prepaid, return receipt requested to the respective
parties at the following addresses:
(a) If to JCC: Janus Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
with copies to: General Counsel
Janus Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(b) If to KCSI: Kansas City Southern Industries, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
with copies to: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(c) If to ▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇▇ Financial, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
with copies to: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or to any other address or person as may hereafter be specified by notice
given by any of the above for themselves to the others.
8.2 NONASSIGNABILITY, BINDING EFFECT. The provisions of this
Agreement shall inure solely to the benefit of and be binding upon the
parties hereto and their respective successors. This Agreement shall not be
assignable by the parties hereto, except upon the written consent of the
parties hereto.
8.3 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with the laws of the State of Colorado without giving
effect to the provisions thereof relating to conflicts of law.
8.4 COUNTERPARTS. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, all of
which together shall constitute one and the same instrument.
8.5 WAIVER. No delay or omission by any party in exercising any
right provided in this Agreement shall impair any such right or be construed
to be a waiver thereof, unless such waiver is in writing and signed by each
party. A written waiver by any party of any of the obligations of or
agreements to be performed by, any other party shall not be construed to be a
waiver of any succeeding rights or of any other obligations or agreements
contained in this Agreement.
8.6 MODIFICATIONS. No alteration, modification or change of this
Agreement shall be valid unless made in a writing executed by the parties
hereto.
8.7 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
8.8 ENTIRE AGREEMENT. This Agreement and the Exhibits hereto
contain the entire Agreement of the parties with respect to the subject
matter hereof, and except as otherwise provided herein, supersede all
previous negotiations, commitments and writings with respect to the subject
matter hereof.
8.9 USE OF PRONOUNS. Pronouns used in this Agreement in the
masculine form shall be deemed to include the feminine form of pronoun.
8.10 SEVERABILITY. In the event any term or provision of this
Agreement shall be held invalid, illegal or unenforceable, the remaining
terms hereof shall remain in full force and effect to the fullest extent
permitted by law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
KANSAS CITY SOUTHERN INDUSTRIES, INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
▇▇▇▇▇▇▇▇ FINANCIAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice
President
JANUS CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
EXHIBIT A
[▇▇▇▇▇▇▇▇ FINANCIAL, INC./KANSAS CITY SOUTHERN INDUSTRIES, INC.]
OFFICER'S CERTIFICATE
Pursuant to Section 5.1 of the Stock Purchase Agreement, dated November
19, 1999 (the "Agreement"), among Janus Capital Corporation, a Colorado
corporation, Kansas City Southern Industries, Inc., a Delaware corporation
("KCSI"), and ▇▇▇▇▇▇▇▇ Financial Inc., a Delaware corporation ("▇▇▇▇▇▇▇▇"),
the undersigned hereby certifies as follows. Capitalized terms used herein
are defined in the Agreement.
1. I am a duly elected and acting officer of [KCSI/▇▇▇▇▇▇▇▇] and
hold the office set forth beside my name below.
2. To the best of my knowledge, the representations and warranties
of [KCSI/▇▇▇▇▇▇▇▇] set forth in Article III of the Agreement are accurate in
all material respects on and as of the date hereof as though made on and as
of this date, except for any changes resulting from activities or
transactions which may have taken place after the date of the Agreement which
were expressly permitted by the Agreement or which are not expressly
prohibited by the Agreement. To the best of my knowledge, [KCSI/▇▇▇▇▇▇▇▇]
has performed and complied with all of the material agreements, covenants and
conditions required by the Agreement to be performed and complied with by
[KCSI/▇▇▇▇▇▇▇▇] on or prior to the Closing.
IN WITNESS WHEREOF, the undersigned has executed this certificate on
this ____ day of ______, 1999.
---------------------------------------
Title:
---------------------------------
EXHIBIT B
JANUS CAPITAL CORPORATION
OFFICER'S CERTIFICATE
Pursuant to Section 6.1 of the Stock Purchase Agreement, dated November
19, 1999 (the "Agreement"), among Janus Capital Corporation, a Colorado
corporation ("JCC"), Kansas City Southern Industries, Inc., a Delaware
corporation, and ▇▇▇▇▇▇▇▇ Financial Inc., a Delaware corporation, the
undersigned hereby certifies as follows. Capitalized terms used herein are
defined in the Agreement.
1. I am a duly elected and acting officer of JCC and hold the office
set forth beside my name below.
2. To the best of my knowledge, the representations and warranties
of JCC set forth in Article IV of the Agreement are accurate in all material
respects on and as of the date hereof as though made on and as of this date,
except for any changes resulting from activities or transactions which may
have taken place after the date of the Agreement which were expressly
permitted by the Agreement or which are not expressly prohibited by the
Agreement. To the best of my knowledge, JCC has performed and complied with
all of the material agreements, covenants and conditions required by the
Agreement to be performed and complied with by JCC on or prior to the
Closing.
IN WITNESS WHEREOF, the undersigned has executed this certificate on
this ___ day of _____________, 1999.
-------------------------------------
Title:
-------------------------------
EXHIBIT C
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT ("Agreement") is made as of the ___day
of _____, ____ between Janus Capital Corporation, a Colorado corporation (the
"Company"), ▇▇▇▇▇▇▇▇ Financial Inc., a Delaware corporation (" ▇▇▇▇▇▇▇▇"),
and __________, an employee of the Company ("Employee").
The Company desires to provide Employee with an added incentive to
continue his services to the Company, and through a proprietary interest, to
increase the Employee's participation in the success of the Company; thus, in
consideration of the mutual covenants set forth below and for other good and
valuable consideration, the parties agree to the following:
1. DEFINITIONS. The following terms in this Agreement shall have the
following meanings:
a. "Affiliate" shall mean any person or entity which directly or
indirectly controls, is controlled by, or is under common control with
another. Control shall mean beneficial ownership of 50% or more of the
outstanding voting securities or other ownership interests.
b. "Date of Grant" shall mean _______ __, ____.
2. ISSUANCE OF RESTRICTED STOCK. Subject to the terms and conditions
set forth below, the Company grants and issues to Employee, as additional
compensation for services, and Employee accepts from the Company, a total of
________ shares (the "Shares") of the Common Stock of the Company, par value
$.01 per share (the "Common Stock").
3. VESTING PERIOD OF RESTRICTED STOCK. The Shares shall be subject to
the restrictions set forth in Section 5 until such time as the Shares have
become vested. After the Shares have become vested, the Shares shall be
subject to the restrictions set forth in Section 11. Except as provided in
Section 4, the Shares shall become fully vested on the tenth anniversary of
the Date of Grant (the "Vesting Date"), provided that Employee has been in
the continuous employ of the Company or an Affiliate of the Company through
such Vesting Date. A temporary leave of absence approved by the Company in
writing shall not be deemed to then be a termination of employment.
4. ACCELERATION OF VESTING.
a. Twenty percent of the total number of Shares granted under this
Agreement on the Date of Grant shall become fully vested on January 1 of each
calendar year, beginning with January 1, ____, if during the preceding
calendar year sixty percent of the individual funds (except for money market
funds) included in the Janus Investment Fund finish in the top 40th percentile
of their applicable Lipper rankings (an A or B ranking). A fund must be in
existence for an entire calendar year to be included in the count.
b. Twenty percent of the total number of Shares granted under this
Agreement on the Date of Grant shall become fully vested upon the earliest of
the date prior to _____ __, ____ that: (I) neither ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("THB")
nor ▇▇▇▇▇ ▇. ▇▇▇▇▇ ("JPC") nor an individual mutually agreed upon in writing
by THB and the Board of Directors of the Company serves as Chief Executive
Officer of the Company, or (II) THB no longer has the right to select a
majority of the Board of Directors of the Company pursuant to Article XI of
the Stock Purchase Agreement dated April 13, 1984, as amended, among Kansas
City Southern Industries, Inc., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as
assigned to ▇▇▇▇▇▇▇▇.
c. All unvested Shares shall become fully vested upon a Change in
Control of the Company as defined in Section 4.d.
d. Except as provided below, a "Change in Control of the Company"
shall be deemed to have occurred:
i. On the date that ▇▇▇▇▇▇▇▇ determines to sell its shares of
the Company as described in Section 11e.i. (including via a tax-free
transaction) or there is a Change in Control of ▇▇▇▇▇▇▇▇ as described in
Section 11e.iv.;
ii. On the date that the stockholder(s) of the Company approve a
merger or consolidation of the Company with another corporation as a result
of which the persons and entities who are stockholders of the Company
immediately prior to such merger or consolidation no longer own, directly or
indirectly, more than 50% of the combined voting power of the outstanding
securities of the corporation resulting from such merger or consolidation in
substantially the same proportion as their ownership of the combined voting
power of the voting securities of the Company outstanding immediately before
such merger or consolidation; or
iii. On the effective date of any sale, exchange or other
disposition of greater than 50% in fair market value of the Company's assets,
other than in the ordinary course of business or to an Affiliate, whether in
a single transaction or a series of related transactions.
None of the events described in Section 4.(d) above shall be a "Change in
Control of the Company" if approved by: (a) THB or JPC acting as Chief
Executive Officer of the Company, or (b) if neither THB nor JPC is Chief
Executive Officer of the Company, a majority of those employee-shareholders
still employed by the Company immediately prior to the transaction, who
individually own at least 1,000 shares, Vested or Unvested (as defined
below).
5. RESTRICTIONS ON UNVESTED SHARES.
a. Shares which have not yet vested as set forth in Sections 3 and 4
(the "Unvested Shares") shall not be sold, assigned, pledged, or otherwise
transferred or encumbered, whether voluntarily, involuntarily, or by
operation of law. Any attempt to sell, assign, pledge, transfer or encumber
the Unvested Shares or any levy, attachment or similar process upon the
Unvested Shares, shall be null and void. The Company shall not recognize or
give effect to any such transfers or encumbrances on its books and records or
recognize the person or persons to whom such purported transfer has been made
as the legal or beneficial owner of the Unvested Shares.
b. Unvested Shares shall be forfeited to the Company without payment
upon termination of Employee's employment with the Company for any reason
(including death or disability of Employee, as defined in the Janus Resource
Guide, as amended (the "Resource Guide"). In the event of death or
disability, the Company may, in its sole discretion, waive in whole or in
part this forfeiture. However, in no event shall Unvested Shares be
forfeited to the Company without payment if Employee's employment is
terminated by the Company without cause.
6. DEPOSIT OF CERTIFICATES. The stock certificate or certificates
representing the Unvested Shares shall be registered in the name of Employee
but shall remain in the custody of the Company. Employee shall deposit with
the Company stock powers or other instruments of assignment, each endorsed in
blank, so as to permit retransfer to the Company of all or a portion of the
Unvested Shares that may be forfeited in accordance with this Agreement. As
soon as practicable after the Shares vest, and subject to the provisions of
Sections 9 and 11, the Company shall deliver to Employee a stock certificate
registered in Employee's name.
7. EMPLOYMENT OF EMPLOYEE. Nothing in this Agreement shall be construed
as amending an employment contract with the Employee or constituting a
commitment, guaranty, agreement, or understanding of any kind or nature that
the Company shall continue to employ Employee. This Agreement shall not
affect in any way the right of the Company to terminate the employment of
Employee at any time.
8. CHANGES IN CAPITAL STRUCTURE OF THE COMPANY. Any additional
securities or other property issued to Employee as a result of any
adjustments to the Company's Common Stock shall continue to be subject to the
terms of this Agreement to the same extent as the Shares giving rise to the
right to receive such additional securities or other property.
9. WITHHOLDING. Employee shall reimburse the Company, in cash or by
certified or bank cashier's check, on or before (i) the making of an election
under Section 83(b) of the Internal Revenue Code of 1986, as amended, or (ii)
the vesting of any Unvested Shares, for any federal, state or local taxes
required by law to be withheld. The Company shall have the right to deduct
from any salary or other payments to be made to Employee any federal, state
or local taxes required by law to be so withheld. The Company's obligation
to deliver a certificate representing the Shares following vesting shall be
subject to the payment by Employee of any applicable federal, state and local
withholding tax.
10. RIGHTS OF SHAREHOLDER. Subject to the terms and provisions of this
Agreement, Employee shall have all the rights of a shareholder of the Company
with respect to the Shares, including the right to vote the Shares and to
receive all cash dividends or, subject to Section 10, other distributions
paid or made with respect to the Shares, except that Employee shall have no
right to dividends which are calculated with respect to earnings of the
Company for periods prior to the Date of Grant.
11. RESTRICTIONS ON VESTED SHARES. Any Shares which are vested (the
"Vested Shares") shall be subject to the restrictions set forth in this
Section 11, rather than the restrictions set forth in Sections 5 and 6.
a. OPTION TO PURCHASE SHARES UPON DEATH, DISABILITY, RETIREMENT, OR
TERMINATION OF EMPLOYMENT OF EMPLOYEE.
i. The Company shall have an option to purchase the Vested
Shares (whether the Vested Shares are then owned by Employee or by Employee's
estate, beneficiaries, or successor) at the price determined under Section
11(a)(iii) if Employee dies, becomes disabled, or retires, or if Employee's
employment with the Company terminates for any other reason. For purposes of
this section, Employee's employment with the Company will be considered to
have terminated if Employee is no longer employed by the Company or an
Affiliate of the Company. A temporary leave of absence approved by the
Company in writing shall not be deemed to then be a termination of employment
with the Company.
ii. The Company may exercise its option to purchase the Vested
Shares, in whole or in part, at any time within 60 days after the date on
which Employee's employment with the Company terminates. The Company shall
exercise its option to purchase the Vested Shares, in whole or in part, by
providing written notice to the owner or owners of the Vested Shares of the
Company's election to exercise its option to purchase the Vested Shares.
Such written notice shall specify the date, time, and place at which the
closing of the purchase shall take place. On the specified closing date, the
Company shall purchase and the owner or owners of the Vested Shares shall
sell the Vested Shares, at the purchase price specified in Section
11(a)(iii).
iii. For purposes of this Section 11(a), the purchase price for
the Vested Shares shall be the fair market value of such Shares as of the
date of termination of employment, as determined in accordance with Section
11(d) of this Agreement. In addition, the purchase price for such Shares
shall be increased by an amount equal to the estimated unpaid dividend amount
with respect to such Shares (determined by the chief financial officer of the
Company and subject to review by the Committee (defined below)) as of the
date of Employee's termination of employment.
iv. If the Company does not exercise its option to purchase
the Vested Shares in accordance with Section 11(a)(ii), the remaining
shareholders of the Company other than ▇▇▇▇▇▇▇▇ shall have an option to
purchase the Vested Shares in accordance with the provisions of Section
11(b)(ii) as if the Employee had proposed to sell or otherwise dispose of the
Vested Shares. The purchase price for such Shares shall be determined in
accordance with Section 11(a)(iii) of this Agreement. If any Shares remain
unpurchased after completion of the process described in Section 11(b)(ii),
▇▇▇▇▇▇▇▇ shall have the right to purchase such Shares for a period of thirty
(30) days after the Section 11(b)(ii) process is completed. ▇▇▇▇▇▇▇▇ may
exercise its option in the same manner as the Company's option may be
exercised under Section 11(a)(ii).
v. For purposes of this Section 11(a), whether Employee is
disabled shall be defined by the Resource Guide.
vi. The option to purchase Shares granted in this Section 11(a)
shall continue to apply to the Vested Shares in the hands of any person
(other than the Company) who acquires the Vested Shares from Employee or from
Employee's estate or beneficiaries or from any successor to Employee or
Employee's estate or beneficiaries.
b. RIGHT OF FIRST REFUSAL.
i. If at any time after the date of this Agreement, Employee
wishes to sell or otherwise dispose of (including disposition by assignment,
pledge, gift, transfer, encumbrance, or other disposition, but excluding a
transfer by will or the laws of descent and distribution upon the death of
Employee) any of the Vested Shares, Employee shall first make a written offer
to sell such Shares to the Company in accordance with this Section 11(b).
Such written offer shall be irrevocable and shall remain open for at least 30
days after the date on which the Company receives the written offer and the
written description and other documents described below. In connection with
the offer, Employee shall provide to the Company a written description of the
terms under which Employee intends to sell or otherwise dispose of the Vested
Shares, which written description shall include the name of the person or
persons who will acquire the Vested Shares, the terms of such acquisition
(including the price to be paid for such Shares), the number of Shares to be
sold or otherwise disposed of, and all other material terms and conditions of
such transfer. Employee shall include with such written description a copy
of any written offer by the person or persons who will acquire the Vested
Shares and a copy of any written agreement between such person or persons and
Employee relating to the transfer of the Vested Shares. Within 30 days after
receipt of Employee's written offer and the written description and other
documents described above, the Company may elect to purchase all or any
portion of the Vested Shares that Employee wishes to sell or otherwise
dispose of. The purchase price for such Shares shall be whichever of the
following that the Company elects:
(A) the purchase price specified in the written
description of the proposed transfer provided to the Company by Employee in
accordance with this Section 11(b)(i); or
(B) the purchase price determined in accordance with
Section 11(a)(iii) of this Agreement.
ii. If within 30 days after Employee has offered Shares to the
Company pursuant to Section 11(b)(i) of this Agreement, the Company has not
accepted the offer with respect to all of the offered Shares, Employee shall
make a written offer to sell the remaining Shares that Employee wishes to
sell or otherwise dispose of to the remaining shareholders of the Company
other than ▇▇▇▇▇▇▇▇. Such written offer shall be irrevocable, shall remain
open for as long as is necessary to complete all rounds of the right of first
refusal process described in this Section 11(b)(ii), and shall comply with
all of the requirements set forth in Section 11(b)(i) of this Agreement,
including the provisions of that section relating to the purchase price to be
paid upon acceptance of the offer. Within 30 days after receipt of
Employee's written offer and the written description and other documents
described in Section 11(b)(i), each remaining shareholder of the Company
other than ▇▇▇▇▇▇▇▇ may elect to purchase all or any portion of a number of
the Vested Shares offered that bears the same proportion to the total number
of the Vested Shares offered that such remaining shareholder's holding in the
Company at the time of the offer bears to the holdings of all remaining
shareholders at the time of the offer. If any remaining shareholder to whom
an offer is made pursuant to this Section 11(b)(ii) fails to submit a
written acceptance within the 30 day acceptance period or submits a written
refusal of the offer with respect to all of the Vested Shares offered to such
remaining shareholder, such failure or written refusal shall be deemed a
rejection and refusal of the offer. Within 10 days after receipt of the
written refusal or the deemed refusal of such Shares, each other remaining
shareholder who elected to purchase all of the Vested Shares offered to such
remaining shareholder in the initial offer under this Section 11(b)(ii) (the
"Accepting Shareholders"), may elect to purchase a number of such refused
Shares that bears the same proportion to the total number of such refused
Shares that the Accepting Shareholder's holding in the Company at the time of
the offer bears to the holdings of all Accepting Shareholders at the time of
the offer. If any Accepting Shareholder does not accept the offer to
purchase refused Shares with respect to all of the refused Shares offered to
such Accepting Shareholder, the process of offering such refused Shares to
Accepting Shareholders described in the preceding two sentences shall be
repeated, with only those Accepting Shareholders who purchased all of the
refused Shares offered to such Accepting Shareholders being considered
Accepting Shareholders for purposes of the next round of offers. The process
of offering refused Shares from one round of offers to Accepting Shareholders
in that round shall be repeated until all Shares offered under this Section
11(b)(ii) have been purchased or until each Accepting Shareholder in a
particular round declines to acquire all Shares offered to such Accepting
Shareholder in that round.
iii. If not all the offered Shares have been purchased after
completion of the process described in Section 11(b)(ii), ▇▇▇▇▇▇▇▇ shall have
the right for a period of thirty (30) days after the completion of such
process to purchase any remaining Shares on the same terms as the Company had
the right to purchase such Shares under Section 11(b)(i).
iv. Any waiver by the Company or by any shareholder of the
Company of the right of first refusal with respect to any transfer of Shares
shall apply only to the specific transfer described in the written
description provided by Employee in accordance with this Section 11(b), and
shall not apply to any other proposal by Employee to transfer other Shares or
to any other proposal by Employee or Employee's successor to transfer the
same Shares. The right of first refusal set forth in this Section 11(b)
shall continue to apply to the Vested Shares in the hands of Employee's
estate or beneficiaries or in the hands of any other person (other than the
Company) who acquires the Vested Shares from Employee or from Employee's
estate, beneficiaries, or successor (whether such acquisition is the result
of the exercise of the right of first refusal set forth in this Section 11(b)
or occurs after the Company and all remaining shareholders have waived the
right of first refusal). Any waiver by the Company of the right of first
refusal set forth in this Section 11(b) with respect to any transfer of
Shares shall not constitute a waiver of the Company's option to purchase such
Shares granted in Section 11(a) of this Agreement, and any such Shares shall
remain subject to the Company's option to purchase Shares, as set forth in
Section 11(a) of this Agreement, in the hands of any person (other than the
Company) who acquires the Vested Shares from Employee or from Employee's
estate, beneficiaries, or successor (whether such acquisition is the result
of the exercise of the right of first refusal set forth in this Section 11(b)
or occurs after the Company and all remaining shareholders have waived the
right of first refusal).
c. REPRESENTATIONS AND WARRANTIES; CLOSING OF PURCHASE OF SHARES.
In connection with any sale of Shares in accordance with Sections 11(a), (b)
or (e) of this Agreement, the seller shall represent and warrant to the
purchaser that, as of the date of closing of such sale, the Vested Shares
being sold by the seller are not subject to, nor collateral for, any pledge,
loan or other agreement, and the seller is the lawful owner of, and has full
right, title and interest in and to, the Vested Shares being sold, free and
clear of all liens, claims and encumbrances, and the seller has full power
and authority to transfer such Shares to the purchaser. At such closing, the
seller shall sell, assign, transfer and deliver to the purchaser such Shares
being sold, free and clear of all liens, claims and encumbrances, and the
purchaser shall deliver payment for such Shares to the seller in immediately
available funds. The closing of any sale of Shares under Sections 11(a) or
(b) of this Agreement shall occur at such time and place as the purchaser
shall specify, but in any event within 30 days after the later of: (i) the
date of the exercise of the option set forth in Section 11(a) or the last
offer of Shares set forth in Section 11(b), as the case may be, or (ii) the
determination of fair market value per Share (if applicable) as set forth in
Section 11(d) of this Agreement.
d. DETERMINATION OF FAIR MARKET VALUE.
i. For purposes of this Agreement, the fair market value of the
Vested Shares is the expected price at which such Shares would be exchanged
between a willing buyer and a willing seller, both being reasonably informed
of the factors affecting value and with neither being under adverse
compulsion to act. For purposes of this Agreement, unless Section 11(d)(ii)
applies, the fair market value of each Share shall be equal to fifteen times
the Net After Tax Earnings ("NATE") per share of Common Stock of the Company
issued and outstanding (computed on a fully-diluted basis in accordance with
generally accepted accounting principles in effect for the applicable period
("GAAP")), calculated for the last four complete rolling calendar quarters of
the Company ended immediately prior to the date as of which the fair market
value is being determined. NATE shall mean the net income of the Company
calculated in accordance with GAAP, applied on a consistent basis, and as
adjusted in the manner set forth below. For purposes of calculating NATE,
adjustments for discontinued operations, cumulative effect of changes in
accounting principles, extraordinary items, and prior period adjustments
shall be excluded from the determination of NATE. For purposes of such
calculation, no charge made to the Company by ▇▇▇▇▇▇▇▇ or any Affiliate of
▇▇▇▇▇▇▇▇ for any services furnished to the Company by ▇▇▇▇▇▇▇▇ or any such
Affiliate shall be taken into account unless such services have been approved
by the President of the Company, which approval shall not be unreasonably
withheld. If the Company files a consolidated federal income tax return with
another company or group of companies, the tax rate to be applied to net
earnings to determine the NATE of the Company shall be the federal income tax
rate which would be applicable to the Company if no such consolidation were
to have occurred.
ii. If the purchaser of any Shares sold under this Section 11
is the Company or ▇▇▇▇▇▇▇▇, and for any reason the seller or the purchaser
does not agree that the purchase price per Share determined under Section
11(d)(i) is representative of the fair market value per Share as of the date
of termination of employment or the date such offer of Shares is made, then
such party questioning the fair market value per Share (the "electing party")
shall submit to the non-electing party a list of five independent appraisers.
The non-electing party shall select three independent appraisers from such
list. The selected appraisers shall each submit a value per Share for the
Shares being sold, based on the total value of the JCC common stock, an
appropriate multiple of the NATE per share of JCC common stock, calculated
for the applicable period, and such other factors as each such appraiser
considers appropriate. The fair market value per Share for such Shares shall
be calculated, pursuant to this Section 11(d)(ii), as the average of the
three submitted values; provided, that in the event both the seller and the
purchaser are electing parties, the procedure set forth hereinabove shall be
followed by each of the seller and the purchaser to determine such average
value on behalf of each of the seller and the purchaser, and the fair market
value per Share for such Shares in such event shall be calculated, pursuant
to this Section 11(d), as the average of such two determinations. Such
applicable calculation shall be final, binding and conclusive upon the
parties. For purposes hereof, an "independent appraiser" is one who is
engaged in a regional or national practice of valuing securities in the
United States, and who has had no substantial prior business dealings with
THB, JCC, ▇▇▇▇▇▇▇▇ or the seller; provided that with respect to JCC,
"independent appraiser" shall not exclude anyone acting solely as an
executing or introductory broker for JCC in the ordinary course of JCC's
business as an investment manager. The costs and fees of such appraisers
selected from the list submitted by the electing party (which fees shall be
negotiated by the non-electing party) shall be paid by such electing party.
e. Other Transfers Upon Sale By Or Change In Control Of ▇▇▇▇▇▇▇▇.
-------------------------------------------------------------
i. If ▇▇▇▇▇▇▇▇ determines to sell its shares of Company Common
Stock for cash, stock or other consideration ("Sale of the Company"), and
such sale reduces its ownership of the Company to less than 20% of the voting
stock of the Company, ▇▇▇▇▇▇▇▇ shall, upon such determination, give prompt
written notice to Employee of such determination. Employee shall at
▇▇▇▇▇▇▇▇'▇ request, sell his Shares which are subject to this Agreement to
▇▇▇▇▇▇▇▇ or to ▇▇▇▇▇▇▇▇'▇ designee at the price set forth in Section
11(e)(iii) below. Such sale shall occur at such time and place and in such
manner as ▇▇▇▇▇▇▇▇ shall reasonably request; provided such sale shall not
occur prior to the time ▇▇▇▇▇▇▇▇ sells all or a majority of its shares of the
Company Common Stock as set forth in this paragraph.
ii. If ▇▇▇▇▇▇▇▇ does not request that Employee sell his Shares
as set forth in Section 11(e)(i) above, Employee may, with respect to the
Vested Shares that are subject to this Agreement, require ▇▇▇▇▇▇▇▇ to
purchase all such Shares held by Employee, or require ▇▇▇▇▇▇▇▇ to cause the
Employee to be included as a seller in the Sale of the Company at the price
set forth in Section 11(e)(iii) below and on the other terms agreed to by the
parties to such sale. If Employee exercises such right, ▇▇▇▇▇▇▇▇ shall
determine which alternative applies. Employee may exercise such right by
giving written notice to ▇▇▇▇▇▇▇▇ within 30 days after Employee receives
notice from ▇▇▇▇▇▇▇▇ of ▇▇▇▇▇▇▇▇'▇ determination to enter into a Sale of the
Company.
iii. The purchase price under this section shall be the greater
of:
(A) the fair market value of such Shares for the last four
complete calendar quarters of the Company ended immediately prior to such
notice by ▇▇▇▇▇▇▇▇, as determined in accordance with Section 11(d)(i) of this
Agreement and without reference to Section 11(d)(ii) of this Agreement, or
(B) the per share consideration to be received by ▇▇▇▇▇▇▇▇
for the Sale of the Company.
iv. If there is a Change in Control of ▇▇▇▇▇▇▇▇ (as defined
below) which has not been approved by the Board of Directors of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ will give prompt written notice of such Change in Control of
▇▇▇▇▇▇▇▇ to Employee and will at the request of Employee purchase from
Employee and Employee shall sell to ▇▇▇▇▇▇▇▇, any and all of the Company
Shares owned by Employee at the fair market value of such shares on the date
of such notice by ▇▇▇▇▇▇▇▇, as determined in accordance with Section 11(d) of
this Agreement. Employee may exercise such right within six months after
Employee is notified by ▇▇▇▇▇▇▇▇ of the Change in Control of ▇▇▇▇▇▇▇▇. The
closing of any such purchase of Shares shall occur at such time and place as
the parties to such sale may agree, but in any event within thirty days after
the exercise of such option.
For purposes of this paragraph, the term "Change in Control of ▇▇▇▇▇▇▇▇"
shall mean the earlier to occur of the following:
(A) less than 75% of the members of the Board of Directors
of ▇▇▇▇▇▇▇▇ shall be individuals who were members of the Board on the date of
this Agreement or individuals whose election, or nomination for election by
▇▇▇▇▇▇▇▇'▇ stockholders, was approved by a vote of at least 75% of the
members of the Board in office prior to such election or nomination; or
(B) any "person" (as such term is used in Section 13(d)
and 14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act"))
shall have become, without the prior approval of at least 75% of the members
of the Board of Directors of ▇▇▇▇▇▇▇▇ then still in office who were members
of such Board on the date of this Agreement or whose election or nomination
for election by ▇▇▇▇▇▇▇▇'▇ stockholders was approved by a vote of at least
75% of the members of the Board in office at any time after the date of this
Agreement, the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of securities of ▇▇▇▇▇▇▇▇ representing 25% or more (calculated
in accordance with Rule 13d-3) of the combined voting power of ▇▇▇▇▇▇▇▇'▇
then outstanding voting securities, and such person shall have filed a proxy
statement, or tender offer materials, or any other statement or schedule with
the Securities and Exchange Commission, indicating an intention to acquire
control of ▇▇▇▇▇▇▇▇.
12. LEGEND. Certificates for the Shares shall bear a legend substantially to
the following effect:
NOTICE OF RESTRICTIONS ON TRANSFER
----------------------------------
The shares of stock represented by this certificate are subject
to restrictions on transfer as provided in the Restricted Stock
Agreement, dated __________, _____, ______, among Janus Capital
Corporation, ▇▇▇▇▇▇▇▇ Financial Inc., and ____________ a copy of
which is on file with the Secretary of Janus Capital Corporation.
Certificates representing the Shares may contain such further legends and
transfer restrictions as the Company shall deem reasonably necessary or
desirable, including, without limitation, legends restricting transfer until
there has been compliance with federal and state securities laws.
13. APPROVAL AND ADMINISTRATION. This Agreement and all benefits granted
hereunder have been approved by the Company's Compensation Committee. This
Agreement shall be administered by the Compensation Committee. Prior to a
Change in Control of the Company, all questions of interpretation and
administration with respect to this Agreement shall be determined in good
faith by the Compensation Committee in its discretion, and its determination
shall be final and conclusive upon all parties in interest; on and after a
Change in Control, any dispute or disagreement between the Company and the
Employee with respect to any matter arising under this Agreement shall not be
determined in the discretion of the Compensation Committee but instead shall
be determined objectively based on the actual relevant circumstances.
14. AMENDMENT. No provision of this Agreement may be amended or modified
unless such amendment or modification is agreed to in a writing signed by the
parties to this Agreement. Any party may waive in writing any provisions of
this Agreement affecting such party.
15. BINDING EFFECT. The provisions of this Agreement shall inure solely to
the benefit of and be binding upon the parties hereto and their respective
executors, heirs, legal representatives and successors. This Agreement shall
not be assignable by the parties hereto except that ▇▇▇▇▇▇▇▇ may assign its
rights and obligations under this Agreement to any Affiliate of ▇▇▇▇▇▇▇▇,
provided, unless ▇▇▇▇▇▇▇▇ guarantees such Affiliate's performance hereunder,
such Affiliate has shareholder's equity, as determined in accordance with
generally accepted accounting principles in effect at such time, of at least
$100,000,000 at the time of such assignment and such Affiliate assumes all of
such obligations, and is bound by all of the provisions of this Agreement.
Unless ▇▇▇▇▇▇▇▇ guarantees such Affiliate's performance, such assignment
shall relieve ▇▇▇▇▇▇▇▇ of its obligations under this Agreement. Such
Affiliate may then be divested, spun-off or otherwise disaffiliated with
▇▇▇▇▇▇▇▇, and such action will not constitute a breach of this Agreement.
16. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado without giving effect to
the provisions thereof relating to conflicts of law.
17. COUNTERPARTS. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties to this Agreement with respect to the rights and
restrictions on transfer of the Shares, and this Agreement supersedes all
previous negotiations, commitments and writings.
19. CAPTIONS. All headings and captions contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
20. NOTICES. All notices and other communications required or permitted to
be given hereunder shall be in writing and shall be deemed to have been fully
given if delivered by hand or mailed, first class, postage prepaid, as
follows:
a. if to the Company:
Janus Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
b. If to ▇▇▇▇▇▇▇▇:
▇▇▇▇▇▇▇▇ Financial Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
If to Employee:
---------------------------
---------------------------
---------------------------
21. WAIVER. No delay or omission by either party in exercising any right
provided in this Agreement shall be construed to be a waiver of such right or
of any succeeding rights or of any other obligations or agreements contained
in this Agreement.
22. SEVERABILITY. In the event that any one or more of the provisions
contained in this Agreement shall be invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions of this
Agreement shall not be impaired in any way. The parties have executed this
Agreement as of the date first above written.
JANUS CAPITAL CORPORATION
By:
-------------------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇ FINANCIAL INC.
By:
-------------------------------------------
Name:
Title:
EMPLOYEE:
------------------------------------------