Exhibit 10.2


 


EXECUTION COPY


 


SEVERANCE RIGHTS AGREEMENT


 


THIS AGREEMENT, dated as of the Effective
Date specified below (this “Agreement”) by and between Janus Management
Holdings Corporation, a Delaware corporation (the “Company”), and Richard Gibson Smith (the “Executive”), is effective this 1st day
of January, 2009.


 


WHEREAS, Executive currently serves as the
Co-Chief Investment Officer (“Co-CIO”) and a Portfolio Manager (“PM”) of the
Company and has been employed by the Company since January 2001;


 


WHEREAS, the Employment Agreement between the
Company and Executive dated January 1, 2007 shall expire on December 31,
2008 (the “Employment Agreement”); and


 


WHEREAS, the Company and Executive wish to
enter into this Severance Rights Agreement to supersede the Employment
Agreement upon its expiration,  and to reflect changes required to comply with Section 409A of the
Internal Revenue Code and the regulations and guidance promulgated thereunder (“Code
Section 409A”); and


 


WHEREAS, the terms and conditions of Executive’s
compensation in his roles as Co-CIO and PM after the Effective Date shall be
governed by: (a) the portfolio manager (“PM”) compensation program then in
effect (the “PM Compensation”); (b) the criteria specified in writing for
Executive’s performance of and compensation for the CIO or Co-CIO role, as
established by the Chief Executive Officer and the Compensation Committee of
Janus Capital Group Inc. (“JCG”) following consultation with Executive, at the
beginning of each year (the “CIO Compensation”), and (c) in the event of a
change in control, that certain Change in Control Agreement between the Company
and Executive dated as of January 1, 2007 (“Executive Change in Control
Agreement”);


 


NOW, THEREFORE, in consideration of the
premises and of the mutual covenants herein contained, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Executive and the Company agree as follows:


 


1.                                       Effective Date; Term of Agreement.  The “Effective
Date” shall mean January 1, 2009. 
As of the Effective Date, this Agreement shall supersede the Employment
Agreement and any and all prior understandings and agreements concerning
Executive’s employment with the Company except those specifically referenced as
continuing herein including the continuation of the Executive Change in Control
Agreement in accordance with its terms.  The term of this Agreement shall commence on
the Effective Date and continue until December 31, 2009 (“Term”); provided,
however, that commencing on January 1, 2010 and each January 1st
thereafter, the Term shall automatically be extended for one additional year
unless at least ninety (90) days prior to such January 1st date, the
Company or Executive shall have given notice that it or he does not wish to
extend this Agreement.  If the Company
elects to give notice not to extend the Term pursuant to this Section 1,
then, contemporaneously with such non-renewal notice, the Company shall offer
to Executive severance rights that are no less favorable to Executive than the 


 

















 


form of severance rights then generally in
effect between the Company and its PMs, which severance rights shall become
effective immediately upon the expiration of the Term. For the avoidance
of doubt, Executive shall not be entitled to severance payments or benefits by
reason of the Company electing not to renew the Term.


 


2.                                       Termination of Employment.


 


(a)                                  Death or Disability. 
Executive’s employment shall terminate automatically upon Executive’s
death.  If the Company determines in good
faith that a Disability of Executive has occurred while Executive is an
employee of the Company (pursuant to the definition of Disability within the
meaning of Code Section 409A),
it may provide to Executive written notice in accordance with Paragraph 12(b) of
this Agreement of its intention to terminate Executive’s employment.  In such event, Executive’s employment with
the Company shall terminate effective on the 90th day after receipt of such
notice by Executive (the “Disability Effective Date”), provided that, within
the 90 days after the receipt of such notice, Executive shall not have returned
to full-time performance of Executive’s duties. 
Notwithstanding any other provision of this Agreement, the Company’s
appointment of an interim CIO, Co-CIO or PM during any period during which the
Company determines in its reasonable discretion that Executive is unable
because of mental or physical illness to perform the Co-CIOs’ duties or to
manage the investment portfolio(s) then managed by Executive shall not
constitute Good Reason for purposes of this Agreement.


 


(b)                                 Cause.  The Company may terminate
Executive’s employment with or without Cause. 
For purposes of this Agreement, “Cause” shall mean:


 


(i)                                     the willful and continued failure by
Executive to substantially perform Executive’s duties with the Company (other
than any such failure resulting from Executive’s incapacity due to physical or
mental illness) that has not been cured within 30 days after the Company
delivers to Executive a written demand for substantial performance, which
demand specifically identifies the manner in which the Company believes that
Executive has not substantially performed Executive’s duties;


 


   (ii)                               Executive’s willful engagement in conduct
which is demonstrably and materially injurious to the Company, monetarily or
otherwise;


 


   (iii)                            Executive’s material breach of any material
provision of this Agreement (including without limitation the covenants set
forth in Section 10 below) that has not been cured within 30 days after a
written demand for substantial performance is delivered to Executive, which
demand specifically identifies the manner in which the Company believes that
Executive has materially breached any material provision of this Agreement; or


 


   (iv)                           Executive’s conviction of a felony (other
than a traffic related felony) or a guilty or nolo contendere plea by Executive
with respect thereto.


 


(c)                                  Executive’s termination of employment shall
not be deemed to be for Cause unless and until Executive has received a copy of
a resolution duly adopted by the 


 


2

















 


affirmative vote of not less than two-thirds of the entire membership
of the JCG Board at a meeting of the JCG Board called and held for such purpose
(after Executive is provided with reasonable notice to Executive and Executive
is given an opportunity, together with counsel, to be heard before the JCG
Board), finding that, in the good faith opinion of the JCG Board, Executive is
guilty of the conduct described in the definition of Cause, and specifying the
particulars thereof in detail.  For
purposes of clauses (i) and (ii) of the preceding definition, no act,
or failure to act, on Executive’s part shall be deemed “willful” unless
done, or omitted to be done, by Executive not in good faith and without
reasonable belief that Executive’s act, or failure to act, was in the best
interest of the Company.  Any act, or
failure to act, based upon express written authority by the JCG Board or the
CEO with respect to such act or omission or based upon the advice of counsel
for the Company shall be conclusively presumed to be done, or omitted to be
done, by Executive in good faith and in the best interests of the Company.


 


(d)                                 Good Reason.  Executive may terminate his
employment for Good Reason and such a termination shall be treated as a
termination “Without Cause.”  For
purposes of this Agreement, “Good Reason” shall mean in the absence of a
written consent of Executive:


 


(i)                                     the involuntary removal of Executive by the
Company from Executive’s position as CIO or Co-CIO, provided that Executive
provides written notice of his intent to treat such removal as Good Reason in
accordance with Section 3(b);


 


(ii)                                  a material and non-temporary reduction in
Executive’s  authority or duties that
changes the fundamental character of Executive’s job to such an extent as to
constitute a de facto demotion, or actual demotion, including the reassignment
of Executive to a role that is inconsistent with Executive’s responsibilities
as a PM or Co-CIO that materially and negatively alters Executive’s status as
PM or Co-CIO, but excluding for this purpose: 
(A) the mere appointment of another Co-CIO; (B) any assignment
of Executive to a mutual fund or portfolio with a smaller amount of assets
under management that may result in reduced compensation, so long as Executive
remains as a PM; (C) any action not taken in bad faith and that is
remedied by the Company within 30 days after receipt of written notice of the
material reduction in Executive’s authority or duties given by Executive as
provided in Section 3(b) below; (D) any mere change of JCG’s,
Janus Capital Management LLC’s (“JCM”) or the Company’s organizational chart; (E) any
mere change in title so long as the fundamental character of Executive’s job is
not changed to such an extent as to constitute a de facto demotion; and (F) the
mere fact that JCG’s stock ceases to be publicly traded;


 


(iii)                               the relocation of Executive’s principal place of employment to a
location more than 40 miles from Executive’s current principal place of
employment in a manner that
results in a material negative change to the geographic location within which
Executive primarily performs his services to the Company;


 


(iv)                              prior to a “change in control” (as
defined in the Executive Change in Control Agreement), a material negative
change to the then-current methodology used to calculate Executive’s PM
Compensation or CIO Compensation;


 


3

















 


(v)                                 prior to a “change in control” (as
defined in the Executive Change in Control Agreement), a reduction in Executive’s
then-current annual base salary;


 


(vi)                              the Company’s failure to cure, within 30
days, a material failure to pay or provide to Executive any sum or benefit
specified by or due under this Agreement or The Executive Change in Control
Agreement;


 


(vii)                           removal from Executive Committee (other than
in connection with Executive’s removal from the role of CIO or Co-CIO); or


 


   (viii)                     non-renewal of the Executive Change in
Control Agreement other than in connection with the termination or non-renewal
of the Executive Change in Control Agreement for other members of the Company’s
Executive Committee (the “Peer Executives”).


 


Executive’s mental or physical incapacity following the occurrence of an
event described above in clause (i) through (viii) shall not affect
Executive’s ability to terminate employment for Good Reason.


 


3.                                       Termination Procedures.


 


(a)                                  Sunset on Right to Terminate for Good Reason.  If
circumstances arise giving Executive the right to terminate this Agreement for
Good Reason, Executive shall within 90 days after Executive knew or should have
known of such circumstances notify the Company in writing of the existence of
such circumstances, and the Company shall have an additional 30 days within
which to investigate and remedy the circumstances, after such 30-day period
Executive shall have an additional 60 days within which to exercise the right
to terminate for Good Reason.  If
Executive does not timely do so, the right to terminate for Good Reason shall
lapse and be deemed waived, and Executive shall not thereafter have the right
to terminate for Good Reason unless further circumstances occur giving rise
independently to a right to terminate for Good Reason, in which case the provisions
of this Paragraph 3(a) shall once again apply, but in which case no
consideration shall be given to other, prior circumstances that precipitated a
notice by Executive of a purported right to terminate for Good Reason. The 90- and 60-day periods specified above
for Executive to give notice or exercise Executive’s right to terminate for
Good Reason, respectively, shall be tolled for any period not exceeding 90 days
in the aggregate during which a properly qualified physician certifies that a
Disability of Executive has occurred resulting in him being medically
incapacitated from performing Executive’s duties hereunder.


 


(b)                                 Notice of Termination.  Any
termination by the Company for Cause, or by Executive for Good Reason, shall be
communicated by Notice of Termination to the other party hereto given in
accordance with Paragraph 12(b) of this Agreement.  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) to the extent
applicable, 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) if the Date of Termination (as defined
below) is other than the date of receipt of such notice, specifies the
termination date (which date shall be not more than thirty days after the
giving of such notice).  The failure by 


 


4

















 


Executive or the Company to set forth in the Notice of Termination any
fact or circumstance which contributes to a showing of Good Reason or Cause
shall not constitute a waiver of any right of Executive or the Company,
respectively, hereunder or preclude Executive or the Company, respectively,
from asserting such fact or circumstance in enforcing Executive’s or the
Company’s rights hereunder.


 


(c)                                  Date of Termination.  “Date
of Termination” means (i) if Executive’s employment is terminated by the
Company for Cause or by Executive for Good Reason, the date of receipt of the
Notice of Termination or any later date specified therein within 30 days of
such notice, as the case may be, (ii) if Executive’s employment is
terminated by the Company other than for Cause or Disability, the Date of
Termination shall be the date on which the Company notifies Executive of such
termination, (iii) if Executive’s employment is terminated by Executive
other than for Good Reason, the Date of Termination shall be the date specified
by Executive in writing to the Company, and (iv) if Executive’s employment
is terminated by reason of death or Disability, the Date of Termination shall
be the date of death of Executive or the Disability Effective Date, as the case
may be.


 


4.                                       Obligations of the Company upon Termination
of Employment.


 


(a)                                  Accrued Obligations. 
Subject to the terms of Paragraph 5 herein, upon any termination of
Executive’s employment, the Company shall pay to Executive, the “Accrued
Obligations,” which shall be the sum
of:


 


(i)                                     Executive’s then-current annual base salary,
to the extent not already paid, through the Date of Termination which shall be
paid to Executive in accordance with the Company’s normal payroll practices;
and


 


(ii)                                  any fully earned and vested but as-yet unpaid CIO Compensation and PM Compensation through the Date
of Termination.


 


(b)                                 Death or Disability.  Subject to the terms of Paragraph 5 herein, if, Executive’s employment is terminated by
reason of Executive’s death or Disability, the Company will pay to Executive or
Executive’s estate or beneficiaries (as applicable) the full amount of any
Accrued Obligations and an
amount equal to Executive’s total cash compensation (Executive’s annual base
salary, CIO Compensation and PM Compensation but excluding any portion related
to long-term incentive awards) earned in the four (4) full calendar
quarters immediately prior to the date of death or Disability, as the case may
be, with such payment to be made within thirty (30) days of the Date of
Termination.


 


(c)                                  Termination by Company Without Cause or by
Executive for Good Reason.  If the Company terminates Executive’s
employment without Cause or Executive resigns Executive’s employment for Good
Reason, then, conditioned upon Executive’s execution (and non-revocation) of a
Non-Solicitation Legal Release within fifty-five days following Executive’s
termination of employment and
subject to the terms of Paragraph 5 herein, the Company will:


 


5

















 


(i)                                     pay Executive, in a lump sum within 14
business days following the Release Date, an amount equal to one times
Executive’s total average annual cash compensation (Executive’s annual base
salary, CIO Compensation and PM Compensation but excluding any portion related
to long-term incentive awards)
paid or payable to Executive in connection with his last two four-quarter
periods immediately prior to the Date of Termination.  The annual base salary component of Executive’s
severance payment shall equal the greater of the Executive’s annual base salary
for the year of the Date of Termination or that for the year preceding the year
of the Date of Termination;


 


(ii)                                  make available to Executive three (3) months
of outplacement services at no cost to Executive through a provider of such
services selected by the Company to be used by Executive at any time during the
applicable non-solicitation restriction period;


 


(iii)                               arrange to provide Executive and Executive’s
dependents with medical, dental and vision insurance benefits substantially
similar to those provided to Executive and Executive’s dependents immediately
prior to the Date of Termination; provided that benefits otherwise receivable
under this paragraph will be reduced to the extent benefits of the same type
are received by or made available to Executive during the twelve (12) month
period following Executive’s Date of Termination of employment (which such
benefits Executive undertakes to promptly report to the Company); and provided
further that any such health insurance benefits shall run concurrently with and
will be offset against any continuation coverage under Part 6 of Title I
of Employee Retirement Income Security Act of 1974, as amended.  The amount of the benefits provided
pursuant to this Section 4(c)(iii) during any calendar year may not affect
benefits provided in any other calendar year; and


 


(iv)                              make
available to Executive the rights set forth in Section 4(f) of this
Agreement, subject to all the requirements set forth in Section 4(f),
including but not limited to, Executive being in “good standing” and signing
the Non-Compete Release (defined below).


 


(d)                                 Change in Control.  Executive’s
rights and the Company’s obligations to make any compensation or severance
payments after a change in control of JCG shall be provided for and subject to
the terms of the Executive Change in Control Agreement entered into by
Executive and the Company, and such Executive Change in Control Agreement shall
supersede any conflicting terms or agreements. 
To the extent that
severance benefits become payable under the Executive Change in Control
Agreement, no severance benefits will be payable pursuant to this Agreement.


 


(e)                                  Cause.  If Executive’s employment
shall be terminated for Cause during the Term, this Agreement shall terminate
without further obligations to Executive other than the obligation to pay to
Executive the Accrued Obligations to the extent theretofore unpaid.


 


(f)                                    Voluntary Departure by Executive (Not for
Good Reason) with Non-Compete Obligations.  If Executive voluntarily
decides to end his employment with the Company (not for Good Reason under Section 2(d))
and is in “good standing,” then, conditioned upon Executive’s execution (and
non-revocation) of a  two-year
non-compete including the terms set forth in the Non-Solicitation Legal Release
substantially in the form attached as Exhibit B 


 


6

















 


(collectively, the “Non-Compete Release”), all unvested equity
long-term incentive awards granted to Executive on or after December 30,
2004 (“equity long-term incentive awards” shall include without
limitation unvested shares of Janus restricted stock, unvested options to
purchase Janus stock, and awards consisting of unvested mutual fund share
investment units) will continue to vest and/or be paid, as applicable, in
accordance with the original vesting schedule provided for in the applicable
award agreement, and any stock options will, from and after such vesting,
remain exercisable for the remainder of their respective terms, subject to
compliance with the terms of the above Non-Compete Release and as limited by
the terms of the agreement(s), certificate(s) and/or incentive plans
underlying each such grants; provided however, any vesting events scheduled to
occur for the applicable long-term incentive awards during the two-year,
non-compete period will not be delivered or transferred to Executive until the
expiration of such two year period and Executive’s satisfactory compliance with
the Non-Compete Release, subject to applicable tax withholding obligations of
the Janus Entities.  The Company may
elect in its sole discretion to accelerate the vesting of any unvested equity
award granted to Executive after the two-year, non-compete period but prior to
the completion of its original vesting schedule.  For purposes of this subsection, “good
standing” shall mean that the CEO has approved the
continuation of vesting and has certified that Executive has not engaged in any
conduct, action or omission that would constitute grounds for terminating
Executive’s employment for Cause.


 


(g)                                 No Accumulation of Benefits. 
Except for the Accrued Obligations set forth below, Executive’s right to
severance and/or welfare benefits under any subsection of this Agreement cannot
be cumulated with any right to severance or welfare benefits arising under any
other subsections of this Agreement. 
Accordingly, the Parties agree that Executive shall only be entitled to
severance benefits under only one subsection of this Agreement in connection
with any event of termination or change in duties.


 


(h)                                 Excise Tax.  Notwithstanding any other
language to the contrary in this Agreement or in this Section 4, the
Company shall not be obligated to pay and shall not pay that portion of any
payment or distribution in the nature of compensation within the meaning of Section 280G(b)(2) of
the Internal Revenue Code to the benefit of Executive otherwise due or payable
Executive under this Agreement if that portion would cause any excise tax
imposed by Section 4999 of the Internal Revenue Code to become due and
payable by Executive.


 


5.                                       Potential Six-Month Delay. 
Notwithstanding anything contained herein to the contrary, Executive
shall not be considered to have terminated employment with the Company for
purposes of Section 3 hereof unless he would be considered to have
incurred a “separation from service” from the Company within the meaning of Section 409A
of the Internal Revenue Code.  If current
or future regulations or guidance from the Internal Revenue Service dictates,
or the Company’s counsel determines that, any payments or benefits due to
Executive hereunder would cause the application of an accelerated or additional
tax under Section 409A of the Internal Revenue Code, then amounts that
would otherwise be payable and benefits that would otherwise be provided
pursuant to this Agreement during the six-month period immediately following
Executive’s Date of Termination shall instead be paid on the first business day
after the date that is six months following Executive’s Date of Termination (or
death, if earlier).


 


7
















 


6.                                       Removal as CIO but Remain as Portfolio
Manager.  Subject to the rights and restrictions under a
termination for “Good Reason” as defined in Sections 2(d) and 4(c) above,
at any time during the Term, the Company may for any reason remove Executive
from Executive’s CIO or Co-CIO title and duties and direct that Executive
return to the role of a PM.  If the
Company elects to remove Executive from Executive’s CIO or Co-CIO title and
duties pursuant to this Section 6 and Executive remains a PM without
making an election under Section 2(d), then the Company shall pay
Executive, after year-end in accordance with and at the same time as payment of
bonus and long-term incentive (“LTI”) compensation to other Peer Executives, a
pro rata amount of the mid-range of Executive’s then-current target CIO
Compensation for the period of time during the year of removal that Executive
served as CIO or Co-CIO.  In the event
the Executive does not have an established target for CIO Compensation, then
the Company shall pay Executive, consistent with the preceding sentence, a pro
rata amount based on the CIO Compensation paid to Executive in the four
calendar quarters immediately prior to his removal as CIO or Co-CIO.


 


7.                                       Removal as Portfolio Manager but Remain a CIO. 
Subject to the rights and restrictions under a termination for “Good
Reason” as defined in Sections 2(d) and 4(c) above, at any time
during the Term, the Company may for any reason discontinue Executive’s
services as a PM and request that Executive thereafter continue to perform only
the duties of CIO or Co-CIO, in which case Executive shall be entitled to
receive PM Compensation earned through the effective date of Executive’s
relinquishment of Executive’s responsibilities as PM, including any LTI
compensation component of such earned PM Compensation (with such LTI
compensation being granted consistent with and at the same time as LTI
compensation awards to other PMs).


 


8.                                       Non-exclusivity of Rights. 
Except as otherwise specifically provided in this Agreement, nothing in
this Agreement shall prevent or limit Executive’s continuing or future
participation in any plan, program, policy or practice provided by the Company
for which Executive may qualify, nor shall anything herein limit or otherwise
negatively affect such rights as Executive may have under any contract or
agreement with the Company or any of its affiliated companies.  Notwithstanding any other provision of this
Agreement, Executive shall not be entitled to receive any payments or benefits
under any severance program other than those which are described and
anticipated under this Agreement or under the Executive Change in Control
Agreement.


 


9.                                       Full Settlement.  The
Company’s obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall be subject to any lawful
indebtedness owed by Executive to the Company. 
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.


 


10.                                 Restrictive Covenants.


 


(a)                                  Executive acknowledges that Executive’s
employment as a senior officer of the Company and JCM creates a relationship of
confidence and trust between Executive and the 


 


8

















 


Company
and its Affiliates (as defined below) (collectively “Janus Entities,”
individually, a “Janus Entity”) with respect to confidential and
proprietary information applicable to the business of the Janus Entities and
their clients.  Executive further
acknowledges the highly competitive nature of the business of the Janus
Entities.  Accordingly, it is agreed that
the restrictions contained in this Agreement are reasonable and necessary for
the protection of the interests of the Janus Entities and that any violation of
these restrictions would cause substantial and irreparable injury to the Janus
Entities.


 


(b)                                 Protection of Confidential Information.


 


(i)                                     Definition of
Confidential Information.  “Confidential Information” means all
information (whether in paper or electronic form, contained in Executive’s
memory, or otherwise stored or recorded) relating to or arising from a Janus
Entity’s business operations, plans, products, strategies, employees, clients,
relationships, or compensation programs, including, without limitation, trade
secrets used, developed or acquired by a Janus Entity in connection with its
business.  “Confidential Information”
does not include information that is in the public domain through no wrongful
act on the part of Executive, nor does it include information, knowledge and
know-how already within Executive’s possession or memory before Executive’s employment
with a Janus Entity or one of its predecessors.


 


(ii)                                  Executive’s Use of Confidential Information. 
Except in connection with and in furtherance of Executive’s work on a
Janus Entity’s behalf, Executive shall not, without the Company’s prior written
consent, at any time, directly or indirectly: (a) use any Confidential
Information for any purpose; or (b) disclose or otherwise communicate any
Confidential Information to any person or entity.


 


(iii)                               Records Containing Confidential Information.  “Confidential
Records” means all documents and other records, whether in paper,
electronic or other form, that contain or reflect any Confidential
Information.  All Confidential Records
prepared by or provided to Executive are and shall remain the Janus Entities’
property.  Except in connection with and
in furtherance of Executive’s work on a Janus Entity’s behalf or with a Janus
Entity’s prior written consent, Executive shall not, at any time, directly or
indirectly: (a) copy or use any Confidential Record for any purpose; or (b) show,
give, sell, disclose or otherwise communicate any Confidential Record or the
contents of any Confidential Record to any person or entity.  Upon the termination of Executive’s
employment with the Company, or upon a Janus Entity’s request, Executive shall
immediately deliver to the Company or its designee (and shall not keep in
Executive’s possession or deliver to any other person or entity) all
Confidential Records and all other Janus Entity property in Executive’s
possession or control.


 


(c)                                  Noninterference Covenants.  During
Executive’s employment with the Company, and for a period of one year following
the Date of Termination for any reason, Executive shall not (nor shall
Executive cause, encourage or provide assistance to, anyone else to):


 


(i)                                     interfere with any relationship which may
exist from time to time between a Janus Entity and any of its employees,
consultants, agents or representatives; or


 


9

















 


(ii)                                  employ or otherwise engage, or attempt to
employ or otherwise engage, in or on behalf of any Competitive Business, any
person who is employed or engaged as an employee, consultant, agent or
representative of a Janus Entity, or any person who was employed or engaged as
an employee, consultant, agent or representative of a Janus Entity within the
six month period immediately preceding the Date of Termination; or


 


(iii)                               solicit directly or indirectly on behalf of
Executive or a Competitive Business, the customer business or account of any
investment advisory or investment management client to which a Janus Entity
shall have rendered service during the six month period immediately preceding
the Date of Termination; or


 


(iv)                              directly or indirectly divert or attempt to
divert from a Janus Entity any business in which a Janus Entity has been
actively engaged during the term hereof or interfere with any relationship
between a Janus Entity and any of its clients.


 


(d)                                 Definitions


 


(i)                                     “Competitive Business” means any
business that provides investment advisory or investment management services.


 


(ii)                                  “Affiliate” means any corporation,
partnership, limited liability company, trust, or other entity which controls,
is controlled by or is under common control with the Company.


 


(e)                                  If any court of competent jurisdiction shall
determine that the duration, geographic limitations, subject or scope of any
restriction contained in this Agreement is unenforceable, it is the intention
of the parties that this Agreement shall not thereby be terminated but shall be
deemed amended to the extent required to make it valid and enforceable.


 


(f)                                    Executive acknowledges that these restrictive
covenants are reasonable and that irreparable injury will result to the Company
and to its business and properties in the event of any breach by Executive of
any of those covenants, and that Executive’s continued employment is predicated
on the commitments undertaken by Executive pursuant to this Agreement.  In the event any of the covenants are
breached, the Company shall be entitled, in addition to any other remedies and
damages available, to injunctive relief to restrain the violation of such
covenants by Executive or by any person or persons acting for or with Executive
in any capacity whatsoever.


 


11.                                 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 and assigns.


 


10

















 


(c)                                  The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business and/or assets of the Company to
assume expressly, and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place.  As used in
this Agreement, “Company” shall mean the Company as herein defined and any
successor to its business and/or assets as aforesaid which assumes and agrees
to perform this Agreement by
operation of law, or otherwise.


 


12.                                 Miscellaneous.


 


(a)                                  This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado without
reference to principles of conflict of laws. 
The captions of this Agreement are not part of the provisions hereof and
shall have no force or effect.  This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.


 


(b)                                 All notices and other communications
hereunder shall be in writing and shall be given by hand delivery to the other
party or by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:


 


If to Executive:  at the most recent address on file at the
Company,


 


If to the Company:                                             Janus Management Holdings Corporation


151 Detroit Street


Denver, Colorado 80206


Attn.: 
General Counsel


 


or to such other address as either party
shall have furnished to the other in writing in accordance herewith.  Notice and communications shall be effective
when actually received by the addressee.


 


(c)                                  The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.


 


(d)                                 The Company may withhold from any amounts
payable under this Agreement such Federal, state, local or foreign taxes as
shall be required to be withheld pursuant to any applicable law or regulation.


 


(e)                                  Executive’s or the Company’s failure to insist
upon strict compliance with any provision of this Agreement or the failure to
assert any right Executive or the Company may have hereunder shall not be
deemed to be a waiver of such provision or right or any other provision or
right of this Agreement.


 


(f)                                    In the event of any good faith dispute
relating to or arising from this Agreement, the Company will reimburse
Executive for the reasonable expenses incurred by Executive, including
reasonable attorneys’ fees; provided, however, that any
reimbursement of 


 


11

















 


such expenses must be made no later than the end of the taxable year
following the year in which such expenses are incurred; further,  provided,
however, that Executive must return all of the reimbursement payments made
by the Company at the time the dispute is resolved if Executive does not
prevail in such dispute.  In no event shall the amounts reimbursed pursuant to this Section 12(f) in
one calendar year affect the amounts eligible for reimbursement in any other
calendar year.


 


(g)                                 All disputes relating to or arising from this
Agreement shall be tried only in the state or federal courts situated in the
Denver, Colorado metropolitan area.


 


[SIGNATURES FOLLOW]


 


12

















 




	
  Richard Gibson Smith

  	
   

  	
  Janus Management Holdings Corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed:

  	
  /s/ R Gibson Smith

  	
   

  	
  By:

  	
  /s/ Gary D. Black

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  November 7, 2008

  	
   

  	
  Date:

  	
  November 10, 2008

  
							






 


13