Restated Employment Agreement
Between
Xxxxxxx X. Xxxxx
and
AXA Financial, Inc.
and
The Equitable Life Assurance Society of the United States
This RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of the
5th day of July 2001 (the "Effective Date"), between AXA Financial, Inc. ("AXA
Financial") and The Equitable Life Assurance Society of the United States (the
"Equitable"), on the one hand (collectively, the "Company"), and Xxxxxxx X.
Xxxxx, on the other (the "Executive").
WHEREAS, the Executive is currently employed as Vice Chairman of the Board and
Chief Financial Officer of the Company;
WHEREAS, the Company desires to continue to employ the Executive in such
capacity, and the Executive is willing to continue to be employed in such
capacity, on the terms and conditions set forth in this Agreement;
WHEREAS, the Company considers the services of the Executive to be unique and
essential to the success of the Company's business;
WHEREAS, AXA Financial and the Executive have entered into a Continuity
Agreement dated as of September 29, 2000 (the "Continuity Agreement") that,
among other things, sets forth certain severance compensation which AXA
Financial agreed under certain circumstances to pay the Executive; and
WHEREAS, in return for the compensation and benefits to be provided to the
Executive under this Agreement, the Executive is willing to relinquish any and
all rights the Executive may now or hereafter have against AXA Financial or any
of its affiliates under the Continuity Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants, terms and conditions set forth herein, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is hereby agreed between the Company and the Executive as follows:
1. Employment. During the Employment Term (as defined below):
(a) The Executive agrees to serve as the Vice Chairman of the Board and Chief
Financial Officer of AXA Financial reporting directly to the President and Chief
Executive Officer of AXA Financial.
(b) The Executive shall also serve as the Vice Chairman of the Board and Chief
Financial Officer of the Equitable reporting directly to the Chairman of the
Board and Chief Executive Officer of the Equitable.
(c) The Executive shall also serve as a Director on the Board of Directors of
the Equitable, and as a member of the AXA Group Executive Committee or a
comparable successor committee.
(d) The Executive shall also serve as a Director on the Board of Directors of
Alliance Capital Management Corporation provided that the Company continues to
control a majority of the common stock of the general partner of Alliance
Capital Management L.P.
2. Employment Term. The term of the Executive's employment under this Agreement
shall commence on July 5, 2001 (the "Employment Date") and shall continue
thereafter through July 4, 2006 (the "Employment Term").
3. Duties. During the Employment Term, and except for illness or incapacity and
reasonable vacation periods consistent with Company policies for other senior
officers, the Executive shall devote all of his business time, attention, skill
and efforts exclusively to the business and affairs of the Company and its
parent and subsidiaries, shall not be engaged in any other business activity,
and shall perform and discharge well and faithfully the duties of the offices of
the Company held by him, and such other duties and positions as may be assigned
to him from time to time by the AXA Financial and the Equitable Boards of
Directors or by Chief Executive Officers of AXA Financial and the Equitable not
inconsistent with the positions specified in Section 1 of this Agreement;
provided, however, that nothing in this Agreement shall preclude the Executive
from devoting time during reasonable periods required for:
(i) serving, in accordance with and after obtaining the approvals required by
Company policies and the approval of the Chief Executive Officer of the AXA
Group, as a director of any company or organization involving no actual or
potential conflict of interest with the Company or any of its affiliates;
(ii) delivering lectures and fulfilling speaking engagements; and
(iii) engaging in charitable, community and other personal activities in
accordance with Company policies;
provided, however, that such activities do not materially affect or interfere
with the performance of the Executive's duties and obligations to the Company or
any of its affiliates.
4. Place of Performance. The principal place of employment of the Executive
shall be in New York City, New York, USA, but the Executive understands that his
duties under this Agreement will entail significant domestic and international
travel.
5. Compensation. The Executive shall be compensated for services rendered
during the Employment Term as follows:
(a) Base Salary. The Executive shall be compensated at an annual base salary of
no less than Seven Hundred Fifty Thousand ($750,000) Dollars (the base salary,
at the rate in effect from time to time, is hereinafter referred to as the "Base
Salary"). The Company's Organization and Compensation Committee (the "O&C
Committee") shall no less than annually review and may, if appropriate, in its
sole discretion, increase this annual Base Salary during the Employment Term.
The first such review shall be in February 2002, and the effective date of any
increase shall be consistent with the practice of the Company for other senior
officers.
(b) Annual Bonus. In addition to the Base Salary provided for in Section 5(a)
above, the Company may provide annual bonus awards to the Executive under a
short term incentive compensation plan for senior officers (the "Short Term
Plan") in accordance with the terms of the Short Term Plan and any performance
measures established thereunder. During the Employment Term, the Executive's
annual target incentive opportunity under the Short Term Plan will be no less
than 400 percent of his Base Salary. An annual bonus of Three Million
($3,000,000) Dollars under the Short Term Plan shall be guaranteed for the year
2001 (provided that the Executive remains continuously employed by the Company
through February 2002), but annual bonus awards shall not be guaranteed for any
subsequent years.
(c) Target Long-Term Incentive. The Executive will participate in the AXA
Financial, Inc. 1997 Stock Incentive Plan or any successor plan (the "Stock
Plan"). The annual target present value of grants to the Executive under the
Stock Plan will be no less than the value of options to acquire 501,253 AXA
Group ADRs with an exercise price equal to the closing price for an AXA Group
ADR as reported on the composite transaction tape of the New York Stock
Exchange (as reported in the Wall Street Journal or, if not reported thereby,
any other authoritative source chosen by the Stock Option Committee) (the "Fair
Market Value") on the Employment Date, as adjusted for the Fair Market Value on
the date of the grant. Except as provided in this Section 5(c), the actual grant
of options to purchase AXA Group ADRs or of other stock compensation under the
Stock Plan, and the terms of such options or other compensation, will be at the
sole discretion of the Stock Option Committee of the AXA Financial Board of
Directors or a successor committee (the "Stock Option Committee"), subject to
the provisions of the Stock Plan and consistent with the treatment of options
granted to other senior officers. The valuation of options granted under the
Stock Plan will be based on the Black-Scholes valuation model as applied in the
sole discretion of the Stock Option Committee and consistent with the treatment
of options granted to other senior officers.
6. Initial Grants.
(a) In connection with the execution of this Agreement, the Company will grant,
effective on the Employment Date, to the Executive in accordance with the terms
of the Stock Plan 417,711 options to purchase AXA Group ADRs which shall be
immediately vested. All such options shall have an exercise price equal to the
Fair Market Value on the Employment Date and a term of ten (10) years from the
Employment Date; and if, prior to the expiration date of the term of any such
unexercised options, the Executive's employment is terminated, all such options
may be exercised at any time prior to the earlier of the expiration date of the
term of the options or the fifth anniversary of the date of such termination of
employment.
(b) No later than five business days after the Employment Date the Company will
pay the Executive Eight Million ($8,000,000) Dollars.
7. Employee Benefits.
(a) General Provisions. Except as expressly provided in this Agreement, the
Executive shall continue the eligibility he has had to participate in all
employee benefit, welfare, pension and deferred compensation plans offered by
the Company (collectively referred to as the "Benefit Plans") on a basis which
is no less favorable to the Executive than that made available to other senior
officers of the Company.
(b) Vacation and Sick Leave. The Executive shall be entitled to vacation and
sick leave in accordance with the vacation and sick leave policies adopted by
the Company from time to time for senior officers.
(c) Business Travel and Expenses. The Executive shall be reimbursed by the
Company for reasonable business expenses, as approved by the Company, which are
incurred and accounted for in accordance with the Company's normal practices and
procedures for reimbursement of expenses.
(d) Executive Car and Driver. In order to ensure the accessibility and safety
of the Executive during the Employment Term, the Company will provide the
Executive with a car and driver for business and personal purposes.
(e) Air Travel. The Executive may travel for business purposes by means of
private aircraft at the Company's expense with such aircraft to be provided by
the Company by any commercially reasonable method as long as such methods are
available to the Company and subject to reasonable limitations which may be
imposed from time to time by the Chief Executive Officer of the Company.
(f) The Company will provide to the Executive the same benefits as the Company
provides to other senior officers with respect to:
(i) Parking
(ii) Executive Health Examination
(iii) Life insurance under the Executive Survivor Benefits Plans of the
Equitable.
8. Termination of Employment. For purposes of determining entitlements pursuant
to this Agreement the following definitions shall apply:
(a) Termination by the Company for Cause. Termination for cause shall mean
termination because of (i) the willful failure by the Executive to perform
substantially his duties as an employee of the Company or any of its affiliates
after reasonable notice to the Executive of such failure; (ii) the Executive's
willful misconduct that is materially injurious to the Company or any of its
affiliates; (iii) the Executive's having been convicted of, or entered a plea of
nolo contendere to, a crime that constitutes a felony (other than a felony
involving "limited vicarious liability" as defined in this Section 8(a)); or
(iv) the willful breach by the Executive of any written covenant or agreement
with the Company or any of its affiliates not to disclose any information
pertaining to the Company or any of its affiliates or not to compete or
interfere with the Company or any of its affiliates. For purposes of this
Section 8(a), "limited vicarious liability" shall mean any liability which is
(i) based on acts of the Company for which the Executive is responsible solely
as a result of his office(s) with the Company and (ii) provided that (x) he was
not directly involved in such acts and either had no prior knowledge of such
intended actions or promptly acted reasonably and in good faith to attempt to
prevent the acts causing such liability or (y) he did not have a reasonable
basis to believe that a law was being violated by such acts. No act or failure
to act will be considered "willful" for purposes of this Section 8(a) unless it
is done, or omitted to be done, by the Executive in bad faith and without
reasonable belief that this action or omission was in the best interests of the
Company.
(b) Termination by the Company for Excessive Absenteeism. Termination by the
Company for excessive absenteeism shall mean termination because the Executive
shall have been absent from his duties with the Company on a full-time basis for
one hundred twenty (120) days within any six month period.
(c) Death. If the Executive's employment terminates by reason of death, the
date of his death shall be the date of termination for purposes of this
Agreement.
(d) Termination by the Executive for Good Reason. Termination for good reason
shall mean:
(i) termination of employment by the Executive after having delivered to the
Company a notice of termination within thirty (30) days after the occurrence of
one or more of the following circumstances, without the Executive's express
written consent, which are not remedied by the Company within thirty (30) days
of its receipt of the Executive's notice of termination:
(A) an assignment to the Executive of any duties materially inconsistent with
his position, duties, responsibilities, and status with the Company, or any
material limitation of the powers of the Executive not consistent with the
powers of the Executive contemplated by Sections 1 and 3 hereof;
(B) any removal of the Executive from the positions specified in Section 1 of
this Agreement;
(C) a diminution of the Executive's titles as specified in Section 1 of this
Agreement;
(D) the Company's requiring the Executive to be based at any office or location
more than 75 miles commuting distance from the location referred to in Section 4
of this Agreement;
(E) a reduction in the Executive's Base Salary or annual bonus target incentive
opportunity as in effect from time to time;
(F) any failure by the Company to comply with any of the provisions of Sections
5 or 6 of this Agreement;
(G) a failure of the Company to secure a written assumption by any successor
company as provided for in Section 12(g) hereof;
(H) the Company's requiring the Executive to report to an employee of the
Company other than the Chief Executive Officer of the Company as specified in
Section 1 of this Agreement;
(I) the Company employing one or more persons to serve in the capacity of
President and/or Chief Operating Officer who is other than the Chief Executive
Officer of the Company; or
(J) the termination of the employment of Xxxxxxxxxxx X. Xxxxxxx under the
Employment Agreement (the "Employment Agreement") dated as of May 11, 2001
between Xxxxxxxxxxx X. Xxxxxxx, AXA Financial and Equitable, by the Company
other than for reasons defined in Sections 9(a), 9(b), 9(c) or 9(e) of the
Employment Agreement or by Xxxxxxxxxxx X. Xxxxxxx for reasons defined in Section
9(d) of the Employment Agreement; and
(ii) termination of employment by the Executive in the event of a "change in
control" (as hereinafter defined) of the Company upon 30 days' written notice,
with the effective date of such termination to occur during the 30-day period
immediately following the first anniversary of the date of such "change in
control." For purposes of this Section 8(d)(ii), "change of control" shall mean
any of the following events:
(A) Any "person" (as defined in Section 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), excluding for this
purpose, (i) AXA (a French corporation (societe anonyme)), any affiliate of AXA,
the Company or any subsidiary of the Company, or (ii) any employee benefit plan
of AXA, any affiliate of AXA, the Company or any subsidiary of the Company, is
or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly of securities of the Company representing more
than 50% of the combined voting power of the Company's then outstanding voting
securities entitled to vote generally in the election of directors; provided,
however, that no Change in Control will be deemed to have occurred as a result
of a change in ownership percentage resulting solely from an acquisition of
securities by AXA, any affiliate of AXA, the Company or any subsidiary of the
Company;
(B) AXA and its affiliates cease to control the election of a majority of the
Board of Directors of the Company; or
(C) approval by the stockholders of the Company of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each case, unless,
following such Business Combination, AXA and its affiliates own, directly or
indirectly, more than 50% of the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors of the
company resulting from such Business Combination (including, without limitation,
a company which, as a result of such transaction, owns the Company or all or
substantially all of the Company's assets either directly or through one or more
subsidiaries);
provided that in no event shall the Executive be entitled to terminate his
employment for good reason under this Section 8(d) based on a change in the
Executive's position as a Director on the Board of Directors of Alliance Capital
Management Corporation if such change occurs after the Company ceases to control
a majority of the common stock of the general partner of Alliance Capital
Management L.P.
9. Compensation upon Termination.
(a) Absence From Work. If the Executive's employment hereunder is terminated by
the Company for excessive absenteeism as defined in Section 8(b), then the
Company shall pay the Executive, as soon as practicable after the date of
termination (i) any Base Salary and any reimbursable expenses accrued or owing
the Executive hereunder as of the date of termination and (ii) any earned and
unpaid bonus relating to service performed by the Executive prior to termination
for excessive absenteeism.
(b) Termination for Cause or by the Executive other than for Good Reason. If the
Executive's employment hereunder is terminated by the Company for Cause as
defined in Section 8(a) or by the Executive (other than for Good Reason as
defined in Section 8(d)), then (i) the Company shall pay the Executive, as soon
as practicable after the date of termination, any Base Salary and any
reimbursable expenses accrued or owing the Executive hereunder as of the date of
termination; (ii) the Executive shall immediately forfeit any unvested stock
options; and (iii) the Executive shall not be entitled to any other benefits
under any Company plan or policy except as required by statute or the express
provisions of this Agreement.
(c) Severance Benefits. In the event the Executive's employment hereunder is
terminated:
(i) by the Company other than for reasons defined in Section 8(a), 8(b), or
8(c), the Executive shall be entitled to continuation of Base Salary and
participation in the Benefit Plans for two years (subject to the provisions of
Section 9(d) of this Agreement) from the date of termination and the payment of
an amount equal to an annual bonus at target for the year in which the
termination occurred, prorated to the date of termination, and additional
payments equal to two annual bonuses at target for the year in which termination
occurred (payable at such times as the Company in the ordinary course would pay
annual bonuses for the year in which the termination occurred and for each of
the two years succeeding the year in which the termination occurred), provided,
however, that in the event the Executive provides services as described in
Section 10(a) of this Agreement prior to the end of the second calendar year
following the year in which any such termination occurs, the Executive's
entitlement to continuation of Base Salary and participation in the Benefit
Plans (except as otherwise expressly provided in this Agreement) shall cease on
the date the provision of such services commences, and the amount of the
additional payments to be made to the Executive shall be reduced and shall be
determined by (a) multiplying (x) the amount of the additional payments by (y)
a fraction whose numerator is the number of days elapsed from the date of the
Executive's termination of employment to the date the provision of such services
commences and whose denominator is the number of days from the date of the
Executive's termination of employment to the end of the second calendar year
following the year in which such termination, occurs, and (b) then subtracting
any amount of such additional payments previously paid to the Executive; or
(ii) by the Executive for reasons defined in Section 8(d), the Executive shall
be entitled to continuation of Base Salary and participation in the Benefit
Plans for one year (subject to the provisions of Section 9(d) of this Agreement)
from the date of termination and the payment of an amount equal to an annual
bonus at target for the year in which the termination occurred, prorated to the
date of termination, and an additional payment equal to one annual bonus at
target for the year in which termination occurred (payable at such times as the
Company in the ordinary course would pay annual bonuses for the year in which
the termination occurred and for the year succeeding the year in which the
termination occurred), provided, however, that in the event the Executive
provides services as described in Section 10(a) of this Agreement prior to the
end of the calendar year following the year in which any such termination
occurs, the Executive's entitlement to continuation of Base Salary and
participation in the Benefit Plans (except as otherwise expressly provided in
this Agreement) shall cease on the date the provision of such services
commences, and the amount of the additional payment to be made to the Executive
shall be reduced and shall be determined by (a) multiplying (x) the amount of
the additional payment by (y) a fraction whose numerator is the number of days
elapsed from the date of the Executive's termination of employment to the date
the provision of such services commences and whose denominator is the number of
days from the date of the Executive's termination of employment to the end of
the calendar year following the year in which such termination, occurs;
provided further that the Executive shall not be entitled to the severance
benefits described in the foregoing Sections 9(c)(i) and 9(c)(ii) unless the
Executive executes a release substantially in the form of Exhibit A to this
Agreement; and provided also that the severance benefits provided for herein
shall be in lieu of any other severance benefits under any Company plan or
policy.
(d) Additional Benefits. In the event the Executive's employment hereunder is
terminated other than by the Company for reasons defined in Section 8(a) or
8(c):
(i) such termination of the Executive's employment shall be deemed to be a
"retirement" for purposes of the Executive Survivor Benefits Plans and the
Equitable Variable Deferred Compensation Plan for Executives or any respective
successor plans thereto; and
(ii) the Executive shall be entitled to continued medical, dental, vision, and
life insurance coverage (excluding accident, death, and disability insurance)
for the Executive and the Executive's eligible dependents or, to the extent such
coverage is not commercially available, such other arrangements reasonably
acceptable to the Executive, on the same basis as in effect prior to such
termination of the Executive's employment for a period ending on the earlier of
(A) the third anniversary of the date of such termination of the Executive's
employment and (B) the commencement of comparable coverage by the Executive with
a subsequent employer.
10. Non-solicitation and Non-competition.
(a) During his employment with the Company and for a period of one year from the
date of the Executive's termination of employment hereunder for any reason, the
Executive will not provide services, in any capacity, whether as an employee,
consultant, independent contractor, owner, partner, shareholder, director, or
otherwise, to any person or entity that provides products or services that
compete with any present or planned business of the Company and any of its
affiliates, including but not limited to any other life insurance or financial
services company, provided that nothing herein shall prevent the Executive from,
after the termination of his employment, being a passive owner of not more than
5% of the outstanding stock of any class of securities of a corporation that is
publicly traded and that may acquire any corporation or business that competes
with the Company or any of its affiliates.
(b) For a period of one year following the termination of the Executive's
employment for any reason, or, if longer, during the period of his continuation
of Base Salary pursuant to Section 9(c) of this Agreement (the "Continuation
Period"), the Executive will not directly or indirectly solicit the business of
any customer or prospective customer of the Company or any of its affiliates for
any purpose other than to obtain, maintain and/or service the customer's
business for the Company or any of its affiliates.
(c) For a period of one year following the termination of the Executive's
employment for any reason, or, if longer, during the Continuation Period, the
Executive agrees not to, directly or indirectly, recruit, solicit or hire any
employees of the Company or any of its affiliates to work for the Executive or
any other person or entity.
(d) Exclusive Property. The Executive confirms that all confidential
information is and shall remain the exclusive property of the Company. All
business records, papers and documents kept or made by the Executive relating to
the business of the Company or any of its affiliates shall be and remain the
property of the Company. Upon the termination of his employment with the Company
or upon the request of the Company at any time, the Executive shall promptly
deliver to the Company, and shall not without the consent of the Company's
Boards of Directors retain copies of, any written materials not previously made
available to the public or any records and documents made by the Executive in
his possession concerning the business or affairs of the Company or any of its
affiliates.
(e) Remedies. Without intending to limit the remedies available to the Company,
the Executive acknowledges that a breach of any of the covenants contained in
this Section 10 may result in material irreparable injury to the Company or its
affiliates for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of such a breach or threat thereof, the Company shall be entitled to obtain a
temporary restraining order and/or a preliminary or permanent injunction
restraining the Executive from engaging in activities prohibited by this Section
10 or such other relief as may be required to specifically enforce any of
the covenants in this Section 10.
11. Confidentiality. During and after the Employment Term, and except as
otherwise required by law, the Executive shall not disclose or make accessible
to any business, person or entity, or make use of (other than in the course of
the business of the Company) any trade secrets, proprietary knowledge or
confidential information which the Executive shall have obtained during his
employment by the Company and which shall not be generally known to or
recognized by the general public. All information regarding or relating to any
aspect of the business of the Company or any of its affiliates, including but
not limited to that relating to existing or contemplated business plans,
activities or procedures, current or prospective clients, current or prospective
contracts or other business arrangements, current or prospective products,
facilities and methods, manuals, intellectual property, price lists, financial
information (including the revenues, costs, or profits associated with any of
the products or services of the Company or any of its affiliates), or any other
information acquired because of the Executive's employment by the Company, shall
be conclusively presumed to be confidential; provided, however, that
confidential information shall not include any information known generally to
the public (other than as a result of unauthorized disclosure by the Executive).
The Executive's obligations under this Section 11 shall be in addition to any
other confidentiality or nondisclosure obligations of the Executive to the
Company at law or under any other Company policy or agreements.
12. Other Matters.
(a) Entire Agreement. This Agreement constitutes the entire agreement between
the Company and the Executive relating to the subject matter hereof and
supersedes any prior agreement or understandings and, except to the extent
expressly provided herein or as required by law, any provisions of any plan,
program, policy or other document of the Company pertaining to the subject
matter hereof.
(b) Assignment. Except as set forth below, this Agreement and the rights and
obligations contained herein shall not be assignable or otherwise transferable
by either party to this Agreement without the prior written consent of the other
party to this Agreement. Notwithstanding the foregoing, any amounts owing to the
Executive upon his death shall inure to the benefit of his heirs, legatees,
personal representatives, executor or administrator.
(c) Notices. Any and all notices provided for under this Agreement shall be in
writing and hand delivered or sent by first class registered or certified mail,
postage prepaid, return receipt requested, addressed to the Executive at his
residence or to the Company, attention General Counsel, at its usual place of
business, and all such notices shall be deemed effective at the time of delivery
or at the time delivery is refused by the addressee upon presentation.
(d) Amendment/Waiver. No provision of this Agreement may be amended, waived,
modified, extended or discharged unless such amendment, waiver, extension or
discharge is agreed to in writing signed by both the Company and the Executive.
(e) Applicable Law. This Agreement and the rights and obligations of the
parties hereunder shall be construed, interpreted, and enforced in accordance
with the laws of the State of New York (applicable to contracts to be performed
wholly within such State).
(f) Severability. The Executive hereby expressly agrees that all of the
covenants in this Agreement are reasonable and necessary in order to protect the
Company and its business. If any provision or any part of any provision of this
Agreement shall be invalid or unenforceable under applicable law, such part
shall be ineffective only to the extent of such invalidity or unenforceability
and shall not affect in any way the validity or enforceability of the remaining
provisions of this Agreement, or the remaining parts of such provision.
(g) Successor in Interests. In the event the Company merges or consolidates
with or into any other corporation or corporations, or sells or otherwise
transfers substantially all of its assets to another corporation, the provisions
of this Agreement shall be binding upon and inure to the benefit of the
corporation surviving or resulting from the merger or consolidation or to which
the assets are sold or transferred and, prior to the consummation of any such
event, the Company shall obtain the express written assumption of this Agreement
by the other corporation (other than in the case of a merger after which the
Company is the surviving entity). All references herein to the Company refer
with equal force and effect to any corporate or other successor of the
corporation that acquires directly or indirectly by merger, consolidation,
purchase or otherwise, all or substantially all of the assets of the Company.
13. Applicable Taxes. There shall be deducted from any compensation payments
made under this Agreement any federal, state, and local taxes or other amounts
required to be withheld by any entity having jurisdiction over the matter. With
respect to the benefits described in Sections 7(d) and (e) of this Agreement,
the Company will provide the Executive with full tax gross-up due to any imputed
income therefrom, but the Executive shall be personally responsible for payment
of taxes on any other imputed income resulting from any other benefits afforded
under this Agreement.
14. Termination of Continuity Agreement. The Company and the Executive hereby
terminate and annul, as of the Effective Date, without any additional or
continuing liability of either party to the other except as otherwise set forth
in this Agreement, any and all respective rights and obligations of the Company
and the Executive under the Continuity Agreement.
15. Indemnification and Insurance. During the Employment Term the Executive will
be entitled to the protections afforded by the indemnification provisions of the
Company's charter and by-laws and by the directors and officers liability
insurance policies purchased form time to time and maintained by the Company to
the same extent as other directors and senior officers of the Company.
16. Certain Payments. In the event that the aggregate of all payments or
benefits made or provided to, or that may be made or provided to, the Executive
under this Agreement and under all other plans, programs and arrangements of the
Company (the "Aggregate Payment") is determined to constitute a "parachute
payment," as such term is defined in Section 280G(b)(2) of the Internal Revenue
Code, the Company shall pay to the Executive, prior to the time any excise tax
imposed by Section 4999 of the Internal Revenue Code ("Excise Tax") is payable
with respect to such Aggregate Payment, an additional amount which, after the
imposition of all income and excise taxes thereon, is equal to the Excise Tax on
the Aggregate Payment. The determination of whether the Aggregate Payment
constitutes a parachute payment and, if so, the amount to be paid to the
Executive and the time of payment pursuant to this Section 16 shall be made by
an independent auditor (the "Auditor") jointly selected by the Company and the
Executive and paid by the Company. The Auditor shall be a nationally recognized
United States public accounting firm which has not, during the two (2) years
preceding the date of its selection, acted in any way on behalf of the Company
or any affiliate thereof. If the Executive and the Company cannot agree on the
firm to serve as the Auditor, then the Executive and the Company shall each
select one accounting firm and those two firms shall jointly select the
accounting firm to serve as the Auditor. Notwithstanding the foregoing, in the
event that the amount of the Executive's Excise Tax liability is subsequently
determined to be greater than the Excise Tax liability with respect to which an
initial payment to the Executive under this Section 16 has been made, the
Company shall pay to the Executive an additional amount with respect to such
additional Excise Tax (and any interest and penalties thereon) at the time and
in the amount determined by the Auditor so as to make the Executive whole, on
an after-tax basis, with respect to such Excise Tax (and any interest and
penalties thereon) and such additional amount paid by the Company. In the event
the amount of the Executive's Excise Tax liability is subsequently determined
to be less than the Excise Tax liability with respect to which any payment to
the Executive has been made under this Section 16, the Executive shall, as soon
as practical after the determination is made, pay to the Company the amount of
the overpayment by the Company, reduced by the amount of any relevant taxes
already paid by the Executive and not refundable, all as determined by the
Auditor. The Executive and the Company shall cooperate with each other in
connection with any proceeding or claim relating to the existence or amount of
liability for Excise Tax, and all expenses incurred by the Executive in
connection therewith shall be paid by the Company promptly upon notice of demand
from the Executive. Notwithstanding the foregoing, no payment under this
Section 16 shall be made with respect to the payment made by the Company to the
Executive pursuant to Section 6(b) of this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on its
own behalf by its duly authorized officers, and the Executive has executed this
Agreement on his own behalf intending to be legally bound, as of the Effective
Date.
AXA FINANCIAL, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
President and Chief Executive Officer
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
EXECUTIVE:
/s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
EXHIBIT A
General Release and Agreement
This GENERAL RELEASE AND AGREEMENT (hereinafter "Release") is made and entered
into by Xxxxxxx X. Xxxxx
1. Pursuant to Section 9(c) of the Employment Agreement (the "Agreement") dated
as of July 5, 2001 between me and AXA Financial, Inc. and The Equitable Life
Assurance Society of the United States (collectively, the "Company"), on behalf
of my heirs, executors, administrators, personal and legal representatives and
assigns, I hereby waive, release and discharge the Company, its parent,
subsidiaries end affiliates, and its and their current and former officers,
directors, agents, employees, successors and assigns (hereinafter "Releasees"),
from all claims, actions and causes of action, whether known or unknown, which I
have or claim to have against any Releasee from the beginning of the world to
the date of this Release (hereinafter "Claims").
2. This Release covers, but is not limited to, all Claims of discrimination
based upon age, race, religion, color, sex, national origin, disability,
handicap, veteran status, marital status, sexual orientation or any other
protected category arising on or before the date of execution of this Release
under any equal employment opportunity law, ordinance, regulation, or order,
including, but not limited to, Title VII of the Civil Rights Act of 1964, as
amended, the Civil Rights Act of 1991, Executive Orders 11246 and 11141, as
amended, the Age Discrimination in Employment Act of 1967, as amended, the
Americans with Disabilities Act of 1990, the New York Executive Law, and any
other federal, state, or local constitutional or statutory provision, order,
or regulation. Claims does not include any rights I may have (a) under the
(i) The Equitable Retirement Plan for Employees, Managers and Agents; (ii) The
Equitable Excess Retirement Plan; (iii) The Equitable Investment Plan for
Employees, Managers and Agents; (iv) The Equitable Deferred Compensation Plan,
Plan B; (v) the Variable Deferred Compensation Plan for Executives; (vi) The
Equitable Executive Survivor Income Benefit Plan; (vii) The Equitable welfare
benefit plans for employees, managers and agents including Equitable's health,
life Insurance, health care spending account, dependent care spending account,
short-term disability and long-term disability plans; (viii) the AXA Stock
Option Plan or (ix) the AXA Financial, Inc. 1997 Stock Incentive Plan; or (b)
for payment of the severance benefits pursuant to Sections 9(c) and 9(d) of
the Agreement.
3. This Release also covers all Claims arising in tort or in contract relating
to my employment or the termination of my employment with the Company, including
but not limited to, those for fraud, libel, slander, promissory or equitable
estoppel, misrepresentation, wrongful discharge, contract violation, breach of
covenant of good faith and fair dealing, and negligent or intentional infliction
of emotional distress arising under the laws of New York or any other state or
jurisdiction. I intend that this Release will discharge the Releases to the
maximum extent permitted by law. This Release is intended to release all Claims,
whether known or unknown, by me from the beginning of the world until the date
of this Release.
4. To the maximum extent permitted by law, I agree not to file (i) a lawsuit or
to commence an arbitration making any Claims against the Releasees or any
Releasee with any federal, state, local or foreign court or self-regulatory
authority relating to my employment with the Company or the termination of my
employment, or (ii) a charge or a complaint making any Claims against the
Releasees or any Releasee with any federal, state or local administrative
agency. Unless I am specifically requested to do so by the Company, or
compelled by legal process issued by a competent court, agency or arbitration
tribunal, I also agree not to participate in any administrative proceeding,
litigation or arbitration filed by any current or former employee or agent of
the Releasees against the Releasees or any Releasee with any federal, state or
local administrative agency or court or a self-regulatory authority relating to
their employment or association with the Company or the termination of their
employment or association with the Company or to contact any current or former
employee(s) or agent(s) of the Company for the purpose of assisting them in any
such administrative proceeding, litigation or arbitration against the Releasees
or any Releasee. I additionally waive any rights to obtain damages with respect
to any administrative proceeding, litigation or arbitration contemplated by this
paragraph.
5. I warrant that I have made no assignment, and will make no assignment, of any
claim, right of action, or any rights of any kind whatsoever, embodied in any of
the Claims covered in this Release, and that no person or entity of any kind has
or had any interest in any of the Claims covered in this Release
6. I agree to cooperate fully with the Releasees or any Releasee, and, if so
requested, to assist the Releasees or any Releasee in its defense of any claim,
litigation or complaint against them, of which I have knowledge, by any of its
current or former agents, employees, managers or clients, or contractors, or any
of their employees.
7. I agree to keep the terms of this Release completely confidential, provided
that disclosure to my financial advisor, attorney or immediately family, or in
response to valid legal process or as otherwise required by law, will not
violate this covenant.
8. I agree that if any part of this Release is found to be void or unenforceable
by a court or an arbitrator of competent jurisdiction, the remainder of this
Release will remain valid and enforceable.
9. This Release will be governed by the laws of the State of New York and will
be binding upon me and my heirs, administrators, representatives, executors,
successors and assigns and will inure to the benefit of the Releasees and their
heirs, administrators, representatives, executors, successors and assigns.
10. I have read this Release and understand that I am relinquishing all Claims,
including those for employment discrimination, which I might have against the
Releasees.
11. I also release the Company from any Claims for attorney's fees. I
acknowledge that I will be responsible for all of my attorney's fees and costs
with respect to the subject matter of this Release.
Executed at _______________________________________ this __________ day
of _________________________, 200_.
____________________________
_______________________
Notary Public
