Exhibit 10.2
AMENDMENT NO. 1 TO THE
EMPLOYMENT CONTINUATION AGREEMENT
This Amendment No. 1 (this "Amendment") to the Employment Continuation
Agreement dated October 15, 2001 (the "Agreement") by and among Xxxx Xxxxxxx
Life Insurance Company, a Massachusetts corporation (the "Company"), Xxxx
Xxxxxxx Financial Services, Inc., a Delaware corporation ("JHFS"), Xxxxxxx X.
Xxxx (the "Executive") and Manulife Financial Corporation, a corporation
organized under the laws of Canada ("Manulife"), is dated this 28th day of
September, 2003.
WHEREAS, the Agreement provides benefits and protection to the Executive
in the event of a Change in Control or Potential Change in Control (as such
terms are defined in the Agreement);
WHEREAS, JHFS, Manulife and Jupiter Merger Corporation ("Merger Co.") have
entered into an Agreement and Plan of Merger dated as of the date hereof (the
"Merger Agreement") pursuant to which, and subject to the terms and conditions
of which, Merger Co. will merge with JHFS (the "Merger");
WHEREAS, the Company, JHFS, the Executive and Manulife are entering into
this Amendment in reliance upon the acknowledgment by the Company, JHFS, the
Executive and Manulife that the Merger and the other transactions contemplated
by the Merger Agreement will, upon consummation thereof at the Effective Time,
constitute a "Change of Control" under the Agreement; and
WHEREAS, in connection with the Merger, the Company, JHFS and the
Executive desire to amend the Agreement as set forth herein, and, for certain
purposes set forth below, Manulife desires to become a party to this Amendment.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is hereby agreed among the Company, JHFS, the Executive and
Manulife as follows:
1. All capitalized, undefined terms used in this Amendment and not otherwise
defined herein shall have the meanings assigned thereto in the Agreement.
2. This Amendment shall become effective as of the date first set forth
above; provided, however, that if the Merger Agreement is terminated prior
to the Effective Time (as defined in the Merger Agreement), then this
Amendment shall automatically terminate and shall be of no further force
or effect. Each of the Company, JHFS, the Executive and Manulife
acknowledges that the Merger and the other transactions contemplated by
the Merger Agreement will, upon consummation thereof at the Effective
Time, constitute a "Change of Control" under the Agreement.
3. Sections 6 and 7 of the Agreement are hereby amended as follows:
(a) Section 6(d) of the Agreement is amended by deleting the last
paragraph thereof and substituting therefor the following:
"Notwithstanding anything herein to the contrary, termination of
employment by the Executive for any reason at any time during the
one hundred eighty (180) day period commencing on the first
anniversary date of the Effective Time of the Merger (as such terms
are defined in the Agreement and Plan of Merger dated September 28,
2003 by and among Manulife, JHFS and Merger Co. (the "Merger
Agreement")) shall be deemed to constitute Good Reason."
(b) Section 7(b-2) of the Agreement shall be amended by deleting the
entire section thereof and Section 7(b-1) shall be renamed "Section 7(b)" and
all references to Section 7(b-1) shall thereafter be deemed to be references to
Section 7(b); and
(c) Subsection (iii) of Section 7(c) of the Agreement shall be
amended by deleting the entire section thereof and substituting therefor the
following:
"Section Intentionally Omitted."
4. By executing this Amendment, Manulife hereby expressly assumes and agrees
to perform the Agreement, as amended by this Amendment, in accordance with
Section 13 thereof; provided, however that the Executive hereby
acknowledges and agrees that in no event shall anything in this Amendment
(or the Agreement) be construed or applied to entitle the Executive to
receive payments or benefits under the Agreement that are duplicative of
any payments or benefits provided to the Executive by any of the Company,
JHFS or Manulife under any other agreement or plan that provides for
payments or benefits upon a change of control. Manulife further
acknowledges and agrees to be bound by (1) the methodologies for
determining the amounts payable to the Executive pursuant to the
provisions of Sections 7(c), 7(d) and 7(f) of the Agreement and (2) the
amounts that would be payable to the Executive if the Executive were
entitled to receive the payments and benefits set forth in such Sections
as of the Closing Date (as such term is defined in the Merger Agreement)
in each case as such methodologies and amounts are set forth on Schedule A
attached hereto. Manulife acknowledges that, in accordance with the
Agreement, the Company shall designate in writing primary and alternate
Accountants to Manulife on or prior to the Closing Date.
5. Except as amended by this Amendment, all other terms of the Agreement
shall remain in full force and effect; provided, that, until the earlier
to occur of (i) the date that this Amendment terminates and is of no
further force and effect pursuant to Section 2 of this Amendment and (ii)
the Effective Time of the Merger, the Company, JHFS and the Executive each
hereby agrees and acknowledges that the Agreement (as amended by this
Amendment) shall not be amended without the prior written consent of
Manulife. This Amendment shall apply solely to the transactions
contemplated by the Merger Agreement and not to any transaction with a
party other than Manulife and Merger Co.
6. Subject to Section 5 of this Amendment, this Amendment shall be subject to
the "Miscellaneous" provisions contained in Section 14 of the Agreement,
which are incorporated by reference herein, provided that any notice or
other communication under the Agreement or this Amendment to be delivered
to Manulife shall be provided to the following address in accordance with
Section 14(e) of the Agreement: Manulife Financial
Corporation, 000 Xxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx X0X 0X0, attention:
General Counsel. This Amendment may be executed in or more counterparts
and by the different parties hereto in separate counterparts, each of
which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and the Company, JHFS and Manulife have caused this Amendment to be executed in
their respective names and on their behalf, all as of the day and year first
above written.
XXXX XXXXXXX LIFE
INSURANCE COMPANY
By:___________________________
Name: Xxxxx X. X'Xxxxxxxxxx
Title: Chairman, President and
Chief Executive Officer
XXXX XXXXXXX FINANCIAL
SERVICES, INC.
By:___________________________
Name: Xxxxx X. X'Xxxxxxxxxx
Title: Chairman, President and
Chief Executive Officer
EXECUTIVE:
______________________________
Xxxxxxx X. Xxxx
MANULIFE FINANCIAL CORPORATION
By:___________________________
Name: Xxxxxxx X'Xxxxxxxxxx
Title: President and Chief
Executive Officer
Signature Page to Amendment to Employment Continuation Agreement
