EXHIBIT 99.1
CHANGE IN CONTROL AGREEMENT
This Change in Control Agreement (this "Agreement"), effective as of January 1, 2006, is between The
Phoenix Companies, Inc., a Delaware corporation (the "Company"), and (the "Executive").
RECITALS
The Company or one of its Affiliates (as defined below) has employed the Executive in an officer
position and has determined that the Executive holds a critical position with the Company and/or such
Affiliate.
The Company believes that, in the event it is confronted with a situation that could result in a
change in ownership or control of the Company, continuity of management will be essential to its ability to
evaluate and respond to such situation in the best interests of its shareholders.
The Company understands that any such situation will present significant concerns for the Executive
with respect to the Executive's financial and job security. The Company desires to assure the Company and its
Affiliates of the Executive's services during the period in which it is confronting such a situation, and to
provide the Executive certain financial assurances to enable the Executive to perform the responsibilities of
the Executive's position without undue distraction and to exercise the Executive's judgment without bias due to
the Executive's personal circumstances. To achieve these objectives, the Company and the Executive desire to
enter into an agreement providing the Company and its Affiliates and the Executive with certain rights and
obligations upon the occurrence of a Change of Control (as defined below).
The Company and the Executive therefore agree as follows:
1. Operation of Agreement. (a) Term. The initial term of this Agreement shall commence on the date of
this Agreement and continue until January 1, 2008, unless terminated earlier as provided in Section 6. Upon the
expiration of the initial or any renewal term, this Agreement shall automatically renew for successive one-year
terms, subject to earlier termination as provided in Section 6, unless either party provides the other party
with a written notice at least sixty (60) days prior to the end of the initial term or any renewal term that
the Company or the Executive does not want the term to be so extended. Notwithstanding anything to the contrary
in this Agreement, any payment obligations hereunder resulting from the Executive's termination of employment
prior to the expiration of the term shall continue in full force and effect following the expiration of the
term.
(b) Effective Date. If a Change of Control occurs during the term of this Agreement, this Agreement
shall govern the terms and conditions of the Executive's employment and the benefits and compensation to be
provided to the Executive commencing on the date on which a Change of Control occurs (the "Effective Date") and
ending on the second anniversary of the Effective Date; provided that if the Executive is not employed by the
Company or one of its Affiliates on the Effective Date, this Agreement shall be void and without effect, and
shall not constitute a contract of employment or a guarantee of employment for any period of time.
Notwithstanding the preceding sentence, in the event that prior to the Effective Date, the Executive's
employment with the Company or any of its Affiliates is terminated in connection with a Change of Control
(which shall in all events be deemed the case if such termination is within 90 days prior to the Effective Date
and deemed not to be the case if such termination is more than 180 days before the Effective Date) without
Cause or for Good Reason (as such terms are defined in Sections 6(b) and 6(c) below, but without regard to the
requirement under Section 6(c) that such termination occur after the Effective Date), the Executive shall be
entitled to receive the benefits provided under Section 7(b), but only to the extent that such benefits are in
excess of those previously received by the Executive as a result of the Executive's prior termination.
2. Definitions.
(a) "Affiliate" shall mean any corporation, partnership, limited liability company, trust or other
entity which directly, or indirectly through one or more intermediaries, controls, is under common control
with, or is controlled by, the Company.
(b) "Change of Control" shall mean the first occurrence of:
(i) any Person acquires "beneficial ownership" (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), directly or indirectly, of
securities of the Company representing 25% or more of the combined Voting Power of the Company's
securities;
(ii) within any 24-month period, the persons who were directors of the Company at the beginning
of such period (the "Incumbent Directors") shall cease to constitute at least a majority of the
Board of Directors (the "Board") or the board of directors of any successor to the Company;
provided that any director elected or nominated for election to the Board by a majority of the
Incumbent Directors then still in office shall be deemed to be an Incumbent Director for purposes of
this subclause 2(b)(ii);
(iii) the effective date of any merger, consolidation, share exchange, division, sale or other
disposition of all or substantially all of the assets of the Company which is consummated (a
"Corporate Event"), if immediately following the consummation of such Corporate Event those Persons
who were stockholders of the Company immediately prior to such Corporate Event do not hold, directly
or indirectly, a majority of the Voting Power, in substantially the
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same proportion as prior to such Corporate Event, of (x) in the case of a merger or consolidation, the
surviving or resulting corporation or (y) in the case of a division or a sale or other disposition of
assets, each surviving, resulting or acquiring corporation which, immediately following the relevant
Corporate Event, holds more than 25% of the consolidated assets of the Company immediately prior to
such Corporate Event;
(iv) the approval by stockholders of the Company of a plan of liquidation with respect to the
Company; or
(v) the occurrence of any other event occurs which the Board declares to be a Change of
Control.
(c) "Person" shall have the same meaning as ascribed to such term in Section 3(a)(9) of the Exchange
Act, as supplemented by Section 13(d)(3) of the Exchange Act, and shall include any group (within the meaning
of Rule 13d-5(b) under the Exchange Act); provided that "Person" shall not include (i) the Company or any of
its Affiliates, or (ii) any employee benefit plan (including an employee stock ownership plan) sponsored by the
Company or any of its Affiliates.
(d) "Voting Power" shall mean such number of Voting Securities as shall enable the holders thereof to
cast all the votes which could be cast in an annual election of directors of a company, and "Voting Securities"
shall mean all securities entitling the holders thereof to vote in an annual election of directors of a
company.
3. "Employment Period" shall mean the period during which the Executive remains employed with the
Company or any Affiliate following the Effective Date through the expiration of the term of this Agreement.
4. Business Time. During the Employment Period, the Executive shall devote substantially the
Executive's full business time and efforts to the performance of the Executive's duties on behalf of the
Company, and its Affiliates, except for periods of vacation and sick leave or other leave period required by
law. So long as the following activities do not (individually or in the aggregate) materially interfere with
the performance of the Executive's duties with the Company and its Affiliates and are conducted in compliance
with the Company's Code of Conduct (as in effect from time to time), the Executive may: (a) participate in
charitable, civic, educational, professional, community or industry affairs or serve on the boards of directors
or advisory boards of not for profit companies; and (b) manage his/her and his/her family's personal financial
and legal affairs. The Executive may serve on the boards of directors or similar governing bodies of any for
profit entity only with the prior written consent of the Company's Chief Executive Officer and only as long as
such service is not in violation of the Company's Code of Conduct. It is expressly understood and agreed that
the Executive's continuing to serve to the same extent and in the same manner on any boards and committees on
which the Executive is serving or with which the Executive is otherwise associated immediately preceding the
Effective Date shall not be deemed to
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interfere with the performance of the Executive's services to the Company and its Affiliates.
5. Compensation. (a) Base Salary. During the Employment Period, the Executive shall receive a base
salary at a monthly rate at least equal to the monthly salary paid to the Executive immediately prior to the
Effective Date. The base salary may be increased (but not decreased) at any time and from time to time by
action of the Board or any committee thereof, the board of directors of any Affiliate or any committee thereof
in the event the Executive is employed by an Affiliate, and any individual having authority to take such action
in accordance with the Company's or any Affiliate's regular practices. The Executive's base salary, as it may
be increased from time to time, shall hereafter be referred to as the "Base Salary".
(b) Total Incentive Compensation. During the Employment Period, the total incentive compensation
opportunities made available to the Executive in each year in the form of short-term incentive compensation and
long-term incentive compensation ("Total Incentive Compensation") shall not be less than the Total Incentive
Compensation made available to the Executive immediately prior to the Effective Date. For purposes of this
Section 5(b), the amount of Total Incentive Compensation made available to the Executive, whether prior to or
after a Change of Control, shall be conclusively determined by an independent compensation consultant selected
by the Company prior to the occurrence of a Change of Control (or, if that entity is no longer able to serve or
declines to serve in such capacity, such other independent compensation consultant that has no existing client
relationship with the Company and its Affiliates as shall be selected by the designated consultant and
reasonably acceptable to the Board (either such consultant hereinafter referred to as the "Compensation
Consultant")), using methods of valuation and comparison commonly used in competitive compensation practices,
which shall be consistently applied. The Company shall provide the Compensation Consultant with any and all
data that the consultant shall reasonably request in order to make its evaluations hereunder.
6. Termination. (a) Death, Disability, or Voluntary Resignation. This Agreement shall terminate
automatically upon the Executive's termination due to death, termination due to "Disability" (as defined
below), voluntary retirement (other than for Good Reason, as defined below) under any of the retirement plans
of the Company or its Affiliates applicable to the Executive as in effect from time to time, or Executive's
voluntary resignation for any reason (other than for Good Reason). For purposes of this Agreement, "Disability"
shall mean the Executive's inability to perform his or her material duties for six consecutive months due to a
physical or mental incapacity.
(b) Cause. The Company and each of its Affiliates that employs the Executive may terminate the
Executive's employment for Cause. For purposes of this Agreement, "Cause" means: (i) the Executive's conviction
of or plea of nolo contendere to, a felony (other than with respect to a traffic violation or an incident of
vicarious liability); (ii) an act of willful misconduct on Executive's part with regard to the Company or its
Affiliates having a material adverse impact on the Company or its Affiliates (including, without limitation, a
willful violation of the Company's Code of
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Conduct), or (iii) the Executive's failure in good faith to attempt or refusal to perform legal directives of
the Board or executive officers of the Company, as applicable, which directives are consistent with the scope
and nature of the Executive's employment duties and responsibilities and which failure or refusal is not
remedied by the Executive within thirty (30) days after notice of such non-performance is given to the
Executive. The Executive shall be provided an opportunity, together with his or her counsel, to be heard before
the Board prior to termination and after such notice. If the majority of the members of the Board do not
confirm, through a duly-adopted resolution following such opportunity, that the Company had grounds for a
"Cause" termination, the Executive shall have the option to treat his or her employment as not having
terminated or as having been terminated pursuant to a termination without Cause. No event shall constitute
grounds for a "Cause" termination in the event that the Company fails to take action within 90 days after the
Company's Chairman or the Chairman of the Company's Audit Committee obtains actual knowledge of the occurrence
of such event. Additionally, for purposes of clause (ii) of this definition, no act, or failure to act, on the
Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive not in good
faith and without reasonable belief that the Executive's act, or failure to act, was in the best interest of
the Company and its subsidiaries.
(c) Good Reason. After the Effective Date, the Executive may resign from employment at any time for
Good Reason. For purposes of this Agreement, "Good Reason" means the occurrence after the Effective Date of any
of the following, without the express written consent of the Executive and which occurrence is not remedied by
the Company within thirty (30) days after notice of such occurrence is given to the Company):
(i) the assignment to the Executive of duties inconsistent with the Executive's position or
any reduction in the Executive's title or any material reduction in the Executive's position, duties
or responsibilities from the title, position, duties or responsibilities held or exercised by the
Executive prior to the Effective Date;
(ii) any requirement by the Company that the Executive change the location where the
Executive regularly provides services to the Company to a location that is more than[35] miles from
[downtown ];
(iii) a reduction by the Company of the Executive's Base Salary or Total Incentive
Compensation opportunity or a reduction in the employee benefits provided to the Executive under the
Company's employee benefit plans (unless the Executive is provided with substantially equivalent
replacement benefits); or
(iv) any failure to obtain the assumption and agreement to perform this Agreement by a
successor as contemplated by Section 13(b).
(d) Notice of Termination. Any termination of the Executive's employment after the Effective Date by
the Company and/or its Affiliates for Cause or by the Executive for Good Reason shall be communicated by Notice
of Termination to the other
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party hereto in accordance with Section 14(e). For purposes of this Agreement, a "Notice of Termination" means
a written notice given: (i) in the case of a termination for Cause, within 10 business days of the Company or
any Affiliate that employs the Executive having actual knowledge of the events giving rise to such termination;
or (ii) in the case of a termination for Good Reason, within 10 business days of the Executive's having actual
knowledge of the events giving rise to such termination. Any such Notice of Termination shall (x) indicate the
specific termination provision in this Agreement relied upon, (y) set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's employment under the provision so
indicated, and (z) if the termination date is other than the date of receipt of such notice, specify the
termination date of this Agreement (which date shall be not more than 15 days after the giving of such notice).
(e) Date of Termination. For the purpose of this Agreement, the term "Date of Termination" means: (i)
in the case of a termination for which a Notice of Termination is required, the date of receipt of such Notice
of Termination or, if later, the date specified therein, as the case may be, and (ii) in all other cases, the
actual date on which the Executive's employment terminates during the Employment Period.
7. Obligations of the Company or an Affiliate upon Termination. (a) Death, Disability, Retirement,
Voluntary Resignation and Termination for Cause. If the Executive's employment is terminated during the
Employment Period by reason of the Executive's death, Disability, termination for Cause, or voluntary
termination due to his or her retirement or other resignation (other than on account of Good Reason) this
Agreement shall terminate without further obligations to the Executive or the Executive's legal representatives
under this Agreement other than those obligations accrued hereunder at the Date of Termination, and the Company
or the Affiliate that employs the Executive shall pay to the Executive (or the Executive's beneficiary or
estate), at the times determined below: (i) the Executive's full Base Salary through the Date of Termination
(the "Earned Salary"), (ii) any vested amounts or benefits owing to the Executive under and in accordance with
the terms and conditions of any otherwise applicable employee benefit plans, agreements and programs and any
accrued vacation pay not yet paid (the "Accrued Obligations"), and (iii) any other benefits payable in such
situation under the plans, agreements, policies or programs of the Company and its Affiliates (the "Additional
Benefits"). Any Earned Salary shall be paid in cash in a single lump sum as soon as practicable, but in no
event more than 30 days (or at such earlier or later date required by law), following the Date of Termination.
Accrued Obligations and Additional Benefits shall be paid in accordance with the terms of the applicable plan,
program or arrangement.
(b) Termination Without Cause or for Good Reason. If, during the Employment Period, the Company or the
Affiliate that employs the Executive terminates the Executive's employment other than for Cause or the
Executive terminates his or her employment for Good Reason:
(i) Pension Service Credit and Payment. The Executive's accrued benefits under any qualified or
nonqualified defined benefit type pension plan or
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arrangement of the Company, including, without limitation, the Employee Pension Plan or any successor
plan and/or the Supplemental Executive Retirement Plan ("SERP") or any successor plan shall, to the
extent not previously vested, be deemed vested as of the Date of Termination. In addition, the Company
shall increase the Executive's benefits under the SERP by adding two and one-half years of additional
service and age credit for pension calculation purposes (with the Base Salary used for that two and
one-half years of the salary component of "final average earnings" for purposes of this calculation),
which additional benefits shall be paid, subject to Section 7(e), at the same time and in the same
form as the regular SERP benefit.
(ii) Additional Lump Sum Payments. In lieu of (and not in addition to) any severance benefits
payable to the Executive under any other plan, policy or program of the Company or any Affiliate
(each, a "Severance Policy") or under any written agreement between the Executive and the Company
(each, a "Prior Agreement"), the Company shall pay to the Executive (or cause the Executive to be
paid), at the times determined below, the following amounts:
(A) the Executive's Earned Salary;
(B) a cash amount (the "Severance Amount") equal to two and one-half times the sum of (x) the
Executive's annual rate of Base Salary as then in effect and (y) the greater of (1) an amount equal to
the average of the Executive's annual incentive compensation earned under the Company's Performance
Incentive Plan (or any successor plan) or similar annual incentive plan applicable to the Executive
(collectively, the "PIP") in respect of the Executive's services performed in the last three full
fiscal years completed prior to the Change of Control, and (2) the PIP target applicable to the
Executive for the year in which the Executive's employment terminates; and
(C) the Accrued Obligations and Additional Benefits.
The Earned Salary and Severance Amount shall be paid in cash in a single lump sum as soon as
practicable, but in no event more than 30 days (or at such earlier or later date required by law),
following the Date of Termination. Accrued Obligations and Additional Benefits shall be paid in
accordance with the terms of the applicable plan, program or arrangement. Notwithstanding the
foregoing, the Executive may elect in writing to receive the benefits payable under any Severance
Policy that would otherwise be available to him or her, or the termination benefits under any Prior
Agreement to which he or she is a party, in each case in lieu of receiving the benefits payable
hereunder.
(iii) Continuation of Benefits. The Executive (and, to the extent applicable, the Executive's
dependents) shall be entitled, after the Date of Termination until two and one-half years from the
Date of Termination (the "End Date"), to continue participation in all of the employee and executive
plans providing medical, dental and long-term disability benefits that the Executive
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participated in prior to the Date of Termination (collectively, the "Continuing Benefit Plans");
provided that the participation by the Executive (and, to the extent applicable, the Executive's
dependents) in any Continuing Benefit Plan shall cease on the date, if any, prior to the End Date on
which the Executive becomes eligible for comparable benefits under a similar plan, policy or program
of a subsequent employer ("Prior Date"). The Executive's participation in the Continuing Benefit Plans
will be on the same terms and conditions that would have applied had the Executive continued to be
employed by the Company or the Affiliate that employs the Executive through the End Date or the Prior
Date. To the extent any such benefits cannot be provided under the terms of the applicable plan,
policy or program, the Company shall provide (or shall cause to be provided) comparable benefits under
another plan or from its general assets; provided that the Company or its Affiliates shall pay the
Executive additional cash payments to the extent necessary for the Executive to receive the same net
after-tax benefits that the Executive would have received under such plans if the Executive had
continued to receive such plan benefits while employed with the Company.
(iv) Deemed Vesting for Certain Benefits. The Executive shall be deemed to have met all
service and other requirements for full vesting of benefits under all stock option or other stock or
equity compensation plans of the Company in which the Executive participates and the stock options
held by the Executive shall remain exercisable for the lesser of two and one-half years or the
duration of their normal terms.
(v) Pro-Rata Payment of PIP and Long-term Incentive Plan. The Company shall pay to the
Executive a cash amount equal to a pro rata portion of (i) the higher of the Executive's target or
actually earned annual incentive award under the PIP for the fiscal year in which the Executive's Date
of Termination occurs and (ii) any awards made to the Executive under the Company's long-term
incentive plan (or any successor plan) determined as if the targets applicable to such awards were
achieved. The pro-rata portion of each award shall be determined by multiplying the value of the award
times a fraction, the numerator of which is the number of days during the performance period
applicable to each such award prior to the Date of Termination and the denominator of which is the
number of days in the performance period applicable to each such award. Notwithstanding the foregoing,
any amount payable under this subparagraph in respect of the annual incentive award or in respect of
any long-term incentive plan shall be inclusive of the amounts, if any, otherwise payable to the
Executive under the PIP and long-term incentive plans for the year in which the Date of Termination
occurs.
(vi) Savings and Investment Plans. If and to the extent the Executive is a participant in The
Phoenix Companies, Inc. Savings and Investment Plan or any successor plan thereto ("SIP") and/or The
Phoenix Companies, Inc. Non-Qualified Deferred Compensation and Excess Investment Plan or any
successor plan thereto ("EIP"), the Company shall pay the Executive a lump sum equal to
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the amount that the Company would have contributed to the SIP and/or credited to the EIP, over the two
and one-half years following the Executive's Date of Termination assuming that the Executive was
contributing to each such plan during such period at the rate in effect immediately prior to the Date
of Termination (or, if greater, at the rate in effect immediately prior to the Change of Control).
(vii) Outplacement. The Company shall provide the Executive with outplacement services at a
level commensurate with the Executive's position.
(c) Discharge of the Company's and its Affiliates' Obligations. Except as expressly provided
in the last sentence of this Section 7(c), the amounts payable to the Executive pursuant to this
Section 7 following termination of the Executive's employment shall be in full and complete
satisfaction of the Executive's rights under this Agreement and any other claims the Executive may
have in respect of the Executive's employment by the Company and its Affiliates. Such amounts shall
constitute liquidated damages with respect to any and all such rights and claims and, upon the
Executive's receipt of such amounts, the Company and its Affiliates shall be released and discharged
from any and all liability to the Executive in connection with this Agreement or otherwise in
connection with the Executive's employment by the Company and its Affiliates. Notwithstanding the
foregoing: (i) the Executive shall retain all rights with respect to the Company's continuing
obligations to indemnify the Executive as a former officer or director of the Company or its
Affiliates, and to provide directors and officers liability insurance, to the fullest extent permitted
under the Company's certificate of incorporation and by-laws or any other arrangement and (ii) to the
extent the Executive is entitled to greater rights with respect to any category of severance payments
or benefits in any similar situation under any other arrangement with the Company, the Executive shall
be entitled to such greater rights.
(d) Modification of Payments by the Company and its Affiliates.
(i) Application of Section 7(d). In the event that any amount or benefit paid or distributed
to, or on behalf of, the Executive pursuant to this Agreement, taken together with any amounts or
benefits otherwise paid or distributed to, or on behalf of, the Executive by the Company, its
Affiliates and their successors, including any acquiror of the Company or its Affiliates (or any
person or entity required to be aggregated with the Company or its Affiliates for purposes of Section
280G of the Internal Revenue Code of 1986, as amended (the "Code")) under any other plan, agreement,
or arrangement (collectively, the "Covered Payments"), would be an "excess parachute payment" as
defined in Section 280G of the Code, and would thereby subject the Executive to the tax (the "Excise
Tax") imposed under Section 4999 of the Code (or any similar tax that may hereafter be imposed), the
Company shall pay (or cause to be paid) to the Executive at the time specified in Section 7(e)(iv)
below an additional amount (the "Tax Reimbursement Payment") such that the net amount retained by the
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Executive with respect to such Covered Payments, after deduction of any Excise Tax on the Covered
Payments and any Federal, state and local (including foreign) income tax, payroll tax and Excise Tax
on the Tax Reimbursement Payment provided for by this Section 7(d), but before deduction for any
Federal, state or local (including foreign) income or employment tax withholding on such Covered
Payments, shall be equal to the amount of the Covered Payments; provided that if the aggregate value
of all Covered Payments exceeds the maximum amount which can be paid to the Executive without the
Executive incurring an Excise Tax (the "Cap Amount") by less than 10% (ten per cent) of the Cap
Amount, the amounts payable to the Executive under this Section 7 shall be reduced (but not below
zero) to the maximum amount which may be paid hereunder without the Executive becoming subject to such
an Excise Tax as a result of all Covered Payments (such reduced payments to be referred to as the
"Payment Cap"). In the event that Executive receives reduced payments and benefits hereunder,
Executive shall have the right to designate which of the payments and benefits otherwise provided for
in this Agreement that the Executive will receive in connection with the application of the Payment
Cap.
(ii) Application of Section 280G. For purposes of determining whether any of the Covered
Payments will be subject to the Excise Tax and the amount of such Excise Tax,
(A) such Covered Payments will be treated as "parachute payments" within the meaning of
Section 280G of the Code, and all "parachute payments" in excess of the "base amount" (as defined
under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless, and
except to the extent that, in the good faith judgment of the Company's independent certified public
accountants appointed prior to the Effective Date or tax counsel selected by such accountants (the
"Accountants"), it is more likely than not that such Covered Payments (in whole or in part) either do
not constitute "parachute payments" or represent reasonable compensation for personal services
actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the portion
of the "base amount allocable to such Covered Payments," or such "parachute payments" are otherwise
not subject to such Excise Tax, and
(B) the value of any non-cash benefits or any deferred payment or benefit shall be determined
by the Accountants in accordance with the principles of Section 280G of the Code.
(iii) Adjustments in Respect of the Payment Cap. If the Executive receives reduced payments
and benefits under this Section 7(e) (or this Section 7(e) is determined not to be applicable to the
Executive because the Accountants conclude that Executive is not subject to any Excise Tax) and it is
established pursuant to a final determination of a court or an Internal Revenue Service proceeding (a
"Final Determination") that, notwithstanding the good faith of the Executive and the Company in
applying the terms of this Agreement, the aggregate "parachute payments" within the meaning of Section
280G of the Code
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paid to the Executive or for the Executive's benefit are in an amount that would result in the
Executive being subject to an Excise Tax, then the Accountants shall determine whether the Executive
should have received the Tax Reimbursement Payment described in Section 7(e)(i), or whether the
amounts payable to the Executive hereunder would still have been reduced pursuant to Section 7(e)(i).
If the Tax Reimbursement Payment would have been due, the Accountants shall determine the amount of
any interest and penalties that may be imposed on the Executive by reason of having failed to have
timely paid any Excise Tax (the "Penalty Amount"), and the amount of the Tax Reimbursement Payment
due, treating the Penalty Amount as a Covered Payment. In the event a Tax Reimbursement Payment is
due, the Company shall promptly (but in no event later than 10 business days after the Accountants
have determined and informed the Company) pay the Executive such Tax Reimbursement Payment (as
calculated in accordance with the immediately preceding sentence) and the Penalty Amount. If the
Executive would still be subject to a reduction in the Covered Payments due hereunder, the Accountants
shall determine the amount by which the Covered Payments exceeded the Cap Amount and the Executive
shall have an obligation (to the extent permitted under applicable law) to repay such excess to the
Company on demand, together with interest on such amount at the applicable Federal rate (as defined in
Section 1274(d) of the Code) from the date of the payment hereunder to the date of repayment by the
Executive. It is expressly understood that such excess is not in the nature of a personal loan to the
Executive, but rather a payment made to the Executive as a "mistake in fact." If the Executive
receives reduced payments and benefits by reason of this Section 7(e) and it is established pursuant
to a Final Determination that the Executive could have received a greater amount without exceeding the
Cap Amount, then the Company shall promptly thereafter pay the Executive the aggregate additional
amount which could have been paid without exceeding the Cap Amount, together with interest on such
amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the original
payment due date to the date of actual payment by the Company. For greater clarity, if the Executive
receives a Tax Reimbursement Payment under Section 7(e)(i), then this Section 7(e)(iii) shall not
apply.
(iv) Timing. The Tax Reimbursement Payment (or portion thereof) provided for in Section
7(e)(i) above shall be paid to the Executive not later than ten (10) business days following the
payment of the Covered Payments; provided that if the amount of such Tax Reimbursement Payment (or
portion thereof) cannot be finally determined on or before the date on which payment is due, the
Company shall pay to the Executive by such date an amount estimated in good faith by the Accountants
to be the minimum amount of such Tax Reimbursement Payment and shall pay the remainder of such Tax
Reimbursement Payment (together with interest at the rate provided in Section 1274(b)(2)(B) of the
Code) as soon as the amount thereof can be determined, but in no event later than 45 calendar days
after payment of the related Covered Payment. In the event that the amount of the estimated Tax
Reimbursement Payment exceeds the amount subsequently determined to have been due, the Executive shall
repay such excess
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to the Company (to the extent permitted under applicable law), payable as of the fifth business day
after written demand by the Company for payment (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code). It is expressly understood that such excess is not in the nature
of a personal loan to the Executive.
(v) Survival. The provisions of this Section 7(d) of the Agreement shall survive the
termination of the Executive's employment hereunder and the termination of this Agreement with regard
to any event that occurred prior thereto.
(e) Amounts Payable Sixth Months after Termination Date. Notwithstanding anything in this Agreement
herein to the contrary, if Executive is a "key employee", as that term is defined in Section 416(i) of the
Internal Revenue Code of 1986, as amended ("Code"), any amount payable under this Agreement that is subject to
Section 409A of the Code and deferral of payment is required shall not be made until the first business day
following sixth months after the Termination Date.
8. Non-solicitation Restrictions. During the Employment Period, and for a period of two and one-half
years after the Employment Period, the Executive agrees not to induce, encourage, or solicit, either directly
or indirectly, any customer, client, employee, officer, director, agent, broker, registered representative or
independent contractor to either: (i) terminate their respective relationship or contracts with the Company or
its Affiliates; or (ii) not place business with the Company or its Affiliates. The Executive agrees the
restrictions in this paragraph apply whether the Executive voluntarily terminates his or her employment or is
involuntarily terminated with or without Cause or for Good Reason during the Employment Period.
9. Non-exclusivity of Rights. Except as expressly provided herein, nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any benefit, bonus, incentive or other
plan or program provided by the Company or any of its Affiliates and for which the Executive may qualify, nor
shall anything herein limit or otherwise prejudice such rights as the Executive may have under any other
agreements with the Company or any of its Affiliates, including employment agreements, stock option agreements,
and other stock or equity compensation agreements. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan or program of the Company or any Affiliate at or subsequent to the
Date of Termination shall be payable in accordance with such plan or program.
10. No Offset. Except as expressly provided in this Agreement, the obligation of the Company to make
the payments provided for in this Agreement or any of its Affiliates to make the payments provided for in this
Agreement and otherwise to perform the obligations hereunder shall not be diminished or otherwise affected by
any circumstances, including, but not limited to, any set-off, counterclaim, recoupment, defense or other right
which the Company or any of its Affiliates may have against the Executive or others, whether by reason of the
subsequent employment of the Executive or otherwise.
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11. Legal Fees and Expenses. If the Executive asserts any claim in any contest (whether initiated by
the Executive or by the Company or any of its Affiliates) as to the validity, enforceability or interpretation
of any provision of this Agreement or to enforce and/or collect any payment or benefit payable hereunder, the
Company shall pay the Executive's legal expenses (or cause such expenses to be paid) including, but not limited
to, the Executive's reasonable attorneys fees, on a monthly basis, upon presentation of proof of such expenses
in a form acceptable to the Company; provided that the Executive shall reimburse the Company for such amounts
(to the extent permitted under applicable law), plus simple interest thereon at the 90-day United States
Treasury Xxxx rate as in effect from time to time, compounded annually, if the arbitrator determines that the
Executive's claims were substantially frivolous or brought in bad faith.
12. Surviving Agreements. This Agreement provides for certain payments and benefits to the Executive
to be determined by the employee benefit plans and programs, incentive plans, stock option, and other stock or
equity compensation plans of the Company and its Affiliates. To the extent so provided, such programs and plans
constitute part of the agreement and understanding between the Executive and the Company and are incorporated
herein and made a part hereof. The Executive and the Company hereby reaffirm their respective commitments under
such programs and plans, and again agree to be bound by each of the covenants contained therein for the benefit
of the Company in consideration of the benefits made available to the Executive hereby.
13. Successors. (a) This Agreement is personal to the Executive and, without the prior written consent
of the Company, shall not be assignable by the Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive's legal
representatives and his or her estate.
(b) This Agreement shall inure to the benefit of and be binding upon the Company and shall be
assignable, in writing, by the Company only to the acquiror of all or substantially all, of the assets of the
Company. The Company shall require any successor to all or substantially all of the business and/or assets of
the Company, whether direct or indirect, by purchase, merger, consolidation, acquisition of stock, or
otherwise, expressly to assume and agree to perform this Agreement in the same manner and to the same extent as
the Company would be required to perform if no such succession had taken place.
14. Miscellaneous. (a) Applicable Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Connecticut, applied without reference to principles of conflict of laws.
(b) Arbitration. Any dispute or controversy arising under or in connection with this Agreement shall
be resolved by binding arbitration. The arbitration shall be held in Hartford, Connecticut and except to the
extent inconsistent with this Agreement, shall be conducted in accordance with the Expedited Employment
Arbitration Rules of the American Arbitration Association then in effect at the time of the arbitration (or
such other rules as the parties may agree to in writing), and otherwise in accordance with
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principles which would be applied by a court of law or equity. The arbitrator shall be acceptable to both the
Company and the Executive. If the parties cannot agree on an acceptable arbitrator, the dispute shall be heard
by a panel of three arbitrators, one appointed by each of the parties within 30 days of notice of such
non-agreement and the third appointed by the other two arbitrators. The cost and expenses of the arbitration
shall be paid by the Company.
(c) Amendments. 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. Notwithstanding
anything in this Agreement to the contrary, the Company and Executive agree that the Company may from time to
time amend this Agreement as the Company deems necessary or desirable to comply with the requirements of
Section 409A of the Code and the regulations and pronouncements thereunder, regardless of whether any such
amendment would cause a reduction or cessation of a benefit accrued prior to the adoption of such amendment.
(d) Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with
respect to the matters referred to herein, and completely supersedes and replaces any prior agreement between
the Executive and the Company or any of its Affiliates concerning the subject matter herein. No subsequent
agreement concerning the subject matter herein, oral or otherwise, shall be binding between the parties unless
it is in writing and signed by the party against whom enforcement is sought. Except as expressly provided
herein, nothing in this Agreement shall be construed or interpreted to enhance, increase, reduce or diminish
any rights, duties or obligations of the Executive under any agreement between the Executive and the Company or
any of its affiliates, or under any employee benefit plan program or procedure established by the Company or
any of its affiliates with respect to any subject matter herein. There are no promises, representations,
inducements or statements between the parties other than those that are expressly contained herein. The
Executive acknowledges that the Executive is entering into this Agreement of the Executive's own free will and
accord, and with no duress, that the Executive has read this Agreement and that the Executive understands it
and its legal consequences.
(e) Notices. All notices and other communications hereunder shall be in writing and shall be given by
hand-delivery to the other party, overnight mail, or by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive: at the home address of the Executive noted on the
records of the Company
If to the Company: The Phoenix Companies, Inc.
Xxx Xxxxxxxx Xxx
XX Xxx 0000
Xxxxxxxx, XX 00000-0000
Attn.: General Counsel
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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.
(f) Tax Withholding. The Company shall withhold (or cause such withholding) from any amounts payable
under this Agreement such Federal, state or local taxes as shall be required to be withheld pursuant to any
applicable law or regulation.
(g) Severability; Reformation. In the event that one or more of the provisions of this Agreement shall
become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
(h) Waiver. Waiver by any party hereto of any breach or default by the other party of any of the terms
of this Agreement shall not operate as a waiver of any other breach or default, whether similar to or different
from the breach or default waived. No waiver of any provision of this Agreement shall be implied from any
course of dealing between the parties hereto or from any failure by either party hereto to assert its or the
Executive's rights hereunder on any occasion or series of occasions.
(i) Confidentiality. In further consideration for entering into this Agreement, the Executive, after
termination of the Executive's employment, shall retain in confidence any confidential or proprietary
information known to the Executive concerning the Company and its Affiliates and their business so long as such
information is not publicly disclosed and shall not use such information in any way injurious to the Company or
its Affiliates except for any disclosure to which an authorized officer of the Company or such Affiliate has
consented or any disclosure or use required by any order of any governmental body or court (including legal
process). If requested, the Executive shall return to the Company and its Affiliates any memoranda, documents
or other materials possessed by the Executive and containing confidential or proprietary information of the
Company and its Affiliates. Notwithstanding the preceding sentence, the Executive shall not be required to
return to the Company or its Affiliates, any memoranda, documents or other materials containing confidential or
proprietary information of the Company or its Affiliates, if such materials were provided to the Executive in
his or her capacity as a director of the Company or its Affiliates.
(j) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
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(k) Captions. The captions of this Agreement are not part of the provisions hereof and shall have no
force or effect.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and the Company has caused
this Agreement to be executed in its name on its behalf, and its corporate seal to be hereunto affixed and
attested by its Secretary, all as of the day and year first above written.
THE PHOENIX COMPANIES, INC.
By: ___________________
Name:
Title:
WITNESS:
_______________________
EXECUTIVE: DATE:
________________________ _____________________
WITNESS:
_______________________
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