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EXHIBIT 10.10
XXXXXXXXX X. XXXX
EMPLOYMENT CONTINUATION AGREEMENT
MARCH 3, 2000
METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY
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EMPLOYMENT CONTINUATION AGREEMENT
THIS AGREEMENT between METROPOLITAN PROPERTY AND CASUALTY
INSURANCE COMPANY, a Rhode Island corporation (the "Company"), and Xxxxxxxxx X.
Xxxx (the "Executive"), dated as of this 3rd day of March, 2000.
W I T N E S S E T H :
WHEREAS, Executive has assumed a critical position with the
Company;
WHEREAS, the Company believes that, in the event that either
it or its parent corporation, Metropolitan Life Insurance Company ("MetLife"),
is confronted with a situation that could result in a change in ownership or
control of the Company or MetLife, continuity of management at the Company will
be essential to the ability of the Company or MetLife, as the case may be, to
evaluate and respond to such situation;
WHEREAS, the Company understands that any such situation will
present significant concerns for the Executive with respect to her financial and
job security;
WHEREAS, the Company desires to assure itself of the
Executive's services during the period in which it or MetLife is confronting
such a situation, and to provide the Executive certain financial assurances to
enable the Executive to perform the responsibilities of her position without
undue distraction;
WHEREAS, to achieve these objectives, the Company and the
Executive desire to enter into an agreement providing the Company and the
Executive with certain rights and obligations upon the occurrence of a MetLife
Change of Control, a Potential MetLife Change of Control or a Company Change of
Control (as each such term is defined in Section 2 hereof);
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is hereby agreed by and between the Company and
the Executive as follows:
1. Operation of Agreement. (a) Term. The initial term of this
Agreement shall commence on the date hereof and continue until the third
anniversary of the date hereof. Thereafter, this Agreement will automatically
renew for successive and consecutive additional three year periods following the
end of its initial term and any extended term, unless the Company or the
Executive gives the other party written notice
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at least 180 days prior to the date the term hereof would otherwise renew that
it or she does not want the term to be so extended; provided, however, that, the
Company may not deliver a notice of nonrenewal after (i) a Potential MetLife
Change of Control (as is defined in Section 2(b) hereof) unless the Board of
Directors of MetLife (the "MetLife Board") has adopted a Nullification
Resolution (as defined in Section 2(b) hereof) with respect to such Potential
MetLife Change of Control, (ii) a MetLife Change of Control (as defined in
Section 2(a) hereof) or (iii) a Company Change of Control (as defined in Section
2(e) hereof). Notwithstanding anything to the contrary in this Agreement, the
term of this Agreement shall in all events expire (regardless of when the term
would otherwise have expired) on the second anniversary of the earlier to occur
of a MetLife Change of Control or a Company Change of Control.
(b) Effective Date. Notwithstanding the provisions of Section
1(a) hereof, 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 Potential MetLife Change of Control,
a MetLife Change of Control or a Company Change of Control occurs (the
"Effective Date") and ending on the date the term of this Agreement otherwise
expires, provided that if the Executive is not employed by the Company on the
Effective Date, this Agreement shall be void and without effect. If this
Agreement is rendered void and without effect under the immediately preceding
sentence, nothing in this Section 1(b) shall be construed to limit or otherwise
impair the effectiveness of any agreement between the Executive and MetLife
which provides the Executive with comparable benefits and employment protection.
2. Definitions. (a) MetLife Change of Control. For the
purposes of this Agreement, a "MetLife Change of Control" shall be deemed to
have occurred if:
(i) any person (within the meaning of Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")),
including any group (within the meaning of Rule 13d-5(b) under the
Exchange Act)), acquires "beneficial ownership" (within the meaning of
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of MetLife representing 25% or more of the combined Voting
Power (as defined below) of MetLife's securities;
(ii) within any 24-month period, the persons who were members
of the MetLife Board at the beginning of such period (the "Incumbent
Directors") shall cease to constitute at least a majority of the
MetLife Board or the board of directors of any successor to MetLife
provided, however, that any director elected to the MetLife Board, or
nominated for election, 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(a)(ii);
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(iii) the policyholders of the MetLife, if at the time in
question MetLife is a mutual life insurance company, approve a merger,
consolidation, division, sale or other disposition of all or
substantially all of the assets of MetLife (a "Mutual Event");
provided, however, that a Mutual Event shall not be treated as a
MetLife Change of Control for purposes of this Agreement if (x) MetLife
is the surviving company in any such merger or other transaction and
(y) pursuant to the terms of the agreement governing the transaction
constituting the Mutual Event, the persons who were members of the
MetLife Board immediately prior to such Mutual Event constitute at
least 75% of the members of the MetLife Board immediately following the
consummation of such Mutual Event; or
(iv) the stockholders of MetLife, if at the time in question
MetLife is a stock company, approve a merger, consolidation, share
exchange, division, sale or other disposition of all or substantially
all of the assets of MetLife (a "Corporate Event"), and immediately
following the consummation of which the stockholders of MetLife
immediately prior to such Corporate Event do not hold, directly or
indirectly, a majority of the Voting Power of (x) in the case of a
merger or consolidation, the surviving or resulting corporation, (y) in
the case of a share exchange, the acquiring corporation or (z) 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 MetLife immediately prior to such Corporate
Event; or
(v) any other event occurs which the MetLife Board declares to
be a MetLife Change of Control.
Notwithstanding the foregoing, a MetLife Change of Control shall not be deemed
to have occurred merely as a result of (i) the conversion of MetLife from a
mutual life insurance company to a stock company whose shareholders are either
(x) primarily persons who were policyholders of MetLife immediately prior to
such transaction and/or a trust holding the shares of MetLife for the benefit of
such policyholders or (y) another corporation the shares of which are held
primarily by the persons and/or trust described in subclause (x); (ii) MetLife
becoming a direct or indirect subsidiary of a mutual holding company whose
members are primarily persons who were policyholders of MetLife immediately
prior to such transaction or (iii) an underwritten offering of the equity
securities of MetLife where no Person (including any group (within the meaning
of Rule 13d-5(b) under the Exchange Act)) acquires more than 25% of the
beneficial ownership interests in such securities.
(b) Potential MetLife Change of Control. For the purposes of
this Agreement, a Potential MetLife Change of Control shall be deemed to have
occurred if:
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(i) a Person commences a tender offer, with adequate
financing, which, if consummated, would result in such Person being the
"beneficial ownership" (within the meaning of Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of MetLife
representing 10% or more of the combined Voting Power of MetLife's
securities;
(ii) MetLife enters into an agreement the consummation of
which would constitute a MetLife Change of Control;
(iii) any person (including any group (within the meaning of
Rule 13d- 5(b) under the Exchange Act)) other than MetLife attempts,
directly or indirectly, to replace more than 25% of the members of the
MetLife Board; provided, however, that any action taken in support of a
nominee approved by a majority of the members of the MetLife Board then
in office shall not be given any effect in determining whether a
Potential MetLife Change of Control has occurred;
(iv) certification, pursuant to New York Insurance Law Section
4210(h)(1)(B) (or any successor provision thereto) of an independent
nomination of candidates to replace more than 25% of the members of the
MetLife Board; or
(v) any other event occurs which the MetLife Board declares to
be a Potential MetLife Change of Control.
Notwithstanding the foregoing, if, after a Potential MetLife Change of Control
and before a MetLife Change of Control, the MetLife Board makes a good faith
determination that such Potential MetLife Change of Control will not result in a
MetLife Change of Control, the MetLife Board may nullify the effect of the
Potential MetLife Change of Control (a "Nullification") by resolution (a
"Nullification Resolution"), in which case the Executive shall have no further
rights and obligations under this Agreement by reason of such Potential MetLife
Change of Control; provided, however, that if the Executive shall have delivered
a Notice of Termination (within the meaning of Section 6(f) hereof) prior to the
date of the Nullification Resolution, such Resolution shall not effect the
Executive's rights hereunder. If a Nullification Resolution has been adopted and
the Executive has not delivered a Notice of Termination prior thereto, the
Effective Date for purposes of this Agreement shall be the date, if any, during
the term hereof on which another Potential MetLife Change of Control or any
actual MetLife Change of Control occurs.
(c) Voting Power. A specified percentage of "Voting Power" of
a company shall mean such number of the Voting Securities as shall enable the
holders thereof to cast such percentage of all the votes which could be cast in
an annual election of directors and "Voting Securities" shall mean all
securities of a company entitling the holders thereof to vote in an annual
election of directors.
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(d) Affiliate. An "Affiliate" shall mean any corporation,
partnership, limited liability company, trust or other entity which, at the
relevant time, directly, or indirectly through one or more intermediaries,
controls, or is controlled by, the Company.
(e) Company Change of Control. A "Company Change of Control"
shall mean any transaction or the last in a series of transactions (other than
any public offering of any class of capital stock of the Company or any
distribution of shares of such capital stock to MetLife's shareholders or, if
the MetLife stock is held in trust, to the beneficial owners of such trust)
immediately following which MetLife or an affiliate of MetLife does not,
directly or indirectly, own or control securities representing at least 50% of
the Voting Power of the Company or 50% of the value of all classes of the
Company's capital stock.
3. Employment Period. Subject to Section 6 hereof, the Company
agrees to continue the Executive in its employ, and the Executive agrees to
remain in the employ of the Company, for the period (the "Employment Period")
commencing on the Effective Date and ending on the expiration of the term of
this Agreement.
4. Position and Duties. (a) No Reduction in Position. During
the Employment Period, the Executive's position (including titles), authority
and responsibilities shall be at least commensurate with those held, exercised
and assigned immediately prior to the Effective Date. It is understood that, for
purposes of this Agreement, such position, authority and responsibilities shall
not be regarded as not commensurate merely by virtue of the fact that a
successor shall have acquired all or substantially all of the business and/or
assets of the Company as contemplated by Section 12(b) hereof. The Executive's
services shall be performed at the location where the Executive was employed
immediately preceding the Effective Date or at any other office or location not
more than 35 miles from such pre-Effective Date location. Notwithstanding the
foregoing, a transfer of the Executive's employment from the Company to MetLife
shall not constitute a reduction in duties or responsibilities so long as the
position held with MetLife provides the Executive with duties, authority and
responsibilities at least comparable to those she last held as an officer of
MetLife and the Executive's title with MetLife is at least commensurate with the
titles held at such time by officers of MetLife performing duties and
responsibilities at a comparable level.
(b) Business Time. During the Employment Period, the Executive
agrees to devote her full attention during normal business hours to the business
and affairs of the Company and its Affiliates and to use her best efforts to
perform faithfully and efficiently the responsibilities assigned to him
hereunder, to the extent necessary to discharge such responsibilities, except
for (i) time spent in managing her personal, financial and legal affairs and
serving on corporate, civic or charitable boards or committees, in each case
only if and to the extent not substantially interfering with the
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performance of such responsibilities, and (ii) periods of vacation and sick
leave to which she is entitled. It is expressly understood and agreed that the
Executive's continuing to serve on any boards and committees on which she is
serving or with which she is otherwise associated immediately preceding the
Effective Date shall not be deemed to 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 aggregate monthly salary paid to the Executive by the Company and
any Affiliates immediately prior to the Effective Date. The base salary shall be
reviewed at least once each year after the Effective Date, and may be increased
(but not decreased) at any time and from time to time by action of the Board of
Directors of the Company (the "Company Board") or any committee thereof or any
individual having authority to take such action in accordance with the
Company'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". Neither
the Base Salary nor any increase in the Base Salary after the Effective Date
shall serve to limit or reduce any other obligation of the Company hereunder.
(b) Annual Bonus. During the Employment Period, in addition to
the Base Salary, the Executive shall be afforded the opportunity to receive an
annual bonus (the "Annual Bonus Opportunity") in an amount which provides the
Executive with the same bonus opportunity as other executives of the Company and
its Affiliates of comparable rank. If any fiscal year commences but does not end
during the Employment Period, Executive shall receive a pro-rated amount in
respect of the Annual Bonus Opportunity for the portion of the fiscal year
occurring during the Employment Period. Any amount payable in respect of the
Annual Bonus Opportunity shall be paid as soon as practicable following the year
for which the amount (or any prorated portion) is earned or awarded, unless
electively deferred by the Executive pursuant to any deferral programs or
arrangements that the Company may make available to the Executive.
(c) Long-term Incentive Compensation Programs. During the
Employment Period, the Executive shall participate in all long-term incentive
compensation programs for key executives at the Company (or, if the Executive is
then providing services principally to an Affiliate, at such Affiliate) at a
level that is commensurate with the level made available from time to time to
executives of the Company (or, if applicable, an Affiliate) of comparable rank.
(d) Benefit Plans. During the Employment Period, the Executive
(and, to the extent applicable, his dependents) shall be entitled to participate
in or be covered under all pension, retirement, deferred compensation, savings,
medical, dental, health, disability, group life, accidental death and travel
accident insurance plans and programs
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of the Company and any Affiliate at the level made available from time to time
to other similarly situated officers.
(e) Expenses. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in accordance with the policies and procedures of the
Company as in effect from time to time with respect to expenses incurred by
other similarly situated officers.
(f) Vacation and Fringe Benefits. During the Employment
Period, the Executive shall be entitled to paid vacation and fringe benefits at
a level that is commensurate with the paid vacation and fringe benefits
available from time to time to other similarly situated officers of the Company
and MetLife.
(g) Indemnification. During and after the Employment Period,
the Company shall indemnify the Executive and hold the Executive harmless from
and against judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys' fees, on the same terms and conditions applicable
from time to time with respect to the indemnification of its other senior
officers of comparable rank.
(h) Office and Support Staff. The Executive shall be entitled
to an office with furnishings and other appointments, and to secretarial and
other assistance, at a level that is at least commensurate with the foregoing
provided to other similarly situated officers.
6. Termination. (a) Death, Disability or Retirement. Subject
to the provisions of Section 1 hereof, this Agreement shall terminate
automatically upon the Executive's death, termination due to "Disability" (as
defined below) or voluntary retirement under any retirement plan maintained by
the Company or an Affiliate, as in effect from time to time. For purposes of
this Agreement, "Disability" shall mean the Executive's inability to perform the
duties of her position, as determined in accordance with the policies and
procedures applicable with respect to the Company's long-term disability plan,
as in effect immediately prior to the Effective Date; provided, however, that
the Executive's employment may not be terminated for Disability hereunder unless
the Executive has requested that she be considered for, and has qualified to
receive, long-term disability benefits under such plan.
(b) Voluntary Termination. Notwithstanding anything in this
Agreement to the contrary, the Executive may voluntarily terminate employment
for any reason (including early retirement under the terms of any retirement
plan maintained by the Company or an Affiliate, as in effect from time to time),
upon not less than 60 days' written notice to the Company, provided that any
termination by the Executive pursuant
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to Section 6(d) hereof on account of Good Reason (as defined therein) shall not
be treated as a voluntary termination under this Section 6(b).
(c) Cause. The Company may terminate the Executive's
employment for Cause. For purposes of this Agreement, "Cause" means (i) the
Executive's conviction or plea of nolo contendere to a felony; (ii) an act of
dishonesty or gross misconduct on the Executive's part which results or is
intended to result in material damage to the Company's business or reputation;
or (iii) repeated material violations by the Executive of his obligations under
Section 4 hereof, which violations are demonstrably willful and deliberate on
the Executive's part.
(d) Good Reason. After the Effective Date, the Executive may
terminate her employment at any time for Good Reason. For purposes of this
Agreement, "Good Reason" means the occurrence of any of the following, without
the express written consent of the Executive, after the Effective Date:
(i) (A) the assignment to the Executive of any duties
inconsistent in any material adverse respect with the Executive's
position, authority or responsibilities as contemplated by Section 4(a)
hereof, or (B) any other material adverse change in such position,
including titles, authority or responsibilities;
(ii) any failure by the Company to comply with any of the
provisions of Section 5 hereof, other than an insubstantial or
inadvertent failure remedied by the Company promptly after receipt of
notice thereof given by the Executive;
(iii) requiring the Executive to be based at any office or
location more than 35 miles from the location at which the Executive
performed her duties immediately prior to the Effective Date, except
for travel reasonably required in the performance of the Executive's
responsibilities; or
(iv) any failure by the Company to obtain the assumption and
agreement to perform this Agreement by a successor as contemplated by
Section 12(b) hereof.
In no event shall the mere occurrence of a MetLife Change of Control or a
Company Change of Control, absent any further impact on the Executive, be deemed
to constitute Good Reason.
(e) Notice of Termination. Any termination by the Company for
Cause or by the Executive for Good Reason shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 13(e)
hereof. For purposes of this Agreement, a "Notice of Termination" means a
written notice given, (i)
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in the case of a termination for Cause, within 10 business days of the Company's
having actual knowledge of the events giving rise to such termination or (ii) in
the case of a termination for Good Reason, within 120 days of the Executive's
having actual knowledge of the events giving rise to such termination. Any such
Notice of Termination shall (i) indicate the specific termination provision in
this Agreement relied upon, (ii) 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 (iii) 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). The failure by the Executive to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of Good
Reason shall not waive any right of the Executive hereunder or preclude the
Executive from asserting such fact or circumstance in enforcing her rights
hereunder.
(f) 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 upon Termination. (a) Death or
Disability. If the Executive's employment is terminated during the Employment
Period by reason of the Executive's death or Disability, 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 shall pay to the Executive
(or her 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 or in
accordance with the terms and conditions of any otherwise applicable employee
benefit plans and programs maintained by the Company or any Affiliate, including
any compensation previously deferred by the Executive (together with any accrued
earnings thereon) and not yet paid by the Company and any accrued vacation pay
not yet paid by the Company or an Affiliate (the "Accrued Obligations"), and
(iii) any other benefits payable due to the Executive's death or Disability
under the plans, policies or programs maintained by the Company or any Affiliate
(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
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.
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(b) Cause and Voluntary Termination. If, during the Employment
Period, the Executive's employment shall be terminated for Cause or voluntarily
terminated by the Executive (other than on account of Good Reason), the Company
shall pay the Executive (i) the Earned Salary in cash in a single lump sum as
soon as practicable, but in no event more than 30 days, following the Date of
Termination, and (ii) the Accrued Obligations in accordance with the terms of
the applicable plan, program or arrangement.
(c) Termination by the Company other than for Cause and
Termination by the Executive for Good Reason.
(i) Lump Sum Payments. If (x) the Company terminates the
Executive's employment other than for Cause during the Employment
Period or (y) the Executive terminates her employment at any time
during the Employment Period for Good Reason, the Company shall pay to
the Executive, at the times determined below, the following amounts:
(A) the Executive's Earned Salary;
(B) a cash amount (the "Severance Amount") equal to three
times the sum of
(1) the Executive's annual rate of Base Salary
as then in effect;
(2) the average of the annual bonuses payable to
the Executive under the Annual Variable
Incentive Plan (or any successor plan
thereto) or any other annual incentive
compensation plan maintained by an Affiliate
in which the Executive participated for the
each of the three fiscal years of the
Company or, if applicable, such Affiliate
(or, if less, the number of prior fiscal
years during which Executive was an employee
of the Company or an Affiliate) ended
immediately prior to the Effective Date for
which an annual bonus amount had been
determined, as applicable, by the MetLife
Board or Company Board or any committee
thereof (or, if applicable, the
administrator of any plan maintained by an
Affiliate) prior to the Effective Date. If
the Executive was employed with the Company,
an Affiliate or the Company and one or more
Affiliate for only a portion of any fiscal
year included in the period for which the
average referred to in the immediately
preceding sentence is determined and the
aggregate annual bonus
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payable by all such entities for such fiscal
year took into account such partial period
of employment, such bonus for such fiscal
year shall be annualized for purposes of
calculating such average; and
(3) the average of the long-term incentive
compensation amounts payable to the
Executive by the Company or any Affiliate
with respect to each of the last three
performance periods (or, if the Executive
participated in the long-term compensation
program in respect to a lesser number of
such performance periods, such lesser
number) ended prior to the Effective Date
for which the amount payable had been
determined, as applicable, by the MetLife
Board or the Company Board or any committee
of either such Board (or, if applicable, the
administrator of any plan maintained by such
Affiliate) prior to the Effective Date;
provided, however, that, the amount
determined under this subclause (3) shall be
reduced (but not below zero) by the
"Determined Value" (as defined below) of any
vested stock options, restricted stock or
similar equity-based award relating to the
common equity of MetLife on the earlier to
occur of the Executive's Date of Termination
or the date on which a MetLife Change of
Control or a Company Change of Control
occurs. For purposes of this Agreement,
Determined Value shall mean the excess of
the "Equity Value" over the price, if any,
payable by the Executive in respect of such
stock option or other award and Equity Value
shall be determined to be (x) in the case of
a MetLife Change of Control occurring by
reason of a merger, recapitalization or
similar transaction or as a result of a
tender offer, the value received by
MetLife's equity holders in such transaction
or the price paid in such tender offer (with
the value of any non-cash consideration to
be determined in good faith by the
Compensation Committee of the MetLife Board
as constituted immediately prior to the
Effective Date) and (y) in the case of any
other MetLife Change of Control, any Company
Change of Control or where the date as of
which such Determined Value is measured is
the Executive's Date of Termination, the
average of the high and low reported sales
prices of such equity on the principal
securities market on which such equity is
traded on the relevant date; and
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(C) the Accrued Obligations.
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 date required by law), following the Date of
Termination. Accrued Obligations shall be paid in accordance with the
terms of the applicable plan, program or arrangement.
(ii) Continuation of Benefits. The Executive (and, to the
extent applicable, her dependents) shall be entitled, after the Date of
Termination until the third anniversary of 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 maintained by the Company or an Affiliate (collectively, the
"Continuing Benefit Plans"); provided, however, that the participation
by the Executive (and, to the extent applicable, his 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 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 a comparable benefit under
another plan or from the Company's general assets.
(iii) Termination of Employment Within Three Years of Normal
Retirement Date. Notwithstanding anything else to the contrary
contained in this Section 7(c), if the Executive's employment with the
Company terminates at any time during the three year period ending on
the Executive's normal retirement date, as determined in accordance
with the Company's policies then in effect for the Company's senior
executives (the "Normal Retirement Date"), and the Executive would be
entitled to receive severance benefits under this Section 7(c), then
(i) the multiplier in Section 7(c)(i) shall not be three, but shall be
a number equal to three times (x/1095), where x equals the number of
days remaining until the Executive's Normal Retirement Date, and (ii)
the End Date described in Section 7(c)(ii) shall not be the third
anniversary of the Date of Termination, but shall be the Executive's
Normal Retirement Date.
(d) Discharge of the Company's Obligations. Except as
expressly provided in the last sentence of this Section 7(d) hereof, the
amounts payable to the Executive pursuant to this Section 7 (whether or not
reduced pursuant to Section 7(e) hereof) following termination of her employment
shall be in full and complete
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satisfaction of the Executive's rights under this Agreement and any other claims
she may have in respect of her employment by the Company or any of 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 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 with the Company and its Affiliates.
(e) Limit on Payments by the Company.
(i) Application of Section 7(e) Hereof. In the event that any
amount or benefit paid or distributed to the Executive pursuant to this
Agreement, taken together with any amounts or benefits otherwise paid
or distributed to the Executive by the Company or any Affiliate
(collectively, the "Covered Payments"), would be an "excess parachute
payment" as defined in Section 280G of the Internal Revenue Code of
1986, as amended (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 provisions of
this Section 7(e) shall apply to determine the amounts payable to
Executive pursuant to this Agreement.
(ii) Calculation of Benefits. Promptly after delivery of any
Notice of Termination, the Company shall notify the Executive of the
aggregate present value of all termination benefits to which she would
be entitled under this Agreement and any other plan, program or
arrangement as of the projected Date of Termination, together with the
projected maximum payments, determined as of such projected Date of
Termination that could be paid without the Executive being subject to
the Excise Tax.
(iii) Imposition of Payment Cap. If the aggregate value of all
compensation payments or benefits to be paid or provided to the
Executive under this Agreement and any other plan, agreement or
arrangement with the Company or an Affiliate exceeds the amount which
can be paid to the Executive without the Executive incurring an Excise
Tax, then 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 (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 he will receive in connection with the application of the Payment
Cap.
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(iv) 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 (or, if the Company does
not have its own accounting firm, MetLife's
independent certified public accountant) appointed
prior to the Effective Date or tax counsel selected
by such Accountants (the "Accountants"), the Company
has a reasonable basis to conclude 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.
(v) 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 paid to the Executive or for her benefit are in an amount that
would result in the Executive being subject an Excise Tax, then the
amount equal to such excess parachute payments shall be deemed for all
purposes to be a loan to the Executive made on the date of receipt of
such excess payments, which the Executive shall have an obligation to
repay 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. If this Section 7(e) is not applied to reduce the
Executive's
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entitlements under this Section 7 because the Accountants determine
that the Executive would not receive a greater net-after tax benefit by
applying this Section 7(e) and it is established pursuant to a Final
Determination that, notwithstanding the good faith of the Executive and
the Company in applying the terms of this Agreement, the Executive
would have received a greater net after tax benefit by subjecting her
payments and benefits hereunder to the Payment Cap, then the aggregate
"parachute payments" paid to the Executive or for his benefit in excess
of the Payment Cap shall be deemed for all purposes a loan to the
Executive made on the date of receipt of such excess payments, which
the Executive shall have an obligation to repay 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. 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 Payment Cap, then the Company shall promptly thereafter
pay the Executive the aggregate additional amount which could have been
paid without exceeding the Payment Cap, 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.
(f) Notwithstanding anything else in this Section 7 to the
contrary, nothing in this Section 7 shall be construed to release the Company
from (or to otherwise waive or modify) the Company's obligation to indemnify the
Executive pursuant to Section 5(g) hereof
8. 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 Affiliate 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 Affiliate, including employment agreements or stock option
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.
9. No Offset. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its 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 may
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have against the Executive or others whether by reason of the subsequent
employment of the Executive or otherwise.
10. Legal Fees and Expenses. If the Executive asserts any
claim in any contest (whether initiated by the Executive or by the Company) as
to the validity, enforceability or interpretation of any provision of this
Agreement, the Company shall pay the Executive's legal expenses (or cause such
expenses to be paid) including, but not limited to, her reasonable attorney's
fees, on a quarterly 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, plus simple interest thereon at the 90-day United
States Treasury Xxxx rate as in effect from time to time, compounded annually,
if the Executive shall not prevail, in whole or in part, as to at least one
material issue as to the validity, enforceability or interpretation of any
provision of this Agreement.
11. Company Property. The Agreement to Protect Corporate
Property previously executed by the Executive in favor of MetLife is
incorporated herein and made a part hereof. The Executive hereby reaffirms her
commitments under such agreement, and again agrees to be bound by each of the
covenants contained therein for the benefit of the Company in consideration of
the benefits made available to her hereby.
12. 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.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors. 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.
(c) MetLife Successor. If prior to the occurrence of a MetLife
Change of Control, MetLife is a party to a merger, recapitalization,
demutualization, restructuring, reorganization or similar transaction, as a
result of which MetLife becomes a subsidiary of any entity that was a subsidiary
of MetLife immediately prior to such transaction, from and after the date of
such transaction the term MetLife as used in the definition of MetLife Change of
Control and Potential MetLife Change of Control (but not as used in any other
Section hereof, unless required to effect the intent that a Potential MetLife
Change of Control or a MetLife Change of Control shall cause the Effective Date
of this Agreement to occur) shall refer to such entity.
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13. Miscellaneous. (a) Applicable Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
applied without reference to principles of conflict of laws.
(b) Arbitration. Except to the extent provided in Section
11(c) hereof, any dispute or controversy arising under or in connection with
this Agreement shall be resolved by binding arbitration. The arbitration shall
be held in New York City 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 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 and the third appointed by the other two arbitrators.
(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.
(d) Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the matters referred to
herein. No other agreement relating to the terms of the Executive's employment
by the Company, oral or otherwise, shall be binding between the parties unless
it is in writing and signed by the party against whom enforcement is sought.
There are no promises, representations, inducements or statements between the
parties other than those that are expressly contained herein. The Executive
acknowledges that she is entering into this Agreement of her own free will and
accord, and with no duress, that she has read this Agreement and that she
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 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: Metropolitan Property and Casualty
Insurance Company
000 Xxxxxx Xxxx
Warwick, R.I. 02887
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with a copy to: Metropolitan Life Insurance Company
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Att.: Secretary
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 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 her rights hereunder
on any occasion or series of occasions.
(i) 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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(j) 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 her 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.
METROPOLITAN PROPERTY AND
CASUALTY INSURANCE COMPANY
/s/ Xxxx X. Xxxxxxxx
By: Xxxx X. Xxxxxxxx
Title: Sr. Vice President
WITNESSED:
/s/ Xxxxxxx X. Xxxxxxxx
EXECUTIVE:
/s/ Xxxxxxxxx X. Xxxx
WITNESSED:
/s/ Xxxxxxx X. Xxxxxxxx
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