EXHIBIT 10.5
CONTINUITY AGREEMENT
This Agreement (the "Agreement") is dated as of September 29,
2000 by and between AXA Financial, Inc., a Delaware corporation (the "Company"),
and Xxxxxxx Xxxxxxx (the "Executive").
WHEREAS, the Company's Board of Directors, acting through the
Special Committee of the Company's Board of Directors (which committee was
established on June 28, 2000, pursuant to Resolution No. AXF 30-00), considers
the continued services of key executives of the Company to be in the best
interests of the Company and its stockholders; and
WHEREAS, the Company's Board of Directors desires to assure,
and has determined that it is appropriate and in the best interests of the
Company and its stockholders to reinforce and encourage the continued attention
and dedication of key executives of the Company and any of its respective
subsidiaries (all of such entities, with the Company, hereinafter referred to as
an "EMPLOYER") to their duties of employment without personal distraction or
conflict of interest in circumstances which could arise from the occurrence of a
material change in the ownership of the Company; and
WHEREAS, the Company's Board of Directors has authorized the
Company to enter into continuity agreements with those key executives of the
Employer, such agreements to set forth the severance compensation which the
Company agrees under certain circumstances to pay such executives; and
WHEREAS, the Executive is a key executive of an Employer and
has been designated by the Board as an executive to be offered such a continuity
compensation agreement with the Company.
NOW, THEREFORE, in consideration of the promises and the
mutual covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Executive agree as follows:
1. TERM; ANNUAL COMPENSATION ARRANGEMENTS.
(a) This Agreement shall become effective on the date
hereof and remain in effect until the second anniversary thereof; PROVIDED,
HOWEVER, in the event that the Transaction (as defined in Section 2(b) of this
Agreement) occurs at any time prior to the termination of this Agreement, this
Agreement shall not terminate until the second anniversary of the Transaction;
PROVIDED, FURTHER, HOWEVER, that in no event shall this Agreement terminate
until the second anniversary of the Effective Date. The period of time during
which the Agreement shall continue in full force and effect, as provided for in
this Section 1(a), shall constitute the "Term" of this Agreement.
(b) At all times during the Term of this Agreement, the
Company shall, or shall cause an Employer to, provide the Executive with an
annual rate of base salary and annual incentive opportunities, which, in the
aggregate, provide the Executive with total annual compensation that (i)
continues the Employer's practice (as in effect immediately prior to the date
hereof) of externally competitive annual compensation and (ii) is consistent and
in alignment with the Executive's personal performance and the performance of
the Company, as such performance is determined, on at least an annual basis,
consistent with past practice.
2
2. EFFECT OF TRANSACTION; EFFECTIVE DATE.
(a) No compensation or other benefit provided pursuant to
Section 4 or Section 5 hereof shall be payable under this Agreement unless and
until either (i) the Transaction shall have occurred while the Executive is an
employee of an Employer and the Executive's employment by an Employer thereafter
shall have terminated in accordance with Section 3 hereof or (ii) the
Executive's employment by the Company shall have terminated in accordance with
Section 3(a)(ii) hereof prior to the occurrence of the Transaction.
(b) For purposes of this Agreement, "TRANSACTION" shall
mean the consummation of the earlier to occur of, directly or indirectly, in any
transaction or series of transactions (i) any acquisition, purchase or increase
in the legal or beneficial ownership on either a numeric or percentage basis by
AXA, any affiliate of AXA (together, "AXA"), or any person acting at the
instruction of or on behalf of AXA, of any shares of common stock of the
Company pursuant to a tender offer, recapitalization, reorganization or
otherwise, which (A) would permit, require or result in (1) the common stock of
the Company ceasing to be registered pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), (2) the Company ceasing to be a reporting
company under the Exchange Act or (3) the common stock of the Company ceasing to
be listed for trading on The New York Stock Exchange, Inc. or (B) would
constitute a "Rule 13e-3 transaction" for purposes of Rule 13e-3 under the
Exchange Act (without giving effect to clause (g) of Rule 13e-3) or (ii) any
merger, consolidation or other similar business combination transaction between
the Company and AXA (other than any wholly owned subsidiary of the Company) (the
earlier of any such event in clause (i) or (ii) to occur being hereinafter
referred to as the "EFFECTIVE DATE").
3. TERMINATION OF EMPLOYMENT; DEFINITIONS.
(a) TERMINATION WITHOUT CAUSE BY AN EMPLOYER OR FOR GOOD
REASON BY THE EXECUTIVE.
(i) The Executive shall be entitled to the compensation
provided for in Section 4 hereof if, at any time during the Term of
this Agreement, the Executive's employment shall be terminated (A) by
an Employer for any reason other than (I) the Executive's Disability or
Retirement, (II) the Executive's death or (III) for Cause, or (B) by
the Executive with Good Reason (as such terms are defined herein).
(ii) In addition, the Executive shall be entitled to the
compensation provided for in Section 4 hereof if, (A) in the event that
an agreement is signed which, if consummated, would result in the
occurrence of the Transaction and the Executive is terminated without
Cause by an Employer or terminates employment with Good Reason prior to
the Transaction and (B) such termination is at the direction of AXA or
otherwise in connection with the anticipated Transaction.
(b) DISABILITY. For purposes of this Agreement,
"Disability" shall have the same meaning as such term is defined in the
applicable Employer's long-term disability plan.
(c) RETIREMENT. For purposes of this Agreement,
"Retirement" shall mean the Executive's termination of employment pursuant to
late, normal or early retirement under a qualified pension plan sponsored by an
Employer in which the Executive participates, as defined in such plan, but only
if such retirement occurs prior to a termination by an Employer without Cause or
by the Executive for Good Reason.
3
(d) CAUSE. For purposes of this Agreement, "Cause" shall
mean:
(i) the willful and continued failure of the Executive to
perform substantially his or her duties with an Employer (other than
any such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is
delivered to such Executive by the Board, which specifically identifies
the manner in which the Board or the executive officer believes that
the Executive has not substantially performed his or her duties; or
(ii) (A) the conviction of, or plea of guilty or NOLO
CONTENDERE to, a felony or (B) the willful engaging by the Executive in
gross misconduct which is materially and demonstrably injurious to the
Company.
Termination of the Executive for Cause shall be made by delivery to the
Executive of a copy of a resolution duly adopted by the affirmative vote of not
less than a three-fourths majority of the non-employee directors of the
applicable Employer (excluding any such directors who are at such time employees
of AXA) at a meeting of such directors called and held for such purpose (the
"Special Meeting"), AFTER 30 days prior written notice to the Executive,
specifying the basis for such termination and the particulars thereof, finding
that in the reasonable judgment of such directors, the conduct set forth in
clause (i) or (ii), as applicable, has occurred and that such occurrence
warrants the Executive's termination. With respect to the conduct set forth in
clause (i), above, the Executive may cure or otherwise resolve the behavior in
question at any time during the 30-days prior to the Special Meeting. Whether
the Executive shall have cured or otherwise resolved such behavior shall be
determined at the Special Meeting.
(e) GOOD REASON. For purposes of this Agreement, "Good
Reason" shall mean the occurrence, during the Term of this Agreement, of any of
the following, without the Executive's express written consent:
(i) (A) the Executive's annual rate of base salary is
reduced below the annual rate as in effect immediately prior to the
Effective Date (or, if higher, as in effect immediately prior to the
date of Termination (as defined in Section 4)), (B) the Company
breaches, in any material respect, the terms of Section 1(b) of this
Agreement or (C) an Employer fails to pay any compensation within 30
days after the applicable due date;
(ii) (A) the Executive's duties and responsibilities are
materially and adversely diminished in comparison to the duties and
responsibilities performed by the Executive immediately prior to the
Effective Date, or (B) the assignment of duties materially inconsistent
with the level of duties performed by the Executive immediately prior
to the Effective Date, in either case as a direct result of the
Transaction; PROVIDED, HOWEVER, that no such diminution or assignment
shall be deemed to exist so long as the Executive retains his title
with the Company and has the duties and responsibilities customarily
performed by an executive who has such title for a privately held
wholly owned subsidiary of a public company.
(iii) the Executive is required to be based at a location
more than fifty (50) miles from the location where the Executive was
based and performed services immediately prior to the Effective Date;
(iv) failure to provide for the assumption of the
Agreement by any successor entity (provided, however, that for purposes
of this Section 3(e)(iv), any assumption of this Agreement which occurs
by operation of law shall be deemed to have automatically satisfied
this requirement, as set forth in Section 10(b)); or
4
(v) a voluntary termination of employment by the
Executive, with or without any reason given by the Executive, during
the fifteenth (15th) month following the month in which the Effective
Date occurs.
Notwithstanding the foregoing, in the event the Executive provides an Employer
with a Notice of Termination (as defined below) referencing this Section 3(e),
an Employer shall have the 30-day (or 90-day, as applicable) period set forth
in the Notice of Termination in which to cure or resolve the action or failure
to act, which otherwise constitutes Good Reason; PROVIDED, HOWEVER, with respect
to Section 3(e)(v), the Executive shall only be entitled to terminate his or her
employment for Good Reason after providing the Employer with prior written
notice of such termination of employment during the ninth (9th) month following
the month in which the Effective Date occurs.
(f) NOTICE OF TERMINATION. Any purported termination of
the Executive's employment (other than on account of the Executive's death) with
an Employer shall be communicated by a Notice of Termination to the Executive,
if such termination is by an Employer, or to an Employer, if such termination is
by the Executive. For purposes of this Agreement, "NOTICE OF TERMINATION" shall
mean a written notice delivered by the Executive to his or her Employer, or by
an Employer to the Executive, as applicable, at least 30 days prior to the
intended date of Termination (as defined in Section 4), which shall indicate the
specific termination provision in this Agreement relied upon and shall set forth
in reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provisions so indicated;
PROVIDED, HOWEVER, that in the event of a termination for Good Reason pursuant
to Section 3(e)(ii), such Notice of Termination shall be delivered by the
Executive to his or her Employer at least 90 days prior to the intended date of
Termination; and PROVIDED, FURTHER, HOWEVER, that in the event of a termination
for Good Reason pursuant to Section 3(e)(v), no details shall be necessary other
than reference to such Section. For purposes of this Agreement, no purported
termination of the Executive's employment with an Employer shall be effective
without such a Notice of Termination having been given.
4. COMPENSATION UPON TERMINATION. Subject to Sections 8
and 9(a) hereof, if at any time during the Term of this Agreement, the
Executive's employment with an Employer shall be terminated in accordance with
Section 3(a) (the "TERMINATION"), the Executive shall be entitled to the
following payments and benefits:
(a) SEVERANCE. The Company shall pay or cause to be paid
to the Executive a cash severance amount equal to (i) three times the sum of (A)
the Executive's annual rate of base salary in effect at any time during the
90-day period prior to the Transaction (or, if higher, the annual rate of base
salary in effect during the 90-day period prior to the giving of the Notice of
Termination) and (B) the highest annual bonus paid or payable in, or in respect
of, any one of the three (3) full fiscal years preceding the year in which the
date of Termination occurs (the "BONUS"). This cash severance amount shall be
payable in a lump sum calculated without any discount.
(b) ADDITIONAL PAYMENTS AND BENEFITS. The Executive shall
also be entitled to:
(i) a lump sum payment equal to the sum of (A) the
Executive's accrued but unpaid annual base salary through the date of
Termination, (B) the unpaid portion, if any, of bonuses previously
earned by the Executive pursuant to an Employer's annual incentive
compensation plan, PLUS a pro rata portion of the Bonus (calculated
through the date of Termination), and (C) any accrued but unpaid
vacation pay; and
(ii) a lump sum payment equal to the amount of
contributions to be made on
5
behalf of the Executive to the qualified pension plans in which the
Executive participated immediately prior to the date of Termination in
respect of the three years following the date of Termination (whether
or not such contributions would have actually been made); and
(iii) continued medical, dental, vision, and life insurance
coverage (excluding accident, death, and disability insurance) for the
Executive and the Executive's eligible dependents or, to the extent
such coverage is not commercially available, such other arrangements
reasonably acceptable to the Executive, on the same basis as in effect
prior to the Transaction or the Executive's Termination, whichever is
deemed to provide for more substantial benefits for the Executive and
the Executive's eligible dependents, for a period ending on the earlier
of (A) the end of the third anniversary of the date of the Executive's
Termination and (B) the commencement of comparable coverage by the
Executive with a subsequent employer; and
(iv) all other accrued or vested benefits in accordance
with the terms of the applicable plan.
All lump sum payments under this Section 4 shall be paid within 30 days after
the Executive's date of Termination. In determining the actuarial value of the
payments under Section 4(b)(ii), above, the actuarial assumptions and methods
used in the Employer's qualified pension plans shall be utilized. In the event
that there is any issue concerning the application of such assumptions and
methods, the Company shall in good faith make any reasonable determination or
decision necessary to resolve such discrepancy. Any payment of additional
benefits pursuant to Section 4(b)(ii) shall be paid from assets of the Company,
not from assets of any pension plan.
(c) OUTPLACEMENT. If so requested by the Executive,
outplacement services shall be provided by a professional outplacement provider
selected by Executive; PROVIDED, HOWEVER, that such outplacement services shall
be provided to the Executive at a cost to the Company of not more than fifteen
(15) percent of such Executive's annual base salary.
5. COMPENSATION UPON TERMINATION FOR DEATH, DISABILITY
OR RETIREMENT.
If the Executive's employment is terminated by reason of
Death, Disability or Retirement prior to any other Termination, the Executive
will receive:
(a) the sum of (i) Executive's accrued but unpaid salary
through the date of Termination, (ii) a pro rata portion of the Executive's
Bonus (calculated through the date of Termination), and (iii) any accrued but
unpaid vacation pay; and
(b) other accrued or vested benefits in accordance with
the terms of the applicable plan; PROVIDED, HOWEVER, that for purposes of the
Executive Survivor Plans and the Executive Variable Deferred Compensation Plans
(the "EXECUTIVE PLANS") in which the Executive participates as of the date of
Termination, in the event of a termination of the Executive's employment
pursuant to Section 3(a)(i) of this Agreement, any such termination shall be
deemed to be a "retirement" for purposes of such Executive Plans.
6. WITHHOLDING. Payments and benefits provided pursuant
to Sections 4 and 5 shall be subject to any applicable payroll and other taxes
required to be withheld pursuant to applicable Federal, state and local laws.
7. EXPENSES. In addition to all other amounts payable to
the Executive under this Agreement, the Company shall pay or reimburse the
Executive for all expenses (including without limitation, any and all court
costs and reasonable attorneys' fees and expenses) incurred
6
by the Executive in connection with or as a result of any claim, action or
proceeding brought by the Company or the Executive with respect to or arising
out of this Agreement or any provision hereof.
8. OBLIGATIONS ABSOLUTE; NO MITIGATION; NON-EXCLUSIVITY
OF RIGHTS.
(a) The obligations of the Company to make the payment to
the Executive, and to make the arrangements, provided for herein shall be
absolute and unconditional and shall not be reduced by any circumstances,
including without limitation any set-off, counterclaim, recoupment, defense or
other right which the Company may have against the Executive or any third party
at any time; PROVIDED, HOWEVER, that the payments and benefits provided in
Section 4(b)(i), (ii), and (iii) shall be reduced by any other payments or
benefits made by the Company or the Employer under any other severance
agreement, plan, or arrangement.
(b) 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 Employer and for which
the Executive may qualify, nor shall anything herein limit or reduce such
rights as the Executive may have under any agreements with the Company or any
Employer.
(c) In addition to the foregoing, the Executive shall not
be required to mitigate the amount of any payment or benefit provided for
pursuant to this Agreement by seeking other employment, subject to Section
4(b)(iii), above.
9. NOT AN EMPLOYMENT AGREEMENT; ARBITRATION.
(a) This Agreement is not, and nothing herein shall be
deemed to create, a contract of employment between the Executive and the
Company. Any Employer may terminate the employment of the Executive at any time,
subject to the terms of this Agreement and/or any employment agreement or
arrangement between the Employer and the Executive that may then be in effect.
(b) Any unresolved dispute or controversy arising under
or in connection with this Agreement shall be settled and otherwise resolved
exclusively by arbitration, conducted before a panel of three (3) arbitrators in
New York City, New York, in accordance with the rules of the American
Arbitration Association. The determination of the arbitrators shall be final and
binding on the parties hereto and may be entered in any court of competent
jurisdiction. The per diem fee charged by the arbitrators for any arbitration
proceeding shall be borne by the Company.
10. JOINT SEVERAL LIABILITY; SUCCESSORS; BINDING
AGREEMENT, ASSIGNMENT.
(a) Each entity included in the definition of "Employer"
and any successors or assigns shall be joint and severally liable with the
Company under this Agreement.
(b) The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business of the Company, by agreement to expressly,
absolutely and unconditionally assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to perform
it if no such succession had taken place. Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall be a material
breach of this Agreement and shall entitle the Executive to terminate the
Executive's employment with an Employer or such successor for Good Reason
immediately prior to or at any time after such succession; PROVIDED, HOWEVER,
that in the event that any successor shall become bound by all
7
the terms and provisions of this Agreement by operation of law, the Executive
shall not be entitled to terminate the Executive's employment with an Employer
for Good Reason pursuant to Section 3(e)(iv) of this Agreement. As used in this
Agreement, "COMPANY" shall mean (i) the Company as hereinbefore defined, and
(ii) any successor to all the stock of the Company or to all or substantially
all of the Company's business or assets, which executes and delivers an
agreement provided for in this Section 10(b) or which otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law, including
any parent or subsidiary of such a successor.
(c) This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive should die while any amount would be payable to the Executive
hereunder if the Executive had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to the Executive's estate or designated beneficiary. Neither this
Agreement nor any right arising hereunder may be assigned or pledged by the
Executive.
11. NOTICE. For purpose of this Agreement, notices and
all other communications provided for in this Agreement or contemplated hereby
shall be in writing and shall be deemed to have been duly given when personally
delivered, delivered by a nationally recognized overnight delivery service or
when mailed United States certified or registered mail, return receipt
requested, postage prepaid, and addressed, as follows:
(a) in the case of the Company or an Employer, to the
Company or the
Employer at:
AXA Financial, Inc.
1290 Avenue of the Xxxxxxxx
00xx Xxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
(b) in the case of the Executive, to the Executive at the
address set forth on the execution page at the end hereof.
Either party to this Agreement may designate a different
address by giving a notice of change of address in the manner provided above,
except that notices of change of address shall be effective only upon receipt.
12. CONFIDENTIALITY, NONSOLICITATION OF EMPLOYEES.
(a) The Executive shall retain in confidence any and all
confidential information concerning the Company and its respective businesses
which is now known or hereafter becomes known to the Executive, except as
otherwise required by law and except information (i) ascertainable or obtained
from public information, (ii) received by the Executive at any time after the
Executive's employment with an Employer shall have terminated, from a third
party not employed by or otherwise affiliated with the Company or any Employer
or (iii) which is or becomes known to the public by any means other than a
breach of this Section 12. In the event of a Termination, the Executive will not
take or keep any proprietary or confidential information or documentation
belonging to the Company or any Employer.
(b) The Executive shall not, for a period of one year
following the date of Termination, solicit or offer employment to any person who
has been employed by an Employer at any time during the 12 months immediately
preceding such solicitation.
8
13. AMENDMENT; MISCELLANEOUS.
(a) No provision of this Agreement may be amended,
altered, modified, waived or discharged unless such amendment, alteration,
modification, waiver or discharge is agreed to in a writing signed by the
Executive and by such officer of the Company as shall be specifically designated
by the Board of Directors of the Company.
(b) No waiver by either party to this Agreement, at any
time, of any breach by the other party of, or of compliance by the other party
with, any condition or provision of this Agreement to be performed or complied
with by such other party shall be deemed a waiver of any similar or dissimilar
provision or condition of this Agreement or any other breach of or failure to
comply with the same condition or provision at the same time or at any prior or
subsequent time.
(c) No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement.
14. SEVERABILITY. If any one or more of the provisions
of this Agreement shall be held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions of this
Agreement shall not be affected thereby. To the extent permitted by applicable
law, each party hereto waives any provision of law which renders any provision
of this Agreement invalid, illegal or unenforceable in any respect.
Notwithstanding the foregoing, to the extent that any provision of this
Agreement shall be determined by any applicable regulatory or judicial authority
to be subject to any requirements of the insurance laws of the State of New
York, the effectiveness of such provision shall be conditioned upon the
satisfaction of such requirements.
15. GOVERNING LAW; VENUE. The validity, interpretation,
construction and performance of this Agreement shall be governed on a
non-exclusive basis by the laws of the State of New York without giving effect
to its conflict of laws rules. For purposes of jurisdiction and venue, the
Company and each Employer hereby consents to jurisdiction and venue in any suit,
action or proceeding with respect to this Agreement in any court of competent
jurisdiction in the state in which the Executive resides at the commencement of
such suit, action or proceeding and waives any objection, challenge or dispute
as to such jurisdiction or venue being proper.
16. COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be an original and all of which shall
be deemed to constitute one and the same instrument.
9
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
AXA FINANCIAL, INC.
By:
--------------------------------
Title:
--------------------------
EXECUTIVE:
/s/ Xxxxxxx Xxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxx
-----------------------------------
-----------------------------------
Address
