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EXHIBIT 10.24
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as May 7, 1996, by and between Aetna
Life and Casualty Company, a Connecticut corporation (the "Company"), and Xxxxxx
X. Xxxx ("Executive").
W I T N E S S E T H:
WHEREAS, the Company believes that Executive is a key health
care employee and that it is in the Company's best interests to retain the
services of Executive;
WHEREAS, the Company therefore desires to retain the services of
Executive and to enter into an agreement embodying the terms of such employment
(the "Agreement"); and
WHEREAS, Executive desires to accept such employment and enter
into such Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the Company and Executive hereby agree as follows:
1. Employment. Except as provided in Paragraph 6(a), the
Company shall continue to employ Executive and Executive agrees to remain
employed by the Company under the terms of this Agreement for the period
commencing on the date first written above and ending December 31, 1998. The
period during which Executive is employed pursuant to this Agreement shall be
referred to as the "Contract Employment Period". The Contract Employment Period
shall automatically be extended for one additional year unless, not later than
180 days prior to the end of the Contract Employment Period, the Company or
Executive shall have given notice not to extend the Contract Employment Period.
The giving by the Company of a notice not to extend the Contract Employment
Period shall not constitute a Termination Without Cause or a Termination for
Good Reason (as defined below). Upon the expiration of the Contract Employment
Period, Executive's employment with the Company shall continue on an at-will
basis.
2. Position and Duties. During the Contract Employment
Period, Executive shall serve in Executive's current position or such other
comparable or better position or positions with the Company and its subsidiaries
as the Chief Executive Officer or the Board of Directors of the Company (the
"Board") shall specify from time to time. During the Contract Employment Period,
Executive shall have the duties, responsibilities and obligations customarily
assigned to individuals serving in the position or positions in which Executive
serves hereunder and such other duties, responsibilities and obligations as the
Chief Executive Officer or the Board shall from time to time specify. Executive
shall devote her full
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business time to the services required of her hereunder, except for vacation
time and reasonable periods of absence due to sickness, personal injury or other
disability, and shall use her best efforts, judgment, skill and energy to
perform such services in a manner consistent with the duties of her position and
to improve and advance the business and interests of the Company and its
subsidiaries. Nothing contained herein shall preclude Executive from (i) serving
on any corporate or governmental board of directors on which she currently
serves or, if the Board consents to such service, on any other board of
directors, (ii) serving on the board of, or working for, any charitable, not-for
profit or community organization, (iii) pursuing any other activity to which the
Board consents or (iv) pursuing her personal, financial and legal affairs, so
long as such activities, individually or collectively, do not interfere with the
performance of Executive's duties hereunder,
3. Cash Compensation.
a. Base Salary. During the Contract Employment Period, the
Company shall pay Executive a base salary at the annual rate of $300,000. The
Board shall periodically review Executive's base salary and the Company may, in
its discretion, increase such base salary by an amount it determines to be
appropriate. Any such increase shall not reduce or limit any other obligation of
the Company hereunder. Executive's annual base salary payable hereunder, as it
may be increased from time to time and without reduction for any amounts
deferred as described above, is referred to herein as "Base Salary". Executive's
Base Salary, as in effect from time to time, may not be reduced by the Company
without Executive's consent, provided that the Base Salary payable under this
paragraph shall be reduced to the extent Executive elects to defer or reduce
such salary under the terms of any deferred compensation or savings plan or
other employee benefit arrangement maintained or established by the Company. The
Company shall pay Executive the portion of her Base Salary not deferred in
accordance with its customary periodic payroll practices.
b. Incentive Compensation. During the term of the Contract
Employment Period, Executive shall remain eligible for participation in the
Company's existing and future annual and long term incentive compensation
programs at a level consistent with her position at the Company and the
Company's then current policies and practices; provided that following any
assignment of this Agreement in accordance with the provisions of Paragraph 9(c)
or a Change in Control of the Company (as defined in Paragraph 7(e)), the
calculation of the amount payable as annual incentive compensation and the
conditions upon which such bonus shall be payable shall be no less favorable to
the Executive (taking into account reasonable changes in the Company's goals and
objectives) than the annual bonus opportunity that had been made available to
the Executive for the fiscal year ended immediately prior to such assignment or
Change in Control. Without limiting the generality of the foregoing, beginning
with the performance year 1997, for each performance year ending during the term
hereof, Executive shall receive the opportunity to receive an annual bonus of at
least 80% of her Base Salary (the "Minimum Bonus Percentage"), subject to
satisfaction of such reasonable performance criteria as shall be established
with respect to such year.
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4. Performance Vested Stock Option Grant. Contingent upon
the execution of this Agreement by the Executive, the Company has granted
Executive an option, having a ten-year term, to purchase 29,600 shares of the
Company's Common Stock at an exercise price per share equal to $71 a share (the
"Option"). Except to the extent specified below, the terms of the Option shall
be determined in accordance with the terms of the 1994 Stock Incentive Plan (the
"1994 Plan") and shall be set forth in the separate agreement embodying the
grant of such Option (the "Option Agreement").
5. Benefits, Perquisites and Expenses.
a. Benefits. During the Contract Employment Period,
Executive shall be eligible to participate in (i) each welfare benefit plan
sponsored or maintained by the Company, including, without limitation, each
group life, hospitalization, medical, dental, health, accident or disability
insurance or similar plan or program of the Company, and (ii) each pension,
profit sharing, retirement, deferred compensation or savings plan sponsored or
maintained by the Company, in each case, whether now existing or established
hereafter, to the extent that Executive is eligible to participate in any such
plan under the generally applicable provisions thereof. Nothing in this
Paragraph 5(a) shall be construed to limit the ability of the Company to amend
or terminate any particular plan, program or arrangements, provided that,
following the occurrence of a Change in Control (as defined in Paragraph 7(e))
or the assignment of this Agreement to a New Entity (as defined in Paragraph
6(a)) pursuant to Paragraph 9(b), the benefits made available to the Executive
thereafter shall be at least substantially comparable, in the aggregate, to the
benefits made available to the Executive immediately prior to such Change in
Control or assignment.
With respect to the pension or retirement benefits payable to
Executive, Executive's service credited for purposes of determining Executive's
benefits and vesting shall be determined in accordance with the terms of the
applicable plan or program or, if applicable, pursuant to any written agreement
between Executive and the Company (whether now existing or hereafter adopted)
that provides Executive a more favorable method of crediting service for any
purpose thereunder.
b. Perquisites. During the Contract Employment Period,
Executive shall be entitled to receive such perquisites as are generally
provided to other senior officers of the Company in accordance with the then
current policies and practices of the Company.
c. Business Expenses. During the Contract Employment
Period, the Company shall pay or reimburse Executive for all reasonable expenses
incurred or paid by Executive in the performance of Executive's duties
hereunder, upon presentation of expense statements or vouchers and such other
information as the Company may require and in accordance with the generally
applicable policies and procedures of the Company.
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6. Termination of Employment.
a. Early Termination of the Contract Employment Period.
Notwithstanding Paragraph 1, the Contract Employment Period shall end upon the
earliest to occur of (i) a termination of Executive's employment on account of
Executive's death, (ii) a Termination due to Disability, (iii) a Termination for
Cause, (iv) a Termination Without Cause, (v) a Termination for Good Reason or
(vi) a termination of Executive's employment by Executive other than a
Termination for Good Reason. For purposes of this Agreement, a transfer of
Executive's employment (i)to any other entity controlled by or under common
control with the Company shall not be treated as a termination unless and until
such entity ceases to be controlled by or under common control with the Company
or (ii) as a result of the implementation of any restructuring of the Company
(whether occurring by spin-off or otherwise) shall not be treated as a
termination of employment, provided that, in either case, the successor employer
(the "New Entity") expressly assumes and agrees to perform all of the Company's
obligations under this Agreement.
b. Benefits Payable Upon Termination. Following the end of
the Contract Employment Period pursuant to Paragraph 6(a), Executive (or, in the
event of her death, her surviving spouse, if any, or her estate) shall be paid
the type or types of compensation determined to be payable in accordance with
the following table at the times established pursuant to Paragraph 6(c):
Earned Vested Severance
Salary Benefits Accrued Bonus Benefit
------------- -------------- ----------------- -----------------
Termination due Payable Payable Payable Not Payable
to death
Termination due to Payable Payable Payable Not Payable
Disability
Termination for Payable Payable Not Payable Not Payable
Cause
Termination Without Payable Payable Payable Payable
Cause
Termination for Payable Payable Payable Payable
Good Reason
Termination by Payable Payable Not Payable Not Payable
Executive other than
for Good Reason
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c. Timing of Payments. Earned Salary and Accrued Bonus
shall be paid in a single lump sum as soon as practicable, but in no event more
than 30 days, following the end of the Contract Employment Period. Vested
Benefits shall be payable in accordance with the terms of the plan, policy,
practice, program, contract or agreement under which such benefits have accrued.
Severance Benefits shall be paid in approximately equal
installments, at the same intervals at which Executive was receiving her salary
payments hereunder, for the greater of (i) one year, (ii) the period over which
such benefits would be payable if paid to Executive under the Company's
otherwise applicable plans, policies or procedures as currently in effect or
(iii) the period over which such benefits would be payable if paid to Executive
under the Company's otherwise applicable plans, policies or procedures, as in
effect at the time of Executive's termination of employment. Notwithstanding the
foregoing, Executive may elect, by written notice given to the Company prior to
the first periodic payment and within ten business days after such termination,
that, instead of periodic installments, Severance Benefits shall be paid in
either a single lump sum, payable within ten business days of receipt by the
Company of such election, or in two equal installments, the first payable within
ten business days of receipt by the Company of such election, and the second
payable on the first business day of the following calendar year.
d. Definitions. For purposes of this Paragraph 6,
capitalized terms have the following meanings:
"Accrued Bonus" means a pro-rated amount equal to the product of
(i) the annual incentive compensation Executive would have been entitled to
receive under Paragraph 3(b) for the calendar year in which her active service
for the Company terminates pursuant to Paragraph 6(a) had she remained employed
for the entire year and assuming that all targets for such year had been met,
multiplied by (ii) a fraction, the numerator of which is equal to the number of
days in such calendar year occurring on or prior to the termination of
Executive's active service for the Company (including any period of absence due
to disability) and the denominator of which is 365.
"Earned Salary" means any Base Salary earned, but unpaid, for
services rendered to the Company on or prior to the date on which the Contract
Employment Period ends (other than Base Salary deferred pursuant to Executive's
election, as provided in Paragraph 3(a) hereof).
"Severance Benefit" means an amount equal to the greater of:
(i) the sum of
(A) the annual Base Salary payable to Executive immediately
prior to the end of the Contract Employment Period; and
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(B) an amount (the "Bonus Severance Amount") equal to the
product of Executive's Base Salary times the greater of
(1) the Minimum Bonus Percentage and (2) the percentage
of Base Salary that would have been payable to Executive
for the year of such termination assuming achievement of
target levels of performance and Executive's continued
employment for the entire year, or
(ii) the amount otherwise payable to Executive under the Company's
otherwise applicable severance plans, policies or programs as in
effect on the date hereof (or, if more favorable to Executive,
as in effect on the date of Executive's termination), assuming
for purposes of determining the amount payable thereunder that
Executive's employment was terminated as a result of the
elimination of her position, but calculated by including the
Bonus Severance Amount as part of Executive's eligible
compensation for purposes of calculating the benefits payable
under such plans, policies or programs;
except that, in the event that Executive becomes entitled to receive Severance
Benefits hereunder following a Change in Control, the Severance Benefit payable
to Executive shall be determined under Paragraph 7(c). Additionally, while
Executive is receiving payment of Severance Benefits in periodic installments,
Executive shall also be eligible to continue to participate in the welfare
benefit plans and programs (excluding the long-term disability plan, the
sick-pay plan and vacation accruals) generally made available to employees of
the Company and in which she participated immediately prior to the termination
of her employment on the same terms and conditions as would have applied had
Executive continued to be employed. Upon an election to receive Severance
Benefits in either a single lump sum payment or in two installments, Executive
will forfeit any right to continue to receive any coverage under the Company's
welfare benefit plans, other than COBRA coverage (determined from the original
date of termination) at Executive's expense as required by applicable law;
provided that, if Executive elects to receive Severance Benefits in two
installments instead of periodic installments, the Company shall pay one-half of
the cost of Executive's COBRA coverage from the date the first installment
payment is made until the date the second installment payment is made.
Notwithstanding the foregoing, receipt of a lump sum payment or two installment
payments hereunder shall not cause Executive to cease to be eligible for any
retiree benefit programs for which she is otherwise eligible under the terms of
the Company's employee benefit plans, policies or programs.
"Termination for Cause" means a termination of Executive's
employment by the Company due to (i) the willful failure by Executive to perform
substantially Executive's duties as an employee of the Company (other than due
to physical or mental illness) after reasonable notice to Executive of such
failure, (ii) Executive's engaging in misconduct that is materially injurious to
the Company or any subsidiary or any affiliate of the Company, (iii) Executive's
having been convicted of, or entered a plea of nolo contendere to, a crime that
constitutes a felony, (iv) the material breach by Executive of any written
covenant or agreement not to compete with the Company or any subsidiary or any
affiliate or (v) the breach by Executive of her duty of loyalty to the Company
which shall include, without limitation, (A) the disclosure
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by Executive of any confidential information pertaining to the Company or any
subsidiary or any affiliate of the Company, other than (x) in the ordinary
course of the performance of her duties on behalf of the Company or (y) pursuant
to a judicial or administrative subpoena from a court or governmental authority
with jurisdiction over the matter in question, (B) the harmful interference by
Executive in the business or operations of the Company or any subsidiary or any
affiliate of the Company, (C) any attempt by Executive directly or indirectly to
induce any employee, insurance agent, insurance broker or broker-dealer of the
Company or any subsidiary or any affiliate to be employed or perform services
elsewhere, other than actions taken by Executive that are intended to benefit
the Company or any subsidiary or affiliate and do not benefit Executive
financially other than as an employee or stockholder of the Company, (D) any
attempt by Executive directly or indirectly to solicit the trade of any customer
or supplier, or prospective customer or supplier, of the Company on behalf of
any person other than the Company or a subsidiary thereof, other than actions
taken by Executive that are intended to benefit the Company or any subsidiary or
affiliate and do not benefit Executive financially other than as an employee or
stockholder of the Company, provided, however that this provision shall only
apply to any product or service which is in competition with a product or
service of the Company or any subsidiary or affiliate thereof or (E) any breach
or violation of the Company's Code of Conduct, as amended from time to time
sufficient to warrant a for cause termination consistent with the Company's past
practice. Notwithstanding the foregoing, a breach of Executive's duty of loyalty
to the Company as described in subclause (A) or a breach of the Company's Code
of Conduct as described in subclause (E) of clause (v) of the preceding sentence
shall not be grounds for a Termination for Cause unless such breach has had or
could reasonably be expected to have a significant adverse effect on the
business or reputation of the Company.
"Termination due to Disability" means a termination of
Executive's employment by the Company because Executive has been incapable, with
or without reasonable accommodation, of substantially fulfilling the positions,
essential duties, responsibilities and obligations of Executive's positions set
forth in this Agreement because of physical, mental or emotional incapacity
resulting from injury, sickness or disease for a period of (i) at least four
consecutive months or (ii) more than six months in any twelve month period. Any
question as to the existence, extent or potentiality of Executive's disability
shall be made by a qualified, independent physician selected by the chief or
assistant chief (or the equivalent position) of the department which treats the
condition giving rise to Executive's absence at a nationally or regionally
recognized teaching hospital chosen by the Company. The determination of any
such physician shall be final and conclusive for all purposes of this Agreement.
Notwithstanding the foregoing, (i) a Termination for Disability shall not affect
Executive's right to receive any amount that would otherwise have been payable
to Executive under the Company's plans, policies, practices or programs
pertaining to short-term or long-term disability had Executive's employment
continued and (ii) if it is determined, at the time Executive is first eligible
to receive long-term disability benefits under the Company's plans, policies,
practices or programs, that Executive is not entitled to receive such long-term
disability benefits (other than due to Executive's failure to cooperate),
Executive shall, for purposes of this Paragraph 6, be deemed to have been
terminated as of the date of such determination pursuant to a
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Termination Without Cause and to be entitled to receive any additional benefits
payable hereunder in respect of a Termination Without Cause.
"Termination for Good Reason" means a termination of Executive's
employment by Executive within 90 days following actual knowledge of (i) a
reduction in Executive's annual Base Salary or incentive compensation
opportunity as provided under Paragraph 3(b), (ii) a material reduction in
Executive's positions, duties and responsibilities from those described in
Paragraph 2 hereof, (iii) the relocation of Executive's principal place of
employment to a location more than 50 miles from the location at which she
performed her principal duties on the date immediately prior to such relocation,
(iv) a breach of the obligation to provide Executive with the benefits required
to be provided in accordance with Paragraph 5(a), (v) a failure by the Company
to pay any amounts due and owing to Executive within 10 days following written
notice from Executive of such failure to pay, or (vi) any other material breach
of the Company's obligations to Executive hereunder that materially affects the
compensation or benefits payable to Executive or materially impairs Executive's
ability to perform the duties and responsibilities of her position.
Notwithstanding the foregoing, a termination shall not be treated as a
Termination for Good Reason (i) if Executive shall have consented in writing to
the occurrence of the event giving rise to the claim of Termination for Good
Reason or (ii) unless Executive shall have delivered a written notice to the
Chief Executive Officer of the Company within 60 days of her having actual
knowledge of the occurrence of one of such events stating that she intends to
terminate her employment for Good Reason and specifying the factual basis for
such termination, and such event shall not have been cured within 30 days of the
receipt of such notice.
"Termination Without Cause" means any termination of Executive's
employment by the Company other than (i) a Termination due to Disability or (ii)
a Termination for Cause. Subject to the Company's obligations to make the
payments, if any, required pursuant to this paragraph 6, nothing in this
Agreement shall be construed to limit the right of the Company to terminate
Executive's employment at any time for any reason or without reason.
"Vested Benefits" means amounts payable under the terms of or in
accordance with any plan, policy or practice or program of, or any contract or
agreement with, the Company or any of its subsidiaries (including, without
limitation, any supplemental pension plan, supplemental savings plan or other
deferred compensation arrangement, the 1994 Plan and the Company's 1984 Stock
Option Plan (the "1984 Plan") with respect to which Executive's rights to such
amounts (i) have become vested and nonforfeitable on or before Executive's
termination of employment or (ii) otherwise have or will become nonforfeitable
at or subsequent to her termination of employment without regard to the
performance by Executive of further services or the resolution of a contingency
that is not satisfied at or after such termination, provided that, at any time
during which Executive is entitled to receive the Severance Benefits hereunder,
Executive shall not also be entitled to receive any benefits under the Company's
generally applicable severance or other termination plans, policies or programs.
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e. Full Discharge of Company Obligations. Except to the
extent provided in this Paragraph 6, the amounts payable to Executive pursuant
to this Paragraph 6 following termination of her employment shall be in full and
complete satisfaction of Executive's rights under this Agreement and, except to
the extent prohibited by law, any other claims she may have in respect of her
employment by the Company or any of its subsidiaries. Such amounts shall
constitute liquidated damages with respect to any and all such rights and claims
and shall not be subject to any offset or mitigation. Notwithstanding anything
else contained herein to the contrary, unless the Company shall waive its rights
to any such release, the Company's obligations under this Paragraph 6 are
expressly conditioned upon Executive's execution simultaneously with or
immediately following such termination of employment, of a release and waiver in
the form acceptable to the Company, of any claims she may have in connection
with the termination of, or arising out of, her employment with the Company,
provided that such release shall not be construed to waive, release or otherwise
limit any amounts required to be paid hereunder or any benefits due and payable
to Executive under the terms of any employee pension benefit plan, as defined in
Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended,
any other Vested Benefit or any right of Executive to be indemnified by the
Company pursuant to its applicable policies and practices from and against any
third party claims arising out of or relating to Executive's employment with or
other services on behalf of the Company or any subsidiary of the Company.
f. Outplacement Services. In addition to any other benefits
described in this Paragraph 6, in the event Executive is eligible to receive
Severance Benefits, the Company shall also provide to Executive, at its expense,
individual outplacement services from a qualified outplacement firm selected by
the Company. The outplacement services to be provided to Executive shall be no
less favorable to Executive than those made available to other executives prior
to the date hereof under the Company's generally applicable policies, programs
or arrangements.
7. Change in Control of the Company.
a. Accelerated Vesting and Payment. Unless the Board (or
the appropriate committee thereof) shall otherwise determine in the manner set
forth in Paragraph 7(b), the Option shall become fully exercisable upon the
occurrence of a Change in Control (as defined below) and shall remain
exercisable for a period of one year thereafter regardless of whether Executive
continues to be employed by the Company or, if longer, for the period during
which such Option would otherwise be exercisable in accordance with its terms or
the generally applicable provisions of the 1994 Plan. If no Alternative Option
is provided as set forth in Paragraph 7(b) below, and the Company does not
survive as a publicly traded corporation following a Change in Control, the
Company shall pay Executive, in full settlement of all rights with respect to
the Option, an aggregate amount in cash equal to the product of (i) (A) the Fair
Market Value of a Share of the Company's Common Stock on the date the Change in
Control occurs minus (B) the per share exercise price for the Option times (ii)
the number of shares as to which such Option has not been exercised at the time
of the Change in Control. Any amount payable pursuant to the preceding sentence
shall be paid within 30 days following such Change in Control.
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b. Alternative Options. Notwithstanding Paragraph 7(a), no
acceleration of exercisability shall occur with respect to any Option if the
Board (or the appropriate committee thereof) reasonably determines in good
faith, prior to the occurrence of a Change in Control, that such Option shall be
honored or assumed, or new rights substituted therefor (such honored, assumed or
substituted Option being hereinafter referred to as an "Alternative Option") by
the successor in interest to the Company, provided that any such Alternative
Option must:
(i) provide Executive with rights and entitlements substantially
equivalent to or better than the rights, terms and conditions
applicable under the Option, including, but not limited to, an
identical or better exercise and vesting schedule and identical
or better timing and methods of payment;
(ii) have substantially equivalent economic value to such Option
(determined at the time of the Change in Control); and
(iii) have terms and conditions which provide that, in the event that
Executive's employment is terminated by the Company for any
reason or is terminated by Executive pursuant to a Termination
for Good Reason within two years following a Change in Control,
(A) any conditions on Executive's rights under, or any
restrictions on exercisability applicable to, each such
Alternative Option shall be waived or shall lapse, as the case
may be and (B) the Alternative Option shall remain exercisable
until the second anniversary of the Change in Control or, if
longer, for the period during which such Alternative Option
would otherwise be exercisable in accordance with its terms or
the provisions of the plan under which it is granted that permit
the longest post-termination exercise period for involuntary
terminations (other than due to death, disability or
retirement).
c. Enhanced Severance Payments. If Executive's employment
is terminated following a Change in Control pursuant to a Termination for Good
Reason or a Termination Without Cause, the Severance Benefit payable to
Executive pursuant to Paragraph 6 shall be equal to two times the sum of
Executive's annual Base Salary and the Bonus Severance Amount.
d. Additional Payments by the Company.
(i) Application of Paragraph 7(d). In the event that any amount or
benefit paid or distributed to Executive pursuant to this
Agreement, taken together with any amounts or benefits otherwise
paid or distributed to Executive by the Company or any
affiliated company (collectively, the "Covered Payments"), would
be an "excess parachute payment" as defined in Section 280G of
the Code and would thereby subject Executive to the tax (the
"Excise Tax") imposed under Section 4999 of the Code (or any
similar tax that may hereafter be imposed), the
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provisions of this Paragraph 7(d) shall apply to determine the
amounts payable to Executive pursuant to this Agreement.
(ii) Calculation of Benefits. Immediately following delivery of any
notice of termination, the Company shall notify 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, that could be paid
without 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
Executive under this Agreement and any other plan, agreement or
arrangement with the Company exceeds the amount which can be
paid to Executive without Executive incurring an Excise Tax by
less than 105%, then the amounts payable to Executive under this
Agreement may, in the discretion of the Company, be reduced (but
not below zero) to the maximum amount which may be paid
hereunder without 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 she will receive in connection with the
application of the Payment Cap.
(iv) Further Payments by the Company. If the aggregate value of all
compensation payments or benefits to be paid or provided to
Executive under this Agreement and any other plan, agreement or
arrangement with the Company exceeds the amount which can be
paid to Executive without Executive incurring an Excise Tax by
more than 105%, the Company shall pay to Executive immediately
following Executive's termination of employment an additional
amount (the "Tax Reimbursement Payment") such that the net
amount retained by Executive with respect to such Covered
Payments, after deduction of any Excise Tax on the Covered
Payments and any Federal, state and local income tax and Excise
Tax on the Tax Reimbursement Payment provided for by this
Paragraph 7(d)(iv), but before deduction for any Federal, state
or local income or employment tax withholding on such Covered
Payments, shall be equal to the amount of the Covered Payments.
(v) 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
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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"), 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 "base amount," 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.
(vi) Applicable Tax Rates. For purposes of determining whether
Executive would receive a greater net after-tax benefit were the
amounts payable under this Agreement reduced in accordance with
Paragraph 7(d)(iii), Executive shall be deemed to pay:
(A) Federal income taxes at the highest applicable marginal
rate of Federal income taxation for the calendar year in
which the first amounts are to be paid hereunder, and
(B) any applicable state and local income taxes at the
highest applicable marginal rate of taxation for such
calendar year, net of the maximum reduction in Federal
incomes taxes which could be obtained from the deduction
of such state or local taxes if paid in such year;
provided, however, that Executive may request that such
determination be made based on her individual tax
circumstances, which shall govern such determination so
long as Executive provides to the Accountants such
information and documents as the Accountants shall
reasonably request to determine such individual
circumstances.
(vii) Adjustments in Respect of the Payment Cap. If Executive receives
reduced payments and benefits under this Paragraph 7(d) (or this
Paragraph 7(d) is determined not to be applicable to 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 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 Executive or for her
benefit are in an amount that would have resulted in the
imposition of a Payments Cap under Paragraph 7(d)(iii) and
result in Executive being subject an Excise Tax, then the amount
equal to such excess parachute payments shall
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be deemed for all purposes to be a loan to Executive made on the
date of receipt of such excess payments, which 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 Executive. If the
Payment Cap was applied, and it is established pursuant to a
Final Determination that the aggregate "parachute payments'
payable to Executive equals or exceeds 105% of the amount which
could be paid to Executive without Executive incurring an Excise
Tax, Executive shall be entitled to receive the benefits
available under Paragraph 7(d)(iv). If this Paragraph 7(d) is
not applied to reduce Executive's entitlements under this
Paragraph 7 because the Accountants determine that Executive
would not receive a greater net-after tax benefit by applying
this Paragraph 7(d) and it is established pursuant to a Final
Determination that, notwithstanding the good faith of Executive
and the Company in applying the terms of this Agreement,
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 Executive
or for her benefit in excess of the Payment Cap shall be deemed
for all purposes a loan to Executive made on the date of receipt
of such excess payments, which 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 Executive. If
Executive receives reduced payments and benefits by reason of
this Paragraph 7(d) and it is established pursuant to a Final
Determination that Executive could have received a greater
amount without exceeding the Payment Cap, then the Company shall
promptly thereafter pay 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.
(viii) Adjustments in Respect of the Tax Reimbursement Payments. In the
event that the Excise Tax is subsequently determined by the
Accountants or pursuant to any proceeding or negotiations with
the Internal Revenue Service to be less than the amount taken
into account hereunder in calculating the Tax Reimbursement
Payment made, Executive shall repay to the Company, at the time
that the amount of such reduction in the Excise Tax is finally
determined, the portion of such prior Tax Reimbursement Payment
that would not have been paid if such Excise Tax had been
applied in initially calculating such Tax Reimbursement Payment,
plus interest on the amount of such repayment at the rate
provided in Section 1274(b)(2)(B) of the Code. Notwithstanding
the foregoing, in the event any portion of the Tax Reimbursement
Payment to be refunded to the Company has been paid to any
Federal, state or local tax authority, repayment thereof shall
not be required until actual refund or credit
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of such portion has been made to Executive, and interest payable
to the Company shall not exceed interest received or credited to
Executive by such tax authority for the period it held such
portion. Executive and the Company shall mutually agree upon the
course of action to be pursued (and the method of allocating the
expenses thereof) if Executive's good faith claim for refund or
credit is denied.
In the event that the Excise Tax is later determined by the
Accountants or pursuant to any proceeding or negotiations with
the Internal Revenue Service to exceed the amount taken into
account hereunder at the time the Tax Reimbursement Payment is
made (including, but not limited to, by reason of any payment
the existence or amount of which cannot be determined at the
time of the Tax Reimbursement Payment), the Company shall make
an additional Tax Reimbursement Payment in respect of such
excess (plus any interest or penalty payable with respect to
such excess) at the time that the amount of such excess is
finally determined.
(ix) Timing of Payment. Any Tax Reimbursement Payment (or portion
thereof) provided for in Paragraph 7(d)(iv) above shall be paid
to Executive not later than 10 business days following the
payment of the Covered Payments; provided, however, 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 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, such excess shall constitute a loan
by the Company to Executive, payable on 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).
e. Definition of "Change in Control". For purposes of this
Paragraph 7, a "Change in Control" means the happening of any of the
following:
(i) When any "person" as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and as
used in Sections 13(d) and 14(d) thereof, including a "group" as defined
in Section 13(d) of the Exchange Act but excluding the Company and any
subsidiary thereof and any employee benefit plan sponsored or maintained
by the Company or any Subsidiary (including any trustee of such plan
acting as trustee), directly or indirectly, becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act, as amended from
time to time), of
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securities of the Company representing 20 percent or more of the
combined voting power of the Company's then outstanding securities;
(ii) When, during any period of 24 consecutive months after
the date of this Agreement, the individuals who, at the beginning of
such period, constitute the Board (the "Incumbent Directors") cease for
any reason other than death to constitute at least a majority thereof,
provided that a director who was not a director at the beginning of such
24-month period shall be deemed to have satisfied such 24-month
requirement (and be an Incumbent Director) if such director was elected
by, or on the recommendation of or with the approval of, at least
two-thirds of the directors who then qualified as Incumbent Directors
either actually (because they were directors at the beginning of such
24-month period) or by prior operation of this Paragraph 7(e)(ii); or
(iii) The occurrence of a transaction requiring stockholder
approval for the acquisition of the Company by an entity other than the
Company or a subsidiary through purchase of assets, or by merger, or
otherwise.
8. Noncompetition and Confidentiality.
a. Noncompetition. During the Contract Employment Period
and for a period of one year following Executive's termination of employment
during the Contract Employment Period other than due to a Termination Without
Cause or a Termination for Good Reason, Executive shall not become associated,
whether as a principal, partner, employee, consultant or shareholder (other than
as a holder of not in excess of 1% of the outstanding voting shares of any
publicly traded company), with any entity that is actively engaged in any
geographic area in any business which is in substantial and direct competition
with the business or businesses of the Company for which Executive provides
substantial services or for which Executive has substantial responsibility,
provided that nothing in this Paragraph 8(a) shall preclude Executive from
performing services solely and exclusively for a division or subsidiary of such
an entity that is engaged in a non-competitive business.
b. Nondisclosure, Nonsolicitation and Cooperation.
(i) Executive shall not (except to the extent required by an
order of a court having competent jurisdiction or under subpoena from an
appropriate government agency) disclose to any third person, whether
during or subsequent to the Executive's employment with the Company, any
trade secrets; customer lists; product development and related
information; marketing plans and related information; sales plans and
related information; operating policies and manuals; business plans;
financial records; or other financial, commercial, business or technical
information related to the Company or any subsidiary or affiliate
thereof unless such information has been previously disclosed to the
public by the Company or has become public knowledge other than by a
breach of this Agreement; provided, however, that this limitation shall
not apply to any such disclosure made while Executive is employed by the
Company, or any
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subsidiary or affiliate thereof in the ordinary course of the
performance of Executive's duties;
(ii) during the Contract Employment Period and for two years
after the termination of such Period, Executive shall not attempt,
directly or indirectly, to induce any employee or Insurance Agent (as
defined below) of the Company, or any subsidiary or any affiliate
thereof to be employed or perform services elsewhere provided that this
covenant shall not preclude Executive from taking any actions during the
Contract Employment Period that (x) are intended to benefit the Company
or any subsidiary or affiliate and (y) do not benefit Executive
financially other than as an employee or stockholder of the Company;
(iii) during the Contract Employment Period and for two years
after the termination of such Period, Executive shall not attempt,
directly or indirectly, to induce any insurance agent or agency,
insurance broker, broker-dealer or supplier of the Company, or any
subsidiary or affiliate thereof to cease providing services to the
Company, or any subsidiary or affiliate thereof provided that this
covenant shall not preclude Executive from taking any actions during the
Contract Employment Period that (x) are intended to benefit the Company
or any subsidiary or affiliate and (y) do not benefit Executive
financially other than as an employee or stockholder of the Company;
(iv) during the Contract Employment Period and for two years
after the termination of such Period, Executive shall not attempt,
directly or indirectly, to solicit, on behalf of any person or entity
other than the Company or any of its subsidiaries, the trade of any
individual or entity which, at the time of the solicitation, is a
customer of the Company, or any subsidiary or affiliate thereof, or
which the Company, or any subsidiary or affiliate thereof is undertaking
reasonable steps to procure as a customer at the time of or immediately
preceding termination of the Contract Employment Period; provided,
however, that this limitation shall only apply to (x) any product or
service which is in competition with a product or service of the Company
or any subsidiary or affiliate thereof and (y) with respect to any
customer or prospective customer with whom Executive has or had (by
virtue of Executive's position or otherwise) a personal relationship;
and
(v) following the termination of the Contract Employment
Period, Executive shall provide assistance to and shall cooperate with
the Company or any subsidiary or affiliate thereof, upon its reasonable
request, with respect to matters within the scope of Executive's duties
and responsibilities during the Contract Employment Period. (The Company
agrees and acknowledges that it shall, to the maximum extent possible
under the then prevailing circumstances, coordinate (or cause a
subsidiary or affiliate thereof to coordinate) any such request with
Executive's other commitments and responsibilities to minimize the
degree to which such request interferes with such commitments and
responsibilities). The Company agrees that it
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will reimburse Executive for reasonable travel expenses (i.e., travel,
meals and lodging) that Executive may incur in providing assistance to
the Company hereunder.
Solely for purposes of Paragraph 8(b)(ii) above, the term "Insurance Agent"
shall mean those insurance agents or agencies representing the Company or any
subsidiary or affiliate thereof, that are exclusive or career agents or agencies
of the Company or any subsidiary or affiliate thereof, or any insurance agents
or agencies which derive 50% or more of their business revenue from the Company
or any subsidiary or affiliate thereof (calculated on an aggregate basis for the
12-month period prior to the date of determination or such other similar period
for which such information is more readily available).
c. Company Property. Promptly following Executive's
termination of employment, Executive shall return to the Company all property of
the Company, and all copies thereof in Executive's possession or under her
control.
d. Intention of the Parties. If any provision of
Paragraph 8 is determined by an arbitrator (or a court of competent jurisdiction
asked to enforce the decision of the arbitrator) not to be enforceable in the
manner set forth in this Agreement, the Company and Executive agree that it is
the intention of the parties that such provision should be enforceable to the
maximum extent possible under applicable law and that such arbitrator (or court)
shall reform such provision to make it enforceable in accordance with the intent
of the parties. Executive acknowledges that a material part of the inducement
for the Company to provide the salary and benefits evidenced hereby is
Executive's covenants set forth in Paragraph 8(a), (b) and (c) and that the
covenants and obligations of Executive with respect to nondisclosure and
nonsolicitation relate to special, unique and extraordinary matters and that a
violation of any of the terms of such covenants and obligations will cause the
Company irreparable injury for which adequate remedies are not available at law.
Therefore, Executive agrees that, if Executive shall materially breach any of
those covenants following termination of employment, the Company shall have no
further obligation to pay Executive any benefits otherwise payable hereunder and
the Company shall be entitled to an injunction, restraining order or such other
equitable relief (without the requirement to post a bond) restraining Executive
from committing any violation of the covenants and obligations contained in
Paragraph 8(a), (b) and (c). The remedies in the preceding sentence are
cumulative and are in addition to any other rights and remedies the Company may
have at law or in equity as an arbitrator (or court) shall reasonably determine.
e. Waiver. Without limiting the generality of the
foregoing, upon request of Executive prior to engaging in any conduct otherwise
prohibited by this Paragraph 8, the Company may, in its sole discretion, waive
in writing, on such terms and conditions as it may deem appropriate, any
violation of this Paragraph 8 which would otherwise occur due to such conduct.
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9. Miscellaneous.
a. Survival. Paragraph 7 (relating to a Change in Control),
8 (relating to noncompetition, nonsolicitation and confidentiality) and 9
(relating, among other things, to survival, assignment and governing law) shall
survive the termination hereof, whether such termination shall be by expiration
of the Contract Employment Period or an early termination pursuant to Paragraph
6 hereof. Paragraph 6 (relating to early termination) shall survive the
termination hereof to the extent that, prior thereto, or at the time of
termination, Executive (or her beneficiary) has become or becomes entitled to
receive any of the benefits payable thereunder.
b. Binding Effect. This Agreement shall be binding on, and
shall inure to the benefit of, the Company and any person or entity that
succeeds to the interest of the Company (regardless of whether such succession
does or does not occur by operation of law) by reason of the sale of all or a
portion of the Company's stock, a merger, consolidation or reorganization
involving the Company or, unless in the case of a sale involving less than all
or substantially all of the Company's assets the Company otherwise elects in
writing, a sale of the assets of the business of the Company (or portion
thereof) in which Executive performs a majority of her services. Any successor
in interest to the Company shall acknowledge in writing to Executive that it has
assumed this Agreement and is responsible to Executive for the performance of
the Company's obligations under this Agreement. Without limiting the generality
of the foregoing, the Company shall have the right, without the consent of
Executive, to assign this Agreement and its obligations hereunder to any New
Entity or any subsidiary of any New Entity by which Executive becomes employed,
at the discretion of the Company, by reason of the implementation of any
restructuring of the Company, and, following any such assignment, such New
Entity or subsidiary shall be treated as the Company for all purposes of this
Agreement. This Agreement shall also inure to the benefit of Executive's heirs,
executors, administrators and legal representatives.
c. Assignment. Except as provided under Paragraph 9(b),
neither this Agreement nor any of the rights or obligations hereunder shall be
assigned or delegated by any party hereto without the prior written consent of
the other party. In the event the Company assigns this Agreement pursuant to
Paragraph 9(b), the Company shall guarantee payment to Executive of any amounts
at any time due and payable hereunder in the event (and only to the extent) that
the assignee has become a debtor in bankruptcy, is the subject of a receivership
or similar preceding or has become insolvent, provided that Executive shall be
required to assign her rights against the assignee through subrogation as a
condition of receiving any payment under the Company's guarantee. In
consideration of such guarantee, Executive agrees that following such
assignment, the covenants of Executive in Paragraphs 8(b)(i) and (v) and the
obligation to provide a release as set forth in Paragraph 6(e) shall continue to
inure to the benefit of the Company, as well as the assignee. The Company and
Executive agree that following any assignment all other covenants described
herein in favor of the Company shall, from and after the date of such
assignment, inure solely to the benefit of the assignee.
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d. Entire Agreement. Except as expressly provided below,
this Agreement, the Option Agreement and the portion, if any, of any other
agreement relating to pension service or credits referred to in Paragraph 5(a)
shall constitute the entire agreement between the parties hereto with respect to
the matters referred to herein and any other agreement or any portion of any
such other agreement not expressly preserved hereby shall cease to be effective
upon the execution hereof and shall not become reinstated upon the expiration or
other termination of this Agreement. There are no promises, representations,
inducements or statements between the parties other than those that are
expressly contained herein. 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.
Other than the provisions of Paragraph 6 which limit Executive's eligibility to
receive severance benefits under the Company's generally applicable plans,
programs or agreements, nothing in this Agreement shall be construed to limit or
otherwise supersede Executive's rights or entitlements under any compensatory
plan, program or arrangement made available generally to all employees or all
officers of the Company or under the 1994 Plan or the 1984 Plan and this
Paragraph 9(d) shall not preclude reference to the documents governing any such
plan, program or arrangement to determine such rights and entitlements.
e. 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. In the
event any of Paragraph 8(a), (b) or (c) is not enforceable in accordance with
its terms, Executive and the Company agree that such Paragraph shall be reformed
to make such Paragraph enforceable in a manner which provides the Company the
maximum rights permitted at law.
f. 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.
g. Notices. Any notice required or desired to be delivered
under this Agreement shall be in writing and shall be delivered personally, by
courier service, by registered mail, return receipt requested, or by telecopy
and shall be effective upon actual receipt by the party to which such notice
shall be directed, and shall be addressed as follows (or to such other address
as the party entitled to notice shall hereafter designate in accordance with the
terms hereof):
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If to the Company:
Aetna Life and Casualty Company
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx
Attention: Corporate Secretary
If to Executive:
Xxxxxx X. Xxxx
000 0xx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
h. Arbitration. The Company and Executive agree that any
claim, dispute or controversy arising under or in connection with this
Agreement, or otherwise in connection with Executive's employment by the Company
(including, without limitation, any such claim, dispute or controversy arising
under any federal, state or local statute, regulation or ordinance or any of the
Company's employee benefit plans, policies or programs) shall be resolved solely
and exclusively by binding arbitration. The arbitration shall be held in the
city of Hartford, Connecticut (or at such other location as shall be mutually
agreed by the parties). The arbitration shall be conducted in accordance with
the Expedited Employment Arbitration Rules (the "Rules") of the American
Arbitration Association (the "AAA") in effect at the time of the arbitration,
except that the arbitrator shall be selected by alternatively striking from a
list of five arbitrators supplied by the AAA. All fees and expenses of the
arbitration, including a transcript if either requests, shall become equally by
the parties. If Executive prevails as to any material issue presented to the
arbitrator, the entire cost of such proceedings (including, without limitation,
Executive's reasonable attorneys fees) shall become by the Company. If Executive
does not prevail as to any material issue, each party will pay for the fees and
expenses of its own attorneys, experts, witnesses, and preparation and
presentation of proofs and post-hearing briefs (unless the party prevails on a
claim for which attorney's fees are recoverable under the Rules). Any action to
enforce or vacate the arbitrator's award shall be governed by the Federal
Arbitration Act, if applicable, and otherwise by applicable state law. If either
the Company or Executive pursues any claim, dispute or controversy against the
other in a proceeding other than the arbitration provided for herein, the
responding party shall be entitled to dismissal or injunctive relief regarding
such action and recovery of all costs, losses and attorney's fees related to
such action.
i. Amendments. This Agreement may not be altered, modified
or amended except by a written instrument signed by each of the parties hereto.
j. Headings. Headings to paragraphs in this Agreement are
for the convenience of the parties only and are not intended to be part of or to
affect the meaning or interpretation hereof.
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k. 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.
l. Withholding. Any payments provided for herein shall be
reduced by any amounts required to be withheld by the Company from time to time
under applicable Federal, State or local income or employment tax laws or
similar statutes or other provisions of law then in effect.
m. Governing Law. This Agreement shall be governed by the
laws of the State of Connecticut, without reference to principles of conflicts
or choice of law under which the law of any other jurisdiction would apply.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and Executive has hereunto set her hand
as of the day and year first above written.
Aetna Life and Casualty Company
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx
Chairman
/s/ Xxxxxx Xxxx
---------------------------------------
Xxxxxx X. Xxxx
Date: 6/21/96
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