EXHIBIT 10.17
EMPLOYMENT AGREEMENT
AGREEMENT by and between UnumProvident Corporation, a Delaware
corporation having its principal executive offices in Chattanooga, Tennessee and
Portland, Maine (the "Company"), and Xxxxxx X. Xxxxx (the "Special Advisor")
dated as of the 12th day of December, 2000.
The Company has determined that it is in the best interests of their
shareholders to assure that the Company will have the continued dedication of
the Special Advisor under the terms of this amended and restated employment
agreement which amends the employment agreement between Unum Corporation and the
Special Advisor dated June 30, 1999 (the "Agreement" and the "Original
Agreement," respectively) to insure a smooth transition in preparation for the
Special Advisor's planned departure effective March 1, 2002, to pursue other
interests. Therefore, in order to accomplish these objectives, the Special
Advisor and the Company desire to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Effective Date. The "Effective Date" shall mean the effective
date of this Agreement which shall be January 1, 2001.
2. Term of Agreement. The Company hereby agrees to continue to
employ the Special Advisor, and the Special Advisor hereby agrees to continue in
the employ of the Company subject to the terms and conditions of this Agreement,
for the period commencing on January 1, 2001 and ending on March 1, 2002 (the
"Term").
3. Terms of Employment.
(a) Position and Duties.
(i) The Special Advisor shall serve as special advisor
to the Chairman and Chief Executive Officer of the Company ("CEO") reporting
solely to the CEO with the appropriate duties and responsibilities attendant to
such position as described below, it being understood that from time to time the
scope of such duties and responsibilities will vary depending upon
organizational structures and needs of the Company. Specifically, the Special
Advisor will have the following duties as an employee: (1) assisting with the
development and delivery of a curriculum for Company employees relating to
disability insurance trends and products, (2) assisting with development and
delivery of a management and leadership program, particularly as part of the
sales force training program, (3) participating in selected policy advocacy and
expert testimony assignments, (4) maintaining selected identified relationships
with producers or customers, (5) participating in selected finalist renewal
presentations, and (6) engaging in such other similar duties as may be
determined by the CEO and agreed to by the Special Advisor. The Special
Advisor's duties may be refined or changed from time to time by letter agreement
between the CEO and the Special Advisor. The Special Advisor will not, however,
have reporting or continuing management function duties with the field force.
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(ii) Excluding any periods of vacation and sick leave to
which the Special Advisor is entitled, the Special Advisor agrees to devote
substantially all of her attention and time during normal business hours for
four days a week through June 30, 2001, for three days a week through December
31, 2001, and for two days a week through February 28, 2002, to the business and
affairs of the Company and, to the extent necessary to discharge the
responsibilities assigned to the Special Advisor hereunder, to use the Special
Advisor's reasonable best efforts to perform faithfully and efficiently such
responsibilities. It shall not be a violation of this Agreement for the Special
Advisor to (A) serve, with prior approval of the Board of Directors of the
Company (the "Board") or the CEO, on corporate, civic or charitable boards or
committees, (B) deliver lectures, fulfill speaking engagements or teach at
educational institutions and (C) manage personal investments, so long as such
activities do not significantly interfere with the performance of the Special
Advisor's responsibilities as an employee of the Company in accordance with this
Agreement. It is expressly understood and agreed that to the extent that any
such activities have been conducted by the Executive prior to the Effective
Date, the continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of the Executive's
responsibilities to the Company.
(b) Compensation.
(i) Base Compensation. The Special Advisor shall receive
base compensation for the Term of $366,666 (the "Base Compensation"). Any
increase in Base Compensation shall not serve to limit or reduce any other
obligation to the Special Advisor under this Agreement. Base Compensation shall
be payable in equal installments during the Term in accordance with the
Company's regular payroll practices.
(ii) Bonus. The Special Advisor shall be eligible to
receive a bonus for 2000 with a target level of 75% of annual base compensation
of $500,000 for 2000 (equal to $375,000) (the "Target Bonus Amount") under the
Company's 2000 Annual Cash Incentive Plan subject to the achievement of the
performance targets as determined by the Compensation Committee of the Board.
(iii) Incentive Awards. No long term incentive awards in
2001 or 2002 are contemplated by this Agreement.
(iv) Other Employee Benefit Plans. Except as otherwise
expressly provided herein, the Special Advisor shall be entitled to participate
in all employee benefit, welfare and other plans, practices, policies and
programs (collectively, "Employee Benefit Plans") applicable to executive vice
presidents of the Company.
(v) Retirement Benefit. The Special Advisor shall be
entitled to an annual retirement benefit payable monthly (the "Retirement
Benefit") pursuant to the terms of and under the current formula contained in
the Senior Executive Retirement Plan (the "Plan"); provided, however, in no
event shall the Special Advisor's accrued Retirement Benefit be
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retroactively reduced. In calculating this Retirement Benefit, the Special
Advisor shall receive full credit for all of her years of service with the
Company for all purposes.
4. Termination of Employment.
(a) Death or Disability. The Special Advisor's employment
shall terminate automatically upon the Special Advisor's death. If the Company
determines in good faith that the Disability of the Special Advisor has occurred
(pursuant to the definition of Disability set forth below), it may give to the
Special Advisor written notice in accordance with Section 11(b) of this
Agreement of its intention to terminate the Special Advisor's employment. In
such event, the Special Advisor's employment with the Company shall terminate
effective on the 30th day after receipt of such notice by the Special Advisor
(the "Disability Effective Date"), provided that, within the 30 days after such
receipt, the Special Advisor shall not have returned to full-time performance of
the Special Advisor's duties. For purposes of this Agreement, "Disability" shall
mean the absence of the Special Advisor from the Special Advisor's duties with
the Company on a full-time basis for any twelve month period as a result of
incapacity due to mental or physical illness which is determined to be total and
permanent by a physician selected by the Company or its insurers and acceptable
to the Special Advisor or the Special Advisor's legal representative.
(b) Cause. The Company may terminate the Special Advisor's
employment for Cause. For purposes of this Agreement, "Cause" shall mean:
(i) the continued failure of the Special Advisor to
perform substantially the Special Advisor's duties with the Company or one of
its affiliates (other than any such failure resulting from incapacity due to
physical or mental illness), after a written demand for substantial performance
is delivered to the Special Advisor by the CEO which specifically identifies the
manner in which the CEO believes that the Special Advisor has not substantially
performed the Special Advisor's duties, or
(ii) the willful engaging by the Special Advisor in
illegal conduct or gross misconduct which is materially and demonstrably
injurious to the Company, or
(iii) conviction of a felony or guilty or nolo
contendere plea by the Special Advisor with respect thereto.
For purposes of this provision, no act or failure to act, on the part of the
Special Advisor, shall be considered "willful" unless it is done, or omitted to
be done, by the Special Advisor in bad faith or without reasonable belief that
the Special Advisor's action or omission was in the best interests of the
Company. Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board or upon the instructions of the CEO or
based upon the advice of counsel for the Company shall be conclusively presumed
to be done, or omitted to be done, by the Special Advisor in good faith and in
the best interests of the Company. The cessation of employment of the Special
Advisor shall not be deemed to be for Cause unless and until there shall have
been delivered to the Special Advisor a copy of a resolution duly adopted
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by the affirmative vote of not less than two thirds of the entire membership of
the Board at a meeting of the Board called and held for such purpose (after
reasonable notice is provided to the Special Advisor and the Special Advisor is
given an opportunity, together with counsel, to be heard before the Board)
finding that, in the good faith opinion of the Board, the Special Advisor is
guilty of the conduct described in subparagraph (i) or (ii) above, and
specifying the particulars thereof in detail.
(c) Good Reason. The Special Advisor's employment may be
terminated by the Special Advisor for Good Reason. For purposes of this
Agreement, "Good Reason" shall mean the following events, provided, however,
that clauses (i) through (v) shall constitute Good Reason only in the absence of
the written consent of the Special Advisor:
(i) the assignment to the Special Advisor of any duties
materially inconsistent with the Special Advisor's duties set forth in Section
3(a)(i), excluding for this purpose an action not taken in bad faith and which
is remedied by the Company promptly after receipt of written notice thereof
given by the Special Advisor to the CEO;
(ii) any failure by the Company to comply with any of
the provisions of Section 3(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Special Advisor;
(iii) any purported termination by the Company of the
Special Advisor's employment otherwise than as expressly permitted by this
Agreement;
(iv) any failure by the Company to comply with and
satisfy Section 10(c) of this Agreement; or
(v) any required relocation of the Special Advisor.
(d) Notice of Termination. Any termination by the Company or
by the Special Advisor shall be communicated by Notice of Termination to the
other party hereto given in accordance with Section 11(b) of this Agreement. For
purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Special
Advisor's employment under the provision so indicated and (iii) specifies the
Date of Termination (as defined below). The failure by the Special Advisor or
the Company to set forth in the Notice of Termination any fact or circumstance
which contributes to a showing of Good Reason or Cause shall not waive any right
of the Special Advisor or the Company, respectively, hereunder or preclude the
Special Advisor or the Company, respectively, from asserting such fact or
circumstance in enforcing the Special Advisor's or the Company's rights
hereunder.
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(e) Date of Termination. "Date of Termination" means (i) if
the Special Advisor's employment is terminated by the Company other than for
Disability, the date of receipt of the Notice of Termination or any later date
specified therein within 30 days of such notice, (ii) if the Special Advisor's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Special Advisor or the Disability
Effective Date, as the case may be, and (iii) if the Special Advisor's
employment is terminated by the Special Advisor the Date of Termination shall be
thirty days after the giving of such notice by the Special Advisor provided that
the Company may elect to place the Special Advisor on paid leave for all or any
part of such 30-day period, and (iv) if the Special Advisor shall remain in the
employ of the Company until the end of the Term, then February 28, 2002.
5. Obligations of the Company upon Termination
(a) Termination at the end of the Term; termination by the
Company other than for Cause or Disability prior to the end of the Term;
termination by Special Advisor for Good Reason. If the Special Advisor remains
in the employ of the Company until the end of the Term or is terminated by the
Company other than for Cause or Disability prior to the end of the Term, or the
Special Advisor terminates for Good Reason,
(i) the Company shall pay to the Special Advisor in a
lump sum in cash within 10 days after the Date of Termination the sum of
$756,000 plus 1.5 times the Target Bonus Amount (the "Severance Lump Sum"),
(ii) the Company shall pay to the Special Advisor the
sum of $1,150,000 ("the Covenant Payment"), payable ratably during the Covenant
Period specified in Section 9(a) provided the Special Advisor is in compliance
with Section 9,
(iii) to the extent not theretofore paid or provided,
the Company shall timely pay or provide to the Special Advisor any other amounts
or benefits required to be paid or provided or which the Special Advisor is
eligible to receive under any plan, program, policy or practice or contract or
agreement of the Company and its affiliated companies through the Date of
Termination (such other amounts and benefits shall be hereinafter referred to as
the "Other Benefits"),
(iv) all outstanding stock options and other
equity-based awards shall be governed by their respective terms and, unless
expressly provided otherwise, all such options and awards shall terminate on
March 1, 2002 or the Special Advisor's earlier Date of Termination,
(b) Death or Disability. If the Special Advisor's employment
is terminated by reason of the Special Advisor's death or Disability, this
Agreement shall terminate without further obligations to the Special Advisor's
legal representatives or to the Special Advisor, as the case may be, under this
Agreement, other than the payment of the Severance Lump Sum and the timely
payment or provision of Other Benefits and the Retirement Benefit. Payments
shall be made to the Special Advisor, the Special Advisor's estate or
beneficiary, as applicable, in a lump sum in cash within 30 days of the Date of
Termination.
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(c) Cause; Other than for Good Reason. If the Special
Advisor's employment shall be terminated for Cause or the Special Advisor
terminates her employment without Good Reason, this Agreement shall terminate
without further obligations to the Special Advisor other than the obligation to
pay to the Special Advisor (i) her Base Compensation, as applicable, through the
Date of Termination to the extent theretofore unpaid and, (ii) the Other
Benefits.
6. Non-exclusivity of Rights. Except as specifically provided,
nothing in this Agreement shall prevent or limit the Special Advisor's
continuing or future participation in any plan, program, policy or practice
provided by the Company or any of its affiliated companies and for which the
Special Advisor may qualify, nor, subject to Sections 1 and 11(f), shall
anything herein limit or otherwise affect such rights as the Special Advisor may
have under any contract or agreement with the Company or any of its affiliated
companies. Amounts which are vested benefits or which the Special Advisor is
otherwise entitled to receive under any plan, policy, practice or program of or
any contract or agreement with the Company or any of its affiliated companies at
or subsequent to the Date of Termination shall be payable in accordance with
such plan, policy, practice or program or contract or agreement except as
explicitly modified by this Agreement; provided that the Special Advisor shall
not be eligible for severance benefits under any other program or policy of the
Company.
7. Full Settlement. Except as provided in Section 9, the Company's
obligation to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action which the
Company may have against the Special Advisor or others. In no event shall the
Special Advisor be obligated to seek other employment or take any other action
by way of mitigation of the amounts payable to the Special Advisor under any of
the provisions of this Agreement, and such amounts shall not be reduced whether
or not the Special Advisor obtains other employment. The Company agrees to pay
as incurred, to the full extent permitted by law, all legal fees and expenses
which the Special Advisor may reasonably incur as a result of any contest
(regardless of the outcome thereof) pursued or defended against in good faith by
the Special Advisor regarding the validity or enforceability of, or liability
under, any provision of this Agreement or any guarantee of performance thereof
(including as a result of any contest by the Special Advisor about the amount of
any payment pursuant to this Agreement), plus in each case interest on any
delayed payment at the applicable Federal rate provided for in Section
7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended (the "Code").
8. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding
and except as set forth below, in the event it shall be determined that any
payment or distribution by the Company to or for the benefit of the Special
Advisor (whether paid or payable or distributed or distributable pursuant to the
terms of this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 8) (a "Payment") would be
subject to the excise tax imposed by Section 4999 of the Code or any interest or
penalties are incurred by
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the Special Advisor with respect to such excise tax (such excise tax, together
with any such interest and penalties, are hereinafter collectively referred to
as the "Excise Tax"), then the Special Advisor shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after payment
by the Special Advisor of all taxes (including any interest or penalties imposed
with respect to such taxes), including, without limitation, any income taxes
(and any interest and penalties imposed with respect thereto) and Excise Tax
imposed upon the Gross-Up Payment, the Special Advisor retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
Notwithstanding the foregoing provisions of this Section 8(a), if it shall be
determined that the Special Advisor is entitled to a Gross-Up Payment, but that
the Payments do not exceed 110% of the greatest amount (the "Reduced Amount")
that could be paid to the Special Advisor such that the receipt of Payments
would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to
the Special Advisor and the Payments, in the aggregate, shall be reduced to the
Reduced Amount.
(b) Subject to the provisions of Section 8(c), all
determinations required to be made under this Section 8, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by the Company's independent auditors or such other certified public accounting
firm reasonably acceptable to the Special Advisor as may be designated by the
Company (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and the Special Advisor within 15 business days
of the receipt of notice from the Special Advisor that there has been a Payment,
or such earlier time as is requested by the Company. All fees and expenses of
the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment,
as determined pursuant to this Section 8, shall be paid by the Company to the
Special Advisor within five days of the later of (i) the due date for the
payment of any Excise Tax, and (ii) the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm shall be binding upon
the Company and the Special Advisor. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by the Company should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that the Company exhausts its remedies pursuant to Section 8(c) and the Special
Advisor thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall be promptly paid by the Company to or for the
benefit of the Special Advisor.
(c) The Special Advisor shall notify the Company in writing of
any claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than ten business days after the Special
Advisor is informed in writing of such claim and shall apprise the Company of
the nature of such claim and the date on which such claim is requested to be
paid. The Special Advisor shall not pay such claim prior to the expiration of
the 30-day period following the date on which it gives such notice to the
Company (or such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the
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Company notifies the Special Advisor in writing prior to the expiration of such
period that it desires to contest such claim, the Special Advisor shall:
(i) give the Company any information reasonably
requested by the Company relating to such claim,
(ii) take such action in connection with contesting such
claim as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any
proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Special Advisor harmless, on
an after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 8(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Special Advisor to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and the Special Advisor agrees to prosecute
such contest to a determination before any administrative tribunal, in a court
of initial jurisdiction and in one or more appellate courts, as the Company
shall determine; provided, however, that, if the Company directs the Special
Advisor to pay such claim and xxx for a refund, the Company shall advance the
amount of such payment to the Special Advisor, on an interest-free basis and
shall indemnify and hold the Special Advisor harmless, on an after-tax basis,
from any Excise Tax or income tax (including interest or penalties with respect
thereto) imposed with respect to such advance or with respect to any imputed
income with respect to such advance; and further provided that any extension of
the statute of limitations relating to payment of taxes for the taxable year of
the Special Advisor with respect to which such contested amount is claimed to be
due is limited solely to such contested amount. Furthermore, the Company's
control of the contest shall be limited to issues with respect to which a
Gross-Up Payment would be payable hereunder and the Special Advisor shall be
entitled to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Special Advisor of an amount
advanced by the Company pursuant to Section 8(c), the Special Advisor becomes
entitled to receive any refund with respect to such claim, the Special Advisor
shall promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable
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thereto). If, after the receipt by the Special Advisor of an amount advanced by
the Company pursuant to Section 8(c), a determination is made that the Special
Advisor shall not be entitled to any refund with respect to such claim and the
Company does not notify the Special Advisor in writing of its intent to contest
such denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
9. Covenant Not to Compete; Confidential Information.
(a) Through the period ending September 1, 2003 or, if
earlier, the period ending eighteen (18) months after either (i) the Special
Advisor is terminated by the Company other than for Cause or Disability or (ii)
the Special Advisor terminates for Good Reason (the applicable period herein
referred to as the "Covenant Period"), the Special Advisor shall not directly or
indirectly, own, manage, operate, join, control, or participate in the
ownership, management, operation or control of, or be employed by or connected
in any manner with, or solicit any employee of the Company to apply for or
accept employment with any competing business, whether for compensation or
otherwise, without the prior written consent of the Company. Notwithstanding the
preceding sentence, the Special Advisor shall not be prohibited from owning less
than one (1%) percent of any publicly traded corporation, whether or not such
corporation is deemed to be a competing business. For the purposes of this
Agreement, a "competing business" shall be any business which is a significant
competitor of the Company, or which the Company reasonably determines may become
a significant competitor, unless the Special Advisor's primary duties and
responsibilities with respect to such business are not related to the management
or operation of disability insurance or complementary special risk products and
services in any country where the Company is conducting business. For purposes
of this Agreement, the term "solicit" means any communication, regardless of by
whom initiated, inviting, advising, encouraging or requesting any person to take
or refrain from taking any action. Should the Special Advisor violate the
foregoing provisions of this Section 9(a), all payments under this Agreement
shall cease.
(b) The Special Advisor hereby acknowledges that, as an
employee of the Company, she will be making use of, acquiring and adding to
confidential information of a special and unique nature and value relating to
the Company and its strategic plan and financial operations. The Special Advisor
further recognizes and acknowledges that all confidential information is the
exclusive property of the Company, is material and confidential, and is critical
to the successful conduct of the business of the Company. Accordingly, the
Special Advisor hereby covenants and agrees that she will use confidential
information for the benefit of the Company only and shall not at any time,
directly or indirectly, during the Covenant Period, divulge, reveal or
communicate any confidential information to any person, firm, corporation or
entity whatsoever, or use any confidential information for her own benefit or
for the benefit of others. In no event shall an asserted violation of the
provisions of this Section 9(b) constitute a basis for deferring or withholding
any amounts otherwise payable to the Special Advisor under this Agreement except
for cessation of the Covenant Payment.
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(c) Any termination of the Special Advisor's employment or of
this Agreement shall have no effect on the continuing operation of this Section
9.
(d) In addition to the cessation of payments as set forth in
this Section 9, the Special Advisor acknowledges and agrees that the Company
will have no adequate remedy at law, and could be irreparably harmed, if the
Special Advisor breaches or threatens to breach any of the provisions of this
Section 9. The Special Advisor agrees that the Company shall be entitled to
equitable and/or injunctive relief to prevent any breach or threatened breach of
this Section 9, and to specific performance of each of the terms hereof in
addition to any other legal or equitable remedies that the Company may have.
Prior to bringing any such action or ceasing payments as set forth in this
Section 9, the Company shall provide the Special Advisor with a ten (10) day
opportunity to cure a breach of this Section 9 which, in the CEO's good faith
judgment, is susceptible of being cured. The Special Advisor further agrees that
she shall not, in any equity proceeding relating to the enforcement of the terms
of this Section 9, raise the defense that the Company has an adequate remedy at
law.
(e) The terms and provisions of this Section 9 are intended to
be separate and divisible provisions and if, for any reason, any one or more of
them is held to be invalid or unenforceable, neither the validity nor the
enforceability of any other provision of this Agreement shall thereby be
affected. The parties hereto acknowledge that the potential restrictions on the
Special Advisor's future employment imposed by this Section 9 are reasonable in
both duration and geographic scope and in all other respects. If for any reason
any court of competent jurisdiction shall find any provisions of this Section 9
unreasonable in duration or geographic scope or otherwise, the Special Advisor
and the Company agree that the restrictions and prohibitions contained herein
shall be effective to the fullest extent allowed under applicable law in such
jurisdiction.
(f) The parties acknowledge that this Agreement would not have
been entered into and the benefits described in Sections 3 or 5 would not have
been promised in the absence of the Special Advisor's promises under this
Section 9.
10. Successors.
(a) This Agreement is personal to the Special Advisor and
without the prior written consent of the Company shall not be assignable by the
Special Advisor otherwise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the Special
Advisor's legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly 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
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no such succession had taken place. As used in this Agreement, "Company" shall
mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
11. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. 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.
(b) 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 Special Advisor: with a copy to:
One Hoylake Circle Xxxxxx X. Xxxxxx
Xxxxxxxx, Xxxxx 00000 Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
000 Xxxxx Xxxxxx, 00xx floor
If to the Company: Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Chief Executive Officer
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.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The Company may withhold from any amounts payable under
this Agreement such Federal, state, local or foreign taxes as shall be required
to be withheld pursuant to any applicable law or regulation.
(e) The Special Advisor's or the Company's failure to insist
upon strict compliance with any provision of this Agreement or the failure to
assert any right the Special Advisor or the Company may have hereunder,
including, without limitation, the right of
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the Special Advisor to terminate employment for Good Reason pursuant to Section
4(c)(i)-(iv) of this Agreement, shall not be deemed to be a waiver of such
provision or right or any other provision or right of this Agreement.
(f) From and after the Effective Date this Agreement shall
supersede any other employment, severance or change of control agreement between
the parties with respect to the subject matter hereof.
12. General Release. All payments under this Agreement to be made in
connection with the Special Advisor's termination of employment will be
conditioned on the Special Advisor signing a general form of release, provided
that in no event shall the Special Advisor be required to release claims
relating to her rights under this Agreement.
IN WITNESS WHEREOF, the Special Advisor has hereunto set the Special
Advisor's hand and, pursuant to the authorization from its Board of Directors,
the Company has caused these presents to be executed in its name on its behalf,
all as of the day and year first above written.
SPECIAL ADVISOR
/s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
UNUMPROVIDENT CORPORATION
/s/ F. Xxxx Xxxxxxxx
-----------------------------------
Name: F. Xxxx Xxxxxxxx
Title: Executive Vice President
Legal & Administration Affairs
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