EXHIBIT 10.23
AGREEMENT
AGREEMENT, dated as of November 6, 2000, by and between Phoenix Home
Life Mutual Insurance Company, a New York life insurance company having its
executive offices at Xxx Xxxxxxxx Xxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (the
"Company"), and Xxxx X. Xxxxxxxx (the "Executive"), residing in Manchester,
Connecticut.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company's board of directors recognizes that the
business strategies and plans of the Company or, in the event of the Company's
demutualization, of its sole shareholder (the "Holding Company" and the Holding
Company and the Company together, collectively with their subsidiaries,
"Phoenix") may require management of the Company to pursue a merger or other
business combination of the Company or the Holding Company with another company,
which business combination could result in a change in control of the Company, a
consequence of which could be adjustments in the Company's management, including
career changes for executives of the Company, the prospect of which is
unsettling to the Company's management, including the Executive and other
executives of the Company; and
WHEREAS, the Company's board of directors desires to assure a
continuing dedication by the Executive to his/her duties to the Company
notwithstanding the Company's and the Holding Company's strategies and prospects
respecting a business combination and, in particular, believes it imperative,
should the Company or the Holding Company pursue a proposal with respect to a
business combination, for the Executive, without being influenced by the
uncertainties of his/her own situation, to assess and advise the Company's board
of directors whether such proposal (or any alternative) would be in the best
interest of the Company and its policyholders and to assist the Company in
taking such other actions regarding such proposal as might be appropriate; and
WHEREAS, for this reason the Company's board of directors has
determined that it is in the best interests of the Company and its policyholders
for the Company to provide for payment to the Executive of appropriate
compensation, in addition to that which the Company has otherwise provided for
the Executive, in the event the Executive's employment with the Company should
terminate under the circumstances described in this Agreement;
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt and sufficiency of which each
party hereby acknowledges, the Company and the Executive hereby agree as
follows:
SECTION 1. EFFECTIVE DATE AND TERM OF AGREEMENT.
(a) This Agreement is effective and binding on both parties as
of the date hereof and, subject to Section 2(b) hereof and to Section 2(c)
hereof, shall continue to apply in accordance with its terms to a termination of
Executive's employment with the Company occurring on or before December 31,
2002; provided, however, that, as of January 1, 2001, and each January 1
thereafter, this Agreement shall automatically be extended to apply in
accordance with its terms to a termination of Executive's employment with the
Company occurring on or before one (1) additional year has elapsed unless, not
later than September 30 of the preceding year, the Company shall have given
notice that it does not wish so to extend this Agreement; and provided, further,
that, notwithstanding any such notice by the Company not to so extend this
Agreement, if a Change in Control (as hereinafter defined) shall have occurred,
during the original or extended period, this Agreement shall continue to apply
in accordance with its terms to a termination of Executive's employment with
the Company occurring on or before the expiration of three (3) years after the
occurrence of such Change in Control. Notwithstanding the present effectiveness
of this Agreement and except to the extent expressly otherwise provided in
Sections 1(d) and 2(b) of this Agreement, the provisions
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of Sections 3 and 4 of this Agreement shall become operative only when, as and
if there has been a Change in Control.
(b) For purposes of this Agreement, a change in control of the
Company (a "Change in Control") shall be deemed to have occurred upon the first
occurrence after the date hereof of any of the following events:
(i) the occurrence of such a change in control of the
direction and administration of the Company's or the Holding Company's business
as would be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as in effect on the date hereof and any successor
provision of the regulations under the Exchange Act, if the Company or the
Holding Company were required at the time of such occurrence to report under
such provisions (whether or not the Company is subject to the reporting
provisions of Section 12 of the Exchange Act and to such reporting requirement);
or
(ii) if the individuals who, at the beginning of the
period commencing two (2) years earlier, constituted the Company's or the
Holding Company's board of directors cease for any reason to constitute at least
a majority of the such company's board of directors provided however, that any
person who is a "Continuing Director" (as defined below) shall be deemed for
this purpose to have been a member of the board on the first day of such
two-year period; or
(iii) the Company's or the Holding Company's board of
directors shall approve a sale of all or substantially all of the assets of the
Company or the Holding Company, as the case may be, and such transaction shall
have been consummated; or
(iv) if at the time the Company is a stock
corporation and, prior to the fifth anniversary of the effective date of its
demutualization, five percent (5%) or, if after such fifth anniversary, ten
percent (10%) (or, in either case, such higher percentage (not to exceed twenty
percent (20%)) at which approval by the New York Insurance Department is
required to effect such an acquisition) or more of the combined voting power of
securities of the Company or of the Holding Company are acquired by an
individual, entity, any employee benefit plan sponsored or maintained by the
Company or a Subsidiary, or group acting in concert, in each case, other than
the Holding Company or any of its subsidiaries; or
(v) at any date after the date hereof, the Company or
the Holding Company is voluntarily or involuntarily dissolved or liquidated or
otherwise ceases business operations; or
(vi) the Company's or the Holding Company's board of
directors shall approve any merger, consolidation or like business combination
or reorganization of the Company or the Holding Company, as the case may be,
such transaction shall have been consummated and a majority of the individuals
who constituted directors of the Company or the Holding Company on the day the
board of directors approved such transaction cease for any reason, at any time
within two (2) years after the consummation of such transaction, to constitute a
majority of such board of directors or of the board of directors of any
successor company resulting from such merger, consolidation, or like business
combination or reorganization; provided, however, that any person who is a
"Continuing Director" (as defined below) shall be deemed for this purpose to
have been a member of the board on the first day of such two-year period.
For purposes of this Agreement, "Continuing Directors" shall mean (i) the
directors of the Company in office on the date hereof or, in the case of the
Holding Company, its directors immediately preceding any demutualization of the
Company and (ii) any successor to any such director, or any additional director,
who (A) after the date hereof was nominated or selected by a majority of the
Continuing Directors in office at the time of his/her nomination or selection
(other than any such nomination or selection of an individual as a director of
the Company, the Holding Company or any successor to the Company or the Holding
Company who was so nominated or selected in connection with the settlement of a
threatened or actual proxy contest involving or, a proposed or consummated
merger, consolidation or like business combination or
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reorganization of, the Company or the Holding Company or (B) who has been
accepted in writing as a Continuing Director for purposes of this Agreement by
Executive.
(c) It is hereby provided, however, that in no event shall the
reorganization of the Company from a mutual to a stock company, the acquisition
of its shares by the Holding Company or the initial public offering of the
shares of the Holding Company be treated, individually or collectively, as a
"Change in Control" for purposes of this Agreement and in no event shall any
benefits be payable hereunder as a result of any such events.
(d) The Company shall be obligated to make the payments and
provide the benefits described in Section 4 hereof following, and the provisions
of Section 3 hereof shall apply to, a Change in Control only if such Change in
Control shall have occurred within the period of Executive's employment with the
Company. Except as provided in the next following sentence, if the Executive
ceases employment prior to the occurrence of a Change in Control, the Company's
and Executive's obligations shall terminate automatically upon such termination
and, except as provided in Section 5(a) hereof, neither party shall have any
obligation to the other hereunder. If the Company terminates the Executive's
employment during the period established under Section 2(b) of this Agreement
other than for Cause, the Executive shall, solely for purposes of determining
his/her right to severance benefits under this Agreement, be deemed to have
remained employed by the Company until the day following the Change in Control
and to have then been terminated by the company without Cause.
SECTION 2. EMPLOYMENT OF EXECUTIVE.
(a) Except as provided in Section 2(b) below, nothing in this
Agreement shall affect any right which the Executive may otherwise have to
terminate his/her employment from the Company, nor shall anything in this
Agreement affect any right which the Company may have to terminate the
Executive's employment at any time in any lawful manner, subject to the
Company's obligations at law and to make the payments and provide the benefits
to the Executive pursuant to Section 4 of this Agreement. It is agreed and
understood that this Agreement supercedes any prior severance agreement which
related to change of control or other business events as determined by the
Company and, which provided benefits substantially similar to those provided
under this Agreement. Any such prior agreement entered into between the Company
or a subsidiary of the Company and the Executive shall be deemed to be
terminated and shall be of no force or effect upon the execution of this
Agreement.
(b) In the event any person or organization commences any
steps necessary in accordance with law to effect a Change in Control (including,
without limitation, the solicitation of proxies with respect to the election of
directors in opposition to the nominees of the board of directors of the Company
or the Holding Company or, if the Company is converted to a stock company, the
commencement of a tender or exchange offer for the percentage of the Company's
or Holding Company's voting securities as described in Section 1(b)(iv)
hereof,), the Executive agrees that, in order to receive the benefits provided
by this Agreement, he/she will not voluntarily leave the employ of the Company
and will continue to perform his/her regular duties and to render his/her
services on a full-time basis to the Company and the Company agrees to continue
to employ the Executive in each case, until such person or organization has
abandoned or terminated its efforts to effect a Change in Control (as determined
by the Board of Directors) or until a Change in Control has occurred.
(c) Should the Executive voluntarily terminate his/her
employment before any effort to effect a Change in Control has commenced, or
after any such effort has been abandoned or terminated without effecting a
Change in Control and at a time when no other such effort is then in process,
this Agreement shall at such time lapse and be of no further force or effect.
SECTION 3.TERMINATION FOLLOWING CHANGE IN CONTROL.
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(a) If a Change in Control of the Company shall have occurred,
the Executive shall be entitled to the benefits provided in Section 4 hereof
upon any subsequent termination of his/her employment within three (3) years
following such Change in Control, unless (i) in connection with such
termination, the Executive becomes employed with a former division of the
Company or the Holding Company or a subsidiary of either as a result of a sale
or spin-off of such division or subsidiary, on substantially equivalent terms
as, or better terms than, those in effect immediately prior to the Change in
Control, or (ii) such termination is (A) due to the Executive's death or
Retirement (as hereinafter defined) or (B) by reason of discharge by the Company
by reason of the Executive's Disability (as hereinafter defined) or for Cause
(as hereinafter defined), (C) or by the Executive other than for Good Reason as
herein after defined.
(b) If following a Change in Control, the Executive's
employment shall be terminated by the Company for Cause or by the Executive for
other than Good Reason, the Company shall pay to the Executive his/her full Base
Salary (as hereinafter defined) through the Date of Termination (as defined in
Section 3(e) hereof) at the rate in effect at the time Notice of Termination (as
defined in Section 3(d) hereof) is given and any amounts and benefits to be paid
to the Executive in accordance with the terms of his/her employment
(notwithstanding that a Change in Control shall have occurred), including any
vested benefits under any Phoenix employee benefit and the Company shall have no
further obligations to the Executive under this Agreement.
(c) For purposes of this Agreement:
(i) "Disability" shall mean such physical or mental
condition of the Executive as shall have rendered the Executive unable (with
reasonable accommodation by the Company), for a period of more than one hundred
eighty (180) days, to perform the essential functions of his/her job and as
leads the Company's board of directors, in its sole discretion, to determine to
remove the Executive from his/her position and to appoint his/her successor in
order to provide, in the judgment of such board for the proper conduct of the
Company's business. Notwithstanding the foregoing, no termination shall be
treated as on account of Disability unless the Executive is eligible at the time
of such termination to receive benefits under the Company's Short Term
Disability Plan or Long Term Disability Plan in accordance with the terms of
those plans.
If the Executive is entitled to benefits under either or both of such plans,
he/she shall be entitled to receive the benefits provided thereunder, and shall
be entitled to receive the payments and benefits provided by Section 4 hereof,
provided that, in the event that at any time prior to the earlier of (A) the
first anniversary of the Executive's Date of Termination and (B) the third
anniversary of the date on which the Change in Control occurred, Executive is no
longer eligible for benefits provided under either the Company's Short Term
Disability Plan or Long Term Disability Plan, he/she shall be entitled to the
benefits provided under Section 4 of this Agreement as though his/her employment
were terminated by the Company without Cause on the date upon which his/her
eligibility for such benefits ceases unless the Company shall offer him
employment, to commence immediately, at least the same or greater duties and
responsibilities as he/she received, held or performed immediately prior to
his/her termination for Disability. It is hereby provided that, if the Executive
returns to work as provided above, the Executive shall be entitled to exercise
the right to terminate his/her employment as provided in Section 3(c)(iv)(F)
hereof within a thirty-day period following the first anniversary of his/her
return to work. It is further provided that, if the Executive is no longer
eligible for Disability benefits as described above after the expiration of the
time period described in "(A)" and "(B)" above, he/she shall be entitled to
fifty (50%) of the payments and one half the benefit continuation period
provided under Section 4 hereof in the same manner and subject to the same
conditions as otherwise described above upon cessation of Disability.
(ii) "Retirement" shall mean that the Executive shall
have retired after reaching the normal or (at the Executive's election) an early
retirement date provided in the Company's retirement plans as in effect on the
date of the Change in Control.
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(iii) "Cause" shall mean any one of the following
events:
(A) the conviction of the Executive in a
court of law of a felony or of any crime involving the misuse or
misappropriation of money or other property of another; or
(B) the Executive's failure or refusal to
perform legal directives of the Company's board of directors or executive
officers of the Company, as applicable, which directives are consistent with the
scope and nature of the Executive's employment duties and responsibilities and
which failure or refusal is not remedied by the Executive within thirty (30)
days after notice of such non-performance is given to Executive; or
(C) the performance by the Executive of any
act inconsistent with the Executive's duties hereunder that results in a
material adverse effect on Phoenix; or
(D) any willful misconduct or illegal
conduct by the Executive that has a material adverse effect on Phoenix; or
(E) any action by the Executive which
materially violates Phoenix's conflict of interest policy, as in effect of the
date immediately prior to the Change in Control.
Notwithstanding the foregoing provisions of this subparagraph, the Executive
shall not be deemed to have been terminated for Cause for the purposes of this
Agreement by reason of any imperfection in the performance of his/her duties to
the Company, unless and until (i) there shall have been delivered to the
Executive a resolution duly adopted by the affirmative vote of not less than a
majority of the entire membership of the Company's board of directors of the
Company (or that of its successor) at a meeting called and held for such purpose
(after reasonable notice to the Executive and an opportunity for the Executive,
together with his/her counsel, to be heard before the board of directors),
finding in the good faith opinion of the board of directors that the Executive
was guilty of conduct so constituting Cause and stating the particulars thereof
in detail; and (ii) the Executive shall have had a reasonable period, not to
exceed sixty (60) days to remedy any correctable problem. In the event of
termination of the Executive's employment for Cause, the Executive shall be
entitled to such benefits, if any, under the Company's retirement, insurance and
other benefit plans and programs as may be provided thereby, in such
circumstances, as if the Executive and the Company had not entered into this
Agreement.
(iv) "Good Reason" shall mean:
(A) without the Executive's express written
consent, any reduction in his/her title or any material reduction in his/her
position, duties or responsibilities from the title, position, duties or
responsibilities held or exercised by the Executive prior to the Change in
Control; or
(B) a change of more than twenty-five miles
in the location where the Executive regularly provides his/her services to the
Company without the Executive's consent; or
(C) a reduction by the Company of the
Executive's Base Salary (as hereinafter defined) or Target Incentive
Compensation (as hereinafter defined); or
(D)(1) a material reduction in the benefits
provided or the contributions made by the Company under any qualified or
non-qualified pension, retirement or defined contribution plans in which the
Executive participated immediately prior to the Change in Control, (2) a
material reduction in the health or long term disability benefits available to
the Executive and his/her eligible dependents from those benefits in effect
immediately prior to the Change in Control or a material change in the
conditions for the Executive to become eligible for the same post-retirement
health benefits provided to retirees immediately prior to the Change in Control
or, (3) a material reduction in the aggregate value of other welfare benefits
available to the Executive immediately prior to the Change in Control;
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(E) a material reduction in the long-term
incentive compensation opportunities made available to the Executive from those
opportunities made available, on average, during the three year period ended
with the last day of the last fiscal year ended prior to the Change of Control;
(F) any purported termination by the Company
of the Executive's employment which is not effected pursuant to a Notice of
Termination satisfying the requirements of Section 3(d) hereof; provided
however, that, notwithstanding anything else contained herein to the contrary,
any termination of employment by the Executive for any reason within the
thirty-day period following the first anniversary of the date on which a Change
in Control occurs shall, for all purposes of the Agreement, be treated as a
termination for Good Reason.
(v) "Base Salary" shall mean the annual salary paid
to the Executive immediately prior to the Change in Control of the Company.
(vi) "Target Incentive Compensation" shall mean the
target incentive award(s) that may be earned by achievement of specified
performance objectives, under the annual and long term incentive compensation
plan or plans in which the Executive participated immediately prior to the
Change in Control of the Company.
(d) Any purported termination of the Executive's employment by
the Company by reason of the Executive's Disability or for Cause, or by the
Executive for Good Reason, shall be communicated by written Notice of
Termination to the other party hereto in accordance with Section 5(f) hereof.
For purposes of this Agreement, a "Notice of Termination" shall mean a notice
given by the Executive or by the Company, as the case may be, which shall
indicate the specific basis for termination and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for the
determination of the payments required to be made under this Agreement;
provided, however, that the Executive shall not be entitled to give a Notice of
Termination to the effect that he/she is terminating his/her employment with the
Company for Good Reason after the expiration of ninety (90) days following the
last to occur of the events claimed by him to constitute Good Reason.
(e) For purposes of this Agreement, "Date of Termination"
shall mean (i) if the Executive's employment is terminated for Disability,
thirty (30) days after Notice of Termination is given (provided that the
Executive shall not have returned to the full-time performance of his/her duties
during such thirty-day period) and (ii) if the Executive's employment is
terminated for Cause or Good Reason, the date specified in the Notice of
Termination, which shall be not more than thirty (30) days after such Notice of
Termination is given. If within twenty (20) days after any Notice of Termination
is given, the party who receives such Notice of Termination notifies the other
party that a Dispute (as defined below) exists, the parties agree to pursue
promptly the resolution of such dispute with reasonable diligence. Pending the
resolution of any such Dispute, the Company shall make the payments and provide
the benefits provided for in Section 4 hereof to the Executive. In the event
that it is finally determined, either by mutual written agreement of the
parties, by a binding arbitration award or by a final judgment, order or decree
of a court of competent jurisdiction (which is not appealable or as to which the
time for appeal therefrom has expired and from which no appeal has been
perfected), that a challenged termination by the Company by reason of the
Executive's Disability or for Cause was justified, or that a challenged
termination by the Executive for Good Reason was not justified, then all sums
paid by the Company to the Executive from the Date of Termination specified in
the Notice of Termination until final resolution of the Dispute pursuant to this
Section 3(f), less any amount otherwise required to be paid to the Executive in
such circumstances under the terms of his/her employment, shall be repaid
promptly by the Executive to the Company, with interest from the time of payment
to the Executive to the date of repayment to the Company at the "prime rate"
from time to time announced by The Chase Manhattan Bank, N.A. to be in effect
during such period for loans to commercial borrowers. In the event that it is
finally determined that a challenged termination by the Company by reason of the
Executive's Disability or for Cause was not justified, or that a challenged
termination by the Executive for Good Reason was justified, then the Executive
shall be entitled to retain all sums paid to the Executive pending resolution of
the Dispute.
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(f) For purposes of this Agreement, "Dispute" shall mean (i)
in the case of the Company's termination of Executive's employment as an
executive of the Company for Disability or Cause, that the Executive challenges
the existence of Disability or Cause and (ii) in the case of the Executive's
termination of his/her employment with the Company for Good Reason, that the
Company challenges the existence of Good Reason.
SECTION 4. PAYMENTS AND BENEFITS UPON TERMINATION.
(a) If required pursuant to Section 3(a) hereof, the Company
will pay to the Executive as compensation for services rendered:
(i) Severance Benefits:
(A) not later than the fifteenth day after the Date of
Termination, the Executive's Base Salary through the Date of Termination, any
accrued and unpaid vacation time, and any other benefits then earned and payable
to Executive through the Date of Termination in accordance with the terms of
his/her employment; and
(B) a lump sum severance payment equal to two and one-half
(2-1/2 ) times the sum of (1) and (2),
(1) the Executive's Base Salary and,
(2) an amount equal to the highest of the last three
(3) years of incentive compensation under the Company's Mutual Incentive Plan
(or any successor plan) or similar annual incentive plan applicable to the
Executive; and
(C) a lump sum severance payment equal to a full payment of
all current long term cash cycles under the company's Long Term Incentive Plan.
The payment will be calculated based on a straight line projection of the
results to date of all current cash cycles, or the average payout of the last
two completed long term cycles, expressed as a percent of target, whichever is
higher. Payment for each cycle will be calculated as if the Executive was a plan
participant for the full term of each of his/her current long term cash cycles.
(D) except as provided below, a lump sum severance payment
equal to the excess of
(1) the present value of the retirement benefits
(whether or not otherwise vested) the Executive would have accrued under the
Company's qualified and non-qualified defined benefit retirement plans in which
the Executive was participating at the Date of Termination (the "Applicable
Retirement Plans") had he/she continued to work for the Company for two and
one-half (2-1/2) additional years from his/her Date of Termination at the same
rate of compensation that would otherwise be taken into account for purposes of
determining his/her accrued benefits at the Date of Termination and received as
compensation for such services the severance benefits payable under sub-clause
(B) of this Section 4 and achieved the age that he/she would have achieved at
the end of such two and one-half (2-1/2) year period over
(2) the present value on the Date of Termination of
all the Executive's vested accrued benefits under such Applicable Retirement
Plans.
For this purpose, all calculations of present value shall be made based on the
actual assumptions used on the date immediately prior to the occurrence of a
Change in Control under whichever of the Applicable Retirement Plans the
benefits would otherwise have been provided.
It is hereby provided that if, as of the Executive's Termination Date, the
Executive has satisfied the requirements for early retirement eligibility as
provided under the Applicable Retirement Plans, then, at the
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Executive's option, in lieu of the lump sum benefit described above, the value
of such benefit shall be payable in the form of a non-qualified monthly annuity
determined as provided under the Applicable Retirement Plans and payable in the
same benefit form and at the same time as other benefits under such Applicable
Retirement Plans.
(E) a lump sum severance payment equal to the present value of
the two and one-half (2-1/2) years of Company matching contributions under the
Company's qualified and non-qualified defined contribution savings plans based
on the level of matching contribution in effect for the Executive on the Date of
Termination.
(ii) Continuation of Benefits. Effective with the Date of
Termination, the Executive shall be entitled after the Date of Termination until
the two and one-half year anniversary of the Date of Termination (the "End
Date"), to continue participation in all of the Company's group health, group
life employee benefits and long term disability plans (the "Group Benefit
Plans"). To the extent any such benefits cannot be provided under the terms of
the applicable plan, policy or program, the Company shall provide a comparable
benefit under another plan or from the Company's general assets. The Executive's
participation in the Group Benefit Plans will be on the same terms and
conditions (including, without limitation, any condition that the Executive make
contributions toward the cost of such coverage on the same terms and conditions
generally applicable to similarly situated employees and, including coverage
eligibility for the Executive's spouse and dependent children) that would have
applied had the Executive continued to be employed by the Company through the
End Date.
(iii) Outplacement Services. The Executive shall be provided
at the Company's expense with outplacement services customary for executives at
his/her level (including, without limitation, office space and telephone support
services) provided by a qualified and experienced third party provider mutually
selected by the Company and the Executive.
(iv) Deemed Vesting for Certain Benefits. Effective as of the
Date of Termination, the Executive shall be deemed to have met all service and
other requirements for full vesting of benefits under all company stock option
or other stock or equity compensation plans in which the Executive participates
to the extent that the Executive had not already vested in such benefits as of
the Date of Termination. The value of any benefits as reasonably determined by
the Company and not otherwise payable under such above-referenced plans, shall
be payable hereunder as a lump sum at the same time and in the same manner as
amounts specified in Section 4(a)(i) above.
(b) Certain Further Payments by the Company.
(i) In the event that any amount or benefit paid or
distributed to, or on behalf of the Executive pursuant to this Agreement, taken
together with any amounts or benefits otherwise paid or distributed to or on
behalf of the Executive by the Company or any affiliated company (collectively,
the "Covered Payments"), are or become subject to the tax (the "Excise Tax")
imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), or any similar tax that may hereafter be imposed, the Company shall pay
to the Executive at the time specified in Section 4(b)(iv) below an additional
amount (the "Tax Reimbursement Payment") such that the net amount retained by
the Executive with respect to such Covered Payments, after deduction of any
Excise Tax on the Covered Payments and any Federal, state and local income or
employment tax and Excise Tax on the Tax Reimbursement Payment provided for by
this Section 4(b), 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.
(ii) 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
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defined under Section 280G(b)(3) of the Code) shall be treated as subject to the
Excise Tax, unless, and except to the extent that, in the good faith judgment of
the Company's independent certified public accountants appointed prior to the
Change in Control 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.
(iii) For purposes of determining the amount of the
Tax Reimbursement Payment, the 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 Tax
Reimbursement Payment is to be made, and
(B) any applicable state and local income taxes at
the highest applicable marginal rate of taxation for the calendar year in which
the Tax Reimbursement Payment is to be made, net of the maximum reduction in
Federal Income taxes which could be obtained from the deduction of such state or
local taxes if paid in such year.
(iv) 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, the 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 of such portion has been made to the Executive,
and interest payable to the Company shall not exceed interest received or
credited to the Executive by such tax authority for the period it held such
portion. The Executive and the Company shall mutually agree upon the course of
action to be pursued (and the method of allocating the expenses thereof) if the
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.
(v) The Tax Reimbursement Payment (or portion
thereof) provided for in Section 4(b)(i) above shall be paid to the Executive
not later than ten (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 the Executive by such date an
amount estimated in good faith by the Accountants to be the minimum amount of
such Tax Reimbursement Payment and shall pay the remainder of such Tax
Reimbursement Payment (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined, but
in no event later than 45 calendar days after payment of the related Covered
Payment. In the event that the amount of the estimated Tax Reimbursement Payment
exceeds the
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amount subsequently determined to have been due, such excess shall constitute a
loan by the Company to the Executive, payable of the fifth business day after
written demand by the Company for payment (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code).
SECTION 5. GENERAL
(a) The Executive, after termination of his/her
employment by the Company, shall retain in confidence any confidential or
proprietary information known to him concerning Phoenix and its business so long
as such information is not publicly disclosed and shall not use such information
in any way injurious to Phoenix except for any disclosure to which an authorized
officer of the Holding Company has consented or any disclosure or use required
by any order of any governmental body or court (including legal process). If
requested, the Executive shall return to Phoenix any memoranda, documents or
other materials possessed by the Executive and containing confidential or
proprietary information of Phoenix. Further, the Executive agrees not to induce,
encourage or solicit either directly or indirectly, any employee, officer,
agent, broker, registered representative, manager, to terminate his/her
relationship with the Company, its subsidiaries or affiliates for a period of
eighteen (18) months.
(b) If litigation shall be brought to enforce or
interpret any provision contained herein or any third party shall commence any
litigation challenging the validity or enforceability of this Agreement, the
Company shall pay the Executive for attorneys' fees and disbursements reasonably
incurred by the Executive in connection with such litigation promptly upon
presentation thereof and the Company shall pay prejudgment interest to
Executive, if any, calculated at the prime rate (as provided by section 3(e)
hereof) from the date that payment should have been made under this Agreement to
the date of payment.
(c) The Company's obligation to make the payments and
to provide the benefits to the Executive required hereby are absolute and
unconditional and shall not be affected by any setoff, claim, counterclaim,
recoupment or other right which the Company may have against the Executive or
anyone else. All amounts payable by the Company hereunder shall be payable
without notice or demand. The Executive shall not be required to seek or take
any employment or undertake any other business activities in order to mitigate
the payments and benefits required to be provided to the Executive pursuant to
this Agreement and the payments and benefits so required to be provided to the
Executive shall not be mitigated by any earnings of the Executive resulting from
any employment or other business activities the Executive may undertake after
the termination of his/her employment with the Company.
(d) The Company shall 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 or the Holding
Company, by written agreement 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 no such succession had taken place. As used in this
Agreement, the term "Company" shall mean the Company as herein before defined
and any successor to its business and/or assets as aforesaid which executes and
delivers the agreement required by this Section 5(c) or which otherwise becomes
bound by the terms and provisions of this Agreement by operation of law.
(e) This Agreement shall inure to the benefit of and
be enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive should die while any amounts or other benefits would still be payable
or made available to the Executive hereunder if he/she had continued to live,
all such amounts, or benefits, unless otherwise provided herein, shall be paid
or otherwise made available in accordance with the terms of this Agreement to
the Executive's devisee, legatee or other designee or, if there be no such
designee, to the Executive's estate.
(f) For the purposes of this Agreement, notices and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered by hand or upon receipt
if mailed by United States registered mail, return receipt requested,
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postage prepaid, or by a nationally recognized overnight courier service
(appropriately marked for overnight delivery). Such notices and communications
are to be addressed as follows:
If to the Executive: Xxxx X. Xxxxxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
If to the Company: Phoenix Home Life Mutual Insurance Company
0 Xxxxxxxx Xxx
Xxxxxxxx, XX 00000-0000
Attention: General Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of address shall be
effective only upon receipt.
(g) This Agreement constitutes the entire agreement
and understanding between the Executive and the Company concerning termination
of the Executive's employment with the Company subsequent to a Change in
Control; the parties hereby acknowledging, however, that this Agreement provides
for certain payments and benefits to the Executive to be determined by the
Company's employee benefit programs and plans and, to the extent so provided,
such programs and plans constitute part of the agreement and understanding
between Executive and the Company concerning termination of Executive's
employment with the Company subsequent to a Change in Control. No assurances or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement.
(h) No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing, signed by the Executive and an authorized officer of the Company. No
waiver by either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of any similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Connecticut without
giving effect to the provisions, principles, or policies thereof relating to
choice or conflict of laws.
(i) The invalidity or unenforceability of any
provisions of this Agreement in any circumstance shall not affect the validity
or enforceability of such provision in any other circumstance or the validity or
enforceability of any other provision of this Agreement, and except to the
extent such provision is invalid or unenforceable, this Agreement shall remain
in full force and effect. Any provision in this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
or affecting the remaining provisions hereof in such jurisdiction, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
(j) Any dispute or controversy arising under or in
connection with this Agreement shall be settled by arbitration in accordance
with the rules of the American Arbitration Association then in effect and any
such arbitration award shall be final and binding on the parties. Judgment may
be entered on the arbitrator's award in any court of competent jurisdiction. In
the event of any breach or threatened breach of the provisions of Section 5(a)
hereof by the Executive, Phoenix, in addition to any other rights and remedies
it may have, shall be entitled to seek an injunction from any court having
equity jurisdiction without being required to post a bond or other security and
without having to prove the inadequacy of the available remedies at law, it
being acknowledged and agreed that any such breach or threatened breach by the
Executive will cause irreparable injury to Phoenix and that money damages will
not provide an adequate remedy to Phoenix.
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(k) This Agreement may be executed in more than one
counterpart, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument and agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the day and year first above written.
Phoenix Home Life Mutual Xxxx X. Xxxxxxxx
Insurance Company
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxxxx
Its: President Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President
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