1
EXHIBIT 10.12
KEY EXECUTIVE EMPLOYMENT PROTECTION AGREEMENT
THIS AGREEMENT, dated as of July 1, 1997, by and between Hartford
Life, Inc., a Delaware corporation (the "Company"), and ________ ("Executive").
W I T N E S S E T H :
WHEREAS, the Company has employed the Executive in an officer
position and has determined that the Executive holds an important position with
the Company;
WHEREAS, the Company believes that, in the event it is confronted
with a situation that could result in a change in ownership or control of the
Company, continuity of management will be essential to its ability to evaluate
and respond to such situation in the best interests of shareholders;
WHEREAS, the Company understands that any such situation will
present significant concerns for Executive with respect to Executive's financial
and job security;
WHEREAS, the Company desires to assure itself of Executive's
services during the period in which it is confronting such a situation, and to
provide Executive with certain financial assurances to enable Executive to
perform the responsibilities of Executive's position without undue distraction
and to exercise judgment without bias due to Executive's personal circumstances;
WHEREAS, to achieve these objectives, the Company and Executive
desire to enter into an agreement providing the Company and Executive with
certain rights and obligations upon the occurrence of a Change of Control or
Potential Change of Control (as defined in Section 2 hereof);
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is hereby agreed by and between the Company and
Executive as follows:
2
1. OPERATION OF AGREEMENT.
(a) EFFECTIVE DATE. The effective date of this Agreement (the "Effective
Date") shall be the earlier of: (i) the date on which a Potential Change
of Control occurs, or (ii) the date on which a Change of Control occurs,
provided that if Executive is not actively employed by the Company on the
Effective Date, this Agreement shall be void and without effect.
(b) TERMINATION FOLLOWING A POTENTIAL CHANGE OF CONTROL. Consonant with
Section 1(a), in the event that Executive's employment is terminated by
the Company in a Termination Without Cause or is terminated by Executive
in a Termination For Good Reason (as defined herein) after the occurrence
of a Potential Change of Control, and a Change of Control occurs within
one year following the date of such Termination Without Cause or
Termination For Good Reason, then solely for purposes of this Agreement,
Executive shall be deemed to have remained in the Company's employ until
the occurrence of such Change of Control and to have then been terminated
by the Company in a Termination Without Cause, and Executive shall be
entitled to receive the benefits payable under Section 7 of this
Agreement, but reduced by any amounts paid to Executive by the Company on
account of the termination of Executive's employment prior to the
occurrence of such Change of Control.
2. CERTAIN APPLICABLE DEFINITIONS.
(a) BENEFICIAL OWNER. For purposes of this Agreement, "Beneficial Owner"
means any Person who, directly or indirectly, has the right to vote or
dispose of or has "beneficial ownership" (within the meaning of Rule 13d-3
under the Securities and Exchange Act of 1934, as amended (the "Act")) of
any securities of a company, including any such right pursuant to any
agreement, arrangement or understanding (whether or not in writing),
provided that: (i) a Person shall not be deemed the Beneficial Owner of
any security as a result of an agreement, arrangement or understanding to
vote such security (A) arising solely from a revocable proxy or consent
given in response to a public proxy or consent solicitation made pursuant
to, and in accordance with, the Act and the applicable rules and
regulations thereunder, or (B) made in connection with, or to otherwise
participate in, a proxy or consent solicitation made, or to be made,
pursuant to, and in accordance with, the applicable provisions of the Act
and the applicable rules and regulations thereunder, in either case
described in clause (A) or (B) above, whether or not such agreement,
arrangement or understanding
2
3
is also then reportable by such Person on Schedule 13D under the Act (or
any comparable or successor report); and (ii) a Person engaged in business
as an underwriter of securities shall not be deemed to be the Beneficial
Owner of any security acquired through such Person's participation in good
faith in a firm commitment underwriting until the expiration of forty days
after the date of such acquisition.
(b) CHANGE OF CONTROL. For purposes of this Agreement, "Change of Control"
means:
(i) a report on Schedule 13D shall be filed with the Securities and
Exchange Commission pursuant to Section 13(d) of the Act disclosing
that any person (within the meaning of Section 13(d) of the Act),
other the Company or The Hartford Financial Services Group, Inc.
("The Hartford") or a subsidiary of either of the foregoing or any
employee benefit plan sponsored by the Company or The Hartford or a
subsidiary of either of the foregoing, is the Beneficial Owner of
the greater of (A) the percentage of the outstanding stock of the
Company owned at such time by The Hartford, or (B) twenty percent or
more of the outstanding stock of the Company;
(ii) any person (within the meaning of Section 13(d) of the Act),
other than the Company or The Hartford or a subsidiary of either of
the foregoing or any employee benefit plan sponsored by the Company
or The Hartford or a subsidiary of either of the foregoing, shall
purchase shares pursuant to a tender offer or exchange offer to
acquire any stock of the Company (or securities convertible into
stock) for cash, securities or any other consideration, provided
that after consummation of the offer, the person in question is the
Beneficial Owner, directly or indirectly, of the greater of (A) the
percentage of the outstanding stock of the Company owned at such
time by The Hartford, or (B) fifteen percent or more of the
outstanding stock of the Company (calculated as provided in
paragraph (d) of Rule 13d-3 under the Act in the case of rights to
acquire stock);
(iii) the stockholders of the Company shall approve (A) any
consolidation or merger of the Company in which the Company is not
the continuing or surviving corporation or pursuant to which shares
of stock of the Company would be converted into cash, securities or
other property, other than a merger of the Company in which holders
of stock of the Company immediately prior to the merger have the
same proportionate ownership of
3
4
common stock of the surviving corporation immediately after the
merger as immediately before, or (B) any sale, lease, exchange or
other transfer (in one transaction or a series of related
transactions) of all or substantially all the assets of the Company;
(iv) within any 12 month period, the persons who were directors of
the Company immediately before the beginning of such period (the
"Incumbent Directors") shall cease (for any reason other than death)
to constitute at least a majority of the board of directors of the
Company (the "Board") or the board of directors of any successor to
the Company, provided that any director who was not a director at
the beginning of such period shall be deemed to be an Incumbent
Director if such director (A) was elected to the Board of the
Company 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 or by prior operation of this clause (iv),
and (B) was not designated by a person who has entered into an
agreement with the Company to effect a transaction described in the
immediately preceding clause (iii); or
(v) a Change of Control as defined in any of the foregoing clauses
(i), (ii), (iii) or (iv) occurs with respect to The Hartford at a
time when The Hartford directly or indirectly owns more than 50% of
the combined voting power and the value of the capital stock of the
Company, provided that a sale of all of the interest of The Hartford
in the Company shall not be considered a Change of Control
hereunder.
(c) PERSON. For purposes of this Agreement, "Person" has the meaning
ascribed to such term in Section 3(a)(9) of the Act, as supplemented by
Section 13(d)(3) of the Act; provided, however, that Person shall not
include (i) the Company, any subsidiary of the Company or any other Person
controlled by the Company, (ii) any trustee or other fiduciary holding
securities under any employee benefit plan of the Company or of any
subsidiary of the Company, or (iii) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of securities of the Company.
4
5
(d) POTENTIAL CHANGE OF CONTROL. For purposes of this Agreement,
"Potential Change of Control" means:
(i) a Person shall commence a tender offer, which if successfully
consummated, would result in such Person being the Beneficial Owner
of the greater of: (A) the percentage of outstanding stock of the
Company owned by The Hartford at the time of such commencement, or
(B) 15% or more of the voting securities of the Company;
(ii) the Company shall enter into an agreement, the consummation of
which shall constitute a Change of Control;
(iii) proxies for the election of directors of the Company shall be
solicited by anyone other than the Company;
(iv) a Potential Change of Control as defined in any of the
foregoing clauses (i), (ii) or (iii) occurs with respect to The
Hartford at a time when The Hartford owns more than 50% of the
combined voting power and the value of the capital stock of the
Company; or
(V) any other event shall occur which is deemed to be a Potential
Change of Control by the relevant Board or the appropriate committee
thereof.
3. EMPLOYMENT PERIOD.
Subject to Section 7 of this Agreement, the Company agrees to continue Executive
in its employ, and Executive agrees to remain in the employ of the Company, for
the period commencing on the Effective Date and ending on the third anniversary
of the date on which a Change of Control occurs (the "Employment Period").
Notwithstanding the foregoing, if, prior to the Effective Date, Executive is
demoted to a position lower than the position held by Executive as of the date
first above written, or is otherwise determined by the chairman of the Company
(the "Chairman") prior to the Effective Date to hold a position inappropriate
for coverage under this Agreement, this Agreement shall be void and without
effect, unless the Board, any appropriate committee thereof, or the Chairman
declares that this Agreement shall continue in effect by written notice
delivered to Executive within 60 days following such demotion, placement or
determination.
5
6
4. POSITION AND DUTIES.
(a) NO REDUCTION IN POSITION. During the Employment Period, Executive's
position (including titles), authority and responsibilities shall be at
least commensurate with those held, exercised and assigned immediately
prior to the Effective Date. It is understood that, for purposes of this
Agreement, such position, authority and responsibilities shall not be
regarded as not commensurate merely by virtue of the fact that a successor
shall have acquired all or substantially all of the business and/or assets
of the Company as contemplated by Section 11(d) of this Agreement.
(b) BUSINESS TIME. On and after the Effective Date, Executive agrees to
devote full attention during normal business hours to the business and
affairs of the Company and to use best efforts to perform faithfully and
efficiently the responsibilities assigned to Executive hereunder, to the
extent necessary to discharge such responsibilities, except for (i) time
spent (A) serving on the board of directors of any business corporation
with the consent of the Board, the appropriate committee of the Board, or
the Chairman, (B) serving on the board of, or working for, any charitable
or community organization (with the consent of the Board or the Chairman
if any such service or work is to be performed during normal business
hours), or (C) pursuing Executive's personal financial and legal affairs,
so long as the foregoing activities, individually or collectively, do not
substantially interfere with the performance of Executive's
responsibilities hereunder or violate any of the provisions of Section 10
hereof, and (ii) periods of vacation, sick leave or other leave to which
Executive is entitled under the programs and policies of the Company that
apply to similarly situated executives. It is expressly understood and
agreed that Executive's continuing to serve on any boards and committees
on which Executive is serving or with which Executive is otherwise
associated immediately preceding the Effective Date shall not be deemed to
interfere substantially with the performance of Executive's
responsibilities hereunder.
5. COMPENSATION.
(a) BASE SALARY. During the Employment Period, the Company shall pay
Executive a base salary at an annual rate no less than the annual rate in
effect immediately prior to the Effective Date. Such base salary shall be
reviewed at least once during each calendar year of the Employment Period,
and may be in-
6
7
creased at any time and from time to time by action of the Board or the
appropriate committee thereof or any individual having authority to take
such action in accordance with the Company's regular practices, but shall
not be reduced below the annual rate in effect immediately prior to the
Effective Date. Executive's base salary, as it may be increased from time
to time, shall be referred to herein as "Base Salary." Neither the Base
Salary nor any increase in Base Salary after the Effective Date shall
serve to limit or reduce any obligation of the Company hereunder.
(b) ANNUAL BONUS. For each calendar year ending during the Employment
Period, Executive shall have the opportunity to earn and receive an annual
bonus, based on the achievement of target levels of performance, equal to
no less than the percentage of Executive's Base Salary used to calculate
such bonus immediately prior to the Effective Date. Executive's annual
bonus opportunity, as it may be increased from time to time during the
Employment Period, shall be referred to herein as "Target Bonus." The
actual bonus, if any, payable for any calendar year during the Employment
Period shall be determined in accordance with the terms of the Company's
Annual Executive Bonus Program or any successor annual incentive plan (the
"Annual Plan") based upon the performance of the Company and/or its
applicable affiliates and/or Executive against target objectives
established under such Annual Plan. Subject to Executive's election to
defer all or a portion of any annual bonus payable hereunder pursuant to
the terms of any deferred compensation or savings plan or arrangement
maintained or established by the Company or its affiliates and made
available to Executive, any annual bonus payable under this Section 5(b)
shall be paid to Executive in accordance with the terms of the Annual
Plan.
(c) LONG-TERM INCENTIVE COMPENSATION. During the Employment Period,
Executive shall participate in all of the Company's existing and future
long-term incentive compensation programs for key executives at a level
commensurate with Executive's participation in such programs immediately
prior to the Effective Date, or, if more favorable to the Executive, at
the level made available to Executive or other similarly situated
executives at any time thereafter.
6. BENEFITS, PERQUISITES AND EXPENSES.
(a) BENEFITS. During the Employment Period, Executive (and, to the extent
applicable, his or her dependents) shall be entitled to participate in or
be
7
8
covered under (i) each welfare benefit plan maintained or as hereafter
amended or established by the Company or its applicable affiliates,
including, without limitation, each group life, hospitalization, medical,
dental, health, accident or disability insurance or similar plan or
program thereof, and (ii) each pension, retirement, savings, deferred
compensation, stock purchase or other similar plan or program maintained
or as hereafter amended or established by the Company or its applicable
affiliates, in each case at a level commensurate with the Executive's
participation in such plans or programs immediately prior to the Effective
Date, or, if more favorable to the Executive, at the level made available
to Executive or other similarly situated executives at any time
thereafter.
(b) PERQUISITES. For each calendar year during the Employment Period,
Executive shall be entitled to no less than the number of paid vacation
days per year that Executive was entitled to immediately prior to the
Effective Date, and shall also be entitled to receive such other
perquisites commensurate with those generally provided to Executive
immediately prior to the Effective Date, or, if more favorable to the
Executive, at the level made available from time to time to Executive or
other similarly situated executives at any time thereafter.
(c) BUSINESS EXPENSES. During the Employment Period, the Company shall pay
or reimburse Executive for all reasonable business expenses incurred or
paid by Executive in the performance of Executive's duties, 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 as in effect immediately prior to
the Effective Date, or, if more favorable to the Executive, in accordance
with the policies and procedures in effect at any time thereafter.
(d) OFFICE AND SUPPORT STAFF. During the Employment Period, Executive
shall be entitled to an office with furnishings and other material
appointments, and to secretarial and other assistance, at a level
commensurate with the foregoing provided immediately prior to the
Effective Date, or, if more favorable to the Executive, in accordance with
the policies and procedures in effect at any time thereafter.
(e) INDEMNIFICATION. The Company shall indemnify Executive and hold
Executive harmless from and against any claim, loss or cause of action,
regardless whether asserted during or after the Employment Period, arising
from or out of Executive's performance as an officer, director or employee
of
8
9
the Company or any of its affiliates or in any other capacity, including
any fiduciary capacity, in which Executive serves at the request of the
Company, to the maximum extent permitted by applicable law and under the
Certificate of Incorporation and By-Laws of the Company, as may be amended
from time to time (the "Governing Documents"), provided that in no event
shall the protection afforded to Executive be less than that afforded
under the Governing Documents as in effect immediately prior to the
Effective Date.
7. EARLY TERMINATION OF THE EMPLOYMENT PERIOD.
(a) TERMINATION. Notwithstanding Section 3 hereof, the Employment Period
shall end upon the earliest to occur of (i) a Termination For Cause, (ii)
a Termination Without Cause, (iii) a Termination For Good Reason, (iv) a
Voluntary Termination, (v) a Termination Due to Retirement, (vi) a
Termination Due to Disability, or (vii) a Termination Due to Death.
(b) NOTICE OF TERMINATION. Communication of termination of the Employment
Period shall be made to the other party by Notice of Termination (as
defined in this Section 7) in the case of (i) a Termination For Cause,
(ii) a Termination Without Cause, (iii) a Termination For Good Reason, or
(iv) a Voluntary Termination.
(c) BENEFITS PAYABLE UPON TERMINATION; RULES FOR DETERMINING REASON FOR
TERMINATION.
(i) BENEFITS PAYABLE UPON TERMINATION. Following the end of the
Employment Period, Executive (or in the event of the Executive's
death, his or her surviving spouse, if any, or if none, his or her
estate) shall be paid the type or types of compensation determined
to be payable in accordance with the following table, such payment
to be made in the form specified in such table and at the time
established pursuant to Section 8 hereof. Capitalized terms used in
such table shall have the meanings set forth in Section 7(d) hereof.
9
10
(ii) RULES FOR DETERMINING REASON FOR TERMINATION.
(A) No Termination Without Cause or Termination For Good
Reason shall be treated as a Termination Due to Retirement or
a Termination Due to Disability for purposes of any Pro Rata
Target Bonus, Severance Payment, Equity Awards or Vested
Benefits Enhancement, notwithstanding the fact that, either
on, before or after the Date of Termination with respect
thereto, (I) Executive was eligible for Retirement as defined
in The Hartford Investment and Savings Plan, as may be amended
from time to time, or any successor plan thereof (the "Savings
Plan"), (II) Executive requested to be treated as a retiree
for purposes of the Savings Plan or any other plan or program
of the Company or its affiliates, or (III) Executive or the
Company could have terminated Executive's employment in a
Termination Due to Disability hereunder.
(B) No Termination Due to Retirement shall be treated as a
Voluntary Termination.
10
11
BENEFITS PAYABLE
Accrued Pro Rata Severance Equity Awards Vested Benefits Vested Welfare
BENEFIT Salary Target Bonus Payment Benefits Benefits
Enhancement Continuation
==============================================================================================================
FORM OF Lump Lump Sum Lump Determined Under Determined Lump Sum Determined
PAYMENT Sum Sum the Applicable Under the Under the
Plan Applicable Plan Applicable
Plan
==============================================================================================================
Termination Payable Not Payable Not Determined Determined Not Payable Not
For Cause Payable Under the Under the Available
Applicable Plan Applicable Plan
--------------------------------------------------------------------------------------------------------------
Termination Payable Payable Payable Determined Determined Payable Available
Without Under the Under the
Cause Applicable Plan Applicable Plan
--------------------------------------------------------------------------------------------------------------
Termination Payable Payable Payable Determined Determined Payable Available
For Good Under the Under the
Reason Applicable Plan Applicable Plan
--------------------------------------------------------------------------------------------------------------
Voluntary Payable Not Payable Not Determined Determined Not Payable Not
Termination Payable Under the Under the Available
Applicable Plan Applicable Plan
--------------------------------------------------------------------------------------------------------------
Termination Payable Determined Not Determined Determined Not Payable Available
Due to Under the Payable Under the Under the
Retirement Applicable Applicable Plan Applicable Plan
Plan
--------------------------------------------------------------------------------------------------------------
Termination Payable Payable Not Determined Determined Not Payable Available
Due to Payable Under the Under the
Disability Applicable Plan Applicable Plan
--------------------------------------------------------------------------------------------------------------
Termination Payable Payable Not Determined Determined Not Payable Not
Due to Payable Under the Under the Available
Death Applicable Plan Applicable Plan
--------------------------------------------------------------------------------------------------------------
11
12
(d) DEFINITIONS. For purposes of this Agreement, the following capitalized terms
used herein shall have the following meanings:
"ACCRUED SALARY" means Base Salary earned, but unpaid, for services
rendered to the Company on or prior to the Date of Termination (other than
Base Salary deferred pursuant to Executive's election, as contemplated by
Section 5(b) hereof), plus any vacation pay accrued by Executive as of
such date.
"AVAILABLE" means that a particular benefit shall be made available to
Executive to the extent specifically provided herein or required by
applicable law.
"DATE OF TERMINATION" means (i) in the case of a termination for which a
Notice of Termination is required, the date of receipt of such Notice of
Termination or, if later, the date specified therein, as the case may be,
or (ii) in all other cases, the actual date on which Executive's
employment terminates during the Employment Period.
"DETERMINED UNDER THE APPLICABLE PLAN" means that the determination of
whether a particular benefit shall or shall not be paid to Executive, and,
where specifically provided by this Agreement, the timing or form of any
benefit payment, shall be made solely by application of the terms of the
plan or program providing such benefit, except to the extent that the
terms of such plan or program are expressly superseded or modified by this
Agreement.
"EQUITY AWARDS" means the outstanding stock option, restricted stock,
performance share and other equity or long-term incentive compensation
awards, if any, held by Executive as of the Date of Termination.
"ERPs" means any excess retirement plans maintained or as hereafter
amended or established by the Company or its applicable affiliates.
"ESPS" means any excess investment and savings plans maintained or as
hereafter amended or established by the Company or its applicable
affiliates.
"LUMP SUM" means a single lump sum cash payment.
"NOT AVAILABLE" means that the particular benefit shall not be made
available to Executive, except to the extent required by applicable law.
12
13
"NOT PAYABLE" means that the particular benefit shall not be paid or
otherwise provided to Executive.
"NOTICE OF TERMINATION" means (i) in the case of a Termination For Cause,
a written notice given by the Company to Executive, within 30 calendar
days of the Company's having actual knowledge of the events giving rise to
such Termination For Cause, (ii) in the case of a Termination Without
Cause, a written notice given by the Company to Executive at least 30
calendar days before the effective date of such Termination Without Cause,
(iii) in the case of a Termination For Good Reason, a written notice given
by Executive to the Company within 180 days of Executive's having actual
knowledge of the events giving rise to such Termination For Good Reason,
and which (A) indicates the specific termination provision in this
Agreement relied upon, (B) sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated, and (C) if the
applicable Date of Termination is other than the date of receipt of such
notice, specifies such Date of Termination (which date shall be not more
than 15 days after the giving of such notice), provided that the failure
by Executive to set forth in such Notice of Termination any fact or
circumstance that contributes to a showing of Good Reason shall not waive
any right of Executive hereunder or preclude Executive from asserting such
fact or circumstance in enforcing his or her rights hereunder, and (iv) in
the case of a Voluntary Termination, a written notice given by Executive
to the Company at least 30 calendar days before the Date of Termination
specified therein.
"PAYABLE" means that a particular benefit shall be paid to Executive in
the amount, at the time, and in the form specified herein.
"PRO-RATA TARGET BONUS" means an amount equal to the product of: (i)
Executive's Target Bonus under Section 5(b) for the calendar year in which
the Date of Termination occurs, multiplied by (ii) a fraction (the
"Service Fraction"), the numerator of which is equal to the number of
rounded months in such calendar year which have elapsed as of such Date of
Termination, and the denominator of which is 12; provided that, if the
Date of Termination occurs in the last quarter of any calendar year,
Pro-Rata Target Bonus shall mean the amount determined under the above
formula or, if greater, the product of: (A) the bonus that would have been
paid to Executive based on actual performance for such calendar year, and
(B) the Service Fraction.
13
14
"SEVERANCE PAYMENT" means a cash amount equal to two times the sum of: (i)
Executive's Base Salary at the rate in effect as of the Date of
Termination, and (ii) Executive's Target Bonus amount under Section 5(b)
hereof for the calendar year in which the Date of Termination occurs.
"TERMINATION DUE TO DEATH" means a termination of Executive's employment
due to the death of Executive.
"TERMINATION DUE TO DISABILITY" means: (i) a termination of Executive's
employment by the Company as a result of a determination by the Board, the
appropriate committee thereof or the Chairman that Executive has been
incapable of substantially fulfilling the positions, duties,
responsibilities and obligations set forth in this Agreement on account of
physical, mental or emotional incapacity resulting from injury, sickness
or disease for a period of (A) at least four consecutive months, or (B)
more than six months in any twelve month period, or (ii) Executive's
termination of employment on account of Disability as defined in the
Savings Plan.
"TERMINATION DUE TO RETIREMENT" means Executive's termination of
employment on account of Executive's Retirement as defined in the Savings
Plan.
"TERMINATION FOR CAUSE" means the Company's termination of Executive's
employment due to (i) Executive's conviction of a felony; (ii) an act or
acts of extreme dishonesty or gross misconduct on Executive's part which
result or are intended to result in material damage to the Company's
business or reputation; or (iii) repeated material violations by Executive
of his or her obligations under Section 4 of this Agreement, which
violations are demonstrably willful and deliberate on the Executive's part
and which result in material damage to the Company's business or
reputation.
"TERMINATION FOR GOOD REASON" means the occurrence of any of the following
after the occurrence of a Potential Change of Control or a Change of
Control:
(i) (A) the assignment to Executive of any duties inconsistent in
any material adverse respect with Executive's position, duties,
authority or responsibilities as contemplated by Section 4 of this
Agreement, or (B) any other material adverse change in such
position, including titles, duties, authority or responsibilities;
14
15
(ii) any failure by the Company to comply with any of the provisions
of Sections 5 and 6 of this Agreement at a level of least equal to
that in effect immediately preceding such Change of Control or
Potential Change of Control, other than an insubstantial or
inadvertent failure remedied by the Company promptly after receipt
of notice thereof given by Executive;
(iii) the Company's requiring Executive to be based at any office or
location more than 25 miles from the location at which Executive
performed the services specified under Section 4 hereof immediately
prior to such Change of Control or Potential Change of Control,
except for travel reasonably required in the performance of
Executive's responsibilities;
(iv) any failure by the Company to obtain the assumption and
agreement to perform this Agreement by a successor as contemplated
by Section 11(d); or
(v) any attempt by the Company to terminate Executive's employment
in a Termination For Cause that is determined in a proceeding
pursuant to Section 10 or Section 11 hereof not to constitute a
Termination For Cause.
Notwithstanding the foregoing, a termination of Executive's employment
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) if Executive shall
have delivered a Notice of Termination to the Company, and the facts and
circumstances specified therein as providing a basis for such Termination
For Good Reason are cured by the Company within 10 days of its receipt of
such Notice of Termination.
"TERMINATION WITHOUT CAUSE" means any involuntary termination of
Executive's employment by the Company, other than a Termination For Cause,
a Termination Due to Disability by the Company or a Termination Due to
Death.
"VESTED BENEFITS" means amounts that are vested or that Executive is
otherwise entitled to receive, without the performance by Executive of
further services or the resolution of a contingency, under the terms of or
in accordance with any investment and savings plan or retirement plan
(including any plan providing retiree medical benefits) of the Company or
its affiliates,
15
16
and any ERPs or ESPs related thereto, and any deferred compensation or
employee stock purchase plan or similar plan or program of the Company or
its affiliates.
"VESTED BENEFITS ENHANCEMENT" means (i) a cash amount equal to the present
value, calculated using a discount rate equal to the then prevailing
applicable Federal rate as determined under Section 1274(d) of the
Internal Revenue Code of 1986, as amended (the "Code"), of the additional
retirement benefits that would have been payable or available to Executive
under any ERPs, based on (A) the age and service Executive would have
attained or completed had Executive continued in the Company's employ
until the second anniversary of the Date of Termination, and (B) where
compensation is a relevant factor, Executive's pensionable compensation as
of such Date of Termination, such compensation to include, on the same
terms as apply to other executives, any Severance Payment made to
Executive, and (ii) solely for purposes of vesting in any benefits under
any ESPs, Executive shall be treated as having continued in the Company's
employ until the second anniversary of such Date of Termination.
"VOLUNTARY TERMINATION" means any voluntary termination of Executive's
employment by Executive, other than a Termination For Good Reason, a
Termination Due to Retirement, or a Termination Due to Disability by
Executive.
"WELFARE BENEFITS CONTINUATION" means that until the second anniversary of
the Date of Termination, Executive and, if applicable, his or her
dependents, shall be entitled to continue participation in the life and
health insurance benefit plans of the Company or its affiliates in which
Executive and/or such dependents were participating as of the Date of
Termination, and such other welfare benefit plans thereof in which the
Company is required by law to permit the participation of Executive and/or
his dependents, (collectively, the "Welfare Benefit Plans"). Such
participation shall be on the same terms and conditions (including the
requirement that Executive pay any premiums generally paid by an employee)
as would apply if Executive were still in the employ of the Company;
provided that the continued participation of Executive and/or the
dependents of Executive in such Welfare Benefit Plans shall cease on such
earlier date as Executive may become eligible for comparable welfare
benefits provided by a subsequent employer. To the extent that Welfare
Benefits Continuation 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.
16
17
(d) OUT-PLACEMENT SERVICES. If the Employment Period terminates because of a
Termination Without Cause or a Termination For Good Reason, Executive shall be
entitled to out-placement services, provided by the Company or its designee at
the Company's expense, for 12 months following the Date of Termination, or such
lesser period as the Executive may require such services.
(e) CERTAIN FURTHER PAYMENTS BY COMPANY.
(i) TAX REIMBURSEMENT PAYMENT. 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 affiliate (collectively, the "Covered
Payments"), are or become subject to the tax (the "Excise Tax") imposed
under Section 4999 of the Code, or any similar tax that may hereafter be
imposed, the Company shall pay to Executive at the time specified in this
Section 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 tax and other tax on the Tax
Reimbursement Payment provided for by this Section, 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) APPLICABLE RULES. 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 shall be treated as "parachute payments"
within the meaning of Section 280G of the Code, and all "parachute
payments" in excess of the "base amount" (as defined under Section
280G(b)(3) of the Code) shall be treated as subject to the Excise
Tax, unless, and except to the extent that, in the good faith
judgment of the Company's independent certified public accountants
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
17
18
(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) ADDITIONAL RULES. 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 and other 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 incomes taxes which could be obtained from the
deduction of such state or local taxes if paid in such year.
(iv) REPAYMENT OR ADDITIONAL PAYMENT IN CERTAIN CIRCUMSTANCES.
(A) REPAYMENT. 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 lesser 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 repaid 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 Executive
by the applicable tax authority, 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. 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.
(B) ADDITIONAL TAX REIMBURSEMENT PAYMENT. 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
18
19
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) TIMING FOR TAX REIMBURSEMENT PAYMENT. The Tax Reimbursement Payment
(or portion thereof) provided for in this Section 7 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).
8. TIMING OF PAYMENTS.
Accrued Salary, Severance Payments and Vested Benefits Enhancements shall be
paid no later than 10 days following the Date of Termination. Pro-Rata Target
Bonus shall be paid no later than the same time as similar awards are paid to
other executives participating in the plans or programs under which the awards
are paid. Vested Benefits and Equity Awards shall be paid no later than the time
for payment Determined Under the Applicable Plan except as otherwise expressly
superseded or modified by this Agreement. Tax Reimbursement Payments shall be
paid at the time specified in Section 7 hereof.
19
20
9. FULL DISCHARGE OF COMPANY OBLIGATIONS.
Except as expressly provided in the last sentence of this Section 9, the amounts
payable to Executive pursuant to Section 7 following the Date of Termination
(including amounts payable with respect to Vested Benefits) shall be in full and
complete satisfaction of Executive's rights under this Agreement and any other
claims that Executive may have in respect of employment by the Company or any of
its affiliates. Such amounts shall constitute liquidated damages with respect to
any and all such rights and claims and, upon Executive's receipt of such
amounts, the Company shall be released and discharged from any and all liability
to Executive in connection with this Agreement or otherwise in connection with
Executive's employment with the Company and its affiliates. Nothing in this
Section 9 shall be construed to release the Company from its obligation to
indemnify Executive as provided in Section 6(e) hereof.
10. NONCOMPETITION, CONFIDENTIALITY AND OTHER COVENANTS. By and in
consideration of the compensation and benefits to be provided by the Company
hereunder, including the severance arrangements set forth herein, Executive
agrees to the following:
(a) NONCOMPETITION. During the Employment Period, Executive shall not
become associated with any entity, whether as a principal, partner,
employee, agent, consultant, shareholder (other than as a holder, or a
member of a group which is a holder, of not in excess of 1% of the
outstanding voting shares of any publicly traded company) or in any other
relationship or capacity, paid or unpaid, that is actively engaged in any
geographic area in any business which is in competition with the business
of the Company.
(b) CONFIDENTIALITY. Without the prior written consent of the Company,
except to the extent required by an order of a court having competent
jurisdiction or under subpoena from an appropriate government agency,
Executive shall not disclose to any third person, or permit the use of for
the benefit of any person or any entity other than The Company or its
affiliates, any trade secrets, customer lists, information regarding
product development, marketing plans, sales plans, management organization
information (including data and other information relating to members of
the Board and management), operating policies or manuals, business plans,
financial records, or other financial, organizational, commercial,
business, sales, marketing, technical, product or employee information
relating to the Company or its affiliates or information designated as
confidential, proprietary, and/or a trade secret, or any other information
relating to the Company or its affiliates that Executive knows from the
circumstances, in
20
21
good faith and good conscience, should be treated as confidential, or any
information that the Company or its affiliates may receive belonging to
customers, agents or others who do business with the Company or its
affiliates, except to the extent that any such information previously has
been disclosed to the public by the Company or is in the public domain
(other than by reason of Executive's violation of this Section 10(b)).
(c) NON-SOLICITATION OF EMPLOYEES. During the Employment Period, Executive
shall not directly or indirectly solicit, encourage or induce any employee
of the Company or its affiliates to terminate employment with such entity,
and shall not directly or indirectly, either individually or as owner,
agent, employee, consultant or otherwise, employ or offer employment to
any person who is or was employed by the Company or an affiliate thereof
unless such person shall have ceased to be employed by such entity for a
period of at least six months.
(d) COMPANY PROPERTY. Except as expressly provided herein, promptly
following any termination of the Employment Period, Executive shall return
to the Company all property of the Company, and all copies thereof in
Executive's possession or under his control.
(e) INJUNCTIVE RELIEF AND OTHER REMEDIES WITH RESPECT TO COVENANTS.
Executive acknowledges and agrees that the covenants and obligations of
Executive with respect to noncompetition, confidentiality,
nonsolicitation, and Company property 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 the Company shall be entitled to an injunction, restraining
order or such other equitable relief (without the requirement to post
bond) restraining Executive from committing any violation of the covenants
and obligations contained in this Section 10. These remedies are
cumulative and are in addition to any other rights and remedies the
Company may have at law or in equity.
11. MISCELLANEOUS.
(a) SURVIVAL. All of the provisions of Sections 7 (relating to termination
of the Employment Period following a Change of Control or a Potential
Change of Control), 10 (relating to noncompetition, confidentiality,
nonsolicitation and
21
22
Company property), 11(b) (relating to arbitration), 11(c) (relating to
legal fees) and 11(n) (relating to governing law) of this Agreement shall
survive the termination of this Agreement.
(b) ARBITRATION. Except as provided in Section 10, any dispute or
controversy arising under or in connection with this Agreement shall be
resolved by binding arbitration. Such arbitration shall be held in the
city of Hartford, Connecticut and except to the extent inconsistent with
this Agreement, shall be conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association in effect at the
time of the arbitration, and otherwise in accordance with the principles
that would be applied by a court of law or equity. The arbitrator shall be
acceptable to both the Company and Executive. If the parties cannot agree
on an acceptable arbitrator, the dispute or controversy shall be heard by
a panel of three arbitrators; one appointed by each of the parties and the
third appointed by the other two arbitrators. The Company and Executive
further agree that they will abide by and perform any award or awards
rendered by the arbitrators and that a judgment may be entered on any
award or awards rendered by any state or federal court having jurisdiction
over the Company or Executive or any of their respective property.
(c) LEGAL FEES AND EXPENSES. In any contest (whether initiated by
Executive or by the Company) as to the validity, enforceability or
interpretation of any provision of this Agreement, the Company shall pay
Executive's legal expenses (or cause such expenses to be paid) including,
without limitation, Executive's reasonable attorney's fees, on a quarterly
basis, upon presentation of proof of such expenses in a form acceptable to
the Company, provided that Executive shall reimburse the Company for such
amounts, plus simple interest thereon at the 90-day United States Treasury
Xxxx rate as in effect from time to time, compounded annually, if
Executive shall not prevail, in whole or in part, as to any material issue
as to the validity, enforceability or interpretation of any provision of
this Agreement.
(d) SUCCESSORS; BINDING EFFECT. This Agreement shall inure to the benefit
of and be binding upon the Company and its successors. The Company shall
require any successor to all or substantially all of the business and/or
assets of the Company, whether direct or indirect, by purchase, merger,
consolidation, acquisition of stock, or otherwise, by an agreement in form
and substance satisfactory to Executive, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent as the
Company would be required to perform the Agreement if no such succession
had taken place. This
22
23
Agreement is personal to the Executive and, without the prior written
consent of the Company, shall not be assignable by Executive otherwise
than by will or the law of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by Executive's legal
representatives.
(e) ASSIGNMENT. Except as provided in Section 11(d), 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.
(f) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the matters referred to herein.
This Agreement supersedes and replaces any prior or subsequent severance
plan or arrangement that otherwise would apply to Executive following a
Change of Control or a Potential Change of Control. No other agreement
relating to the terms of Executive's employment by the Company, oral or
otherwise, shall be binding between the parties unless it is in writing
and signed by the party against whom enforcement is sought. There are no
promises, representations, inducements or statements between the parties
other than those that are expressly contained herein. Executive
acknowledges that he or she is entering into this Agreement of his or her
own free will and accord, and with no duress, and that he or she has read
this Agreement and that he or she understands it and its legal
consequences.
(g) SEVERABILITY; REFORMATION. In the event that one or more of the
provisions of this Agreement shall become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein shall not be affected thereby.
In the event of a determination that any of the provisions of Section
10(a), Section 10(b) or Section 10(c) are not enforce able in accordance
with their terms, Executive and the Company agree that such Sections shall
be reformed to make such Sections enforceable in a manner that provides
the Company the maximum rights permitted at law.
(h) WAIVER. Waiver by any party hereto of any breach or default by the
other party of any of the terms of this Agreement shall not operate as a
waiver of any other breach or default, whether similar to or different
from the breach or default waived. No waiver of any provision of this
Agreement shall be implied from any course of dealing between the parties
hereto or from any failure by either party hereto to assert its or his or
her rights hereunder on any occasion or series of occasions.
23
24
(i) 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):
If to the Company: Hartford Life, Inc.
Law Department
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
And: The Hartford Financial Services Group, Inc.
Law Department, XX-0-00
Xxxxxxxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Secretary
With a copy to: Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx, Esq.
If to Executive: The home address of Executive
shown on the records of the Company
(j) AMENDMENTS. This Agreement may not be altered, modified or amended
except by a written instrument signed by each of the parties hereto.
(k) HEADINGS. Except as expressly provided herein, headings to provisions
of 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.
(l) 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.
24
25
(m) 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.
(n) 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 his or
her hand, as of the day and year first above written.
HARTFORD LIFE, INC.
WITNESSED:
------------------------------------
By: Xxxxxx Xxxx
Title: Chairman
----------------------------
EXECUTIVE
WITNESSED:
-------------------------
Name:
----------------------------
25
