AMENDED AND RESTATED EMPLOYMENT AGREEMENT
BETWEEN
XXXXXXX X. XXXXX,
AXA FINANCIAL, INC. AND
AXA EQUITABLE LIFE INSURANCE COMPANY
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is
entered into as of the 27th day of September 2004 (the "Effective Date"),
between AXA Financial, Inc. ("AXA Financial") and AXA Equitable Life Insurance
Company ("AXA Equitable"), on the one hand (collectively, the "Company"), and
Xxxxxxx X. Xxxxx, on the other (the "Executive").
WHEREAS, the Executive is currently employed as Vice Chairman of the Board
and Chief Financial Officer of the Company;
WHEREAS, the Company desires to continue to employ the Executive in such
capacity, and the Executive is willing to continue to be employed in such
capacity, on the terms and conditions set forth in this Agreement;
WHEREAS, the Company considers the services of the Executive to be unique
and essential to the success of the Company's business;
WHEREAS, the Company and the Executive have entered into an employment
agreement dated as of July 5, 2001 (the "July 5, 2001 Agreement") and that in
return for the compensation and benefits to be provided to the Executive under
this Agreement, the Executive is willing to relinquish any and all rights the
Executive may now or hereafter have against the Company or any of its affiliates
under the July 5, 2001 Agreement;
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NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants, terms and conditions set forth herein, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is hereby agreed between the Company and the Executive as follows:
1. PRIOR AGREEMENT SUPERSEDED. This Agreement shall supersede the July 5,
2001 Agreement in its entirety. In consideration of the promises set forth
below, and of the mutual releases set forth in this paragraph, each party hereto
relinquishes all rights, and releases the other party and any of their
affiliates from all promises, liabilities and obligations that may have existed
under the July 5, 2001 Agreement and any such rights, promises, liabilities and
obligations shall be null and void and of no further effect.
2. EMPLOYMENT. During the Employment Term (as defined below):
(a) The Executive agrees to serve as the Vice Chairman of the Board and
Chief Financial Officer of AXA Financial reporting directly to the
Chief Executive Officer of AXA Financial.
(b) The Executive shall also serve as the Vice Chairman of the Board and
Chief Financial Officer of the AXA Equitable reporting directly to
the Chairman of the Board and Chief Executive Officer of AXA
Equitable.
(c) The Executive shall also serve as a Director on the Board of
Directors of the AXA Equitable, and as a member of the AXA Group
Executive Committee or a comparable successor committee.
(d) The Executive shall also serve as a Director on the Board of
Directors of Alliance Capital Management Corporation provided that
the Company continues to control a majority of the common stock of
the general partner
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of Alliance Capital Management L.P.
3. EMPLOYMENT TERM. The term of the Executive's employment under this
Agreement shall commence on September 27, 2004 (the "Employment Date") and shall
continue until terminated by either party on 30 days' written notice or until
the close of the last day of the calendar month in which the Executive attains
age 65, whichever comes first (the "Employment Term").
4. DUTIES. During the Employment Term, and except for illness or incapacity
and reasonable vacation periods consistent with Company policies for other
senior officers, the Executive shall devote all of his business time, attention,
skill and efforts exclusively to the business and affairs of the Company and its
parent and subsidiaries, shall not be engaged in any other business activity,
and shall perform and discharge well and faithfully the duties of the offices of
the Company held by him, and such other duties and positions as may be assigned
to him from time to time by the AXA Financial Board of Directors, the AXA
Equitable Board of Directors or by the Chief Executive Officer of the Company
not inconsistent with the positions specified in Section 2 of this Agreement;
provided, however, that nothing in this Agreement shall preclude the Executive
from devoting time during reasonable periods required for:
(i) serving, in accordance with and after obtaining the approvals
required by Company policies and the approval of the Chief
Executive Officer of the AXA Group, as a director of any
company or organization involving no actual or potential
conflict of interest with the Company or any of its
affiliates;
(ii) delivering lectures and fulfilling speaking engagements; and
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(iii) engaging in charitable, community and other personal
activities in accordance with Company policies;
provided, however, that such activities do not materially affect or
interfere with the performance of the Executive's duties and obligations
to the Company or any of its affiliates.
5. PLACE OF PERFORMANCE. The principal place of employment of the Executive
shall be in New York City, New York, USA, but the Executive understands
that his duties under this Agreement will entail significant domestic and
international travel.
6. COMPENSATION. The Executive shall be compensated for services rendered
during the Employment Term as follows:
(a) Base Salary. The Executive shall be compensated at an annual base
salary of no less than Seven Hundred Fifty Thousand ($750,000)
Dollars (the base salary, at the rate in effect from time to time, is
hereinafter referred to as the "Base Salary"). The Organization and
Compensation Committee (the "O&C Committee") of the Company's Board
of Directors shall no less than annually review and may, if
appropriate, in its sole discretion, increase this annual Base Salary
during the Employment Term. The first such review shall be in
February 2005, and the effective date of any increase shall be
consistent with the practice of the Company for other senior
officers.
(b) Annual Bonus. In addition to the Base Salary provided for in Section
6(a) above, the Company may provide annual bonus awards to the
Executive under a short-term incentive compensation plan for senior
officers (the "Short Term Plan") in accordance with the terms of the
Short Term Plan
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and any performance measures established thereunder. During the
Employment Term, the Executive's annual target incentive opportunity
under the Short Term Plan will be no less than 400 percent of his
Base Salary.
(c) Target Long-Term Incentive. The Executive will participate in the AXA
Financial, Inc. 1997 Stock Incentive Plan or any successor plan (the
"Stock Plan"). The annual target present value of grants to the
Executive under the Stock Plan and any other long-term incentive
compensation plans of the Company or any of its affiliates will be in
the aggregate no less than the value of options to acquire 771,932.5
AXA Group ADRs with an exercise price equal to the closing price for
an AXA Group ADR as reported on the composite transaction tape of the
New York Stock Exchange (as reported in the Wall Street Journal or,
if not reported thereby, any other authoritative source chosen by the
O&C Committee) (the "Fair Market Value") on the Employment Date, as
adjusted for the Fair Market Value on the date of grant. Except as
provided in this Section 6(c), the actual grant of options to
purchase AXA Group ADRs or of other stock compensation, and the terms
of such options or other compensation, will be at the sole discretion
of the O&C Committee of the AXA Financial Board of Directors or a
successor committee, subject to the provisions of the relevant stock
incentive and other long-term compensation plans and consistent with
the treatment of options and other compensation granted to other
senior officers. The valuation of options and other compensation
granted to the
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Executive as long-term incentive compensation will be at the sole
discretion of the O&C Committee consistent with the treatment of
options and other compensation granted to other senior officers.
7. EMPLOYEE BENEFITS.
(a) General Provisions. Except as expressly provided in this Agreement,
the Executive shall continue the eligibility he has had to
participate in all employee benefit, welfare, pension, deferred
compensation and stock plans offered by the Company (collectively
referred to as the "Benefit Plans") on a basis which is no less
favorable to the Executive than that made available to other senior
officers of the Company.
(b) Vacation and Sick Leave. The Executive shall be entitled to vacation
and sick leave in accordance with the vacation and sick leave
policies adopted by the Company from time to time for senior
officers.
(c) Business Travel and Expenses. The Executive shall be reimbursed by
the Company for reasonable business expenses, as approved by the
Company, which are incurred and accounted for in accordance with the
Company's normal practices and procedures for reimbursement of
expenses.
(d) Executive Car and Driver. In order to ensure the accessibility and
safety of the Executive during the Employment Term, the Company will
provide the Executive with a car and driver for business and personal
purposes.
(e) Air Travel. The Executive may travel for business purposes by means
of private aircraft at the Company's expense with such aircraft to be
provided by the Company by any commercially reasonable method as long
as such
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methods are available to the Company and subject to reasonable
limitations which may be imposed from time to time by the Chief
Executive Officer of the Company.
1. Financial Counseling. The Executive will be entitled to reimbursement
by the Company of fees and disbursements incurred by him for personal
financial counseling services provided by a person or company
selected by him up to an aggregate annual amount of $15,000.
(f) The Company will provide to the Executive the same benefits as the
Company provides to other senior officers with respect to:
(i) Parking
(ii) Executive Health Examination
(iii) Life insurance under the Executive Survivor Benefits Plans of
AXA Equitable.
8. TERMINATION OF EMPLOYMENT. For purposes of determining entitlements
pursuant to this Agreement the following definitions shall apply:
(a) Termination by the Company for Cause. Termination for cause shall
mean termination because of (i) the willful failure by the Executive
to perform substantially his duties as an employee of the Company or
any of its affiliates after reasonable notice to the Executive of
such failure; (ii) the Executive's willful misconduct that is
materially injurious to the Company or any of its affiliates; (iii)
the Executive's having been convicted of, or entered a plea of nolo
contendere to, a crime that constitutes a felony (other than a felony
involving "limited vicarious liability" as defined in this
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Section 8(a)); or (iv) the willful breach by the Executive of any
written covenant or agreement with the Company or any of its
affiliates not to disclose any information pertaining to the Company
or any of its affiliates or not to compete or interfere with the
Company or any of its affiliates. For purposes of this Section 8(a),
"limited vicarious liability" shall mean any liability which is (i)
based on acts of the Company for which the Executive is responsible
solely as a result of his office(s) with the Company and (ii)
provided that (x) he was not directly involved in such acts and
either had no prior knowledge of such intended actions or promptly
acted reasonably and in good faith to attempt to prevent the acts
causing such liability or (y) he did not have a reasonable basis to
believe that a law was being violated by such acts. No act or failure
to act will be considered "willful" for purposes of this Section 8(a)
unless it is done, or omitted to be done, by the Executive in bad
faith and without reasonable belief that this action or omission was
in the best interests of the Company.
(b) Termination by the Company for Excessive Absenteeism. Termination by
the Company for excessive absenteeism shall mean termination because
the Executive shall have been absent from his duties with the Company
on a full-time basis for one hundred twenty (120) days within any six
months period.
(c) Death. If the Executive's employment terminates by reason of death,
the date of his death shall be the date of termination for purposes
of this Agreement.
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(d) Termination by the Executive for Good Reason. Termination for good
reason shall mean:
(i) termination of employment by the Executive after having
Delivered to the Company a notice of termination within thirty
(30) days after the occurrence of one or more of the following
circumstances, without the Executive's express written consent,
which are not remedied by the Company within thirty (30) days
of its receipt of the Executive's notice of termination:
(A) an assignment to the Executive of any duties materially
inconsistent with his position, duties, responsibilities,
and status with the Company, or any material limitation
of the powers of the Executive not consistent with the
powers of the Executive contemplated by Sections 2 and 3
hereof;
(B) any removal of the Executive from the positions specified
in Section 2of this Agreement;
(C) a diminution of the Executive's titles as specified in
Section 2 of this Agreement;
(D) the Company's requiring the Executive to be based at any
office or location more than 75 miles commuting distance
from the location referred to in Section 5 of this
Agreement;
(E) a reduction in the Executive's Base Salary or annual
bonus target incentive opportunity as in effect from time
to time;
(F) any failure by the Company to comply with any of the
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provisions of Section 6 of this Agreement;
(G) a failure of the Company to secure a written assumption
by any successor company as provided for in Section 12(g)
hereof;
(H) AXA Financial's requiring the Executive to report to a
person other than the Chief Executive Officer of AXA
Financial; or
(I) AXA Equitable's requiring the Executive to report to a
person other than an executive officer of AXA Equitable
who is also the Chief Executive Officer of AXA Financial;
and
(ii) termination of employment by the Executive in the event of a
"change in control"(as hereinafter defined) of the Company
upon 30 days' written notice, with the effective date of such
termination to occur during the 30-day period immediately
following the first anniversary of the date of such "change in
control." For purposes of this Section 8(d)(ii), "change of
control" shall mean any of the following events:
(A) Any "person" (as defined in Section 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), excluding for this purpose, (i) AXA (a
French corporation (societe anonyme)), any affiliate of
AXA, the Company or any subsidiary of the Company, or
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(ii) any employee benefit plan of AXA, any affiliate of
AXA, the Company or any subsidiary of the Company, is or
becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly of
securities of the Company representing more than 50% of
the combined voting power of the Company's then
outstanding voting securities entitled to vote generally
in the election of directors; provided, however, that no
Change in Control will be deemed to have occurred as a
result of a change in ownership percentage resulting
solely from an acquisition of securities by AXA, any
affiliate of AXA, the Company or any subsidiary of the
Company;
(B) AXA and its affiliates cease to control the election of a
majority of the Board of Directors of the Company; or
(C) approval by the stockholders of the Company of a
reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of
the Company (a "Business Combination"), in each case,
unless, following such Business Combination, AXA and its
affiliates own, directly or indirectly, more than 50% of
the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of
directors of the company resulting from such Business
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Combination (including, without limitation, a company
which, as a result of such transaction, owns the Company
or all or substantially all of the Company's assets
either directly or through one or more subsidiaries);
provided that in no event shall the Executive be entitled
to terminate his employment for good reason under this
Section 8(d) based on a change in the Executive's
position as a Director on the Board of Directors of
Alliance Capital Management Corporation if such change
occurs after the Company ceases to control a majority of
the common stock of the general partner of Alliance
Capital Management L.P.
(e) Age 65 Expiration of Agreement. Age 65 expiration of this
Agreement shall mean termination of employment as of the
close of the last day of the calendar month in which the
Executive attains age 65.
9. COMPENSATION UPON TERMINATION.
(a) Absence From Work. If the Executive's employment hereunder is
terminated by the Company for excessive absenteeism as defined
in Section 8(b), then the Company shall pay the Executive, as
soon as practicable after the date of termination (i) any Base
Salary and any reimbursable expenses accrued or owing the
Executive hereunder as of the date of termination and (ii) any
earned and unpaid bonus relating to service performed by the
Executive prior to termination for excessive absenteeism.
(b) Termination for Cause or by the Executive other than for Good
Reason. If
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the Executive's employment hereunder is terminated by the
Company for Cause as defined in Section 8(a) or by the
Executive (other than for Good Reason as defined in Section
8(d)), then (i) the Company shall pay the Executive, as soon
as practicable after the date of termination, any Base Salary
and any reimbursable expenses accrued or owing the Executive
hereunder as of the date of termination; (ii) the Executive
shall immediately forfeit any unvested stock options; and
(iii) the Executive shall not be entitled to any other
benefits under any Company plan or policy except as required
by statute or the express provisions of this Agreement.
(c) Severance Benefits. In the event the Executive's employment
hereunder is terminated:
(i) by the Company other than for reasons defined in Section
8(a), 8(b), 8(c) or 8(e) the Executive shall be entitled
to continuation of Base Salary and participation in the
Benefit Plans for two years (subject to the provisions of
Section 9(e) of this Agreement) from the date of
termination and the payment of an amount equal to an
annual bonus at target for the year in which the
termination occurred, prorated to the date of
termination, and additional payments equal to two annual
bonuses at target for the year in which termination
occurred (payable at such times as the Company in the
ordinary course would pay annual bonuses for the year in
which the termination occurred and for each of the two
years succeeding the year in which the termination
occurred), provided, however, that in
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the event the Executive provides services as described in
Section 10(a) of this Agreement prior to the end of the
second calendar year following the year in which any such
termination occurs, the Executive's entitlement to
continuation of Base Salary and participation in the
Benefit Plans (except as otherwise expressly provided in
this Agreement) shall cease on the date the provision of
such services commences, and the amount of the additional
payments to be made to the Executive shall be reduced and
shall be determined by (a) multiplying (x) the amount of
the additional payments by (y) a fraction whose numerator
is the number of days elapsed from the date of the
Executive's termination of employment to the date the
provision of such services commences and whose
denominator is the number of days from the date of the
Executive's termination of employment to the end of the
second calendar year following the year in which such
termination, occurs, and (b) then subtracting any amount
of such additional payments previously paid to the
Executive; or
(ii) by the Executive for reasons defined in Section 8(d), the
Executive shall be entitled to continuation of Base
Salary and participation in the Benefit Plans for one
year (subject to the provisions of Section 9(e) of this
Agreement) from the date of termination and the payment
of an amount equal to an annual bonus at target for the
year in which the termination occurred, prorated to the
date of
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termination, and an additional payment equal to one
annual bonus at target for the year in which termination
occurred (payable at such times as the Company in the
ordinary course would pay annual bonuses for the year in
which the termination occurred and for the year
succeeding the year in which the termination occurred),
provided, however, that in the event the Executive
provides services as described in Section 10(a) of this
Agreement prior to the end of the calendar year following
the year in which any such termination occurs, the
Executive's entitlement to continuation of Base Salary
and participation in the Benefit Plans (except as
otherwise expressly provided in this Agreement) shall
cease on the date the provision of such services
commences, and the amount of the additional payment to be
made to the Executive shall be reduced and shall be
determined by (a) multiplying (x) the amount of the
additional payment by (y) a fraction whose numerator is
the number of days elapsed from the date of the
Executive's termination of employment to the date the
provision of such services commences and whose
denominator is the number of days from the date of the
Executive's termination of employment to the end of the
calendar year following the year in which such
termination, occurs;
provided further that the Executive shall not be entitled to
the severance benefits described in the foregoing Sections
9(c)(i) and 9(c)(ii) unless the Executive executes a release
substantially in the form of Exhibit A to this
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Agreement; and provided also that the severance benefits
provided for herein shall be in lieu of any other severance
benefits under any Company plan or policy.
(d) Expiratiion of Agreement at Age 65/Retirement. If the
Executive's employment is terminated as a result of age 65
expiration of this Agreement as defined in section 8(e) or
retirement under any retirement plan maintained by the Company
then the retirement provisions of the Benefit Plans shall be
applicable to the Executive.
(e) Additional Benefits. In the event the Executive's employment
hereunder is terminated other than by the Company for reasons
defined in Section 8(a) or 8(c):
(i) such termination of the Executive's employment shall be
deemed to be a "retirement" for purposes of the Executive
Survivor Benefits Plans and the AXA Equitable Variable
Deferred Compensation Plan for Executives or any
respective successor plans thereto; and
(ii) the Executive shall be entitled to continued medical,
dental, vision, and life insurance coverage (excluding
accident, death, and disability insurance) for the
Executive and the Executive's eligible dependents or, to
the extent such coverage is not commercially available,
such other arrangements reasonably acceptable to the
Executive, on the same basis as in effect prior to such
termination of the Executive's employment for a period
ending on the earlier of (A) the third anniversary of the
date of such termination of the
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Executive's employment and (B) the commencement of
comparable coverage by the Executive with a subsequent
employer.
10. NON-SOLICITATION AND NON-COMPETITION.
(a) During his employment with the Company and for a period of six months
from the date of the Executive's termination of employment hereunder
for any reason, the Executive will not provide services, in any
capacity, whether as an employee, consultant, independent contractor,
owner, partner, shareholder, director, or otherwise, to any person or
entity that provides products or services that compete with any
present or planned business of the Company and any of its affiliates,
including but not limited to any other life insurance or financial
services company, provided that nothing herein shall prevent the
Executive from, after the termination of his employment, being a
passive owner of not more than 5% of the outstanding stock of any
class of securities of a corporation that is publicly traded and that
may acquire any corporation or business that competes with the
Company or any of its affiliates.
(b) For a period of one year following the termination of the Executive's
employment for any reason, or, if longer, during the period of his
continuation of Base Salary pursuant to Section 9(c) of this
Agreement (the "Continuation Period"), the Executive will not
directly or indirectly solicit the business of any customer or
prospective customer of the Company or any of its affiliates for any
purpose other than to obtain, maintain and/or service the customer's
business for the Company or any of its affiliates.
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(c) For a period of one year following the termination of the Executive's
employment for any reason, or, if longer, during the Continuation
Period, the Executive agrees not to, directly or indirectly, recruit,
solicit or hire any employees of the Company or any of its affiliates
to work for the Executive or any other person or entity.
(d) Exclusive Property. The Executive confirms that all confidential
information is and shall remain the exclusive property of the
Company. All business records, papers and documents kept or made by
the Executive relating to the business of the Company or any of its
affiliates shall be and remain the property of the Company. Upon the
termination of his employment with the Company or upon the request of
the Company at any time, the Executive shall promptly deliver to the
Company, and shall not without the consent of the Company's Boards of
Directors retain copies of, any written materials not previously made
available to the public or any records and documents made by the
Executive in his possession concerning the business or affairs of the
Company or any of its affiliates.
(e) Remedies. Without intending to limit the remedies available to the
Company, the Executive acknowledges that a breach of any of the
covenants contained in this Section 10 may result in material
irreparable injury to the Company or its affiliates for which there
is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of such a
breach or threat thereof, the Company shall be entitled to obtain a
temporary restraining order and/or a
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preliminary or permanent injunction restraining the Executive from
engaging in activities prohibited by this Section 10 or such other
relief as may be required to specifically enforce any of the
covenants in this Section 10.
11. CONFIDENTIALITY. During and after the Employment Term, and except as
otherwise required by law, the Executive shall not disclose or make
accessible to any business, person or entity, or make use of (other than
in the course of the business of the Company) any trade secrets,
proprietary knowledge or confidential information which the Executive
shall have obtained during his employment by the Company and which shall
not be generally known to or recognized by the general public. All
information regarding or relating to any aspect of the business of the
Company or any of its affiliates, including but not limited to that
relating to existing or contemplated business plans, activities or
procedures, current or prospective clients, current or prospective
contracts or other business arrangements, current or prospective products,
facilities and methods, manuals, intellectual property, price lists,
financial information (including the revenues, costs, or profits
associated with any of the products or services of the Company or any of
its affiliates), or any other information acquired because of the
Executive's employment by the Company, shall be conclusively presumed to
be confidential; provided, however, that confidential information shall
not include any information known generally to the public (other than as a
result of unauthorized disclosure by the Executive). The Executive's
obligations under this Section 11 shall be in addition to any other
confidentiality or nondisclosure obligations of the Executive to the
Company at law
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or under any other Company policy or agreements.
12. OTHER MATTERS.
(a) Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Executive relating to the subject matter
hereof and supersedes any prior agreement or understandings and,
except to the extent expressly provided herein or as required by law,
any provisions of any plan, program, policy or other document of the
Company pertaining to the subject matter hereof.
(b) Assignment. Except as set forth below, this Agreement and the rights
and obligations contained herein shall not be assignable or otherwise
transferable by either party to this Agreement without the prior
written consent of the other party to this Agreement. Notwithstanding
the foregoing, any amounts owing to the Executive upon his death
shall inure to the benefit of his heirs, legatees, personal
representatives, executor or administrator.
(c) Notices. Any and all notices provided for under this Agreement shall
be in writing and hand delivered or sent by first class registered or
certified mail, postage prepaid, return receipt requested, addressed
to the Executive at his residence or to the Company, attention
General Counsel, at its usual place of business, and all such notices
shall be deemed effective at the time of delivery or at the time
delivery is refused by the addressee upon presentation.
(d) Amendment/Waiver. No provision of this Agreement may be amended,
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waived, modified, extended or discharged unless such amendment,
waiver, extension or discharge is agreed to in writing signed by both
the Company and the Executive.
(e) Applicable Law. This Agreement and the rights and obligations of the
parties hereunder shall be construed, interpreted, and enforced in
accordance with the laws of the State of New York (applicable to
contracts to be performed wholly within such State).
(f) Severability. The Executive hereby expressly agrees that all of the
covenants in this Agreement are reasonable and necessary in order to
protect the Company and its business. If any provision or any part of
any provision of this Agreement shall be invalid or unenforceable
under applicable law, such part shall be ineffective only to the
extent of such invalidity or unenforceability and shall not affect in
any way the validity or enforceability of the remaining provisions of
this Agreement, or the remaining parts of such provision.
(g) Successor in Interests. In the event the Company merges or
consolidates with or into any other corporation or corporations, or
sells or otherwise transfers substantially all of its assets to
another corporation, the provisions of this Agreement shall be
binding upon and inure to the benefit of the corporation surviving or
resulting from the merger or consolidation or to which the assets are
sold or transferred and, prior to the consummation of any such event,
the Company shall obtain the express written assumption of this
Agreement by the other corporation (other than in the case of a
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merger after which the Company is the surviving entity). All
references herein to the Company refer with equal force and effect to
any corporate or other successor of the corporation that acquires
directly or indirectly by merger, consolidation, purchase or
otherwise, all or substantially all of the assets of the Company.
13. APPLICABLE TAXES. There shall be deducted from any compensation payments
made under this Agreement any federal, state, and local taxes or other
amounts required to be withheld by any entity having jurisdiction over
the matter. With respect to the benefits described in Sections 7(d) and
(e) of this Agreement, the Company will provide the Executive with full
tax gross-up due to any imputed income therefrom, but the Executive shall
be personally responsible for payment of taxes on any other imputed
income resulting from any other benefits afforded under this Agreement.
14. INDEMNIFICATION AND INSURANCE. During the Employment Term the Executive
will be entitled to the protections afforded by the indemnification
provisions of the Company's charter and by-laws and by the directors and
officers liability insurance policies purchased form time to time and
maintained by the Company to the same extent as other directors and
senior officers of the Company.
15. CERTAIN PAYMENTS. In the event that the aggregate of all payments or
benefits made or provided to, or that may be made or provided to, the
Executive under this Agreement and under all other plans, programs and
arrangements of the Company (the "Aggregate Payment") is determined to
constitute a "parachute payment," as such term is defined in Section
280G(b)(2) of the Internal Revenue Code, the Company shall pay to the
Executive, prior to the time any excise tax imposed by
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Section 4999 of the Internal Revenue Code ("Excise Tax") is payable with
respect to such Aggregate Payment, an additional amount which, after the
imposition of all income and excise taxes thereon, is equal to the Excise
Tax on the Aggregate Payment. The determination of whether the Aggregate
Payment constitutes a parachute payment and, if so, the amount to be paid
to the Executive and the time of payment pursuant to this Section 15
shall be made by an independent auditor (the "Auditor") jointly selected
by the Company and the Executive and paid by the Company. The Auditor
shall be a nationally recognized United States public accounting firm
which has not, during the two (2) years preceding the date of its
selection, acted in any way on behalf of the Company or any affiliate
thereof. If the Executive and the Company cannot agree on the firm to
serve as the Auditor, then the Executive and the Company shall each
select one accounting firm and those two firms shall jointly select the
accounting firm to serve as the Auditor. Notwithstanding the foregoing,
in the event that the amount of the Executive's Excise Tax liability is
subsequently determined to be greater than the Excise Tax liability with
respect to which an initial payment to the Executive under this Section
15 has been made, the Company shall pay to the Executive an additional
amount with respect to such additional Excise Tax (and any interest and
penalties thereon) at the time and in the amount determined by the
Auditor so as to make the Executive whole, on an after-tax basis, with
respect to such Excise Tax (and any interest and penalties thereon) and
such additional amount paid by the Company. In the event the amount of
the Executive's Excise Tax liability is subsequently
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determined to be less than the Excise Tax liability with respect to which
any payment to the Executive has been made under this Section 15, the
Executive shall, as soon as practical after the determination is made,
pay to the Company the amount of the overpayment by the Company, reduced
by the amount of any relevant taxes already paid by the Executive and not
refundable, all as determined by the Auditor. The Executive and the
Company shall cooperate with each other in connection with any proceeding
or claim relating to the existence or amount of liability for Excise Tax,
and all expenses incurred by the Executive in connection therewith shall
be paid by the Company promptly upon notice of demand from the Executive.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its own behalf by its duly authorized officers, and the
Executive has executed this Agreement on his own behalf intending to be
legally bound, as of the Effective Date.
AXA FINANCIAL, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxxxxxx X. Xxxxxxx
President and Chief Executive Officer
THE AXA EQUITABLE LIFE INSURANCE COMPANY
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx
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EXHIBIT A
CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE
This Confidential Separation Agreement and General Release (the
"Agreement") sets forth the agreement reached concerning the termination of
employment of Xxxxxxx X. Xxxxx ("Employee") with AXA Financial, Inc. and AXA
Equitable Life Insurance Company including its current and former parents,
subsidiaries and affiliates, and its and their respective current and former
successors, assigns, representatives, agents, attorneys, shareholders, officers,
directors and employees, both individually and in their official capacities
(collectively "the Company").
1. In consideration for signing this Agreement and in exchange for the
promises, covenants and waivers set forth herein, The Company will, provided
Employee has not revoked this Agreement as set forth below, provide Employee
with all of the benefits and payments contained in Section 9 of the Amended and
Restated Employment Agreement (the "Employment Agreement") dated September 27,
2004 between the Company and the Employee.
2. In consideration of the benefits and payments described above, and for
other good and valuable consideration, Employee hereby releases and forever
discharges, and by this instrument releases and forever discharges, The Company
from all debts, obligations, promises, covenants, agreements, contracts,
endorsements, bonds, controversies, suits, actions, causes of action, judgments,
damages, expenses, claims or demands, in law or in equity, which Employee ever
had, now has, or which may arise in the future, regarding any matter arising on
or before the date of Employee's execution of this Agreement, including but not
limited to all claims (whether known or unknown) regarding Employee's employment
with or termination of employment from The Company, any contract (express or
implied), any claim for equitable relief or recovery of punitive, compensatory,
or other damages or monies, attorneys' fees, any tort, and all claims for
alleged discrimination based upon age, race, color, sex, sexual orientation,
marital status, religion, national origin, handicap, disability, or retaliation,
including any claim, asserted or unasserted, which could arise under Title VII
of the Civil Rights Act of 1964; the Equal Pay Act of 1963; the Age
Discrimination in Employment Act of 1967 ("ADEA"); the Older Workers Benefit
Protection Act of 1990; the Americans With Disabilities Act of 1990; the Civil
Rights Act of 1866, 42 U.S.C. ss. 1981; the Employee Retirement Income Security
Act of 1974; the Family and Medical Leave Act of 1993; the Civil Rights Act of
1991; the Worker Adjustment and Retraining Notification Act of 1988; the
Xxxxxxxx-Xxxxx Act; the New York State Human Rights Law; the New York City Human
Rights Law; and any other federal, state or local laws, rules or regulations,
whether equal employment opportunity laws, rules or regulations or otherwise, or
any right under any Company retirement, welfare, or stock plans; provided,
however, that this release does not apply to any vested benefits which Employee
may have. Such benefits shall be governed by the terms and conditions of the
applicable plan documents which the Company reserves the right to amend, modify
or terminate in its sole discretion. This release does not apply to
any rights Employee may have to recovery as a member of the certified class in
the action entitled Xxxx, et al. v. The Retirement Plan for Employees, Managers
and Agents, et al., 01 Civ. 7920, currently pending in the Southern District of
New York. This Agreement may not be cited as, and does not constitute an
admission by the Company of, any violation of any such law or legal obligation
with respect to any aspect of Employee's employment or termination therefrom.
3. Employee represents and agrees that Employee has not filed any
lawsuits or arbitrations against the Company, or filed or caused to be filed any
charges or complaints against the Company with any municipal, state or federal
agency charged with the enforcement of any law or any self-regulatory
organization. Pursuant to and as a part of Employee's release and discharge of
the Company, as set forth herein, with the sole exception of Employee's right to
bring a proceeding pursuant to the Older Workers Benefit Protection Act of 1990
to challenge the validity of Employee's release of claims pursuant to the ADEA,
Employee agrees, not inconsistent with EEOC Enforcement Guidance On Non-Waivable
Employee Rights Under EEOC-Enforced Statutes dated April 11, 1997, and to the
fullest extent permitted by law, not to xxx or file a charge, complaint,
grievance or demand for arbitration against the Company in any forum or assist
or otherwise participate willingly or voluntarily in any claim, arbitration,
suit, action, investigation or other proceeding of any kind which relates to any
matter that involves the Company, and that occurred up to and including the date
of Employee's execution of this Agreement, unless (a) required to do so by court
order, subpoena or other directive by a court, administrative agency,
arbitration panel or legislative body, or unless required to enforce this
Agreement; or (b) requested to engage in conduct permissible under paragraph 7d
of this Agreement. To the extent any such action may be brought by a third
party, Employee expressly waives any claim to any form of monetary or other
damages, or any other form of recovery or relief in connection with any such
action. Nothing in this Agreement shall prevent Employee (or Employee's
attorneys) from (i) commencing an action or proceeding to enforce this Agreement
or (ii) exercising Employee's right under the Older Workers Benefit Protection
Act of 1990 to challenge the validity of Employee's waiver of ADEA claims set
forth in paragraph 2 of this Agreement.
4. Employee represents, warrants and acknowledges that the Company owes
Employee no wages, commissions, bonuses, sick pay, personal leave pay, severance
pay, notice pay, vacation pay, or other compensation or benefits or payments or
form of remuneration of any kind or nature, other than that specifically
provided for in the Employment Agreement.
5. Employee agrees that Employee will not disparage or criticize the
Company, or issue any communication, written or otherwise, that reflects
adversely on or encourages any adverse action against the Company, except if
testifying truthfully under oath pursuant to any lawful court order or subpoena
or otherwise responding to or providing disclosures required by law.
6. Employee agrees not to disclose, nor use for Employee's benefit or the
benefit of any other person or entity, any information received from the Company
which is confidential or proprietary or covered by any of the Company's
non-disclosure or privacy policies and (i) which has not been disclosed publicly
by the Company, (ii)
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which is otherwise not a matter of public knowledge, or
(iii) which is a matter of public knowledge but Employee knows or has reason to
know that such information became a matter of public knowledge through an
unauthorized disclosure. Proprietary or confidential information shall mean
information the unauthorized disclosure or use of which would reduce the value
of such information to the Company. Such information includes, without
limitation, the Company's client lists, its trade secrets, any confidential
information about (or provided by) any client or prospective or former client of
the Company, information concerning the Company's business or financial affairs,
including its books and records, commitments, procedures, plans and prospects,
or current or prospective transactions or business of the Company and any
"inside information." Employee hereby confirms that Employee has delivered to
the Company and retained no copies of any written materials, records and
documents (including those that are electronically stored) made by Employee or
coming into Employee's possession during the course of Employee's employment
with the Company which contain or refer to or are derived from any such
proprietary or confidential information. Employee further confirms that Employee
has delivered to the Company any and all property and equipment of the Company,
including, without limitation, laptop computers, any other Company equipment,
hardware, software and/or materials, Employee's card key, identification card
and passwords which may have been in Employee's possession.
7. Employee agrees not to disclose the terms, contents or execution of
this Agreement, the claims that have been or could have been raised against the
Company, or the facts and circumstances underlying this Agreement, except in the
following circumstances:
a. Employee may disclose the terms of this Agreement to Employee's
immediate family, so long as such family member agrees to be bound by the
confidential nature of this Agreement;
b. Employee may disclose the terms of this Agreement to (i)
Employee's financial and tax advisors so long as such financial and tax advisors
agree in writing to be bound by the confidential nature of this Agreement, (ii)
taxing authorities if requested by such authorities and so long as they are
advised in writing of the confidential nature of this Agreement, or (iii)
Employee's legal counsel; and
c. Pursuant to the order of a court or governmental agency of
competent jurisdiction, or for purposes of securing enforcement of the terms and
conditions of this Agreement.
d. Any non-disclosure provision in this Agreement does not prohibit
or restrict Employee (or Employee's attorneys) from responding to any inquiry,
or providing testimony about this Agreement or its underlying facts and
circumstances initiated by, or before, the Securities and Exchange Commission,
the National Association of Securities Dealers, Inc. or any other
self-regulatory organization or any other federal or state regulatory authority.
3
8. Upon service on Employee, or anyone acting on Employee's behalf, of
any subpoena, order, directive, request or other legal process requiring
Employee to engage in conduct encompassed within paragraphs 5, 6, or 7 of this
Agreement, Employee or Employee's attorney shall immediately notify the Company
of such service and of the content of any testimony or information to be
provided pursuant to such subpoena, order, directive, request or other legal
process and within two (2) business days send to the undersigned representative
of the Company via overnight delivery (at the Company's expense) a copy of said
documents served upon Employee; provided, however, that if Employee is requested
to engage in conduct permitted under paragraph 7d of this Agreement Employee
shall comply with Employee's obligations under this paragraph only after
Employee has responded to the inquiry or provided the testimony sought. Upon
submission of appropriate written documentation, the Company shall reimburse
Employee for reasonable, pre-approved expenses incurred in carrying out the
provisions of this paragraph.
9. Employee agrees that Employee will reasonably assist and cooperate
with the Company in connection with the defense or prosecution of any claim that
may be made against or by The Company, or in connection with any ongoing or
future investigation or dispute or claim of any kind involving The Company,
including any proceeding before any arbitral, administrative, judicial,
legislative, or other body or agency, including preparing for and testifying in
any proceeding to the extent such claims, investigations or proceedings relate
to services performed or required to be performed by Employee, pertinent
knowledge possessed by Employee, or any act or omission by Employee. Employee
further agrees to perform all acts and execute and deliver any documents that
may be reasonably necessary to carry out the provisions of this paragraph. Upon
submission of appropriate written documentation, The Company shall reimburse
Employee for reasonable, pre-approved expenses incurred in carrying out the
provisions of this paragraph.
10. Employee acknowledges and agrees that, for months, Employee (a) will
not directly or indirectly hire or attempt to hire any person who is, or during
the 90 days preceding Employee's termination date was, employed by or associated
with The Company; (b) will not solicit any business of any person or entity who
is, or during the 90 days preceding Employee's termination date was a customer
or client of The Company, (c) will not, directly or indirectly, act in a
managerial or sales capacity, whether as a shareholder, partner, joint venturer,
promoter, employee, consultant, advisor and/or agent, for any entity in the
insurance or financial services industry or any entity controlled by,
controlling of, or under common control with an entity in the insurance or
financial services industry.
11. Except for the provisions of the Employment Agreement that survive
the Employment Term (as such term is defined in Section 3 of the Employment
Agreement), this Agreement constitutes the entire agreement between The Company
and Employee with respect to the subject matter herein, and supersedes and
cancels all prior and contemporaneous written and oral agreements, if any,
between The Company and Employee with respect to the subject matter herein.
Employee affirms that, in entering into this Agreement, Employee is not relying
upon any oral or written promise or statement made by anyone at any time on
behalf of The Company.
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12. This Agreement is binding upon Employee and Employee's successors,
assigns, heirs, executors, administrators and legal representatives.
13. If any of the provisions, terms or clauses of this Agreement are
declared illegal, unenforceable or ineffective in a legal forum, those
provisions, terms and clauses shall be deemed severable, such that all other
provisions, terms and clauses of this Agreement shall remain valid and binding
upon both parties.
14. Without detracting in any respect from any other provision of this
Agreement:
a. Employee, in consideration of the benefits and payments described
above, agrees and acknowledges that this Agreement constitutes a knowing and
voluntary waiver of all rights or claims Employee has or may have against The
Company as set forth herein, including, but not limited to, all rights or claims
arising under the ADEA, as amended, including, but not limited to, all claims of
age discrimination in employment and all claims of retaliation in violation of
the ADEA; and Employee has no physical or mental impairment of any kind that has
interfered with Employee's ability to read and understand the meaning of this
Agreement or its terms, and that Employee is not acting under the influence of
any medication or mind-altering chemical of any type in entering into this
Agreement.
b. Employee understands that, by entering into this Agreement,
Employee does not waive rights or claims that may arise after the date of
Employee's execution of this Agreement, including without limitation any rights
or claims that Employee may have to secure enforcement of the terms and
conditions of this Agreement.
c. Employee agrees and acknowledges that the consideration provided
to Employee under this Agreement is in addition to anything of value to which
Employee is already entitled.
d. The Company hereby advises Employee to consult with an attorney
prior to executing this Agreement.
e. Employee acknowledges that Employee was informed that Employee had
at least twenty-one (21) days in which to review and consider this Agreement and
to consult with an attorney regarding the terms and effect of this Agreement.
15. Employee may revoke this Agreement within seven (7) days from the
date Employee signs this Agreement, in which case this Agreement shall be null
and void and of no force or effect on either The Company or Employee. Any
revocation must be in writing and received by The Company by 5:00 p.m. on or
before the seventh day after this Agreement is executed by Employee. Such
revocation must be sent to the attention of the Company's General Counsel at The
Company's Corporate Headquarters at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
16. This Agreement may not be changed or altered, except by a writing
signed by an authorized executive officer of The Company and Employee. This
5
Agreement is entered into in the State of , and the laws of the State of will
apply to any dispute concerning it, excluding the conflict-of-law principles
thereof.
17. Employee understands and agrees that the terms set out in this
Agreement, including, but not limited to, the confidentiality provisions, shall
survive the signing of this Agreement and receipt of benefits hereunder.
EMPLOYEE EXPRESSLY ACKNOWLEDGES, REPRESENTS, AND WARRANTS THAT EMPLOYEE HAS READ
THIS AGREEMENT CAREFULLY; THAT EMPLOYEE FULLY UNDERSTANDS THE TERMS, CONDITIONS,
AND SIGNIFICANCE OF THIS AGREEMENT; THAT THE COMPANY HAS ADVISED EMPLOYEE TO
CONSULT WITH AN ATTORNEY CONCERNING THIS AGREEMENT; THAT EMPLOYEE HAS HAD A FULL
OPPORTUNITY TO REVIEW THIS AGREEMENT WITH AN ATTORNEY; THAT EMPLOYEE UNDERSTANDS
THAT THIS AGREEMENT HAS BINDING LEGAL EFFECT; AND THAT EMPLOYEE HAS EXECUTED
THIS AGREEMENT FREELY, KNOWINGLY AND VOLUNTARILY.
PLEASE READ CAREFULLY. THIS AGREEMENT HAS IMPORTANT LEGAL CONSEQUENCES.
Date: _____________________ ___________________________________________
Xxxxxxx X. Xxxxx
On this ___ day of _________ 200_, before me personally came _________________,
to me known to be the individual described in the foregoing instrument, who
executed the foregoing instrument in my presence, and who duly acknowledged to
me that ___(he/) executed the same.
______________________________________
Notary Public
EMPLOYEE MUST SIGN AND RETURN THIS AGREEMENT TO THE ATTENTION OF THE COMPANY'S
GENERAL COUNSEL AT THE COMPANY'S CORPORATE HEADQUARTERS AT 0000 XXXXXX XX XXX
XXXXXXXX, XXX XXXX, XXX XXXX 00000 NO LATER THAN 5:00 P.M. ON THE 21ST DAY
FOLLOWING THE DATE OF TERMINATION UNDER THE EMPLOYMENT AGREEMENT.
6
