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EXHIBIT 10(y)
CHANGE IN CONTROL
EMPLOYMENT AGREEMENT
AGREEMENT between MONY Life Insurance Company, a Delaware
corporation (the "MONY"), and Xxxxx X. Xxxxx (the "Executive"), dated as of
August 23, 2000 (the "Agreement Date").
WHEREAS, The Advest Group, Inc. (the "Company") and MONY wish to
assure themselves and the Executive of continuity of management in the event of
a Change in Control of MONY, as hereinafter defined, and to provide the
Executive with the termination and other benefits set forth in this Agreement in
the event the Executive's employment with the Company terminates following such
a Change in Control under the circumstances described below.
NOW, THEREFORE, the Company and the Executive hereby agree as
follows:
1. OPERATION AND TERM OF AGREEMENT; CHANGE IN CONTROL
(A) Term. This Agreement shall be effective as of the date of the
consummation of the transactions contemplated under the Agreement and Plan of
Merger, dated August 23, 2000, between The MONY Group Inc., a Delaware
Corporation, MONY Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of The MONY Group Inc., and the Company (the "Merger") and shall
continue in effect until the Expiration Date. The Expiration Date shall
initially be
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December 31, 2001, but commencing on January 1, 2002 and each January 1
thereafter, the Expiration Date shall automatically be extended by one
additional year unless, not later than September 30 of the preceding year, the
Company shall have given notice to the Executive that it does not wish to extend
the Expiration Date; provided, however, that if a Change in Control shall have
occurred prior to the original or extended Expiration Date, the Expiration Date
shall automatically be extended to the third anniversary of the last day of the
month in which the Change in Control occurred.
(B) Change in Control. The benefits to be provided to the Executive
pursuant to this Agreement shall only become available upon a Change in Control.
For purposes of this Agreement, a Change in Control shall mean a
change in control (other than the Merger) of MONY which shall be deemed to have
occurred upon:
(i) an acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person")
of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of shares of outstanding voting
securities of The MONY Group Inc. (the "Holding Company") entitled
to vote generally in the election of directors (the "Outstanding
Voting Securities") which, when combined with any other securities
owned beneficially by the acquirer, would result in such acquirer
beneficially owning twenty percent (20%) or more of either (A) the
then outstanding shares of common stock of the Holding Company or
(B) the combined voting power of the then Outstanding Voting
Securities; excluding, however, the following: (1) any acquisition
directly from the Holding Company, other than an acquisition by
virtue of the exercise of a conversion privilege unless the security
being so converted was itself acquired directly from the Holding
Company, (2) any acquisition by the Holding Company and (3) any
acquisition by an employee benefit plan (or related trust) sponsored
or maintained by the Holding Company or any subsidiary of the
Holding Company;
(ii) at any time following the date hereof, individuals who as
of the date hereof constitute the Board of Directors of the Holding
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Company (the "Board") (and any new directors whose election by the
Board or nomination for election by the Holding Company's
shareholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors as of
the date hereof or whose election or nomination for election was
approved) cease for any reason (except for death, disability or
voluntary retirement) to constitute a majority thereof;
(iii) the consummation of a transaction approved by the
shareholders of the Holding Company that is a merger, consolidation,
reorganization or similar corporate transaction, whether or not the
Holding Company is the surviving corporation in such transaction,
other than a merger, consolidation, or reorganization that results
in the Outstanding Voting Securities immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least
eighty percent (80%) of the combined voting power of the voting
securities of the Holding Company (or such surviving entity)
outstanding immediately after such merger, consolidation,
reorganization or transaction;
(iv) the consummation of a transaction approved by the
shareholders of the Holding Company that is (A) the sale or other
disposition of all or substantially all of the assets (by way of
reinsurance or otherwise) of the Holding Company or (B) a complete
liquidation or dissolution of the Holding Company; or
(v) adoption by the Board of a resolution to the effect that
any Person has taken actions which, if consummated, would result in
such Person acquiring effective control of the business and affairs
of the Holding Company, subject to the consummation of the
transactions contemplated by such actions.
2. CERTAIN DEFINITIONS
(A) Period of Employment. The Period of Employment shall mean the
period of time commencing on the date of a Change in Control and ending on the
earlier of the Expiration Date or the Termination Date.
(B) Contract Term. The Contract Term shall mean the period of time
commencing on the date of a Change in Control and ending on the Expiration
Date.
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(C) Termination Date. The Termination Date shall mean the date as of
which the Executive's employment with the Company shall cease or be deemed to
have ceased in the manner specified in Section 6 or Section 7.
3. EXECUTIVE'S RESPONSIBILITIES; LOCATION
(A) Position, Duties, Responsibilities. Commencing on the date of
the Change in Control, the Executive shall serve in the position and have the
duties and responsibilities as in effect immediately prior to the date of the
Change in Control and as they may be expanded thereafter.
(B) Best Efforts. During the Period of Employment, the Executive
shall devote his full time, best efforts and undivided attention during normal
business hours to the business and affairs of the Company, except reasonable
vacations, illness or incapacity.
(C) Principal Business Office. During the Period of Employment,
the Executive's principal business office shall be located in Hartford,
Connecticut.
4. RESTRICTIVE COVENANTS
(A) Noncompetition. The Executive agrees that during the Period of
Employment and for the twelve-month period immediately following the Period of
Employment, the Executive shall not, directly or indirectly, in any capacity,
engage in any business which is substantially competitive with any business
then actively conducted by Company or any of its affiliates or subsidiaries,
and the Executive shall not undertake to consult with or advise any such
competitive business or otherwise, directly or indirectly, engage in any
activity which is substantially competitive with or in
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any way adversely and substantially affects any activity of the Company or any
of its affiliates or subsidiaries.
(B) Nondisclosure. Except as expressly provided herein, the
Executive agrees that during the Period of Employment and thereafter, the
Executive shall not make use of, disclose, divulge, or make accessible, to any
third party, any information of a secret or confidential nature known to the
Executive in the course of his employment with the Company or any of its
affiliates or subsidiaries until such information has come into the public
domain or has otherwise ceased to be secret or confidential.
(C) Specific Performance and Injunctive Relief. The Executive
acknowledges and agrees that the Company and/or its affiliates and subsidiaries
will suffer irreparable injury if the provisions of this Section 4 are not
honored, that damages resulting from such injury will be incapable of being
precisely measured, and that the Company and its subsidiaries and affiliates
will not have an adequate remedy at law to redress the harm which such
violation shall cause. Accordingly, the Executive agrees that the Company shall
have the rights and remedies of specific performance and injunctive relief, in
addition to any other rights or remedies that may be available at law or in
equity, in respect of any failure, or threatened failure, on the part of the
Executive to comply with the provisions of this Section 4, including, but not
limited to, temporary restraining orders and temporary injunctions to restrain
any violation or threatened violation of this Agreement by the Executive.
5. COMPENSATION, PERQUISITES AND EMPLOYEE BENEFITS
(A) Base Compensation. For all services rendered during the Period
of Employment, the Executive shall receive annual base compensation and a
guaranteed
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annual bonus at a rate not less than the rate in effect immediately prior to the
date of the Change in Control, or any amount to which the Executive's base
compensation or guaranteed annual bonus is thereafter increased.
(B) Incentive Compensation. During the Period of Employment, the
Executive shall be and continue to be a participant in the Company's incentive
compensation plans that are generally available to senior executives of the
Company on the date of the Change in Control, as such plans are in effect on
such date and with such improvements as may time to time be made in accordance
with the Company's practices (the "Incentive Plans"). The Executive shall be
entitled to participate in other incentive compensation plans generally
available to senior executives of the Company as may be adopted from time to
time in accordance with the Company's practices. If any of the Incentive Plans
are terminated or discontinued, the Executive shall be entitled to participate
in other incentive compensation plans with terms at least as favorable to the
Executive as the Incentive Plans in effect prior to the termination or
discontinuance of the Incentive Plans.
(C) Perquisites. During the Period of Employment, the Executive
shall be entitled to perquisites and fringe benefits, in each case at least
equal to those unattached to his position immediately prior to the date of the
Change in Control.
(D) Employee Benefits. During the Period of Employment, the
Executive shall be entitled to participate in all employee benefit plans and
programs as in effect for senior executives of the Company immediately prior to
the date of the Change in Control ("Plans") under the terms of the Plans, with
such improvements in the Plans as may from time to time be made in accordance
with the practices of the Company. The Executive
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shall be entitled to participate in any employee benefit plans and programs
generally available to senior executives of the Company. If any of the Plans are
terminated or discontinued, the Executive shall be entitled to participate in
other employee benefit plans with terms at least as favorable to the Executive
as the Plans in effect prior to the termination or discontinuance of the Plans.
(E) Other Obligations of the Company. Any increases in base and
incentive compensation, perquisites or employee benefits under this Agreement or
otherwise shall not diminish any other obligation of the Company hereunder.
6. DEATH OR DISABILITY
(A) Death. If the Executive should die during the Period of
Employment, his employment shall be deemed to have ceased on the last day of the
month in which death shall have occurred.
(B) Disability. "Disability" shall mean an illness or accident which
the Board determines in its discretion will or has prevented the Executive from
performing his duties under this Agreement for a period of six consecutive
months. In the event that the Executive incurs a Disability during the Period of
Employment, his employment shall be deemed to have ceased on the last day of
such six-month period.
7. TERMINATION
(A) Cause. The Company shall have the right at any time to terminate
the Executive's employment with the Company. The termination of the Executive's
employment by the Company during the Contract Term shall be deemed to be for
"Cause" only if such termination shall be the result of:
(i) an act or acts of dishonesty by the Executive resulting in
conviction for a felony;
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(ii) a deliberate and intentional failure by the Executive during
the Period of Employment (except by reason of incapacity due to illness
or accident) to comply with the provisions of this Agreement relating
to the time and best efforts to be devoted by the Executive to the
affairs of the Company, if such failure results in demonstrably
material injury to the Company; or
(iii) the Executive's gross misconduct, if such misconduct results
in demonstrably material injury to the Company;
provided that notice of such termination is given in accordance with Section
7(C) below.
(B) Good Reason. The Executive shall have the right at any time to
terminate the Executive's employment with the Company. The termination of the
Executive's employment by the Executive during the Contract Term shall be deemed
to be for "Good Reason" only if such termination shall be the result of:
(i) a reduction during the Period of Employment in the current level
of the Executive's aggregate compensation, including his annual base
compensation, Incentive Plan awards, employee benefit plan coverages
and perquisites (other than a reduction in awards or benefits that is
generally applicable to participants in a plan in accordance with the
terms of the plan in effect immediately prior to the date of the Change
in Control);
(ii) a diminishment during the period of Employment in the
Executive's position, powers, authority, duties or responsibilities, or
the business to which those powers, authority, duties or
responsibilities apply; removal during the Period of Employment of the
Executive from the office he held as of the date of the Change in
Control; or change during the Period of Employment in the Executive's
chain of supervision as it existed as of the date of the Change in
Control;
(iii) the Company's requiring, without the written consent of the
Executive, that the Executive be based at any office or location more
than 30 miles from his regular place of business as of the Agreement
Date; or
(iv) a material breach of this Agreement by the Company; provided
that notice of the Executive's election to terminate his employment
under this Agreement is given in accordance with Section 7(C) below.
Failure to elect to
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terminate with respect to one event giving rise to Good Reason does not
preclude the Executive from making the election with respect to a
subsequent event.
(C) Termination Procedure.
(1) Notice. (a) Notice of termination of employment under this
Agreement shall be provided in writing by the Company or the Executive, as
applicable, and shall specify the date as of which the Executive's employment
shall be deemed to have ceased, which date shall in no event be earlier than 60
days from the date of such notice.
(b) In the event that the Company elects to terminate employment,
the Company shall provide to the Executive the notice described in Section
7(C)(1)(a) above. If termination is alleged to be for Cause, such notice shall
also state that the Executive was guilty of conduct set forth in Section 7(A),
with the particulars thereof specified in detail.
(c) In the event that the Executive elects to terminate employment,
the Executive shall provide to the Company the notice described in Section
7(C)(1)(a) above. If termination is alleged to be for Good Reason, such notice
shall also specify the reason for such termination, as set forth in Section
7(B), with the particulars thereof specified in detail, and shall be given,
except in the case of a continuing breach, within three calendar months after
the most recent even giving rise to Good Reason.
(2) Cure. (a) In the case of the Executive's alleged breach or gross
misconduct set forth in Sections 7(A)(ii) or (iii), the Executive shall be given
the opportunity to remedy such alleged breach or gross misconduct within 30 days
from his
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receipt of the notice referred to above, or take all reasonable steps to that
end during such 30-day period and thereafter.
(b) In the case of the Executive's allegation of Good Reason, the
Company shall be given the opportunity to remedy the alleged Good Reason within
30 days from its receipt of the notice referred to above, or take all reasonable
steps to that end during such 30-day period and thereafter.
(3) Arbitration. In the event that the Executive's employment shall
be terminated by the Company and such termination is alleged to be for Cause,
the Executive shall have the right, in addition to all other rights and remedies
provided by law or equity, to seek arbitration as described below. In the event
that the Executive's employment shall be terminated by the Executive and such
termination is alleged to be for Good Reason, the Company shall have the right,
in addition to all other rights and remedies provided by law or equity, to seek
arbitration as described below. Such arbitration shall be sought in the County
of New York, State of New York, under the rules of the American Arbitration
Association, by serving notice to arbitrate upon the other party no more than 60
days after such party received the notice of termination referred to above.
8. CONSEQUENCES OF TERMINATION, DEATH OR DISABILITY
(A) Termination by the Company Other Than for Cause or by the
Executive for Good Reason. In the event of a termination by the Company of the
Executive's employment during the Contract Term other than for Cause or by the
Executive for Good Reason, the Company shall, as liquidated damages, pay to the
Executive and provide him, in lieu of all other rights, remedies, damages and
relief to
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which he might otherwise be entitled under this Agreement, with the benefits
described below in this Section 8(A);
(1) Severance. A lump-sum payment in an amount equal to three times
the sum of (i) the Executive's annual base compensation in effect on the
Termination Date, plus (ii) the Executive's "average annual bonus" in effect on
the Termination Date. For purposes hereof, "average annual bonus" shall mean the
average of the Executive's bonuses earned or due under the Company's Management
Incentive Plan (or any successor plan) for the three completed fiscal years
immediately preceding his Termination Date or during such shorter period as the
Executive shall have been employed by the Company. This amount shall be reduced
by any severance payments to the Executive under any other employment contract
or severance arrangement with the Company.
(2) Management Incentive Plan. A payment in respect of the
Management Incentive Plan of the following amounts:
(a) any annual incentive compensation payments awarded for a year
prior to the year in which the Termination Date occurs but not paid as of the
Termination Date, which amount shall not be less than the Executive's annual
base compensation for such year multiplied by item (ii) of Section 8(A)(2)(b);
and
(b) an amount in respect of the annual incentive compensation that
the Executive would have earned in respect of the partial year of service in
which such Termination Date occurs, in an amount equal to the average of the
annual awards under the Management Incentive Plan for the two prior fiscal years
prior to the Termination
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Date, multiplied by a fraction, the numerator of which is the number of days in
the calendar year through the Termination Date, and the denominator of which is
365.
(3) Equity Awards. All outstanding equity awards shall fully and
immediately vest and all restrictions shall lapse, and such awards shall be
exercisable for a period equal to the later of one year or the Expiration Date
(or any such later period provided for in the applicable equity award
agreement).
(4) Welfare Benefits. The Executive shall receive the amounts and
arrangements specified in this Section 8(A)(4) with respect to welfare benefits.
(a) A payment equal to the aggregate present value (calculated in
using the discount rate described in Section 10) of the following amounts:
(i) Medical and Dental Benefits - an amount equal to the
portions of the costs that would have been incurred by the
Company for the remainder of the Contract Term for the level of
medical and dental benefits (in effect for the Executive
immediately prior to the Termination Date), with such costs for
the calendar year in which the Termination Date occurs to be
determined pursuant to the provisions of section 4980B of the
Internal Revenue Code of 1986 or any successor provisions
("COBRA"), and with such costs to be assumed to increase
thereafter at an annual rate 200 basis points over the discount
rate described in Section 10;
(ii) Retiree Medical Benefits - If the Executive would have
become eligible for retiree medical coverage during the Contract
Term (but is not eligible for such coverage on his Termination
Date), an amount equal to the costs that would have been incurred
by the Company for retiree medical benefit coverage for the life
of the Executive, determined as if he retired at the end of the
Contract Term and based on the level of retiree medical benefits
that would have been available to the Executive had he been
eligible for such coverage immediately prior to the Termination
Date with the Company's assumed costs for such coverage to be
determined in the manner specified in (i) above using the
mortality assumption described in Section 10;
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(iii) Life Insurance Benefits - an amount equal to the costs
that would have been paid by the Company for the remainder of the
Contract Term for the level of the life insurance coverages in
effect for the Executive immediately prior to the Termination
Date, calculated pursuant to the uniform premium table included in
Income Tax Regulation section 1.79-3T (or any successor table).
(b) Continued coverage under certain welfare benefit plans of the
Company for the remainder of the Contract Term:
(i) Disability Benefits - the Executive shall continue to be
covered under the short-term and long-term disability coverage
under the Company's Disability Benefit Plan as in effect for the
Executive immediately prior to the Termination Date, or a
comparable plan or plans, with the benefits under such plan to be
determined on the basis of the annual base compensation in effect
immediately prior to the Termination Date.
(ii) Voluntary Group Life Insurance and Optional Survivors'
Insurance - the Executive shall continue to be eligible to
participate in these plans as in effect for the Executive
immediately prior to the Termination Date, or a comparable plan
or plans, by making voluntary contributions at the levels
applicable under the terms of such plans.
(iii) Split-Dollar Life Insurance - the Company shall keep in
effect, for the life of the Executive, the split-dollar life
insurance policy maintained for the Executive immediately prior
to the Termination Date; the Company and the Executive shall
retain respective obligations to pay premiums in accordance with
the terms of the policy.
(c) Payments under this Section 8(A)(4) shall be in addition to
amounts due to the Executive under the welfare plans for periods ending on the
Termination Date. The Executive's rights to receive payments under this Section
8(A)(4) shall not diminish, or be in substitution for, any rights he may
otherwise have to participate in the Company's welfare plans after the
Termination Date, provided that the Executive shall in no event (i) receive
payments under this Section 8(A)(4) in respect of benefits under a
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welfare plan for any period and (ii) actually be covered for the same period
under such welfare plan at the Company's expense.
(5) SERP. The Executive shall continue to be entitled to receive the
supplemental retirement benefits described in Section 5(G) of his Employment
Agreement dated as of August 23, 2000.
(B) Disability or Death.
(1) Disability. In the event of the Executive's Disability during
the Period of Employment, the Executive shall be entitled to the compensation
and benefits provided for in Sections 5(A), (C) and (D) of this Agreement for
the Period of Employment. Payment shall be without prejudice to any other
payments due in respect of the Executive's death or Disability. Rights upon
Disability under this Agreement do not supersede the rights of the Executive in
the event of his eligible disability under the Company's benefit plans or any
successor plans ("Disability Benefits"). Any Disability Benefits for which the
Executive becomes eligible shall be paid to the Executive in accordance with the
terms of such plans without limitation by this Agreement. Any determination made
pursuant to Section 6(B) of this Agreement as to the existence of a Disability
or as to the date as of which the Executive's employment is deemed to have
ceased shall have no effect in determining the Executive's eligibility for
Disability Benefits or other benefits receivable during a period of disability.
(2) Death. In the event of the death of the Executive during the
period of Employment, the Executive's representative shall be entitled to the
compensation provided in Section 5(A) of this Agreement through the Period of
Employment. Payment
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shall be without prejudice to any other payment due in respect of the
Executive's death or Disability.
(3) Incentive Compensation. In the event of the Executive's
Disability or death during the Period of Employment, the Company shall pay the
Executive or his legal representative, in addition to the payments required by
this Section 8(B) the bonus under the Management Incentive Plan, determined in
accordance with Section 8(A)(2) on a pro rata basis, for the portion of the
calendar year prior to the Termination Date (or, in the case of Disability, the
earlier of the Termination Date and the Expiration Date); and
(4) Reduction of Payments. The amount of any payments due under this
Section 8(B) shall be reduced by any payments to which the Executive is entitled
for the same period because of disability under any disability benefit plan of
the Company providing salary continuation.
(C) Termination by the Company for Cause or by the Executive Other
Than for Good Reason. In the event of a termination by the Company of the
Executive's employment during the Contract Term for Cause or by the Executive
other than for Good Reason, the Executive shall be entitled to the compensation
and benefits ordinarily provided to senior executives of the Company upon
termination of employment in accordance with the plans, programs and practices
of the Company applicable to senior executives as in effect on the date of the
Change in Control.
(D) Time of Payment. All lump-sum payments to be made by the Company
under this Section 8 shall be made within five days after the Termination Date.
9. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY
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(A) Gross-Up Payment. Anything in this Agreement to the contrary
notwithstanding and except as set forth below, if it shall be determined that
any amount paid, distributed or treated as paid or distributed by the Company to
or for Executive's benefit (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Section
9) (a "Payment") would be subject the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code") or any interest or
penalties are incurred by Executive with respect to such excise tax (such excise
tax, together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after payment
by Executive of all federal, state and local taxes (including any interest or
penalties imposed with respect to such taxes), including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of
the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
All determinations required to be made under this Section 9,
including whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such
determination, shall be made by a nationally recognized accounting firm as may
be designated by Executive (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and Executive within 15 business
days of the receipt of notice from Executive that there has been a Payment, or
such earlier time as is requested by the Company. In
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the event that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change in Control, Executive shall
appoint another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne by the Company. Any Gross-Up Payment, as determined pursuant to this
Section 9, shall be paid by the Company to Executive within five days of the
receipt of the Accounting Firm's determination. Any determination by the
Accounting Firm shall be binding upon the Company and Executive. As a result of
the uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should have been
made ("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 9 (B) and Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for Executive's benefit.
(B) Notification of Claims. Executive shall notify the Company in
writing of any claim by the Internal Revenue Service that, if successful, would
require the payment by the Company of the Gross-Up Payment. Such notification
shall be given as soon as practicable but not later than ten business after
Executive is informed in writing of such claim and shall apprise the Company of
the nature of such claim and the date on which such claim is requested to be
paid. Executive shall not pay such claim prior to the expiration of the 30-day
period following the date on which it gives such notice to the
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Company (or such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Company notifies Executive in writing
prior to the expiration of such period that it desires to contest such claim,
Executive shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim,
(ii) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to
time, including, without limitation, accepting legal
representation with respect to such claim by an attorney
reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order to
effectively contest such claim, and
(iv) permit the Company to participate in any proceeding
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold Executive harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on foregoing provisions of
this Section 9, the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
Executive to pay the tax claimed and xxx for a refund or contest the claim in
any permissible manner, and Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the
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Company shall determine; provided, however, that if the Company directs
Executive to pay such claim and xxx for a refund, the Company shall advance the
amount of such payment to Executive, on an interest-free basis, and shall
indemnify and hold Executive harmless, on an after-tax basis, from any Excise
Tax or income tax (including interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any imputed income with respect
to such advance; and further provided that any extension of the statute of
limitations relating to payment of taxes for Executive's taxable year with
respect to which such contested amount is claimed to be due is limited solely to
such contested amount. Furthermore, the Company's control of the contest shall
be limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and Executive shall be entitled to settle or contest, as the case may
be, any other issue raised by the Internal Revenue Service or any other taxing
authority.
(C) Refund of Claims. If, after Executive's receipt of an amount
advanced by the Company pursuant to Section 9(B), Executive becomes entitled to
receive any refund with respect to such claim, Executive shall (subject to the
Company's complying with the requirements of Section 9(B)) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after Executive's receipt of an
amount advanced by the Company pursuant to Section 9(B), a determination is made
that Executive shall not be entitled to any refund with respect to such claim
and the Company does not notify Executive in writing of its intent to contest
such denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be required to
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be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
10. INTEREST AND MORTALITY ASSUMPTIONS
(A) Interest Assumptions. Determinations of any present values under
this Agreement and of any present values relating to this Agreement shall be
based upon a discount rate equal to 120 percent of the applicable Federal rate
(determined under section 1274(d) of the Code), compounded semiannually. Unless
otherwise elected by the Executive on Exhibit I hereto, the Executive shall be
deemed to have elected that such discount rate be determined based on such
applicable Federal rate as in effect on the Agreement Date. The Company hereby
agrees to use of the discount rate that is elected or deemed to be elected by
the Executive.
(B) Mortality Assumptions. For purposes of this Agreement,
assumptions relating to mortality are determined using the mortality tables and
assumptions in effect under MONY's Retirement Income Security Plan on the date
as of which any such mortality assumption is made.
11. WITHHOLDING
All payments required to be made by the Company hereunder to the
Executive shall be subject to the withholding of such amounts, if any, relating
to tax, excise tax and other payroll deductions as the Company may reasonably
determine it should withhold pursuant to any applicable law or regulation.
12. INDEMNIFICATION AND INSURANCE; LEGAL EXPENSES
The Executive shall be entitled to the following additional benefits
in the event of a Change in Control:
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(A) Indemnification and Insurance. The Company will indemnify the
Executive (including payment of expenses in advance of final disposition of the
proceeding) to the fullest extent permitted by law and the Charter and By-Laws
of the Company, in each case as in effect on the date of the Change in Control
or on the Termination Date, whichever affords greater protection to the
Executive; and the Executive shall be entitled to the protection of any
insurance policies the Company may elect to maintain generally for the benefit
of its directors and officers, against all costs, charges and expenses
whatsoever incurred or sustained by him in connection with any action, suit or
proceeding to which he may be made a party by reason of his having been a
director, officer or employee of the Company or any of its subsidiaries or
affiliates or his serving or having served any other enterprise as a director,
officer or employee at the request of the Company. The Company shall cause to be
maintained in effect for not less than six years from the Termination Date
policies of directors' and officers' liability insurance of at least the same
coverage as those policies, if any, maintained by the Company on the date of the
Change in Control and containing terms and conditions which are no less
advantageous than such policies, or is such coverage is not available, the best
available coverage for equal cost to the Company.
(B) Legal Expenses. In the event of any litigation, arbitration or
other proceeding between the Company and the Executive with respect to the
subject matter of this Agreement or the enforcement of the Executive's rights
hereunder, the Company shall reimburse the Executive, regardless of the outcome,
for all of his reasonable costs and expenses relating to such litigation,
arbitration or other proceeding, including without limitation, reasonable
attorneys' fees and expenses. In no event shall the Executive be
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required to reimburse the Company for any of the costs or expenses relating to
such litigation, arbitration or other proceeding.
13. NOTICES
All notices, requests, demands and other communications provided for
by this Agreement shall be in writing and shall be sufficiently given if and
when mailed in the continental United States by registered or certified mail or
personally delivered to the party entitled thereto at the address stated below
or to such changed address as the addressee may have given by a similar notice:
To the Company:
MONY
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
To the Executive:
Xxxxx X. Xxxxx
c/o The Advest Group, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
With an additional copy to the Executive at the home address listed on Exhibit I
hereto (or to such changed address as the Executive may have given by a similar
notice).
14. GENERAL PROVISIONS
(A) Determination of Value. Whenever, under this Agreement, it is
necessary to determine whether one benefit is less than, equal to, or larger
than another in value (whether or not such benefits are provided under this
Agreement), such determination shall be made using the assumptions described in
Section 10.
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(B) Other Existing Agreements. Except as specifically set forth in
this Agreement (including, without limitation, Exhibit I hereto), this Agreement
shall supersede any right under any other agreement relating to terms of
employment between the Company and the Executive existing as of the Agreement
Date. Notwithstanding the foregoing, the Executive may waive his rights under
this Agreement so as to benefit from any provisions in any other agreement which
would otherwise be superseded hereunder.
(C) Limitation. This Agreement shall not confer any right or impose
any obligation on the Executive to continue in the employ of the Company, or
limit the right of the Company or the Executive to terminate his employment.
(D) Company Set-Off and Counterclaim. The Company shall have no
right of set-off or counterclaim in respect of any claim, debt or obligation
against any payments provided for in this Agreement.
(E) Assignment of Interest. No right to or interest in any payments
shall be assignable by the Executive; provided, however, that this provision
shall not preclude him from designating one or more beneficiaries to receive any
amount that may be payable after his death and shall not preclude his executor
or administrator from assigning any right hereunder to the person or persons
entitled thereto.
(F) Amendment, Modification and Waiver. No provision of this
Agreement may be amended, modified or waived unless such amendment, modification
or waiver shall be agreed to in writing signed by the Executive and by a duly
authorized officer of MONY.
(G) Enforceability. If this Agreement or any provision hereof shall
be determined to be invalid or unenforceable by a court of competent
jurisdiction, the
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remaining provisions of this Agreement shall remain in full force and effect to
the fullest extent permitted by law.
(H) Entirety of Agreement. This Agreement constitutes the entire
agreement between the Company and the Executive relating to the subject matter
hereof. Any compensation or benefits to which the Executive is entitled under
this Agreement shall be provided based solely upon its terms, without regard to
any materials used in the preparation or consideration of this Agreement,
including any summary of terms of estimate of amounts relating to this
Agreement.
(I) Company and Successors. This Agreement shall be binding upon and
inure to the benefit of the Company and any successor of the Company including,
without limitation, any corporation acquiring directly or indirectly all of
substantially all of the assets of the Company, whether by merger,
consolidation, reinsurance, sale or otherwise (and such successor shall
thereafter be deemed "the Company").
(J) Definition of Executive. The word "Executive" shall, wherever
appropriate, include his dependents, beneficiaries and legal representatives.
(K) Conflict of Law. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of
Connecticut, without giving effect to the principles of conflict of laws
thereof.
(L) Exhibits. The provisions of Exhibit I hereto are hereby
incorporated by reference in this Agreement with the same force and effect as if
fully set forth herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Change in
Control Agreement as of the day and year first above written.
MONY Life Insurance Company
By
--------------------------------
Name:
Title:
ATTEST:
------------------------------
Secretary
Xxxxx X. Xxxxx
-----------------------------------
Name:
Title:
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Exhibit I to Employment Agreement
X. Xxxxx X. Xxxxx
00 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxx, XX 00000
II. Other agreements between Executive and MONY that are not to be superseded
by the Agreement as contemplated in Section 14(B) (in addition to rights
specifically set forth in the Agreement):
Employment agreement dated as of 8/23/00 (for periods prior to Change in
Control).
III. Election made pursuant to Section 10(A):
For purposes of the calculations contemplated by Section 10(A), the
Executive elects to utilize the applicable discount rate in effect on:
_______ the Agreement Date; or
_______ the Termination Date.
If no election is made, the Executive will be deemed to have elected the
applicable discount rate in effect on the Agreement Date.
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