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EXHIBIT 10.35
Date
Dear :
This letter is to confirm our discussions. Pursuant to Section
14 (D) of the Employment Agreement between The Mutual Life Insurance Company of
New York and you dated , this letter will serve to amend the terms of that
Agreement.
Section 8 (A) (4) currently reads as follows:
"8(A)(4) Employee Benefits. All cash payments made pursuant to
this Section 8(A) shall be benefit-bearing."
We agree that this section is hereby deleted from the
Agreement and that Sections 8 (A) (5) and 8 (A) (6) are now new Sections 8 (A)
(4) and 8 (A) (5) , respectively.
Please sign and date the two original copies of this letter.
One copy should be retained for your files. The other should be returned to me
at your earliest convenience.
[Seal] The Mutual Life Insurance
Attest: Company of New York
By:
Read and Accepted by:
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EMPLOYMENT AGREEMENT
AGREEMENT between THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a mutual
company organized under the laws of the State of New York (the "Company") , and
(the "Executive") dated as of (the "Agreement Date").
To insure continuity of the Company's senior management team, the parties wish
to record in this Agreement terms which provide the Executive with contractual
rights to compensation and benefits currently being provided on an informal
basis.
The Company and the Executive agree as follows:
1. OPERATION AND TERM OF AGREEMENT
This Agreement shall be effective as of the Agreement Date and
shall continue until the Expiration Date. The Expiration Date shall initially be
, but commencing on that date, and each thereafter, the
Expiration Date shall automatically be extended by additional year unless, not
later than ,the Company gives notice to the Executive that it will
not extend the Expiration Date.
2. CERTAIN DEFINITIONS
(A) Period of Employment. Commences on the Agreement Date and ends on
the Expiration Date or the Termination Date, whichever is earlier.
(B) Contract Term. Commences on the Agreement Date and ends on the
Expiration Date.
(C) Termination Date. The date when the Executive's employment with the
Company ceases.
3. EXECUTIVE'S RESPONSIBILITIES
(A) Position, Duties, Responsibilities. The Executive shall serve in
the position of .
(B) Best Efforts. The Executive shall devote his full time, best
efforts, and undivided attention to the Company's affairs, except for reasonable
vacations or illness or incapacity. Performance objectives have been established
by the Chief Executive Officer for the Company and for the Executive. The
Executive agrees to work diligently to achieve such performance objectives. The
Executive shall perform his duties with that degree of care and skill expected
of executives of similar rank at companies of comparable size and complexity.
4. RESTRICTIVE COVENANTS
(A) Noncompetition. During the Period of Employment and for the
six-month period immediately following, the Executive shall not, directly or
indirectly, in any capacity,
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engage in any business which is substantially competitive with any business then
actively conducted by the Company, and the Executive shall not consult with or
advise any such competitive business or otherwise, directly or indirectly,
engage in any activity which is substantially competitive with or in any way
adversely affects any activity of the Company.
(B) Nondisclosure. The Executive shall not make use of, disclose,
divulge, or make accessible to any third party any information of a confidential
nature about the Company known to the Executive in the course of his employment
until such information has come into the public domain.
(C) Specific Performance and Injunctive Relief. The Executive agrees
that the Company 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 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. The Executive shall receive annual base
compensation at a rate not less than the rate in effect on the Agreement Date,
which shall be adjusted thereafter in accordance with the Company's regular
administrative practices generally applicable to its senior executives.
(B) Incentive Compensation. The Executive shall be a participant in the
Company's Annual Incentive Compensation Plan and Equity Share Plan (the
"Incentive Plans"), as in effect on the Agreement Date and with such changes or
other incentive compensation plans as may from time to time be adopted in
accordance with the Company's practices. The Executive shall be entitled to
participate in other incentive compensation plans generally available to senior
executives of the Company.
(C) Perquisites. During the Period of Employment, the Executive shall
be entitled to perquisites and fringe benefits generally available to officers
of his rank at the Company.
(D) Employee Benefits. The Executive shall be entitled to all employee
benefit plans and programs in effect for senior executives of the Company on the
Agreement Date ("Benefit Plans"), with such changes as may from time to time be
made accordance with the Company's practices. The Executive shall be entitled to
participate in any employee benefit plans and programs general available to
senior executives of the Company.
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6. 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.
7. TERMINATION
(A) Cause. The Company shall have the right at any time to terminate
the Executive's employment with the Company. The termination shall be deemed to
be for "Cause" only if such termination shall be the result of:
(i) the conviction of the Executive upon a charge of any crime
involving moral turpitude;
(ii) the commission by the Executive of any act of fraud,
misrepresentation, or dishonesty;
(iii) a 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, or to materially meet
the performance objectives and expectations referred to in Section 3(B) above;
(iv) the Executive's misconduct or negligence in performing
his duties at the Company; or
(v) the Executive's engaging in activities which place the
Executive in direct or indirect conflict with the Company;
(B) Good Reason. The Executive shall have the right at any time to
terminate the Executive's employment with the Company. The termination shall be
deemed to be for "Good Reason" only if such termination shall be the result of:
(i) a material reduction in the level of the Executive's
annual base compensation in effect on the Agreement Date or as such
level may be increased from time to time; the failure by the Company to
continue the Executive's participation in the Incentive Plans and
Benefit Plans as provided in Section 5; provided that Good Reason shall
not include a reduction in annual base compensation or in the benefits
under the Incentive Plans or the Benefit Plans that is the result of
(a) a program of reduction that is generally applicable to officers of
the Company or to participants in such plans or (b) any discretionary
determination permitted under the terms of the Incentive Plans or the
Benefit Plans; or
(ii) a material adverse alteration in the Executive's
position, powers, authority, duties, or responsibilities; removal,
during the Period of Employment, of the Executive from the office he
held as of the Agreement Date; provided that Good Reason shall not
include any such alteration or removal resulting solely from the
consummation
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of a proposal that is under consideration on the Agreement Date to
dispose of the Company's pension business.
(C) Termination Procedure; Arbitration.
(1) Notice. (a) Notice of termination 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 or later than 90 days if from the date of such notice.
(b) In the event that the Company elects to terminate
employment for Cause, the notice shall also state that the Executive
was guilty of conduct set forth in Section 7 (a), with the particulars
thereof specified in reasonable detail.
(c) In the event that the Executive elects to terminate
employment for Good Reason, the notice shall also specify the reason
for such termination, as set forth in Section 7(b), with the
particulars thereof specified in reasonable detail, and shall be given,
except in the case of a continuing breach, within 10 days after the
most recent event giving rise to Good Reason.
(2) Cure. In the case of the Executive's allegation
of Good Reason, the Company shall be given the opportunity to cure
within 30 days from its receipt of the notice, or take all reasonable
steps to that end during such 30-day period and thereafter.
(3) Arbitration. The Company and the Executive will
submit to arbitration in accordance with the rules of the American
Arbitration Association before a tribunal located in New York City,
within three months of the time it arises, any controversy, claim or
disagreement arising out of or concerning the interpretation,
application, or enforcement of this Agreement.
The decision and award of the arbitrator is intended to be final and
binding between the parties and shall be enforceable in any court of competent
jurisdiction. The parties agree that, upon the issuance of an arbitrator's
decision and award, judgment in any court of competent jurisdiction shall be
rendered on the award and entered so as to enforce its provision.
8. CONSEQUENCES OF TERMINATION
(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 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 which he might otherwise be
entitled, with the benefits described below:
(1) Severance. A lump-sum payment in an amount equal to annual
base compensation in effect on the Termination Date, multiplied by two.
This amount shall be reduced by any severance payments made to the
Executive under any other employment contract or severance arrangement
with the Company.
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(2) Incentive Compensation. The Executive shall receive as
additional severance: (a) any incentive compensation earned with
respect to the calendar year immediately preceding the Termination Date
but not yet paid; and (b) incentive compensation with respect to the
calendar year in which the Termination Date shall occur, in both cases
in an amount determined by the Chief Executive (which shall not be less
than 50% of Executive's base compensation in each case).
(3) Perquisites. At the discretion of the Chief Executive
Officer, the Executive may receive as additional severance the value of
the perquisites to which the Executive is entitled under 5(C) above
immediately before the Termination Date and such other items (such as
personal computers) as the Chief Executive Officer shall determine. The
Company shall provide the reasonable cost of shipping personal files
and other personal property of the Executive to the location designated
by the Executive.
(4) Employee Benefits. All cash payments made pursuant to this
Section 8(A) shall be benefit-bearing.
(5) Split Dollar Policy. 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 their respective obligations
to pay premiums in accordance with the terms of the policy.
(6) Automobile. If the Executive has a Company- furnished
automobile, the Company shall deliver title to such automobile to the
Executive at no additional cost to the Executive. At the Company's
election, the company may elect to continue lease payments to the end
of the lease term on the automobile before delivering title to the
Executive.
(B) 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 for Cause or by the Executive other than for Good Reason, the
Executive shall be entitled only to the compensation and benefits required by
law upon termination of employment.
(C) 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. WITHHOLDING
All payments shall be subject to the withholding of such amounts, if
any, relating to tax, excise tax, and other payroll deductions as the Company
may determine it should withhold.
10. INDEMNIFICATION AND INSURANCE; LEGAL EXPENSES
(A) Indemnification and Insurance. The Company will indemnify the
Executive (including payment of expenses in advance of final disposition of the
proceeding) to
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the fullest extent permitted by the laws of the State of New York and the
Charter and By-Laws of the Company; and the Executive shall be entitled to the
protection of any insurance policies the Company may elect to maintain for the
benefit of its directors and officers, against all costs, charges, and expenses
whatsoever incurred by him in connection with any action, suit, or proceeding to
which he may be made a party by reason of his being or 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.
(B) Legal Expenses. In the event of any arbitration between the Company
and the Executive with respect to the subject matter of this Agreement, the
Company shall reimburse the Executive, should the Executive prevail, for all of
his reasonable costs and expenses relating to such arbitration, including,
without limitation, reasonable attorneys' fees and expenses. In no event shall
the Executive be required to reimburse the Company for any of the costs or
expenses relating to such arbitration.
11. NOTICES
All notices and other communications shall be in writing and shall be
sufficiently given 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: To the Executive:
MONY MONY
0000 Xxxxxxxx 0000 Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: General Counsel
with an additional copy to the Executive at the home address listed on the
signature page hereto (or to such changed address as the Executive may have
given by a similar notice).
12. NON-SOLICITATION, NON-HIRE
For one year following the Termination Date, the Executive will not
directly or indirectly solicit or otherwise induce any person employed by the
Company (or affiliated with the Company as a field underwriter) to terminate his
or her employment with the Company, nor will he hire a current Company employee
or field underwriter.
13. BUSINESS GOODWILL
For one year following the Termination Date, the parties shall make no
comments which are adverse to the other party's interests or which reflect
negatively on the other party.
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14. GENERAL PROVISIONS
(A) Other Existing Rights. Except as specifically set forth in this
Agreement, this Agreement shall not supersede any right of the Executive to
compensation or benefits under any other agreement relating to terms of
employment or under any other plan, program, or practice of the Company existing
as of the Termination Date. Any compensation or benefits thereunder shall be
paid to the Executive in accordance with the terms thereof without limitation by
this Agreement.
(B) 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.
(C) Assignment of Interest. No right to or interest in any payments
shall be assignable by the Executive.
(D) Amendment, Modification and Waiver. This Agreement may not be
amended, modified, or waived unless such amendment, modification, or waiver is
agreed to in writing signed by the Executive and by a duly authorized Company
officer.
(E) Enforceability. If any provision of this Agreement shall be
determined to be invalid or unenforceable by a court of competent jurisdiction,
the remaining provisions of this Agreement shall remain in full force and effect
to the fullest extent permitted by law.
(F) 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 or estimate of amounts relating to this
Agreement.
(G) Conflict of Law. The validity, interpretation, performance, and
enforcement of this Agreement shall be governed by the laws of the State of New
York, without giving effect to the principles of conflict of laws thereof.
(H) Confidentiality. The parties will treat the terms of this Agreement
as confidential.
(I) Availability. The Executive will make himself available, upon
request by the Company, in connection with any proceeding, legal or regulatory,
as a witness on behalf of the Company. The Company will pay all reasonable
expenses in connection with this provision.
(J) Non-Waiver of Breach. No action or inaction by the Company shall be
deemed, in law or equity, to be a waiver of any breach of this Agreement by the
Executive.
(K) Rehabilitation. This Agreement shall be null and void in the event
that the New York State Superintendent of Insurance is named rehabilitator under
Article 74 of the New York State Insurance Law.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
[SEAL] THE MUTUAL LIFE INSURANCE
Attest: COMPANY OF NEW YORK
By:
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