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Exhibit 10(lxxiii)
__________________
EMPLOYMENT AND KEY EXECUTIVE EMPLOYMENT PROTECTION AGREEMENT
____________________________________________________________
THIS AGREEMENT between USLIFE Corporation, a New
York corporation (the "Company"), and _____________(the
"Executive"), dated as of this 14th day of March, 1997.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company has employed the Executive in
an officer position;
WHEREAS, to assure itself of the Executive's
services during the period in which it is confronting a
situation which could result in a change in ownership or
control of the Company, and to provide the Executive with
certain financial assurances to enable the Executive to
perform the responsibilities of his position without undue
distraction and to exercise his judgment without bias due to
his personal circumstances in such a situation, the Company
entered into an agreement with the Executive to provide him
with certain benefits in the event of his involuntary
termination of employment following such a change in
ownership or control of the Company;
WHEREAS, the Company has promoted the Executive to
a key executive officer position;
WHEREAS, under the Company's practices, the
Executive is entitled to the benefit of certain other
benefits and protections from the Company, including,
without limitation, to become a party to an employment
agreement with the Company;
WHEREAS, to make provision for the availability to
the Company, its subsidiaries and their respective successor
and assigns in the future of the Executive's services, the
Company desires to enter into this Agreement with the
Executive in accordance with its usual practices for
individuals at his level of employment, but subject to the
modifications therein required pursuant to the Agreement and
Plan of Merger, dated as of February 12, 1997, by and among
the Company, American General Corporation and Texas Stars
Corporation;
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NOW, THEREFORE, in consideration of the premises
and mutual covenants herein contained, it is hereby agreed
by and between the Company and the Executive as follows:
1. Agreement to Employ. Except as otherwise
expressly provided herein, the Company agrees to employ the
Executive and the Executive agrees to perform services as an
employee of the Company or one of its subsidiaries for an
initial period commencing on the date hereof (the
"Commencement Date") and ending on the day immediately
preceding the third anniversary of the Commencement Date.
Upon each anniversary of the Commencement Date, the term of
this Agreement will be extended for one (1) additional year
without any action by the Company or the Executive, unless
either the Company or the Executive delivers written notice
(the "Notice") to the other party, during the 90 day period
immediately prior to any such anniversary date, stating that
it or he does not want the term of this Agreement further
extended; provided that, except as provided in the next
following sentence, if a Change of Control (as defined
below) occurs during the term of this Agreement, this
Agreement shall in all events continue in effect until the
third anniversary of the date upon which such Change of
Control occurs (the "Change of Control Date").
Notwithstanding the foregoing, if, prior to the occurrence
of a Potential Change of Control (as defined below) or a
Change of Control, the Executive is demoted to a lower
position than the position of Senior Vice President, the
additional protection afforded by this Agreement in respect
of a Change of Control shall be without force and effect.
2. Duties and Responsibilities. Executive shall
be initially employed as an Executive Vice President, and
shall serve in such other executive capacity or capacities
with the Company or its subsidiaries as its Board of
Directors from time to time may determine at any time prior
to the Change of Control Date. During the term of this
Agreement the Executive will devote all of his business time
and attention to the business and affairs of the Company and
its subsidiaries; provided that the Executive will not be
deemed to have violated his commitment hereunder by reason
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of periods of vacation, sick leave and other leave to which
he is entitled.
Without limiting the generality of the foregoing,
following a Change of Control, the Executive's position
(including titles, authority and responsibilities) shall be
at least commensurate with those held, exercised and
assigned immediately prior to the Change of Control Date.
Following a Change of Control, the Executive's services
shall be performed at the location where the Executive was
employed immediately preceding the Change of Control Date.
3. Annual Compensation. (a) Base Salary. The
Company will pay Executive for his services hereunder at the
rate in effect on the date hereof, in equal monthly
installments, plus any lump sum bonus payments, plus such
periodic salary increases and such additional compensation
(if any) as may from time to time be voted by the Company's
Board of Directors and/or the Executive Compensation
Committee or its successor, in the sole and absolute
discretion of said Board and/or Committee. Nothing in this
Agreement shall be construed as precluding merit increases
in salary or barring the Executive from such fringe benefits
as the Company may grant. During the term hereof, the
Executive shall be eligible to participate in each employee
benefit plan or program sponsored or maintained by the
Company and in other Company perquisites to the extent that
he is eligible to participate therein in accordance with the
terms and conditions generally applicable thereto. The
Executive's base salary, as it may be increased from time to
time, shall hereafter be referred to as "Base Salary".
Without limiting the generality of the foregoing,
following a Change of Control Date, the Executive shall
receive a Base Salary at a monthly rate at least equal to
the monthly salary paid to the Executive by the Company and
any of its affiliated companies immediately prior to such
Change of Control Date. Neither the Base Salary nor any
increase in Base Salary after the Change of Control Date
shall serve to limit or reduce any other obligation of the
Company hereunder.
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(b) Annual Bonus. Following a Change of Control,
for each fiscal year of the Company ending during the term
of this Agreement, the Executive shall receive a bonus at
least equal to the greater of (i) the highest bonus amount
payable to the Executive in respect of either of the last
two fiscal years of the Company ending immediately prior to
the Change of Control Date or (ii) the amount, if any, that
would have been payable to the Executive as a target bonus
for the year in which the Change of Control occurs. Any
amount payable hereunder as an annual bonus shall be paid as
soon as practicable following the year for which the amount
is payable, unless electively deferred by the Executive
pursuant to any deferral programs or arrangements that the
Company may make available to the Executive.
4. Definitions. (a) Change of Control. For
the purposes of this Agreement, a "Change of Control" shall
mean (i) a merger or consolidation to which the Company is a
party and for which the approval of any shareholders of the
Company is required; (ii) any "person" (as such term is used
in Sections 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended) becoming the beneficial owner,
directly or indirectly, of securities of the Company
representing 25% or more of the combined voting power of the
Company's then outstanding securities or (iii) a sale or
transfer of substantially all of the assets of the Company.
(b) Potential Change of Control. For the
purposes of this Agreement, a Potential Change of Control
shall be deemed to have occurred if (i) any "person" (as
such term is used in Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended) commences a
tender offer for securities, which if consummated, would
result in such person owning 20% or more of the combined
voting power of the Company's then outstanding securities;
(ii) the Company enters into an agreement the consummation
of which would constitute a Change of Control; (iii) proxies
for the election of directors of the Company are solicited
by anyone other than the Company; or (iv) any other event
occurs which is deemed to be a Potential Change of Control
by the Board.
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5. Termination. (a) Death, Disability or
Retirement. This Agreement shall terminate automatically
upon the Executive's death, termination due to "Disability"
(as defined below) or voluntary retirement under any of the
Company's retirement plans as in effect from time to time.
For purposes of this Agreement, Disability shall mean the
Executive's inability to perform the duties of his position,
as determined in accordance with the policies and procedures
applicable with respect to the Company's long-term
disability plan, as in effect from time to time, except
that, following a Change of Control, disability shall be
determined based on the policies and procedures in effect
immediately prior to the Change of Control Date.
(b) Voluntary Termination. Notwithstanding
anything in this Agreement to the contrary, following a
Change of Control the Executive may, upon not less than 30
days' written notice to the Company, voluntarily terminate
his employment for any reason (including early retirement
under the terms of any of the Company's retirement plans as
in effect from time to time), provided that any termination
by the Executive pursuant to Section 5(d) on account of Good
Reason (as defined therein) shall not be treated as a vol-
untary termination under this Section 5(b).
(c) Cause. The Company may terminate the Exec-
utive's employment for Cause. For purposes of this Agree-
ment, "Cause" means (i) the Executive's conviction or plea
of nolo contendere to a felony; (ii) an act or acts of
extreme dishonesty or gross misconduct on the Executive's
part which result or are intended to result in material
damage to the Company's business or reputation; or (iii)
repeated material violations by the Executive of his
obligations under Section 2 of this Agreement, provided
that, following a Change of Control Date, Cause shall not
exist due to such violations of his obligations unless such
violations are demonstrably willful and deliberate on the
Executive's part and result in material damage to the
Company's business or reputation.
(d) Good Reason. Following the occurrence of a
Change of Control, the Executive may terminate his
employment for Good Reason. For purposes of this Agreement,
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"Good Reason" means the occurrence of any of the following,
without the express written consent of the Executive, after
the occurrence of a Change of Control:
(i) (A) the assignment to the Executive of any
duties inconsistent in any material adverse respect
with the Executive's position, authority or
responsibilities as contemplated by Section 2 of this
Agreement, or (B) any other material adverse change in
such position, including titles, authority or re-
sponsibilities;
(ii) any failure by the Company to comply with
any of the provisions of Section 3 of this Agreement,
other than an insubstantial or inadvertent failure
remedied by the Company promptly after receipt of
notice thereof given by the Executive;
(iii) the Company's requiring the Executive to be
based at any office or location more than 50 miles from
that location at which he performed his services
specified under the provisions of Section 2 immediately
prior to the Change of Control, except for travel
reasonably required in the performance of the Ex-
ecutive's responsibilities;
(iv) the failure by the Company to permit the
Executive (and, to the extent applicable, his
dependents) to participate in or be covered under all
pension, retirement, deferred compensation, savings,
medical, dental, health, disability, group life,
accidental death and travel accident insurance plans
and programs of the Company and its affiliated
companies at a level that is commensurate with the
Executive's participation in such plans immediately
prior to the Change of Control Date (or, if more
favorable to the Executive, at the level made available
to the Executive or other similarly situated officers
at any time thereafter); or
(v) any failure by the Company to obtain the
assumption and agreement to perform this Agreement by a
successor as contemplated by Section 11(b).
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In no event shall the mere occurrence of a Change of
Control, absent any further impact on the Executive, be
deemed to constitute Good Reason.
(e) Notice of Termination. Any termination by
the Company for Cause or by the Executive for Good Reason
shall be communicated by Notice of Termination to the other
party hereto given in accordance with Section 12(f). For
purposes of this Agreement, a "Notice of Termination" means
a written notice given, in the case of a termination for
Cause, within 10 business days of the Company's having
actual knowledge of the events giving rise to such ter-
mination, and in the case of a termination for Good Reason,
within 180 days of the Executive's having actual knowledge
of the events giving rise to such termination, and which (i)
indicates the specific termination provision in this Agree-
ment relied upon, (ii) sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the pro-
vision so indicated, and (iii) if the termination date is
other than the date of receipt of such notice, specifies the
termination date of this Agreement (which date shall be not
more than 15 days after the giving of such notice). The
failure by the Executive to set forth in the Notice of
Termination any fact or circumstance which contributes to a
showing of Good Reason shall not waive any right of the
Executive hereunder or preclude the Executive from asserting
such fact or circumstance in enforcing his rights hereunder.
(f) Date of Termination. For the purpose of this
Agreement, the term "Date of Termination" means (i) in the
case of a termination for which a Notice of Termination is
required, the date of receipt of such Notice of Termination
or, if later, the date specified therein, as the case may
be, and (ii) in all other cases, the actual date on which
the Executive's employment terminates during the Employment
Period.
6. Obligations of the Company upon Termination.
(a) Death or Disability. If the Executive's employment is
terminated during the term hereof by reason of the
Executive's death or Disability, this Agreement shall
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terminate without further obligations to the Executive or
the Executive's legal representatives under this Agreement
other than those obligations accrued hereunder at the Date
of Termination, and the Company shall pay to the Executive
(or his beneficiary or estate) (i) the Executive's full Base
Salary through the Date of Termination (the "Earned
Salary"), (ii) any vested amounts or benefits owing to the
Executive under the Company's otherwise applicable employee
compensation and benefit plans and programs, including any
compensation previously deferred by the Executive (together
with any accrued earnings thereon) and not yet paid by the
Company and any accrued vacation pay not yet paid by the
Company (the "Accrued Obligations"), and (iii) any other
benefits payable due to the Executive's death or Disability
under the Company's plans, policies or programs (the
"Additional Benefits").
Any Earned Salary shall be paid in cash in a
single lump sum as soon as practicable, but in no event more
than 10 business days (or at such earlier date required by
law), following the Date of Termination. Accrued
Obligations and Additional Benefits shall be paid in
accordance with the terms of the applicable plan, program or
arrangement.
(b) Cause and Voluntary Termination. If, during
the Employment Period, the Executive's employment shall be
terminated for Cause or voluntarily terminated by the Execu-
tive in accordance with Section 5(b), the Company shall pay
the Executive (i) the Earned Salary in cash in a single lump
sum as soon as practicable, but in no event more than 10
days, following the Date of Termination, and (ii) the
Accrued Obligations in accordance with the terms of the
applicable plan, program or arrangement.
(c) Termination by the Company Without Cause
Prior to a Change of Control. Except as otherwise expressly
provided in Section 6(d), in the event that the Company
terminates the Executive's employment during the term of
this Agreement without Cause prior to the occurrence of a
Change of Control, the Company's only obligation to the
Executive shall be to pay the Executive an amount equal to
his Base Salary (at the same time as the Executive would
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have received his Base Salary had he continued to be
employed) for the period ending on the first to occur of
(i) the date on which the Executive obtains other
employment, (ii) the date on which the term of this
Agreement would have expired (but for such termination)
pursuant to Section 1 hereof, assuming that no further
renewals of such term occur after the Executive's Date of
Termination, and (iii) the date on which Executive breaches
any of the provisions of Section 9.
(d) Certain Terminations In Connection With a
Change of Control.
(i) Lump Sum Payments. If, following a Change of
Control, (x) the Company terminates the Executive's em-
ployment other than for Cause or (y) the Executive
terminates his employment at any time for Good Reason,
then the Company shall pay to the Executive the
following amounts:
(A) the Executive's Earned Salary;
(B) a cash amount (the "Severance Amount") equal
to (x) two times, in the case of a
termination of employment occurring prior to
the first anniversary of the Change of
Control Date, and (y) one and one-half times,
in the case of a termination of employment
occurring on or after the first anniversary
of the Change of Control Date and on or prior
to the third anniversary of such Change of
Control Date, the sum of
(1) the Executive's annual Base Salary; and
(2) the highest bonus amount payable to the
Executive in respect of either of the
last two fiscal years of the Company
ending immediately prior to the Change
of Control Date; and
(C) the Accrued Obligations.
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Notwithstanding the limitations contained in the
preceding sentence, if (i) the Executive's employment
is terminated by the Company without Cause after the
occurrence of a Potential Change of Control and prior
to the occurrence of a Change of Control and (ii) a
Change of Control occurs within one year of such
termination, the Executive shall be deemed, solely for
purposes of determining his rights under this
Agreement, to have remained employed until the date
such Change of Control occurs and to have been
terminated by the Company without Cause immediately
after the Change of Control Date.
The Earned Salary and Severance Amount shall
be paid in cash in a single lump sum as soon as practi-
cable, but in no event more than 10 business days (or
at such earlier date required by law), following the
later of the Change of Control Date or the Date of
Termination. Accrued Obligations shall be paid in
accordance with the terms of the applicable plan,
program or arrangement.
(ii) Continuation of Benefits. If, the Executive
is entitled to receive the Severance Amount, the
Executive (and, to the extent applicable, his
dependents) shall be entitled, after the Date of
Termination until the earlier of (1) the second
anniversary of the Date of Termination (the "End Date")
or (2) the date the Executive becomes eligible for
comparable benefits under a similar plan, policy or
program of a subsequent employer, to continue
participation in all of the Company's Executive and
executive welfare and fringe benefit plans (the
"Benefit Plans") and to receive such perquisites as
were generally provided to the Executive in accordance
with the Company's policies and practices immediately
prior to the Change of Control Date. To the extent any
such benefits or perquisites cannot be provided under
the terms of the applicable plan, policy or program,
the Company shall provide a comparable benefit under
another plan or from the Company's general assets. The
Executive's participation in the Benefit Plans and
eligibility for perquisites will be on the same terms
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and conditions that would have applied had the
Executive continued to be employed by the Company
through the End Date.
(e) Discharge of the Company's Obligations.
Except as expressly provided in the last sentence of this
Section 6(e), the amounts payable to the Executive pursuant
to this Section 6 (whether or not reduced pursuant to
Section 6(f)) following termination of his employment shall
be in full and complete satisfaction of the Executive's
rights under this Agreement and any other claims he may
have in respect of his employment by the Company or any of
its subsidiaries. Such amounts shall constitute liquidated
damages with respect to any and all such rights and claims
and, upon the Executive's receipt of such amounts, the
Company shall be released and discharged from any and all
liability to the Executive in connection with this Agreement
or otherwise in connection with the Executive's employment
with the Company and its subsidiaries. Nothing in this
Section 6(e) shall be construed to release the Company from
its commitment to indemnify the Executive and hold the
Executive harmless from and against any claim, loss or cause
of action arising from or out of the Executive's performance
as an officer, director or Executive of the Company or any
of its subsidiaries or in any other capacity, including any
fiduciary capacity, in which the Executive served at the
request of the Company to the maximum extent permitted by
applicable law and the Governing Documents.
(f) Certain Further Payments by the Company.
(i) In the event that any amount or benefit paid
or distributed to the Executive pursuant to this Agree-
ment, taken together with any amounts or benefits
otherwise paid or distributed to the Executive by the
Company or any affiliated company (collectively, the
"Covered Payments"), are or become subject to the tax
(the "Excise Tax") imposed under Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code"),
or any similar tax that may hereafter be imposed, the
Company shall pay to the Executive at the time
specified in Section 6(f)(v) below an additional amount
(the "Tax Reimbursement Payment") such that the net
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amount retained by the Executive with respect to such
Covered Payments, after deduction of any Excise Tax on
the Covered Payments and any Federal, state and local
income or employment tax and Excise Tax on the Tax
Reimbursement Payment provided for by this Section
6(f), but before deduction for any Federal, state or
local income or employment tax withholding on such
Covered Payments, shall be equal to the amount of the
Covered Payments.
(ii) For purposes of determining whether any of
the Covered Payments will be subject to the Excise Tax
and the amount of such Excise Tax,
(A) such Covered Payments will be treated as
"parachute payments" within the meaning of
Section 280G of the Code, and all "parachute
payments" in excess of the "base amount" (as
defined under Section 280G(b)(3) of the Code)
shall be treated as subject to the Excise
Tax, unless, and except to the extent that,
in the good faith judgment of the Company's
independent certified public accountants
appointed prior to the Change of Control Date
or tax counsel selected by such accountants
(the "Accountants"), the Company has a
reasonable basis to conclude that such
Covered Payments (in whole or in part) either
do not constitute "parachute payments" or
represent reasonable compensation for
personal services actually rendered (within
the meaning of Section 280G(b)(4)(B) of the
Code) in excess of the "base amount," or such
"parachute payments" are otherwise not
subject to such Excise Tax, and
(B) the value of any non-cash benefits or any
deferred payment or benefit shall be deter-
mined by the Accountants in accordance with
the principles of Section 280G of the Code.
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(iii) For purposes of determining the amount of
the Tax Reimbursement Payment, the Executive shall be
deemed to pay:
(A) Federal income taxes at the highest
applicable marginal rate of Federal income
taxation for the calendar year in which the
Tax Reimbursement Payment is to be made, and
(B) any applicable state and local income taxes
at the highest applicable marginal rate of
taxation for the calendar year in which the
Tax Reimbursement Payment is to be made, net
of the maximum reduction in Federal income
taxes which could be obtained from the
deduction of such state or local taxes if
paid in such year.
(iv) In the event that the Excise Tax is subse-
quently determined by the Accountants or pursuant to
any proceeding or negotiations with the Internal
Revenue Service to be less than the amount taken into
account hereunder in calculating the Tax Reimbursement
Payment made, the Executive shall repay to the Company,
at the time that the amount of such reduction in the
Excise Tax is finally determined, the portion of such
prior Tax Reimbursement Payment that would not have
been paid if such Excise Tax had been applied in
initially calculating such Tax Reimbursement Payment,
plus interest on the amount of such repayment at the
rate provided in Section 1274(b)(2)(B) of the Code.
Notwithstanding the foregoing, in the event any portion
of the Tax Reimbursement Payment to be refunded to the
Company has been paid to any Federal, state or local
tax authority, repayment thereof shall not be required
until actual refund or credit of such portion has been
made to the Executive, and interest payable to the
Company shall not exceed interest received or credited
to the Executive by such tax authority for the period
it held such portion. The Executive and the Company
shall mutually agree upon the course of action to be
pursued (and the method of allocating the expenses
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thereof) if the Executive's good faith claim for refund
or credit is denied.
In the event that the Excise Tax is later
determined by the Accountants or pursuant to any
proceeding or negotiations with the Internal Revenue
Service to exceed the amount taken into account
hereunder at the time the Tax Reimbursement Payment is
made (including, but not limited to, by reason of any
payment the existence or amount of which cannot be
determined at the time of the Tax Reimbursement
Payment), the Company shall make an additional Tax
Reimbursement Payment in respect of such excess (plus
any interest or penalty payable with respect to such
excess) at the time that the amount of such excess is
finally determined.
(v) The Tax Reimbursement Payment (or portion
thereof) provided for in Section 6(f)(i) above shall be
paid to the Executive not later than 10 business days
following the payment of the Covered Payments; pro-
vided, however, that if the amount of such Tax ▇▇▇▇-
bursement Payment (or portion thereof) cannot be final-
ly determined on or before the date on which payment is
due, the Company shall pay to the Executive by such
date an amount estimated in good faith by the Ac-
countants to be the minimum amount of such Tax Re-
imbursement Payment and shall pay the remainder of such
Tax Reimbursement Payment (together with interest at
the rate provided in Section 1274(b)(2)(B) of the Code)
as soon as the amount thereof can be determined, but in
no event later than 45 calendar days after payment of
the related Covered Payment. In the event that the
amount of the estimated Tax Reimbursement Payment
exceeds the amount subsequently determined to have been
due, such excess shall constitute a loan by the Company
to the Executive, payable on the fifth business day
after written demand by the Company for payment (to-
gether with interest at the rate provided in Section
1274(b)(2)(B) of the Code).
7. Non-exclusivity of Rights. Except as
expressly provided herein, nothing in this Agreement shall
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prevent or limit the Executive's continuing or future
participation in any benefit, bonus, incentive or other
plan, program or perquisite provided by the Company or any
of its affiliated companies and for which the Executive may
qualify, nor shall anything herein limit or otherwise
prejudice such rights as the Executive may have under any
other agreements with the Company or any of its affiliated
companies, including employment agreements or stock option
agreements. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan or
program of the Company or any of its affiliated companies at
or subsequent to the Date of Termination shall be payable in
accordance with such plan or program.
8. Full Settlement. Following a Change of
Control, the Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any
circumstances, including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which the
Company may have against the Executive or others whether by
reason of the subsequent employment of the Executive or
otherwise.
9. Noncompetition. The Executive agrees that in
the event his employment is terminated, whether by him or by
the Company, prior to the Change of Control Date he will not
for a period of one (1) year after the Date of Termination
(i) acting alone or in conjunction with others, directly or
indirectly engage (either as owner, partner, stockholder,
employer or employee) in any business in which he has been
directly engaged during the last two (2) years prior to such
termination and which is directly in competition with a
business conducted by the Company or any of its
subsidiaries; (ii) acting alone or in conjunction with
others, directly or indirectly induce any customers of the
Company or any of its subsidiaries with whom the Executive
has had contacts or relationships, directly or indirectly,
during and within the scope of his employment with the
Company, to curtail or cancel their business with such
companies or any of them; (iii) acting alone or in
conjunction with others, directly or indirectly disclose to
any person, firm or corporation the names of any customers
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of the Company or any of its subsidiaries; (iv) acting alone
or in conjunction with others, solicit or canvass business
from any person who was a customer of the Company or any of
its subsidiaries at or prior to termination of the
Executive's employment; or (v) acting alone or in
conjunction with others, directly or indirectly induce, or
attempt to influence, any executive of the Company or any of
its subsidiaries to terminate their employment. The
provisions of clauses (i), (ii), (iii), (iv), and (v) above
are separate and distinct commitments independent of each of
the other clauses. It is agreed that the ownership of not
more than 2% of the equity securities of any company having
securities listed on a registered exchange or regularly
traded in the over-the-counter market shall not, of itself,
be deemed inconsistent with cause (i).
10. Legal Fees and Expenses. If following a
Change of Control, the Executive asserts any claim in any
contest (whether initiated by the Executive or by the
Company) as to the validity, enforceability or inter-
pretation of any provision of this Agreement, the Company
shall pay the Executive's legal expenses (or cause such
expenses to be paid) including, without limitation, his
reasonable attorney's fees, on a quarterly basis, upon
presentation of proof of such expenses, provided that the
Executive shall reimburse the Company for such amounts, plus
simple interest thereon at the 90-day United States Treasury
▇▇▇▇ rate as in effect from time to time, compounded
annually, if the Executive shall not prevail, in whole or in
part, as to any material issue as to the validity, en-
forceability or interpretation of any provision of this
Agreement.
11. Successors. (a) This Agreement is personal
to the Executive and, without the prior written consent of
the Company, shall not be assignable by the Executive other-
wise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be en-
forceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of
and be binding upon the Company and its successors. The
Company shall require any successor to all or substantially
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all of the business and/or assets of the Company, whether
direct or indirect, by purchase, merger, consolidation,
acquisition of stock, or otherwise, by an agreement in form
and substance satisfactory to the Executive, expressly to
assume and agree to perform this Agreement in the same
manner and to the same extent as the Company would be re-
quired to perform if no such succession had taken place.
12. Miscellaneous. (a) Applicable Law. This
Agreement shall be governed by and construed in accordance
with the laws of the State of New York, applied without
reference to principles of conflict of laws.
(b) Arbitration. Following the occurrence of a
Change of Control, any dispute or controversy arising under
or in connection with this Agreement shall be resolved by
binding arbitration. The arbitration shall be held in New
York, New York and except to the extent inconsistent with
this Agreement, shall be conducted in accordance with the
Expedited Employment Arbitration Rules of the American
Arbitration Association then in effect at the time of the
arbitration, and otherwise in accordance with principles
which would be applied by a court of law or equity. The
arbitrator shall be acceptable to both the Company and the
Executive. If the parties cannot agree on an acceptable
arbitrator, the dispute shall be heard by a panel of three
arbitrators, one appointed by each of the parties and the
third appointed by the other two arbitrators.
(c) Expenses. During the term hereof, the
Executive shall be entitled to receive prompt reimbursement
for all reasonable expenses incurred by the Executive in
accordance with its usual policies and procedures as in
effect from time to time. Notwithstanding the foregoing,
after the Change of Control Date, such policies and
procedures shall be no less favorable to the Executive than
those in effect immediately prior to the Change of Control
Date.
(d) Indemnification. During and after the term
hereof, the Company shall indemnify the Executive and hold
the Executive harmless from and against any claim, loss or
cause of action arising from or out of the Executive's
18
performance as an officer, director or Executive of the
Company or any of its subsidiaries or in any other capacity,
including any fiduciary capacity, in which the Executive
serves at the request of the Company to the maximum extent
permitted by applicable law and the Company's Certificate of
Incorporation and By-Laws (the "Governing Documents"),
provided that in no event shall the protection afforded to
the Executive hereunder following a Change of Control be
less than that afforded under the Governing Documents as in
effect immediately prior to the Change of Control Date.
(e) Entire Agreement. This Agreement constitutes
the entire agreement between the parties hereto with respect
to the matters referred to herein and expressly supersedes
the Key Executive Employment Protection Agreement between
the Company and the Executive dated as of November 14, 1995.
No other agreement relating to the terms of the Executive's
employment by the Company, oral or otherwise, shall be
binding between the parties unless it is in writing and
signed by the party against whom enforcement is sought.
There are no promises, representations, inducements or
statements between the parties other than those that are
expressly contained herein. This Agreement may not be
amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective succes-
sors and legal representatives. In the event any provision
of this Agreement is invalid or unenforceable, the validity
and enforceability of the remaining provisions hereof shall
not be affected. The Executive acknowledges that he is
entering into this Agreement of his own free will and
accord, and with no duress, that he has read this Agree-
ment and that he understands it and its legal
consequences.
(f) Notices. All notices and other communica-
tions hereunder shall be in writing and shall be given by
hand-delivery to the other party or by registered or cer-
tified mail, return receipt requested, postage prepaid,
addressed as follows:
19
If to the Executive: at the home address of the
Executive noted on the records
of the Company
If to the Company: USLIFE Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: Executive Vice
President - General Counsel
or to such other address as either party shall have fur-
nished to the other in writing in accordance herewith.
Notice and communications shall be effective when actually
received by the addressee.
IN WITNESS WHEREOF, the Executive has hereunto set
his hand and the Company has caused this Agreement to be
executed in its name on its behalf, all as of the day and
year first above written.
USLIFE CORPORATION
_______________________
By: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief
Operating Officer
EXECUTIVE:
_________________________
