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Exhibit 10(xxxvii)
__________________
KEY EXECUTIVE EMPLOYMENT PROTECTION AGREEMENT
_____________________________________________
THIS AGREEMENT between ______________________________a
__________ corporation (the "Company"), and ________________ (the
"Executive"), dated as of this ___ day of ______________, 1995.
W I T N E S S E T H :
_ _ _ _ _ _ _ _ _ _
WHEREAS, the Company has employed the Executive in an
executive officer position and has determined that the Executive
holds a position of significant importance with the Company;
WHEREAS, the Company believes that, in the event it is
confronted with a situation that could result in a change in
ownership or control of the its parent, USLIFE Corporation (the
"Parent"), continuity of management at the Company will be
essential to the Company's continued successful operations;
WHEREAS, the Company understands that any such
situation will present significant concerns for the Executive
with respect to his financial and job security;
WHEREAS, the Company desires to assure itself of the
Executive's services during the period in which it is confronting
such a situation, and to provide the Executive 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;
WHEREAS, to achieve these objectives, the Company and
the Executive desire to enter into an agreement providing the
Company and the Executive with certain rights and obligations
upon the occurrence of a Change of Control (as defined in Section
2);
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:
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1. Operation of Agreement. (a) Effective Date. The
effective date of this Agreement shall be the date on which a
Change of Control occurs (the "Change of Control Date"), provided
that, except as provided in Section 1(c), if the Executive is not
employed by the Company on the Change of Control Date, this
Agreement shall be void and without effect. 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, this Agreement shall be void and without effect.
(b) Employment Protection Benefits. If, on or before the
first anniversary of the Change of Control Date, (x) the Company
terminates the Executive's employment other than due to
Disability (as defined below) or for Cause (as defined below) or
(y) the Executive terminates his employment for Good Reason (as
defined below), the Company shall pay to the Executive a cash
amount (the "Severance Amount") equal to two times the sum of
(i) the Executive's annual Base Salary; and (ii) 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.
The Severance Amount shall be paid 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 Executive's
date of termination.
(c) Termination of Employment Following a Potential
Change of Control. Notwithstanding Section 1(a), if (i) the
Executive's employment is terminated by the Company without Cause
(as defined below) 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
this Agreement becomes effective.
2. 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 Parent is a party and for
which the approval of any shareholders of the Parent 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 Parent representing 25% or more of the combined
voting power of the Parent's then outstanding securities or (iii)
a sale or transfer of substantially all of the assets of the
Parent.
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(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 Parent's then outstanding
securities; (ii) the Parent enters into an agreement the con-
summation of which would constitute a Change of Control; (iii)
proxies for the election of directors of the Parent are solicited
by anyone other than the Parent; or (iv) any other event occurs
which is deemed to be a Potential Change of Control by the Board
of Directors of the Parent.
(c) Cause. For purposes of this Agreement, "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 or the Parent's
business or reputation; or (iii) repeated material violations by
the Executive of his position, authority or responsibilities as
in effect at the Change of Control Date, which violations are
demonstrably willful and deliberate on the Executive's part and
which result in material damage to the Company's or the Parent's
business or reputation.
(d) Good Reason. "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 in
effect at the Change of Control Date, or (B) any other
material adverse change in such position, including titles,
authority or responsibilities;
(ii) any failure by the Company, other than an
insubstantial or inadvertent failure remedied by the Company
promptly after receipt of notice thereof given by the
Executive, to provide the Executive with a base salary or
incentive compensation opportunities at a level which, in
each case, is at least the same as the base salary paid, or
incentive compensation opportunities made available, to the
Executive immediately prior to the Change of Control Date;
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(iii) 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
(iv) 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 for the Company
immediately prior to the Change of Control, except for
travel reasonably required in the performance of the Ex-
ecutive's responsibilities; or
(v) any failure by the Company to obtain the
assumption and agreement to perform this Agreement by a
successor as contemplated by Section 6(b).
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) Disability. 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 immediately prior to the
Change of Control Date.
3. Other Benefits and Provisions Relating to Termination.
(a) Earned Salary and Accrued Obligations. The
Severance Amount shall be in addition to and neither a limitation
of, nor an offset against, the amount payable to the Executive in
respect of (i) his base salary earned through the date of
termination and (ii) any vested amounts or benefits owing to the
Executive under the Company's otherwise applicable employee
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.
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(b) 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 (x) the second
anniversary of his date of termination (the "End Date") or (y)
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 employee and
executive welfare and fringe benefit plans (the "Benefit Plans").
To the extent any such benefits 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 will be on the same terms and conditions that would
have applied had the Executive continued to be employed by the
Company through the End Date.
(c) 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 7(d). 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 termination, 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
Agreement 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 provision 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.
(d) Discharge of the Company's Obligations. Except as
expressly provided in the last sentence of this Section 3(d), the
Severance Amount and the amounts payable and benefits provided in
respect of the Executive pursuant to Section 3 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 3(d) shall be construed to release the Company from
its obligation under Section 3(e) below to indemnify the
Executive.
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(e) Indemnification. 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 Ex-
ecutive's performance as an officer, director or employee 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 be less
than that afforded under the Governing Documents as in effect im-
mediately prior to the Change of Control Date.
(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 Agreement,
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 3(f)(v) below an additional amount
(the "Tax Reimbursement Payment") such that the net amount
retained by the Executive with respect to such Covered
Payments, after deduction of any Excise Tax on the Covered
Payments and any Federal, state and local income or
employment tax and Excise Tax on the Tax Reimbursement
Payment provided for by this Section 3(f), but before deduc-
tion 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 Parent'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 other-
wise not subject to such Excise Tax, and
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(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.
(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 tax-
ation for the calendar year in which the Tax ▇▇▇▇-
bursement 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 subsequently
determined by the Accountants or pursuant to any proceeding
or negotiations with the Internal Revenue Service to be less
than the amount taken into account hereunder in calculating
the Tax Reimbursement Payment made, 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 thereof) if the Executive's good faith claim
for refund or credit is denied.
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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 Re-
imbursement 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 3(f)(i) above shall be paid to the
Executive not later than 10 business days following the
payment of the Covered Payments; provided, however, that if
the amount of such Tax Reimbursement Payment (or portion
thereof) cannot be finally determined on or before the date
on which payment is due, the Company shall pay to the
Executive by such date an amount estimated in good faith by
the Accountants 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
(together with interest at the rate provided in Section
1274(b)(2)(B) of the Code).
4. Full Settlement. 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.
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5. Legal Fees and Expenses. If 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.
6. 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 otherwise than by will
or the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable 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 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 required to perform if no such succession
had taken place.
7. 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. 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.
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(c) Entire Agreement. Upon the Change of Control
Date, this Agreement shall constitute the entire agreement
between the parties hereto with respect to the matters referred
to herein. 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 successors 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 Agreement and that he
understands it and its legal consequences.
(d) Notices. All notices and other communications
hereunder shall be in writing and shall be given by hand-delivery
to the other party or by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Executive: at the home address of the
Executive noted on the records of
the Company
If to the Company:
with a copy to: USLIFE Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: Executive Vice President -
General Counsel
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or to such other address as either party shall have furnished 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.
[COMPANY]
_______________________
By:
Title:
EXECUTIVE:
_________________________