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Exhibit 10(xxxv)
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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 ___ day of __________, 199_.
W I T N E S S E T H :
_ _ _ _ _ _ _ _ _ _
WHEREAS, the Company has employed the Executive in a
key executive officer position and has determined that the
Executive holds a position of significant importance with the
Company;
WHEREAS, the Company deems it desirable and in its best
interests to make provision for the availability to the
Company, its subsidiaries, and their respective successors and
assigns in the future of the Executive's services on the terms
set forth herein;
WHEREAS, the Company further believes that, in the event
it is confronted with a situation that could result in a change
in ownership or control of the Company, continuity of
management will be essential to its ability to evaluate and
respond to such situation in the best interests of
shareholders;
WHEREAS, the Company also 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 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;
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. 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 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 his 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".
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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.
(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 that would have been payable to
the Executive as a target bonus for the year in which the
Change of Control occurs plus, long-term incentive compensation
opportunities on terms and conditions no less favorable to the
Executive than those applicable to the Executive prior to the
Change of Control Date. 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.
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.
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(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 voluntary termination under this
Section 5(b).
(c) Cause. The Company may terminate the Exec-
utive's employment for 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 dis-
honesty 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 and such
violations must have occurred following a Change of Control
Date.
(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, "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 responsibilities;
(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 speci-
fied under the provisions of Section 2 immediately prior
to the Change of Control, except for travel reasonably
required in the performance of the Executive's
responsibilities;
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(iv) the failure by the Company to permit the
Executive to participate in all long-term incentive
compensation programs for key executives 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);
(v) 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
(vi) any failure by the Company to obtain the
assumption and agreement to perform this Agreement by a
successor as contemplated by Section 11(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) 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 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.
(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.
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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 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 Executive
in accordance with Section 5(b) other than during the 90 day
period described in Section 6(d)(i) below, 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 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 the Executive breaches any of the
provisions of Section 9.
(d) Certain Terminations In Connection With a Change
of Control.
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(i) Lump Sum Payments. If, following a Change of
Control, (x) the Company terminates the Executive's em-
ployment other than for Cause, (y) the Executive
terminates his employment at any time for Good Reason or
(z) the Executive voluntarily terminates his employment
without Good Reason during the 90 day period beginning on
the first anniversary of the Change of Control Date, 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 three times the sum of (1) the
Executive's annual Base Salary; and (2)
the greater of (x) 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 (y) the amount
that would have been payable to the
Executive as a target bonus for the year in
which the Change of Control occurs; and
(C) the Accrued Obligations.
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 practicable,
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 par-
ticipation in the Benefit Plans and eligibility for
perquisites 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.
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(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 con-
nection 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 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 6(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
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,
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(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 "Ac-
countants"), 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.
(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
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 Fed-
eral, 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 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; 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 Reimbursement 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 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.
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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 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 clause
(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 interpretation 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,
enforceability 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 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.
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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 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. 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.
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(f) 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: USLIFE Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: Executive Vice President -
General Counsel
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.
USLIFE CORPORATION
_______________________
By:
Title:
EXECUTIVE:
_________________________