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EXHIBIT 10(w)
EXECUTIVE AGREEMENT
This Agreement is dated as of August 23, 2000, by and between The MONY
Group Inc., a Delaware corporation (the "Company"), The Advest Group, Inc., a
Delaware corporation ("Advest") and _______________________ (the "Executive")
(the "Agreement Date").
WHEREAS, the Company has entered into an Agreement and Plan of Merger
(the "Merger Agreement") with Advest and MONY Acquisition Corp. ("Merger Sub"),
dated as of August 23, 2000, pursuant to which Advest will be merged into Merger
Sub (the "Merger"); and
WHEREAS, Executive has rendered valuable services to Advest and its
subsidiaries and the Company desires to be assured that Executive will continue
rendering such services to Advest and its subsidiaries and Executive is willing
to continue to serve Advest and its subsidiaries but desires assurance that he
will be protected in the event of certain terminations of employment following
the "Effective Time" (as defined in the Merger Agreement) of the Merger.
Accordingly, in consideration of the mutual covenants and promises herein, the
parties agree as follows.
Section 1. Definitions. For purposes of this Agreement, the following
terms shall have the meanings indicated:
(a) "Cause" shall mean willful misconduct, gross negligence,
the conviction of Executive of a criminal offense for violation of the
securities laws or involving moral turpitude, or a determination by the Board of
Directors of Advest (the "Board") that (i) Executive has or is engaged in the
securities industry in any capacity, including as an employee or consultant,
that the Board has determined to be materially detrimental to the Company or its
business, and Executive has not provided the Board with adequate assurance that
he will refrain therefrom after written request from the Board, or (ii)
Executive has breached his obligations under Section 7.
(b) "Good Reason" shall mean the occurrence of any one of the
following events:
(i) failure of Executive to continue to be appointed or
elected to his position, or a position of comparable seniority as in
effect immediately prior to the Effective Time;
(ii) assignment to Executive of any duties materially and
adversely inconsistent with Executive's position, including status,
offices, or responsibilities, or any other action of the Company or
Advest that results in a material and adverse change in such position,
status, offices, titles or responsibilities or any other material
adverse change to the terms and conditions of Executive's employment as
they existed prior to the Effective Time;
(iii) any material and adverse change in Executive's reporting
responsibilities from those in effect immediately prior to the
Effective Time;
(iv) any material breach by the Company of the provisions of
this Agreement;
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(v) the Company, Advest or any of their subsidiaries'
requiring, without written consent of Executive, that Executive be
based at any office or location more than 30 miles from his regular
place of business as of the Effective Time;
(vi) any purported termination of Executive's employment under
this Agreement which is not for Cause in strict accordance with this
Agreement;
(vii) any reduction of Executive's annual base salary below
the levels established in the last full fiscal year completed prior to
the Effective Time, unless in conjunction with salary reductions
applicable to all similarly situated employees; or
(viii) any reduction of Executive's MIP Bonus (as defined
below) below the amount paid in the last full fiscal year completed
prior to the Effective Time, unless total MIP Bonuses paid all
executive officers decline and Executive's MIP Bonus as a percentage of
that total is at least as high as those paid Executive for that last
full fiscal year.
Notwithstanding the foregoing, "Good Reason" shall not be deemed to
occur solely as a result of a change of authority, duties, responsibilities or
reporting caused solely by the acquisition of Advest, or Advest no longer being
a public company, without any additional action taken by the Company or Advest.
(c) "Permanent Disability" means a mental or physical
condition which renders Executive permanently unable or incompetent to engage in
any substantial gainful activity.
Section 2. Severance Payments. If within five years after the Effective
Time, Executive is terminated by Advest or the Company other than for Cause, or
terminates employment for Good Reason, then within seven business days after the
date Executive leaves the employment of Advest or the Company (the "Severance
Date"), Executive shall receive from Advest a lump sum cash payment equal to the
sum of:
(a) Executive's annual base salary which is accrued but unpaid
as of the Severance Date;
(b) that portion of Executive's additional compensation under
the Management Incentive Plan maintained by Advest, or any successor plan (the
"MIP Bonus") or under any alternative incentive plan which is earned with
respect to the fiscal year ending prior to the Severance Date but that is unpaid
as of the Severance Date;
(c) the product of (i) 100% of Executive's average annual MIP
Bonus or alternative incentive bonus for the last three full fiscal years
completed prior to the Effective Time multiplied by (ii) a fraction, the
numerator of which is the number of days during the period from the first day of
the fiscal year in which the Severance Date occurs through the Severance Date
and the denominator of which is 365; and
(d) the product of (i) 100% of Executive's average annual base
salary measured over the last three full fiscal years completed prior to the
Effective Time, multiplied by (ii) the fraction, the numerator of which is the
number of days during the period from the Severance Date
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through the fifth anniversary of the Effective Time (or the first anniversary of
the Severance Date, if greater) and the denominator of which is 365.
The amounts paid to Executive hereunder shall be considered severance
pay in consideration of the past services he has rendered to Advest and in
consideration of his continued service to Advest from the date hereof to his
entitlement to those payments. Executive shall have no duty to mitigate his
damages by seeking other employment. Should Executive actually receive other
payments from any such other employment, the payments called for hereunder shall
not be reduced or offset by any such future earnings.
Section 3. Other Benefits. In addition, if within five years after the
Effective Time, Executive is terminated by Advest or the Company other than for
Cause, or terminates employment for Good Reason:
(a) All options or restricted shares or other rights granted
to Executive under any stock option or equity plan or agreement (collectively,
"Equity Incentive Awards"), shall immediately and fully vest upon the date of
termination, and, in the case of options, shall remain exercisable for not less
than 90 days therefrom.
(b) Through the fifth anniversary of the Effective Time (or
the first anniversary of the Severance Date, if greater), Executive shall also
continue to participate in all incentive, savings and retirement plans
applicable to Advest employees, and shall continue to receive benefits under all
welfare benefit plans, practices, policies and programs (including, and without
limitation, medical, prescription, dental, disability, employee life, group
life, dependent life, accidental death and travel insurance plans and programs)
applicable to other senior executives of Advest; provided, however, that any
amounts paid under this sentence shall be reduced by any similar benefits earned
by Executive as a result of employment by another employer.
(c) Executive shall receive additional benefits, over and
above that which Executive would normally be entitled to under Advest's
Nonqualified Executive PostEmployment Income Plan, or any successor plan or
similar nonqualified plan providing post-employment income, equal to the
benefits that Executive would have earned under such plans or plans had he
accumulated additional years of service through the fifth anniversary of the
Effective Time (or the first anniversary of the Severance Date, if greater).
(d) The arrangements called for by this Agreement are not
intended to have any effect on Executive's participation in any other benefits
available to executive personnel or to preclude other compensation or additional
benefits as may be authorized by the Board from time to time. The payments
provided in Section 2 shall be in addition to other payments on severance which
Executive may be entitled to under Advest's policies.
Section 4. Alternative Form of Benefits. Notwithstanding anything to
the contrary set forth in this Agreement, if the Company or Advest is otherwise
obligated to provide certain benefits under this Agreement, the Company or
Advest may elect to provide alternative benefits as follows:
(a) If the Company or Advest would otherwise be obligated to
alter the vesting or exercisability provisions of any Equity Incentive Awards,
in its discretion the Company or Advest may offer to pay to Executive in lieu
thereof a lump sum amount equal to the amount, if any, by
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which the market value of the underlying equity as of the date of termination
exceeds the exercise price. Executive may accept this offer by the Company or
Advest or elect to exercise any rights he may have under the Equity Incentive
Awards without modification.
(b) To the extent that it would violate applicable law or
regulation or the provisions of any incentive, savings or retirement plan or any
welfare benefit plan, practices policy or program applicable to Advest
employees, the Company or Advest shall be excused from offering Executive
participation in such plan, policy or program. In that event, the Company or
Advest shall pay to Executive an amount equal to the net after-tax cost that
would be incurred by Executive in obtaining comparable alternative benefits. In
the case of any benefits receivable under health, life or disability insurance
policies, this amount will be deemed to be the net after-tax cost of obtaining
such coverage.
Section 5. Termination Prior to the Effective Time. You hereby agree to
continue your employment with Advest through the Effective Time. In the event
that prior to the Effective Time Executive is terminated by Advest other than
for Cause or terminates employment for Good Reason, and the Effective Time
occurs within six months following the date of termination, the provisions of
this Agreement will apply as though the termination occurred immediately
following the Effective Time.
Section 6. Additional Payments.
(a) Gross-Up Payment. Anything in this Agreement to the
contrary notwithstanding and except as set forth below, if it shall be
determined that any amount paid, distributed or treated as paid or distributed
by the Company or Advest to or for Executive's benefit (whether paid or payable
or distributed or distributable pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments required
under this Section 6) (a "Payment") would be subject the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or
any interest or penalties are incurred by Executive with respect to such excise
tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then Executive shall
be entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by Executive of all federal, state and local taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
All determinations required to be made under this Section 6,
including whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such
determination, shall be made by a nationally recognized accounting firm as may
be designated by Executive (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and Executive within 15 business
days of the receipt of notice from Executive that there has been a Payment, or
such earlier time as is requested by the Company. In the event that the
Accounting Firm is serving as accountant or auditor for the individual, entity
or group effecting the change in control, Executive shall appoint another
nationally recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses
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of the Accounting Firm shall be borne by the Company. Any Gross-Up Payment, as
determined pursuant to this Section 6, shall be paid by the Company to Executive
within five days of the receipt of the Accounting Firm's determination. Any
determination by the Accounting Firm shall be binding upon the Company and
Executive. As a result of the uncertainty in the application of Section 4999 of
the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will not have been made
by the Company should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that the Company
exhausts its remedies pursuant to Section 6(b) and Executive thereafter is
required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for Executive's
benefit.
(b) Notification of Claims. Executive shall notify the Company
in writing of any claim by the Internal Revenue Service that, if successful,
would require the payment by the Company of the Gross-Up Payment. Such
notification shall be given as soon as practicable but not later than ten
business after Executive is informed in writing of such claim and shall apprise
the Company of the nature of such claim and the date on which such claim is
requested to be paid. Executive shall not pay such claim prior to the expiration
of the 30-day period following the date on which it gives such notice to the
Company (or such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Company notifies Executive in writing
prior to the expiration of such period that it desires to contest such claim,
Executive shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim,
(ii) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the
Company,
(iii) cooperate with the Company in good faith in order to
effectively contest such claim, and
(iv) permit the Company to participate in any proceeding
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold Executive harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on foregoing provisions of
this Section 6, the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
Executive to pay the tax claimed and xxx for a refund or contest the claim in
any permissible manner, and Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
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determine; provided, however, that if the Company directs Executive to pay such
claim and xxx for a refund, the Company shall advance the amount of such payment
to Executive, on an interest-free basis, and shall indemnify and hold Executive
harmless, on an after-tax basis, from any Excise Tax or income tax (including
interest or penalties with respect thereto) imposed with respect to such advance
or with respect to any imputed income with respect to such advance; and further
provided that any extension of the statute of limitations relating to payment of
taxes for Executive's taxable year with respect to which such contested amount
is claimed to be due is limited solely to such contested amount. Furthermore,
the Company's control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and Executive shall be
entitled to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(c) Refund of Claims. If, after Executive's receipt of an
amount advanced by the Company pursuant to Section 6(b), Executive becomes
entitled to receive any refund with respect to such claim, Executive shall
(subject to the Company's complying with the requirements of Section 6(b))
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after
Executive's receipt of an amount advanced by the Company pursuant to Section
6(b), a determination is made that Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify Executive in writing
of its intent to contest such denial of refund prior to the expiration of 30
days after such determination, then such advance shall be forgiven and shall not
be required to be repaid and the amount of such advance shall offset, to the
extent thereof, the amount of Gross-Up Payment required to be paid.
Section 7. Restrictive Covenants.
(a) Confidential Information. Executive shall not at any time
after termination of employment reveal to anyone other than authorized
representatives of Advest or the Company, or use for his own benefit or the
benefit of any third party, any trade secrets, customer information or other
information that has been designated as confidential by Advest or the Company or
is understood by Executive to be confidential, unless such information is or
becomes available to the public or is otherwise public knowledge or in the
public domain for reasons other than Executive's acts or omissions.
(b) Non-competition. During the period commencing on the
Effective Time through a one-year period immediately following the termination
of employment, unless the Executive is terminated by Advest or the Company
without Cause or the Executive terminates employment for Good Reason, the
Executive shall not, directly or indirectly, in any capacity, engage in any
business in Hartford, Connecticut which is substantially competitive with the
business then actively conducted by Advest; provided that the foregoing shall
not preclude the Executive from owning stock comprising less than 5% of the
stock of a public company.
(c) Non-solicitation. During the period commencing on the
Effective Time through a one-year period following the termination of
employment, the Executive will not directly or indirectly (i) solicit or
otherwise induce any person employed by Advest, to terminate his or her
employment with Advest, (ii) hire a current Advest employee or field underwriter
or (iii) solicit the clients, customers or active prospects of Advest.
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(d) Specific Performance and Injunctive Relief. The Executive
agrees that the Company will suffer irreparable injury if the provisions of this
Section 7 are not honored, that damages resulting from such injury will be
incapable of being precisely measured, and that the Company will not have any
adequate remedy at law to redress the harm which such violation shall cause.
Accordingly, the Executive agrees that the Company shall have the rights and
remedies of specific performance and injunctive relief, in addition to any other
rights or remedies that may be available at law or in equity, in respect of any
failure, or threatened failure, on the part of the Executive to comply with the
provisions of this Section 7, including, but not limited to, temporary
restraining orders and temporary injunctions to restrain any violation or
threatened violation of this Agreement by the Executive.
Section 8. Term. This Agreement shall continue for a period of five
years from the Effective Time. Thereafter, it shall be continued only if
Executive and the Company (with the approval of its Board of Directors) mutually
agree in writing to extend this Agreement for an additional term. Not less than
one year prior to the expiration of the initial term or any extended term of
this Agreement, the parties shall meet to discuss whether this Agreement shall
be extended beyond that expiration. This Agreement shall terminate earlier: (a)
upon the death or Permanent Disability of Executive; (b) prior to the Effective
Time, upon the termination of Executive's employment with Advest for any reason
(other than a termination covered by Section 5 of this Agreement); or (c)
following the Effective Time, upon the termination of Executive's employment
with Advest or the Company by Advest or the Company for Cause or by Executive
other than for Good Reason. Notwithstanding the foregoing, the provisions of
Section 4 and Section 7 shall continue indefinitely.
Section 9. Miscellaneous. This Agreement can only be altered by written
amendment executed by both parties. Except for Section 7 hereof, any claim
controversy arising between the parties shall be settled by arbitration before a
New York Stock Exchange panel. The arbitrators shall have no authority to modify
any provision of this Agreement or to award a remedy for a dispute involving
this Agreement other than a benefit specifically provided under this Agreement.
The decision of the arbitrators shall be final and binding on the Company and
Executive, who shall each pay their own legal fees and expenses associated with
arbitration and share any arbitration fees. This Agreement shall be binding and
shall inure to the benefit of the respective successors, assigns, legal
representatives and heirs to the parties hereto. The Company will require any
successor corporation to expressly assume the obligations of the Company under
this Agreement. This Agreement shall be governed under the laws of the State of
Connecticut. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision.
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Section 10. Entire Agreement. From and after the Effective Time, this
Agreement shall set forth the entire understanding of the parties in respect of
the subject matter contained herein and shall supercede all prior agreements,
arrangements and understandings relating to the subject matter, including
without limitation, the Executive Agreement by and between Advest and Executive
dated as of September 24, 1998 (the "Advest Agreement") and the Executive
Agreement, dated August 23, 2000, between MONY Life Insurance Company ("MONY
Life") and the Executive (the "MONY Life Agreement"). Effective as of the
Agreement Date, MONY Life and the Executive hereby agree that the MONY Life
Agreement is null and void and of no effect ab initio. If the Merger Agreement
is terminated without the Effective Time having occurred, then this Agreement
shall be null and void and of no effect ab initio, and the Advest Agreement
shall continue in effect.
The parties have signed this Agreement as of the date first set forth
above.
The MONY Group Inc.
_____________________________ _________________________________
Chief Executive Officer
The Advest Group, Inc.
_____________________________
Chief Executive Officer
MONY Life hereby agrees and consents to the provisions applicable to
MONY Life set forth in Section 10 of this Agreement as of the day and year first
above written, it being understood that MONY Life is not a party to this
Agreement for purposes of any other provisions hereof.
MONY LIFE INSURANCE COMPANY
_____________________________
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