EXHIBIT 10.2
XXXXXXXXX X. XXXX
AMENDED AND RESTATED
EMPLOYMENT CONTINUATION AGREEMENT
METLIFE, INC.
AMENDED AND RESTATED EMPLOYMENT CONTINUATION AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT between METLIFE, INC., a Delaware
corporation (the "Company"), and Xxxxxxxxx X. Xxxx (the "Executive").
W I T N E S S E T H :
WHEREAS, the Company or an Affiliate has employed the Executive in an
officer position and has determined that the Executive holds a critical position
with the Company or an Affiliate;
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 Company,
continuity of management will be essential to its ability to evaluate and
respond to such situation in the best interests of its shareholders;
WHEREAS, the Company understands that any such situation will present
significant concerns for the Executive with respect to the Executive's financial
and job security;
WHEREAS, the Company desires to assure itself or its Affiliate 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 the Executive's position
without undue distraction and to exercise judgment without bias due to 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 so
defined);
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. Operation of Agreement. (a) Term. The initial term of this Agreement
shall commence on the date of the execution of this Agreement by the second of
the two parties to execute this Agreement to and continue until the third
anniversary of such date. Thereafter, this Agreement will automatically renew
for successive and consecutive additional three year periods following the end
of its initial term and any extended term, unless the Company or the Executive
gives the other party written notice at least 180 days prior to the date the
term hereof would otherwise renew that it or the Executive does not want the
term to be so extended; provided, however, that, the Company may not deliver a
notice of nonrenewal after a Change of Control (as defined in Section 2(a)
hereof). Notwithstanding anything to the contrary in this Agreement, the term of
this
Agreement shall in all events expire (regardless of when the term would
otherwise have expired) on the third anniversary of a Change of Control.
(b) Effective Date. Notwithstanding the provisions of Section 1(a) hereof,
this Agreement shall govern the terms and conditions of the Executive's
employment and the benefits and compensation to be provided to the Executive
commencing on the date on which a Change of Control occurs (the "Effective
Date") and ending on the date the term of this Agreement otherwise expires. If
the Executive is not employed by the Company or an Affiliate on the Effective
Date, this Agreement shall be void and without effect and shall neither
constitute a contract of employment or a guarantee of employment for any period
of time or limit in any way the right of the Company or any Affiliate to change
the terms and conditions of the Executive's employment or terminate the
Executive's employment.
2. Definitions. (a) Change of Control. For the purposes of this Agreement,
a "Change of Control" shall be deemed to have occurred if:
(i) any Person acquires "beneficial ownership" (within the meaning
of Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), directly or indirectly, of securities of the Company
representing 25% or more of the combined Voting Power of the Company's
securities;
(ii) within any 24-month period, the persons who were directors of
the Company at the beginning of such period (the "Incumbent Directors")
shall cease to constitute at least a majority of the Board of Directors of
the Company (the "Board") or the board of directors of any successor to
the Company; provided, however, that any director elected or nominated for
election to the Board by a majority of the Incumbent Directors then still
in office shall be deemed to be an Incumbent Director for purposes of this
subclause 2(a)(ii);
(iii) the stockholders of the Company approve a merger,
consolidation, share exchange, division, sale or other disposition of all
or substantially all of the assets of the Company which is consummated (a
"Corporate Event"), and immediately following the consummation of which
the stockholders of the Company immediately prior to such Corporate Event
do not hold, directly or indirectly, a majority of the Voting Power of (x)
in the case of a merger or consolidation, the surviving or resulting
corporation, (y) in the case of a share exchange, the acquiring
corporation or (z) in the case of a division or a sale or other
disposition of assets, each surviving, resulting or acquiring corporation
which, immediately following the relevant Corporate Event, holds more than
25% of the consolidated assets of the Company immediately prior to such
Corporate Event; or
(iv) any other event occurs which the Board declares to be a Change
of Control.
2
(b) Person. For purposes of the definition of Change of Control, "Person"
shall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange
Act, as supplemented by Section 13(d)(3) of the Exchange Act, and shall include
any group (within the meaning of Rule 13d-5(b) under the Exchange Act);
provided, however, that "Person" shall not include (x) the Company or any
Affiliate, (y) the MetLife Policyholder Trust (or any person(s) who would
otherwise be described herein solely by reason of having the power to control
the voting of the shares held by that trust), or (z) any employee benefit plan
(including an employee stock ownership plan) sponsored by the Company or any
Affiliate.
(c) Voting Power. "Voting Power" shall mean such number of Voting
Securities as shall enable the holders thereof to cast all the votes which could
be cast in an annual election of directors of a company, and "Voting Securities"
shall mean all securities entitling the holders thereof to vote in an annual
election of directors of a company.
(d) Affiliate. An "Affiliate" shall mean any corporation, partnership,
limited liability company, trust or other entity which directly, or indirectly
through one or more intermediaries, controls, or is controlled by, the Company.
3. Employment Period. Subject to Section 6 hereof, the Company agrees to
continue the Executive in its employ or the employ of an Affiliate, and the
Executive agrees to remain in the employ of the Company or an Affiliate, for the
period (the "Employment Period") commencing on the Effective Date and ending on
the expiration of the term of this Agreement.
4. Business Time. During the Employment Period, the Executive agrees to
devote full attention during normal business hours to the business and affairs
of the Company and Affiliates and to use the Executive's best efforts to perform
faithfully and efficiently the responsibilities assigned to the Executive
hereunder, to the extent necessary to discharge such responsibilities, except
for (i) time spent in managing the Executive's personal, financial and legal
affairs and serving on corporate, civic or charitable boards or committees, in
each case only if and to the extent not substantially interfering with the
performance of such responsibilities, and (ii) periods of vacation and sick
leave to which the Executive is entitled. It is expressly understood and agreed
that the Executive's continuing to serve on any boards and committees on which
the Executive is serving or with which the Executive is otherwise associated
immediately preceding the Effective Date shall not be deemed to interfere with
the performance of the Executive's services to the Company or Affiliates.
5. Compensation and Location. (a) Base Salary. During the Employment
Period, 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
Affiliate immediately prior to the Effective Date. The base salary shall be
reviewed at least once each year after the Effective Date, and may be increased
(but not decreased) at any time and from time to time by action of the Board or
any committee thereof, or the Board of Directors of an Affiliate or any
committee thereof, or any individual having authority to take such
3
action in accordance with the regular practices of the Company or an Affiliate.
The Executive's base salary, as it may be increased from time to time, shall
hereafter be referred to as the "Base Salary". Neither the Base Salary nor any
increase in the Base Salary after the Effective Date shall serve to limit or
reduce any other obligation of the Company hereunder. During the Employment
Period, the Executive's Base Salary shall be paid no less frequently than
monthly, except as electively deferred by the Executive pursuant to any deferral
programs or arrangements that the Company or an Affiliate may make available to
the Executive.
(b) Total Incentive Compensation.
(i) During the Employment Period, in addition to the Base Salary,
the Executive shall be afforded the opportunity to (x) receive an annual
bonus in an amount which provides the Executive with at least the same
bonus opportunity as other executives of the Company and Affiliates of a
rank comparable to that of the Executive, and (y) participate in all
long-term incentive compensation programs for key executives, including
but not limited to those awards or grants made in the form of cash, stock
awards, restricted stock, stock options, and other forms of long-term
incentive compensation ("Long-Term Compensation"), at a level that is at
least commensurate with the level made available from time to time to
executives of the Company and Affiliates of a rank comparable to that of
the Executive.
(ii) For each fiscal year that ends during the Employment Period,
the aggregate of the value of the annual bonus awarded or granted to the
Executive attributable to that fiscal year (the "Annual Bonus") plus the
value of the Long-Term Compensation ("Total Incentive Compensation")
awarded or granted to the Executive attributable to that year, shall be no
lower than the aggregate value of Total Incentive Compensation awarded or
granted to the Executive attributable to any of the prior three (3) fiscal
years.
(iii) If any fiscal year commences but does not end during the
Employment Period, the Executive shall be awarded or granted at least a
pro-rated Annual Bonus attributable to the portion of the fiscal year
occurring during the Employment Period, and such amount shall be no lower
than the same pro-rated portion of the any of the three (3) prior Annual
Bonuses awarded or granted to the Executive attributable to complete
fiscal years.
(iv) Each Annual Bonus shall be paid as soon as practicable
following the year for which the amount (or any prorated portion) is
awarded or granted, unless electively deferred by the Executive pursuant
to any deferral programs or arrangements that the Company may make
available to the Executive.
(v) For all purposes of determining the value of Total Incentive
Compensation or any of its components pursuant to this Section 5(b), (w)
all compensation awarded or granted to the Executive (or, with reference
to Section 5(b)(i), which the Executive has the opportunity to receive)
prior to the beginning
4
of the Employment Period shall be valued using the methods as were used by
the Company or Affiliate (as applicable) in valuing that compensation for
purposes of communicating that annual Total Incentive Compensation to the
Executive in writing; (x) all compensation awarded or granted to the
Executive (or, with reference to Section 5(b)(i), which the Executive has
the opportunity to receive) during the Employment Period shall be valued
using the same methods as were used by the Company or Affiliate (as
applicable) in valuing compensation for purposes of communicating annual
Total Incentive Compensation to the Executive in writing for the final
fiscal year that began prior to the Employment Period and, should that
communication fail to value a particular form of compensation that must be
valued for purposes of this Section 5(b)(x), otherwise using such methods
as were presented or produced by the Board or the committee thereof
charged with responsibility for executive compensation in writing in
valuing the executive compensation programs of enterprises competitive to
the Company or any Affiliates for the final fiscal year that began prior
to the Employment Period; (y) with regard to fiscal years or portions
thereof during to the Employment Period, only to the extent those awards
or grants provided to the Executive within that fiscal year or in the
first quarter of the following fiscal year free of Company or Affiliate
discretion to reduce the amount or value of the award or grant shall such
awards or grants be attributable to fiscal years or portions thereof; and
(z) notwithstanding any other subclause of this Section 5(b)(v), with
regard to the Metropolitan Life Insurance Company Long-Term Performance
Compensation Plan, opportunities set shall be considered to constitute
awards or grants and such opportunities set within four months after the
end of the fiscal year shall be attributed to the prior fiscal year.
(c) Benefit Plans. During the Employment Period, the Executive (and, to
the extent applicable, the Executive's dependents) shall be entitled 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
or Affiliate, whichever is applicable, at the level made available from time to
time to other similarly situated officers.
(d) Expenses. During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
the Executive in accordance with the policies and procedures of the Company or
Affiliate, whichever is applicable, as in effect from time to time with respect
to expenses incurred by other similarly situated officers.
(e) Vacation and Fringe Benefits. During the Employment Period, the
Executive shall be entitled to paid vacation and fringe benefits at a level that
is commensurate with the paid vacation and fringe benefits available from time
to time to other similarly situated officers.
(f) Indemnification. During and after the Employment Period, the Company
(if the Executive is an officer or employee of the Company at the time of the
events giving rise to the need for indemnity) and/or each Affiliate of which the
Executive is an
5
officer or employee at the time of the events giving rise to the need for
indemnity, shall indemnify the Executive and hold the Executive harmless from
and against judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys' fees, on the same terms and conditions applicable
from time to time with respect to the indemnification of its other senior
officers of comparable rank.
(g) Location. During the Employment Period, the Executive's services shall
be performed at the location where the Executive was employed immediately
preceding the Effective Date or at any other office or location not more than 50
miles from such pre-Effective Date, except for travel reasonably required in the
performance of the Executive's responsibilities.
6. Termination. (a) Death, Disability or Retirement. Subject to the
provisions of Section 1 and Section 7 hereof, 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 (or
Affiliate's, as applicable) 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 the Executive's position, as determined in accordance with
the policies and procedures applicable with respect to the Company's (or
Affiliate's, as applicable) long-term disability plan, as in effect immediately
prior to the Effective Date; provided, however, that the Executive's employment
may not be terminated for Disability hereunder unless the Executive has
requested that the Executive be considered for, and has qualified to receive,
long-term disability benefits under such plan and that such termination is
consistent with law.
(b) Voluntary Termination. Notwithstanding anything in this Agreement to
the contrary, the Executive may voluntarily terminate employment during the
Employment Period for any reason (including early retirement under the terms of
any of the Company's (or Affiliate's, as applicable) retirement plans as in
effect from time to time), upon not less than 60 days' written notice to the
Company, provided that any termination by the Executive pursuant to Section 6(d)
hereof on account of Good Reason (as defined therein) shall not be treated as a
voluntary termination under this Section 6(b).
(c) Cause. The Company (or Affiliate, as applicable) may terminate the
Executive'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 of dishonesty or gross misconduct on the Executive's part which results or
is intended to result in material damage to the Company's business or
reputation; or (iii) repeated material violations by the Executive of the
Executive's obligations under Section 4 hereof, which violations are
demonstrably willful and deliberate on the Executive's part.
(d) Good Reason. After the Effective Date, the Executive may terminate the
Executive's employment at any time 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 Effective Date:
6
(i) any failure by the Company (or Affiliate, as applicable) to
comply with any of the provisions of Section 5 hereof, other than an
insubstantial or inadvertent failure remedied by the Company promptly
after receipt of notice thereof given by the Executive;
(ii) any failure by the Company to obtain the assumption and
agreement to perform this Agreement by a successor or to cause an
Affiliate, as applicable, to comply with the terms of this Agreement as
contemplated by Section 12(b) hereof.
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 during the Employment Period by
the Company (or Affiliate, as applicable) 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 13(e) hereof. For purposes of this Agreement, a
"Notice of Termination" means a written notice given, (i) 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 or (ii) in the case of a
termination for Good Reason, within 120 days of the Executive's having actual
knowledge of the events giving rise to such termination. Any such Notice of
Termination shall (i) indicate the specific termination provision in this
Agreement relied upon, (ii) set 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, specify 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 the Executive's
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.
(g) Transfer of Employment. For purposes of this Agreement, in no event
shall the mere transfer of employment from the Company or an Affiliate to the
Company or an Affiliate, absent any further impact on the Executive, be deemed
to constitute a termination of employment or Good Reason, notwithstanding any
technical termination of employment in connection with such a transfer.
7. Obligations of the Company upon Termination. (a) Death or Disability.
If the Executive's employment is terminated during the Employment Period by
reason of the Executive's death or Disability, this Agreement shall terminate
without further
7
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 the Executive's
beneficiary or estate), at the times determined below, (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 or in accordance with
the terms and conditions of the Company's and Affiliates' otherwise applicable
employee benefit plans and programs and any accrued vacation pay not yet paid by
the Company or Affiliate (the "Accrued Obligations"), and (iii) any other
benefits payable due to the Executive's death or Disability under the Company's
and Affiliates' 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 30 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 (other than on account of Good Reason), 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 30 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 or an Affiliate other than for Cause and
Termination by the Executive for Good Reason. The terms of this Section 7(c)
shall apply if and only if (x) the Company or an Affiliate terminates the
Executive's employment other than for Cause during the Employment Period or (y)
the Executive terminates employment at any time during the Employment Period for
Good Reason.
(i) Lump Sum Payments. The Company shall pay to the Executive, at
the times determined below, 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 rate of Base Salary as then in
effect; and
(2) the average of the annual bonuses awarded or granted to
the Executive under the Annual Variable Incentive Plan
(or any successor plan thereto), and any other Annual
Bonus, for the each of the three fiscal years of the
Company (or, if less, the number of prior fiscal years
during which Executive was an employee of the Company or
an Affiliate) ended immediately prior to the Effective
Date for which an annual bonus amount had been
determined by the
8
Board (or any committee thereof) prior to the Effective
Date. If the Executive was employed by the Company or
Affiliates (taken as a whole) for only a portion of any
fiscal year included in the period for which the average
referred to in the immediately preceding sentence is
determined and the bonus awarded or granted for such
fiscal year took into account such partial period of
employment, such bonus for such fiscal year shall be
annualized for purposes of calculating such average; and
(C) the Accrued Obligations.
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 30 days (or at
such earlier date required by law), following 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 and Additional Pension Credit. The
Executive (and, to the extent applicable, the Executive's dependents)
shall be entitled, after the Date of Termination until the third
anniversary of the Date of Termination (the "End Date"), to continue
participation in all of the Company's (or Affiliate's, as applicable)
employee and executive plans providing medical, dental and long-term
disability benefits (collectively, the "Continuing Benefit Plans");
provided, however, that the participation by the Executive (and, to the
extent applicable, the Executive's dependents) in any Continuing Benefit
Plan shall cease on the date, if any, prior to the End Date on which the
Executive becomes eligible for comparable benefits under a similar plan,
policy or program of a subsequent employer ("Prior Date"). The Executive's
participation in the Continuing Benefit Plans will be on the same terms
and conditions that would have applied had the Executive continued to be
employed by the Company (or Affiliate, as applicable) through the End Date
or the Prior Date. 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. In addition, the Company (or Affiliate, as
applicable) shall grant the Executive service credit, for purposes of all
pension and defined benefit plans and arrangements of the Company and any
Affiliate in which the Executive participates, through the earlier of (x)
the third anniversary of the effective date of the Notice of Termination,
or (y) the sixty-fifth birthday of the Executive, such that when the
Executive's pension or defined benefit is determined such credited service
will be taken into account.
(d) Discharge of the Company's Obligations. Except as expressly provided
in the last sentence of this Section 7(d) hereof, the amounts payable to the
Executive pursuant to this Section 7 following termination of the Executive's
employment shall be in full and complete satisfaction of the Executive's rights
under this Agreement and any other claims the Executive may have in respect of
the Executive's employment by the
9
Company or any of its Affiliates. 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 Affiliates.
(e) Modification of Payments by the Company.
(i) Application of Section 7(e) Hereof. 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 Affiliate under any
other plan, agreement, or arrangement that would be taken into account for
purposes of determining if an "excess parachute payment" as defined in
Section 280G of the Internal Revenue Code of 1986, as amended, has been
made (collectively, the "Covered Payments"), would be an "excess parachute
payment" as defined in Section 280G of the Internal Revenue Code of 1986,
as amended (the "Code"), and would thereby subject the Executive to the
tax (the "Excise Tax") imposed under Section 4999 of the Code (or any
similar tax that may hereafter be imposed), the Company shall pay to the
Executive 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 (including foreign) income tax and Excise Tax
on the Tax Reimbursement Payment provided for by this Section 7(e), but
before deduction for any Federal, state or local (including foreign)
income or employment tax withholding on such Covered Payments, shall be
equal to the aggregate value of the Covered Payments.
(ii) Calculation of Benefits. Promptly after delivery of any Notice
of Termination, the Company shall notify the Executive of the aggregate
present value of all Covered Payments to which the Executive would be
entitled under this Agreement and any other plan, program or arrangement
as of the projected Date of Termination, together with the projected
maximum payments, determined as of such projected Date of Termination that
could be paid without the Executive being subject to the Excise Tax.
(iii) Application of Section 280G. 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 Effective
Date or tax counsel
10
selected by such Accountants (the "Accountants"), the Company
has a reasonable basis to conclude that any amount or benefit
paid or distributed to the Executive pursuant to this
Agreement, or any amounts or benefits otherwise paid or
distributed to the Executive by the Company or any Affiliate
under any other plan, agreement, or arrangement (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 portion of the "base amount
allocable to such Covered Payments," 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 determined by the Accountants in accordance
with the principles of Section 280G of the Code.
(iv) Adjustments in Respect of the Payment Cap. If the Executive
receives reduced payments and benefits under this Section 7(e) (or this
Section 7(e) is determined not to be applicable to the Executive because
the Accountants conclude that Executive is not subject to any Excise Tax)
and it is established pursuant to a final determination of a court or an
Internal Revenue Service proceeding (a "Final Determination") that,
notwithstanding the good faith of the Executive and the Company in
applying the terms of this Agreement, the aggregate "parachute payments"
within the meaning of Section 280G of the Code paid to the Executive or
for the Executive's benefit are in an amount that would result in the
Executive being subject an Excise Tax, then the Accountants shall
determine whether the Executive should have received the Tax Reimbursement
Payment described in Section 7(e)(i). If the Tax Reimbursement Payment
would have been due, the Accountants shall determine the amount of any
interest and penalties that may be imposed on the Executive by reason
having failed to have timely paid any Excise Tax (the "Penalty Amount"),
and the amount of the Tax Reimbursement Payment due, treating the Penalty
Amount as a Covered Payment. In the event a Tax Reimbursement Payment is
due, the Company shall promptly (but in no event later than ten (10)
business days after the Accountants have determined and informed the
Company of the amounts due hereunder) pay the Executive such Tax
Reimbursement Payment (as calculated in accordance with the immediately
preceding sentence) and the Penalty Amount. For greater clarity, if the
Executive receives increased payments and benefits under this Section
7(e)(i), then this Section 7(e)(iv) shall not apply.
(f) Notwithstanding anything else in this Section 7 to the contrary,
nothing in this Section 7 shall be construed to release the Company from (or to
otherwise waive or modify) the Company's obligation to indemnify the Executive
pursuant to Section 5(f) hereof.
8. Non-exclusivity of Rights. Except as expressly provided herein, nothing
in this Agreement shall prevent or limit the Executive's continuing or future
participation
11
in any benefit, bonus, incentive or other plan or program provided by the
Company or any Affiliate 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 Affiliate, 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 Affiliate at or subsequent to the Date of
Termination shall be paid in accordance with such plan or program.
9. No Offset; Deferrals. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be diminished or otherwise affected by any circumstances,
including, but not limited to, 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. For
purposes of this Agreement, except for Section 7(e), the value of an amount or
property awarded, granted, or paid to the Executive shall be determined
notwithstanding any elective deferrals of payment.
10. 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 interpretation of any provision of this Agreement,
the Company shall pay the Executive's legal expenses (or cause such expenses to
be paid) including, but not limited to, the Executive's reasonable attorney's
fees, on a quarterly basis, upon presentation of proof of such expenses in a
form acceptable to the Company, provided that the Executive shall reimburse the
Company for such amounts, plus simple interest thereon at the 90-day United
States Treasury Xxxx rate as in effect from time to time, compounded annually,
if the Executive shall not prevail, in whole or in part, as to at least one
material issue as to the validity, enforceability or interpretation of any
provision of this Agreement.
11. Surviving Agreements. The Agreement to Protect Corporate Property
previously executed by the Executive, any written stock option agreement into
which the Executive entered with the Company, and any Compensation Protection
Agreement into which the Executive entered with the Company are incorporated
herein and made a part hereof. The Executive and the Company hereby reaffirm
their respective commitments under the agreements to which reference is made in
this Section 11, and again agree to be bound by each of the covenants contained
therein for the benefit of the Company and Affiliates in consideration of the
benefits made available to the Executive hereby.
12. 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 cause each Affiliate, as
applicable, to comply with the terms of this Agreement. The Company shall
require any successor to
12
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, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent as the Company would have been required to perform
if no such succession had taken place.
13. 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. Except to the extent provided in Section 11(c) hereof,
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 City 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 in effect at the time of the arbitration (or
such other rules as the parties may agree to in writing), and otherwise in
accordance with principles which would be applied by a court of law or equity;
provided for greater clarity, however, that in no event shall the arbitrator(s)
be bound to follow the rules of evidence, discovery, or procedure that would
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) Amendments. This Agreement may not be amended or modified other than
by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
(d) Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the matters referred to herein, and
completely supersedes and replaces any prior Employment Continuation Agreement
(including any such amended and restated agreement) between the Executive and
the Company and/or an Affiliate. 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. The Executive acknowledges entering into this Agreement of the
Executive's own free will and accord, and with no duress, that the Executive has
read this Agreement and understands it and its legal consequences.
(e) 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
13
If to the Company: MetLife, Inc.
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Secretary
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.
(f) Tax Withholding. The Company shall withhold from any amounts payable
under this Agreement such Federal, state or local taxes as shall be required to
be withheld pursuant to any applicable law or regulation.
(g) Severability; Reformation. In the event that one or more of the
provisions of this Agreement shall become invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not be affected thereby.
(h) Waiver. Waiver by any party hereto of any breach or default by the
other party of any of the terms of this Agreement shall not operate as a waiver
of any other breach or default, whether similar to or different from the breach
or default waived. No waiver of any provision of this Agreement shall be implied
from any course of dealing between the parties hereto or from any failure by
either party hereto to assert its or the Executive's rights hereunder on any
occasion or series of occasions.
(i) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
(THIS SPACE INTENTIONALLY LEFT BLANK)
14
(j) Captions. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and the Company has caused this Agreement to be executed in its name on its
behalf.
METLIFE, INC.
By:/s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Title: Chairman and Chief Executive Officer
------------------------------------
WITNESSED:
/s/ Xxxxxxxx X. Xxxxxx
----------------------
DATE: 5/18/05
EXECUTIVE:
/s/ Xxxxxxxxx X. Xxxx
---------------------
WITNESSED:
/s/ Xxxxxxx Xxxxxxx
-------------------
DATE: 5/5/05
------
15
