Exhibit 99.1
EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of January 1, 2003 (the
"Effective Date"), by and between The Phoenix Companies, Inc., a Delaware
corporation (the "Company") and Xxxx X. Xxxxx (the "Executive").
W I T N E S S E T H
WHEREAS, prior to the Effective Date the Executive was employed by the
Company as its Chief Operating Officer and served on the Board of Directors of
the Company (the "Board");
WHEREAS, on and after the Effective Date, the Company desires to employ
the Executive as Chief Executive Officer of the Company and to have her continue
to serve as a member of the Board;
WHEREAS, the Company and the Executive desire to enter into the
Agreement as to the terms of her employment by the Company; and
WHEREAS, this Agreement shall supersede any prior written agreement
entered into between the Executive and the Company prior to the Effective Date
with respect to the subject matter hereof, including, without limitation, the
agreement dated November 6, 2000 and the letter dated December 20, 2000.
NOW THEREFORE, in consideration of the foregoing, of the mutual
promises contained herein and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. POSITION/DUTIES.
(a) During the Employment Term (as defined in Section 2 below), the
Executive shall serve as the Chief Executive Officer of the Company. In this
capacity the Executive shall have
such duties, authorities and responsibilities commensurate with the position of
Chief Executive Officer and any other position she may then hold; in addition,
the Executive shall have such other duties and responsibilities as the Board
shall designate that are consistent with the Executive's position. The Executive
shall report directly to the Board. During the Employment Term, the Company
shall use its best efforts to cause the Executive to be re-nominated by the
Company to be a member of the Board as necessary so that her membership on the
Board may continue uninterrupted during the Employment Term.
(b) During the Employment Term, the Executive shall devote
substantially all of her business time to the performance of her duties with the
Company and use good faith efforts to discharge her duties. However, so long as
the following activities do not (individually or in the aggregate) materially
interfere with the performance of the Executive's duties with the Company and
are conducted in compliance with the Company's Code of Conduct (as in effect
from time to time), the Executive may (i) participate in charitable, civic,
educational, professional, community or industry affairs or serve on the boards
of directors or advisory boards of other companies; provided, however, that the
Executive shall not serve as a director on more than three (3) boards of
directors or advisory boards of other for-profit companies without the prior
written approval of the Board, and (ii) manage her and her family's personal
investments.
2. EMPLOYMENT TERM. The Executive's term of employment under this
Agreement shall be for a three (3)-year period commencing on the Effective Date
(the "Employment Term"), subject to earlier termination as provided in Section
6.
3. BASE SALARY. The Company agrees to pay the Executive a base salary
(the "Base Salary") at an annual rate of not less than $900,000, payable in
accordance with the regular payroll practices of the Company. The Company shall
pay the Executive the Base Salary
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rate retroactive to October 1, 2002, taking into account amounts previously
received by her as base salary for such period. The Executive's Base Salary
shall be subject to annual review by the Board (or a committee thereof) and may
be increased, but not decreased, from time to time by the Board. Once increased,
the Executive's Base Salary may not be decreased below such increased amount. No
increase in Base Salary shall be used to offset or otherwise reduce any
obligations of the Company to the Executive hereunder or otherwise. The Base
Salary as increased from time to time shall constitute the "Base Salary" for
purposes of this Agreement.
4. INCENTIVE COMPENSATION. (a) SHORT-TERM BONUS. During the Employment
Term, the Executive shall have the opportunity to earn an annual bonus under the
Mutual Incentive Plan (or a successor annual bonus plan)("MIP"), with a target
amount equal to 100% of Base Salary, based upon the satisfaction of generally
applicable financial criteria (as determined in good faith by the Board or a
committee thereof after consultation with the Executive), with a higher or lower
amount received for higher or lower achievement (the "MIP Bonus").
(b) LONG-TERM INCENTIVE BONUS. During the Employment Term, the
Executive shall have the opportunity to earn a long-term incentive bonus, in
cash, Company stock or other Company equity, under the Company's Long-Term
Incentive Plan (or a successor long-term bonus plan) ("LTIP"), with a target
amount equal to 200% of Base Salary, based upon the satisfaction of generally
applicable financial criteria (as determined in good faith by the Board or a
committee thereof after consultation with the Executive), with a higher or lower
amount received for higher or lower achievement (the "LTIP Bonus").
(C) RESTRICTED STOCK UNITS. The Company hereby
grants the Executive a number of restricted stock units that equals the number
resulting from dividing $3,000,000 by the
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closing price of the Company's common stock on the New York Stock Exchange on
December 31, 2002 (the "Initial RSUs"). Except as otherwise provided herein or
in Exhibit A hereto, the Initial RSUs shall vest at the conclusion of the three
(3)-year period commencing on the Effective Date. The Initial RSUs are issued in
accordance with Exhibit A hereto. The Executive shall also be eligible to
receive additional grants of restricted stock units and other equity awards
(including, without limitation, stock options) at a level commensurate with her
position within the Company (as determined by the Board in good faith) as and
when such grants are generally made to other executives of the Company (taking
into account any grants made to the Executive and other senior executives under
the LTIP).
(d) NEW INCENTIVE PLANS. If the Company adopts any new bonus or other
incentive compensation plans or programs for the Company's senior executives
during the Employment Term (other than a plan that is a successor to the MIP or
the LTIP as contemplated by the definition of those terms), the Executive shall
be eligible to participate during the Employment Term at a level commensurate
with her position within the Company.
5. EMPLOYEE BENEFITS. (a) BENEFIT PLANS. The Executive shall be
entitled to participate in any employee benefit plan of the Company including,
but not limited to, equity, pension, thrift, profit sharing, medical coverage,
education, or other retirement or welfare benefits that the Company has adopted
or may adopt, maintain or contribute to, for the benefit of its senior
executives, at a level commensurate with her position within the Company.
(b) VACATIONS. The Executive shall be entitled to an annual paid
vacation, holidays and floating days in accordance with the Company's policy
applicable to senior executives, but in no event less than the Executive's paid
vacation, holidays and floating days in
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effect prior to the Effective Date, which vacation may be taken at such times as
the Executive elects with due regard to the needs of the Company.
(c) PERQUISITES. The Company shall provide to the Executive, at the
Company's cost, all perquisites to which other senior executives of the Company
generally are (or become) entitled, and such other perquisites as are suitable
to the character of the Executive's position with the Company and adequate for
the performance of her duties hereunder, subject to such specific limits on such
perquisites as may from time to time be imposed by the Board. To the extent
legally permissible, the Company shall not treat such amounts or any of the
following amounts or benefits as income to the Executive. In any event, the
Executive shall be entitled to receive the following during the Employment Term:
(i) The Executive shall receive all perquisites the Executive was
entitled to receive in her previous capacity as Chief Operating Officer of
the Company (including, without limitation, financial and tax planning
assistance and the use of a Company automobile and driver in connection
with the performance of the Executive's duties hereunder).
(ii) The Company shall pay the initiation fee and the annual dues and
related fees for a lunch club in New York City, as selected by the
Executive.
(iii) As soon as reasonably practicable, a supplemental disability
policy in a form mutually agreed upon by the Company and the Executive,
with the premiums therefor paid by the Company, which policy shall have an
initial premium of not more than $85,000 per year provided that the
Executive and the Company shall use reasonable efforts to select the lowest
premium from a range of comparable coverages from comparable insurance
carriers.
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(d) BUSINESS AND ENTERTAINMENT EXPENSES. Upon presentation of appropriate
documentation, the Executive shall be reimbursed in accordance with the
Company's expense reimbursement policy for all reasonable business and
entertainment expenses incurred in connection with the performance of her duties
hereunder.
6. TERMINATION. The Executive's employment and the Employment Term
shall terminate on the first of the following to occur:
(a) DISABILITY. Upon 30 days' written notice by the Company to the
Executive of termination due to Disability, provided that the Executive has not
returned to full-time employment within such 30-day period. For purposes of this
Agreement, "Disability" shall mean that by reason of physical or mental illness
or incapacity the Executive (i) has been unable to carry out her material duties
pursuant to this Agreement for 180 days or more during any 365-day period and
(ii) has qualified for long-term disability and health coverage under the terms
of the Company's applicable long-term disability program.
(b) DEATH. Automatically on the date of death of the Executive.
(c) CAUSE. Immediately upon written notice by the Company to the
Executive of a termination for Cause, provided that such notice is given within
90 days after the Chairman of the Executive Committee or the Audit Committee has
actual knowledge of the Cause event. "Cause" shall mean (i) the willful
misconduct of the Executive (including, without limitation, a willful material
violation of the Code of Conduct) with regard to the Company that is materially
injurious to the Company (including, without limitation, material financial or
reputational harm); provided, however, that no act or failure to act on the
Executive's part shall be considered "willful" unless done, or omitted to be
done, by the Executive not in good faith or without reasonable belief that her
action or omission was not adverse to the best interests of the
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Company; (ii) the willful and continued failure of the Executive to attempt in
good faith to substantially perform the Executive's duties with the Company
(other than any such failure resulting from incapacity due to physical or mental
illness), which failure is not remedied within 15 business days after written
notice from the Company specifying the details thereof; or (iii) the conviction
of the Executive of (or the plea by the Executive of guilty or nolo contendere
to) any (A) felony or (B) criminal misdemeanor involving fraud, false statements
or misleading omissions, embezzlement, bribery, counterfeiting, extortion or an
intentional wrongful taking, other than, in the case of both (A) and (B),
traffic-related offenses or as a result of vicarious liability for acts in which
the Executive, except when acting on advice of counsel, had no direct
involvement and no actual knowledge; provided, that the Executive may be
suspended with full compensation and benefits as if she remained in active
service during any period prior to a conviction and after an indictment for such
a felony or misdemeanor; or (iv) the Executive's disqualification or bar by any
governmental or self-regulatory authority from serving as Chief Executive
Officer of the Company, Chairman of the Board or member of the Board, in each
case, as a result of disciplinary or similar action and after the conclusion of
an appeal from a final administrative determination to a court of first
impression; provided, that the Executive may be suspended with full compensation
and benefits as if she remained in active service during any period prior to the
conclusion of such appeal and after such disqualification or bar.
Notwithstanding the foregoing, the Executive shall not be deemed to
have been terminated for Cause without (i) advance written notice, provided to
the Executive not less than five business days prior to the date of termination,
setting forth the Company's intention to consider terminating the Executive,
including a statement of the date of termination and the specific basis for such
consideration for Cause; (ii) an opportunity for the Executive, together
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with her counsel, to be heard before the Board before termination and after such
notice; (iii) a duly-adopted resolution of the Board, after such opportunity,
stating that in accordance with the provisions of the next to last sentence of
this Section 6(d), the actions of the Executive constituted Cause and the basis
thereof; and (iv) a written determination provided by the Board setting forth
the acts and omissions that form the basis of such termination. The failure to
include any fact in such written determination that contributes to a showing of
Cause does not preclude the Company from asserting that fact in enforcing its
rights under this Agreement, provided that such fact is generally within the
category (of categories (i)-(iv) enumerated in the definition of "Cause" above)
specified as the basis for the Cause termination in the written determination
and provided, further, in the case of assertions within category (ii) of the
definition of "Cause" above, that such later assertion shall not be valid to the
extent that, prior to the Cause termination, the Executive had not been given,
with respect to such assertion, the required notice and right to effect a
remedy. Any determination by the Board hereunder shall be made by the
affirmative vote of at least a two-thirds majority of the members of the Board
(other than the Executive). Any purported termination of employment of the
Executive by the Company that does not meet all substantive and procedural
requirements of this Section 6 shall be treated for all purposes under this
Agreement as a termination without Cause.
(d) WITHOUT CAUSE. Upon written notice by the Company to the Executive
of an involuntary termination without Cause, other than for death or Disability.
Unless the Executive and the Company enter into a new employment agreement on or
before the end of the Employment Term, there shall be deemed an involuntary
termination of the Executive's employment by the Company without Cause as of the
end of the Employment Term. The Executive and the Company shall negotiate such a
new employment agreement in good faith
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(but, for the avoidance of doubt, without any obligation on the part of either
the Company or the Executive to enter into any agreement).
(e) GOOD REASON. Upon written notice by the Executive to the Company of
a termination for Good Reason, provided that such notice is given within 90 days
after the Executive has knowledge of the Good Reason event. The failure to
include any fact in such written notice that contributes to a showing of Good
Reason does not preclude the Executive from asserting that fact in enforcing her
rights under this Agreement, provided that such later assertion shall not be
valid to the extent that, prior to the Good Reason termination, the Company had
not been given, with respect to such assertion, the required notice and right to
correct set forth in the following sentence. "Good Reason" shall mean, without
the express written consent of the Executive, the occurrence of any of the
following events unless such events are fully corrected in all material respects
by the Company within 30 days following written notification by the Executive to
the Company that she intends to terminate her employment hereunder for one of
the reasons set forth below:
(i) any reduction or diminution (except temporarily during any period
of physical or mental illness or incapacity) of the Executive's title as
Chief Executive Officer, or a material reduction or diminution of the
Executive's then authorities, duties or responsibilities or reporting
requirements with the Company;
(ii) anyone other than the Executive or the Chairman of the Board as
of the Effective date is elected as the Chairman of the Board, unless
service by the Executive as Chairman is prohibited by applicable law,
regulation, or listing requirements;
(iii) the assignment to the Executive of duties or responsibilities
that are materially inconsistent with, and adverse to, her then position;
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(iv) a material breach by the Company of any provision of this
Agreement, including, but not limited to, any reduction in Base Salary and
target levels with respect to the MIP Bonus or the LTIP Bonus, or any
failure timely to pay any part of Executive's compensation (including Base
Salary and any bonus, if any) when due or to provide the benefits or
perquisites contemplated herein;
(v) the failure of the Company to obtain and deliver to the Executive
a reasonably satisfactory written agreement from any successor to the
Company to assume and agree to perform this Agreement; or
(vi) the giving of a notice of non-renewal or non-extension by the
Company of, or failure of the Company to elect to extend, after the
agreement would otherwise expire, the change in control agreement then
existing between the Company and the Executive, which event the Executive
may treat as a Good Reason Event either at the time of the giving of the
notice or upon the expiration of such change in control agreement.
(vii) The Executive's no longer serving as a member of the Board
unless (a) she resigned from the Board or (b) service by the Executive as a
member of the Board is prohibited by applicable law, regulation, or listing
requirements. Suspension of the Executive with full compensation and
benefits (in accordance with clause (iii) or (iv) of the definition of
"Cause" set forth in the first paragraph of Section 6(c)) shall not
constitute a basis for a Good Reason termination.
(f) WITHOUT GOOD REASON. Upon written notice by the Executive to the
Company of the Executive's voluntary termination of employment without Good
Reason (which the Company may, in its sole discretion, make effective earlier
than any notice date).
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7. CONSEQUENCES OF TERMINATION.
(a) DISABILITY. In the event the Executive's employment is terminated
as a result of Disability, the Company shall pay or provide the Executive (i)
any unpaid Base Salary through the date of termination and any accrued but
unused vacation; (ii) any unpaid bonus as declared or, if not then declared, as
determined by the Board in good faith, with respect to any year or years ending
prior to the date of termination, including the MIP Bonus and the LTIP Bonus for
any completed cycle; (iii) reimbursement for any unreimbursed expenses (in
accordance with Section 5(d)) incurred through the date of termination; and (iv)
all other payments, benefits or fringe benefits to which the Executive may be
entitled under the terms of any applicable compensation arrangement or benefit,
equity or fringe benefit plan or program or grant or this Agreement
(collectively, "Accrued Benefits"). In addition, within 15 days after the
Executive's termination of employment as a result of Disability, the Executive
shall receive a lump sum cash payment equal to the sum of: (y) the MIP Bonus for
the year in which termination occurs, based on the target level, and (z) full
payment of all current long term cash cycles under the LTIP, calculated based on
target levels, with payment for each cycle determined as if the Executive were a
participant for the full term of each of her current long-term cycles. All of
the Initial RSUs held by the Executive and any other outstanding unvested equity
awards held by the Executive shall immediately vest upon the Executive's
termination (the "Accelerated Vesting") as a result of Disability, and all
vested stock options held by the Executive shall remain exercisable for a period
of two (2) years thereafter, but in no event longer than the stated term of such
options (the "Post-Termination Exercise Period").
(b) DEATH. In the event the Executive's employment is terminated as a
result of the Executive's death, the Executive's estate or legal representative
shall receive the same payments
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and benefits as if the Executive's employment were terminated as a result of
Disability (except that she will receive death benefits instead of disability
benefits).
(c) TERMINATION FOR CAUSE OR WITHOUT GOOD REASON. If the Executive's
employment should be terminated by the Company for Cause or by the Executive
without Good Reason, the Company shall pay to the Executive any Accrued
Benefits.
(d) TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. If the Executive's
employment is terminated by the Company without Cause or by the Executive for
Good Reason, the Company shall pay or provide the Executive with the following
payments and benefits:
(i) the Accrued Benefits;
(ii) a lump sum cash payment within 15 days after the date of
termination equal to two (2) times the sum of:
(A) the Base Salary; and
(B) the MIP Bonus, based on the greater of (1) the target bonus
for the year of termination and (2) the average of the MIP Bonuses
earned by the Executive in the last two full fiscal years completed
prior to termination.
(iii) at such time as MIP Bonuses are paid to other executives
generally, a pro-rata portion of the MIP Bonus the Executive would have
earned for the year of her termination of employment (determined by
multiplying the amount of said actual earned bonus by a fraction, the
numerator of which is the number of days during the applicable year of
termination that the Executive was employed by the Company and the
denominator of which is 365);
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(iv) at such time as the LTIP Bonuses are paid to other executives
generally with respect to the cycle ending in the year of termination, a
pro-rata portion of the LTIP Bonus for each then open cycle, equal to the
product of (x) for the cycle ending in the year of termination, the actual
bonus earned for that cycle, and for each other cycle, the target LTIP for
such cycle, and (y) a fraction, the numerator of which is the number of
days the Executive was employed during the applicable cycle and the
denominator of which is the number of days in such cycle;
(v) the Accelerated Vesting with regard to the Initial RSUs and, with
regard to all other equity grants, pro rata vesting of the next tranche, to
be vested based upon the relative number of days employed from the prior
vesting date (or grant date if no prior vesting) to the next vesting date
and the Post-Termination Exercise Period;
(vi) for a period of two (2) years after such termination, the
Company, at its sole expense, shall provide the Executive (and her
dependents) with health insurance coverage under the Company's group health
insurance plan, provided that such obligation shall cease upon the
Executive's becoming eligible for the health plan of another employer of
Executive;
(vii) an amount equal to the lump sum value (based on the actuarial
assumptions used under the respective plan) of two years of additional
service and age credit for pension purposes under any qualified or
nonqualified defined benefit type pension plan or arrangement of the
Company (with the Base Salary used as the salary component of "final
average earnings" for purposes of this calculation), which payments shall
be made within thirty (30) days after termination of employment;
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(viii) an amount equal to two (2) years of the maximum Company
matching contribution (assuming the Executive deferred the maximum amount
and continued to earn her then current Base Salary) under any type of
qualified or nonqualified deferred compensation plan sponsored by the
Company, which amount shall be paid within thirty (30) days after
termination of employment; and
(ix) outplacement services at a level commensurate with the
Executive's position and, for a period of six months after the Executive's
termination, office space and secretarial support at a level commensurate
with the Executive's position.
(e) RETIREMENT. To the extent the Executive qualifies to be treated as a
"retiree" under any plan, program, grant or agreement, the Executive shall have
the benefit of said classification with regard to a benefit to the extent that
it is more favorable to the Executive than the provisions otherwise provided
herein.
8. RELEASE. Any and all payments made and benefits provided under this
Agreement to the Executive upon termination of employment, including but not
limited to, those referenced in Section 7, shall be contingent upon the full
execution of a general release of all claims by the Executive against the
Company and its affiliates in the form attached hereto as Exhibit B, provided
that the payment of the Accrued Benefits shall not be contingent on the
execution of such release.
9. (a) CONFIDENTIALITY. The Executive acknowledges that in her
employment hereunder she will occupy a position of trust and confidence. The
Executive shall not, except as in good faith deemed necessary or desirable by
the Executive to perform her duties hereunder, or as required by applicable law,
legal process or governmental inquiry, without limitation in time or until such
information shall have become public or known in the Company's
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industry other than by the Executive's unauthorized disclosure, disclose to
others or use, whether directly or indirectly, any Confidential Information.
"Confidential Information" shall mean information about the Company, its
subsidiaries and affiliates, and their respective employees, clients and
customers that is not disclosed by the Company for financial reporting purposes
and that was learned by the Executive in the course of her employment by the
Company, including (without limitation) any proprietary knowledge, trade
secrets, data, formulae, information and client and customer lists and all
papers, resumes, and records (including computer records) of the documents
containing such Confidential Information.
(b) NON-SOLICITATION OF EMPLOYEES. The Executive recognizes that she
possesses and will possess confidential information about other employees of the
Company relating to their education, experience, skills, abilities, compensation
and benefits, and inter-personal relationships with customers of the Company.
The Executive recognizes that the information she possesses and will possess
about these other employees is not generally known, is of substantial value to
the Company in developing its business and in securing and retaining customers,
and has been and will be acquired by her because of her business position with
the Company. The Executive agrees that, during the Employment Term and for a one
(1) year period thereafter, she will not, directly or indirectly, solicit or
recruit any non-administrative or non-clerical employee of the Company whose W-2
earnings for the immediately preceding calendar year were $100,000 or above to
resign from the Company or to accept employment by her or by any other person or
company. Notwithstanding the foregoing, nothing herein shall prevent the
Executive from: (i) placing general advertisements or otherwise generally
advertising for employees or (ii) serving as a reference for an employee of the
Company.
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(c) NONDISPARAGEMENT. During the Employment Term and for a period of
one (1) year following the Executive's termination of employment, neither the
Executive, on the one hand, nor the Company formally, its senior executives, or
a member of its Board of Directors, on the other hand, shall, directly or
indirectly, with willful intent to damage the other, issue or communicate any
public statement, or statement likely to become public, that is critical of or
damaging to the other (or in the case of communications by the Executive, also
any of the Company's officers, directors or employees, and, if the Executive is
working for a competitor or a customer, excluding any statements regarding the
Company's products or services made by such competitor or customer without any
direct involvement of the Executive). The foregoing shall not be violated by
truthful responses to legal process or governmental inquiry or by the Executive
in carrying out her duties in accordance with this Agreement. No officer,
director or employee of the Company shall be a third party beneficiary of these
provisions.
(d) EQUITABLE RELIEF AND OTHER REMEDIES. The Executive acknowledges and
agrees that the Company's remedies at law for a breach or threatened breach of
any of the provisions of this Section would be inadequate and, in recognition of
this fact, the Executive agrees that, in the event of such a breach or
threatened breach, in addition to any remedies at law, the Company shall be
entitled to obtain equitable relief in the form of specific performance,
temporary restraining order, a temporary or permanent injunction or any other
equitable remedy which may then be available.
(e) REFORMATION. If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 9 is excessive in
duration or scope or is unreasonable or unenforceable under the laws of that
state, it is the intention of the parties that such restriction
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may be modified or amended by the court to render it enforceable to the maximum
extent permitted by the law of that state.
(f) SURVIVAL OF PROVISIONS. Without effect as to the survival of other
provisions of this Agreement intended to survive the termination or expiration
of the Executive's employment, the obligations contained in this Section 9 shall
survive the termination or expiration of the Executive's employment with the
Company and shall be fully enforceable thereafter.
10. ATTORNEY'S FEES
If the Executive asserts any claim in any contest (whether initiated by
the Executive or by the Company or any of its affiliates) as to the validity,
enforceability or interpretation of any provision of this Agreement or to
collect amounts she asserts are due hereunder, the Company shall pay the
Executive's legal and other professional expenses (or cause such expenses to be
paid) incurred in connection with such contest, 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 reasonably acceptable to the
Company, provided that the Executive shall reimburse the Company for such
amounts (to the extent permitted under applicable law), plus simple interest
thereon at the 90-day United States Treasury Xxxx rate as in effect from time to
time, compounded annually, if the arbitrator determines that the Executive's
claims were substantially frivolous or brought in bad faith. The Company shall
promptly pay the Executive's reasonable costs of entering into this Agreement,
including the reasonable fees and expenses of her counsel.
11. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement, other than injunctive relief under Section 9,
shall be settled exclusively by arbitration, conducted before three arbitrators
in Hartford, Connecticut in accordance with the
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Commercial Arbitration Rules of the American Arbitration Association then in
effect (with the Company and the Executive each being entitled to select one
arbitrator and the two arbitrators selecting the third). The decision of the
arbitrators will be final and binding upon the parties hereto. Judgment may be
entered on the arbitrator's award in any court having jurisdiction. Nothing
herein shall limit either the right of the Company or the Executive to seek
injunctive relief in a court of applicable jurisdiction. The Company shall bear
the cost of the arbitration (including, without limitation, arbitrators' fees)
provided that the Executive shall reimburse the Company for one half of such
amounts (to the extent permitted under applicable law), plus simple interest
thereon at the 90-day United States Treasury Xxxx rate as in effect from time to
time, compounded annually, if the arbitrator determines that the Executive's
claims were substantially frivolous or brought in bad faith.
12. INDEMNIFICATION. In addition to any other rights of indemnification
of the Executive, the Company hereby covenants and agrees to promptly indemnify
the Executive (or, in the event of her death, her heirs, executors,
administrators or legal representatives) and hold her harmless, in each case to
the fullest extent permitted by law, against and in respect to any and all
actions, suits, proceedings, claims, demands, judgments, costs, expenses
(including attorney's fees), penalties, fines, settlements, losses, and damages
resulting from, or in connection with, the Executive's employment with the
Company, including but not limited to as an officer and director of any
subsidiary or parent or as a fiduciary of any employee benefit plan. The
Company, within 10 days of presentation of invoices, shall advance to the
Executive reimbursement of all legal fees and disbursements reasonably incurred
by the Executive in connection with any potentially indemnifiable matter;
provided, however, that to the extent required by applicable law, in order to
receive such advanced fees and disbursements, the
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Executive must first sign an undertaking reasonably satisfactory to the Company
that she will promptly repay to the Company all advanced fees and disbursements
in the event it is finally determined in accordance with law that the Executive
cannot be indemnified for the matter at issue under applicable law. The burden
of proving that indemnification of the Executive is not permissible at law shall
be on the Company.
13. LIABILITY INSURANCE. The Company shall cover the Executive under
directors and officers liability insurance both during and, while potential
liability exists (but no less than six (6) years), after the termination or
expiration of this Agreement in the same amount and to the same extent, if any,
as the Company covers its other officers and directors.
14. FULL SETTLEMENT. Except as set forth in this Agreement, the
obligation of the Company 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, set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obliged to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement, nor shall the
amount of any payment hereunder be reduced by any compensation earned by the
Executive as a result of employment by another employer (except as expressly set
forth herein with respect to health benefits).
15. SURVIVAL. The respective rights and obligations of the parties
hereunder, including, without limitation, Sections 7, 9, 10, 11, 12 and 13
hereof, shall survive the termination of the Executive's employment to the
extent necessary to the agreed preservation of such rights and obligations.
19
16. NO ASSIGNMENTS.
(a) This Agreement is personal to each of the parties hereto. Except as
provided in subsection (b) below, no party may assign or delegate any rights or
obligations hereunder without first obtaining the written consent of the other
party hereto and any assignment in contravention of this Section 16(a) shall be
void.
(b) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, the "Company" shall mean the Company
and any successor to its business and/or assets, which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
(c) This Agreement shall inure to the benefit of and be enforceable by
the Executive and her personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive should die while any amount would still be payable to her hereunder
had she continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to her estate.
17. NOTICE. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given (i) on the date of delivery if delivered by hand,
(ii) on the date of transmission, if delivered by confirmed facsimile, (iii) on
the first business day following
20
the date of deposit if delivered by guaranteed overnight delivery service, or
(iv) on the fourth business day following the date delivered or mailed by United
States registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
At the address (or to the facsimile number) shown on the records
of the Company
If to the Company:
The Phoenix Companies, Inc.
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Attention: General Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
18. REPRESENTATIONS.
(a) The Company represents and warrants that there is no legal or other
impediment or limitation to the Company's performance of its obligations.
(b) The Executive represents and warrants to the Company that she has
the legal right to enter into this Agreement and to perform all of the
obligations on her part to be performed hereunder in accordance with its terms
and that she is not a party to any agreement or understanding, written or oral,
that could prevent her form entering into this Agreement or performing all of
her obligations hereunder.
19. MISCELLANEOUS. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed, in the case of a modification, by the Executive and the
Company, and, in the case of a waiver or discharge, by the party that would have
benefited from the provision waived or discharged. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
21
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. This Agreement together with all
exhibits hereto sets forth the entire agreement of the parties hereto in respect
of the subject matter contained herein, and this Agreement shall supersede any
prior written agreement entered into between the parties with respect to the
subject matter hereof (including, without limitation, the agreement dated
November 6, 2000 and the letter dated December 20, 2000), other than the
employment continuation agreement entered into between the Company and the
Executive as of the date hereof. Furthermore, without limiting the generality of
the immediately preceding sentence, the Executive hereby for herself and for her
heirs, executors, administrators, trustees, legal representatives and assigns,
forever releases and discharges the Company and its past, present and future
parent entities, subsidiaries, divisions, affiliates and related business
entities, successors and assigns, assets, employee benefit plans or funds, and
any of its or their respective past, present and/or future directors, officers,
fiduciaries, agents, trustees, administrators, employees and assigns, whether
acting on behalf of the Company or in their individual capacities from any and
all claims, demands, causes of action, fees and liabilities of any kind
whatsoever, whether known or unknown, which the Executive ever had, now has, or
may have pursuant to the agreement dated November 6, 2000 and the letter dated
December 20, 2000. No agreements or representations, oral or otherwise, express
or implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Connecticut applicable to agreements made and to be
performed entirely within such State. To the extent determined by the Board from
time to time, decisions with respect to the Executive's compensation (or
otherwise with respect to the Executive) that this
22
Agreement provides shall be made by the Board, may alternatively be made by a
committee of the Board or by the outside and/or non-employee members of the
Board. The Company may withhold from all payments due to the Executive (or her
beneficiary or estate) hereunder all taxes which, by applicable federal, state,
local or other law, the Company is required to withhold therefrom. To the extent
obligations of the Company under this Agreement are fulfilled by a subsidiary of
the Company, such obligations shall be treated as fulfilled by the Company.
20. SECTION HEADINGS. The section headings used in this Agreement are
included solely for convenience and shall not affect, or be used in connection
with, the interpretation of this Agreement.
21. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity of unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
22. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instruments.
23
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
THE PHOENIX COMPANIES, INC.
By: /s/ Xxxxxx Xxxxxx /s/ Xxxxx X. Xxxx
----------------------- -------------------------
Title: S.V.P. Corporate
Administration
/s/ Xxxx X. Xxxxx
--------------------------
Xxxx X. Xxxxx
The undersigned hereby agrees that it is jointly and severally liable
with the Company for the Company's obligations under this Agreement to the
extent permitted by applicable law. To the extent obligations of the Company
under this Agreement are fulfilled by the undersigned, such obligations shall be
treated as fulfilled by the Company.
PHOENIX LIFE INSURANCE COMPANY
By: /s/ Xxxxxx Xxxxxx /s/ Xxxxx X. Xxxx
----------------------- -------------------------
Title: S.V.P. Corporate
Administration
EXHIBIT A
TERMS OF RESTRICTED STOCK UNITS
This Annex sets forth the terms of Restricted Stock Units to be awarded
to you (your "Award") under your Employment Agreement, dated January 1, 2003
(the "Agreement"), with The Phoenix Companies, Inc. (the "Company").
ARTICLE I
RESTRICTED STOCK UNITS
Section 1.1. Restricted Stock Unit. "Restricted Stock Unit" means the
right to receive one share of common stock of the Company, par value $0.01 per
share ("Common Shares") subject to the terms of this Annex. Under the Agreement,
the Company is awarding you a number of Restricted Stock Units that is equal to
$3,000,000 divided by the closing price of the Common Shares on December 31,
2002. The date of your award is January 1, 2003 (the "Grant Date").
Section 1.2. Vesting. Your Restricted Stock Units will vest on the
earlier of (a) the conclusion of the three-year period commencing on the Grant
Date, (b) the occurrence of a Change in Control (as defined in the Employment
Continuation Agreement entered into between the parties simultaneously
herewith), (c) the termination of your employment as a result of your death or
Disability (as defined in the Agreement) or (d) a termination of your employment
by the Company without Cause or by you for Good Reason (as each such term is
defined in the Agreement).
Section 1.3. Termination of Employment. If your employment with the
Company terminates for any reason and your Restricted Stock Units do not vest on
or before the date of your termination in accordance with Section 1.2, your
Restricted Stock Units shall be forfeited and you shall have no rights
thereunder or hereunder.
Section 1.4. No Common Shares Issued Until after June 26, 2006 and
Termination of Employment. If your Restricted Stock Units vest, the Common
Shares that underlie your Restricted Stock Units will be issued on the later of
(a) the 15th day (or, if such day is not a business day, the next business day)
after your termination of employment with the Company and (b) June 26, 2006 (the
period beginning on the Grant Date and ending on the later of (a) and (b) is
referred to in this Annex as the "Restricted Period"). No Common Shares will be
issued at the time your Award is granted, and the Company will not be required
to set aside a fund for the payment of your Award.
ARTICLE II
RIGHTS AND SETTLEMENT
Section 2.1. Rights as a Shareholder. Your Restricted Stock Units will
not give you any right to vote on any matter submitted to the Company's
stockholders. You will have voting rights with respect to the Common Shares that
underlie your Restricted Stock Units only after the shares have actually been
issued to you.
Section 2.2. Restrictions on Transferability. You will not have any
right to sell, assign, transfer, pledge, hypothecate or otherwise encumber your
Restricted Stock Units. Any attempt to effect any of the preceding in violation
of this Section 2.2, whether voluntary or involuntary, will be void.
Section 2.3. Dividend Equivalents. The Company will credit each of your
Restricted Stock Units with Dividend Equivalents from the date your Award is
granted to the end of the Restricted Period. A "Dividend Equivalent" is, at the
time the Company pays any cash dividend on its Common Shares, an amount equal to
the cash dividend per Common Share multiplied by the number of Common Shares
then underlying each Restricted Stock Unit.
Section 2.4. Settlement of Your Restricted Stock Units.
(a) Promptly after the end of the Restricted Period, the Company
will deliver to you the number of Common Shares then underlying your
vested Restricted Stock Units, together with any Dividend Equivalents
credited to them with interest on such Dividend Equivalents at the
short-term or mid-term Applicable Federal Rate, as applicable, for
obligations running from the Grant Date.
(b) For the purpose of assuring that you do not acquire
beneficial ownership of any Common Shares within the meaning of
Section 7312(w) of the New York Insurance Law, as in effect on the
date of the demutualization that occurred on June 25, 2001 of Phoenix
Home Life Mutual Insurance Company pursuant to a plan of
reorganization approved by the New York State Superintendent of
Insurance under Section 7312 of the New York Insurance Law (the
"Demutualization"), notwithstanding anything in this Annex to the
contrary, in no event will any Common Shares attributable to the
Restricted Stock Units granted to you be issued before the fifth
anniversary of the Demutualization.
Section 2.5. Adjustment Due to Change in Capitalization. If any
Adjustment Event occurs from the date your Award is granted to the end of the
Restricted Period, the number of Common Shares underlying each Restricted Stock
Unit will be proportionately adjusted to reflect, as deemed equitable and
appropriate by the Company, the Adjustment Event. In any merger, consolidation,
reorganization, liquidation, dissolution or other similar transaction, each
Restricted Stock Unit shall pertain to the securities and other property to
which a holder of the number of Common Shares underlying the Restricted Stock
Unit would have been entitled to receive in connection with such event. If, as a
result of any Adjustment Event, your Restricted Stock Units represent the right
to receive cash in whole or in part (other than as a result of Dividend
Equivalents), then the Company will promptly pay you such cash on the later of
(a) the date that such payment would not violate any law or regulation,
including Section 7312(w) of the New York Insurance Law and (b) the 15th day
(or, if such day is not a business day, the next business day) after your
termination of employment with the Company. An "Adjustment Event" means any
stock dividend, stock split or share combination of, or extraordinary cash
dividend on, the Common Shares or recapitalization, reorganization, merger,
consolidation, split-up, spin-off, combination, exchange of shares, warrants or
rights offering to purchase Common Shares at a price substantially below fair
market value, or other similar event affecting the Common Shares.
2
ARTICLE III
ADMINISTRATION
Section 3.1. Administration. The Company is authorized to reasonably
interpret in good faith your Award and this Annex and to make all other
reasonable determinations in good faith necessary or advisable for the
administration and interpretation of your Award to carry out its provisions and
purposes, provided that such interpretation or determination shall be consistent
with the interpretation or determination made by the Company with respect to
senior management under other similar equity compensation plans. Determinations,
interpretations or other actions made or taken by the Company pursuant to the
provisions of this Annex shall be final, binding and conclusive for all purposes
and upon all persons. The Company may consult with legal counsel, who may be
regular counsel to the Company, and shall not incur any liability for any action
taken in good faith in reliance upon the advice of counsel.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Payment on Death. If any amounts are payable under your
Award after you die, the Company will pay them to your estate.
Section 4.2. Tax Withholding. The Company will have the power to
withhold, or require you to remit to the Company promptly upon notification of
the amount due, an amount sufficient to satisfy Federal, state and local
withholding tax requirements with respect to your Award (or settlement thereof),
and the Company may defer payment of cash or issuance or delivery of Common
Shares until such requirements are satisfied. The Company may, in its
discretion, permit you to elect, subject to such conditions as the Company shall
impose (a) to have Common Shares deliverable in respect of your Award withheld
by the Company or (b) to deliver to the Company previously acquired Common
Shares, in each case, having a fair market value sufficient to satisfy your
statutory minimum Federal, state and local tax obligation associated with the
transaction.
Section 4.3. Common Shares Subject to this Award. The Common Shares to
be delivered in connection with your Award may consist, in whole or in part, of
Common Shares held in treasury or authorized but unissued Common Shares, not
reserved for any other purpose.
Section 4.4. Successor. The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, if your
Restricted Stock Units remain outstanding, to unconditionally assume the
obligations of the Company with respect to your Restricted Stock Units in
writing and will provide a copy of the assumption to you.
Section 4.5. Requirements of Law. The granting of your Award and the
issuance of Common Shares will be subject to all applicable laws, rules and
regulations, and to such approvals by any governmental agencies or national
securities exchanges as may be required.
3
Section 4.6. No Impact on Benefits. Your Award will not be compensation
for purposes of calculating your rights under any employee benefit plan.
Section 4.7. Instrument and Securities Law Compliance. The Company
shall have the authority to determine the instruments by which your Award shall
be evidenced. Instruments evidencing your Award may contain such other
provisions, not inconsistent with this Annex, as the Company deems advisable. In
addition, any Common Shares issued in connection with your Award shall be
registered with the SEC at the expense of the Company for resale on or before
the first day on which you may transfer the shares under the Award (or such
later date as you request) unless such shares are eligible for sale by you
pursuant to Rule 144 (k) of the Securities Act of 1933 (or any successor
provision) in the opinion of your counsel, which registration shall be in a form
reasonably acceptable to you, shall be subject to your reasonable prior review
and comments, shall remain effective until all Common Shares subject to the
Award have been sold (but need not be effective for more than 365 days after
first day on which you may transfer the Common Shares subject to your Award or,
if applicable, such later date as to which you shall have requested
effectiveness) and the Company and you shall, prior to the effectiveness of the
registration, enter into a customary registration rights agreement which will
contain provisions, among other things, requiring the Company to indemnify you
and any third persons reasonably requested by you in connection with the sale of
any Common Shares and reimburse you for your reasonable out-of-pocket expenses
(other than underwriting discounts) in connection therewith and will contain
customary black-out periods. In the event of your death, or other permitted
private transfer of the Common Shares, all of your rights in this Section 4.7
shall be transferred to your estate or other transferee.
Section 4.8. Disputes. This Exhibit and your Award are subject to the
provisions of Section 11 of the Agreement.
Section 4.9. Governing Law. The validity, interpretation, construction
and performance of this Exhibit and your Award shall be governed by the laws of
the State of Connecticut applicable to agreements made and to be performed
entirely within such State.
4
EXHIBIT B
AGREEMENT AND GENERAL RELEASE
Agreement and General Release ("Agreement"), by and between Xxxx X.
Xxxxx ("Employee" or "you") and The Phoenix Companies, Inc. (the "Company").
1. As soon as practicable following the Effective Date of this
Agreement and in exchange for your waiver of claims against the Company Entities
(as defined below) and compliance with other terms and conditions of this
Agreement, the Company agrees to provide you with the payments and benefits
provided in Section 7 of your employment agreement with the Company, dated
January 1, 2003 (the "Employment Agreement").
2. (a) In consideration for the payments and benefits to be provided to
you pursuant to paragraph 1 above, you, for yourself and for your heirs,
executors, administrators, trustees, legal representatives and assigns
(hereinafter referred to collectively as "Releasors"), forever release and
discharge the Company and its past, present and future parent entities,
subsidiaries, divisions, affiliates and related business entities, successors
and assigns, assets, employee benefit plans or funds, and any of its or their
respective past, present and/or future directors, officers, fiduciaries, agents,
trustees, administrators, employees and assigns, whether acting on behalf of the
Company or in their individual capacities (collectively the "Company Entities")
from any and all claims, demands, causes of action, fees and liabilities of any
kind whatsoever, whether known or unknown, which you ever had, now have, or may
have against any of the Company Entities by reason of any act, omission,
transaction, practice, plan, policy, procedure, conduct, occurrence, or other
matter related to your employment by (including, but not limited to, termination
thereof) the Company Entities up to and including the date on which you sign
this Agreement, except as provided in subsection (c) below.
(b) Without limiting the generality of the foregoing, this Agreement is
intended to and shall release the Company Entities from any and all claims,
whether known or unknown, which Releasors ever had, now have, or may have
against the Companies Entities arising out of your employment or termination
thereof, including, but not limited to: (i) any claim under the Age
Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act, the Employee Retirement Income Security Act of
1974 (excluding claims for accrued, vested benefits under any employee benefit
or pension plan of the Company Entities subject to the terms and conditions of
such plan and applicable law), and the Family and Medical Leave Act; (ii) any
claim under the Connecticut Human Rights Law, the Connecticut Discriminatory
Employment Practices Act and the Connecticut Family Medical Leave Law and Rules;
(iii) any other claim (whether based on federal, state, or local law, statutory
or decisional) relating to or arising out of your employment, the terms and
conditions of such employment, the termination of such employment, including,
but not limited to, breach of contract (express or implied), wrongful discharge,
detrimental reliance, defamation, emotional distress or compensatory or punitive
damages; and (iv) any claim for attorneys' fees, costs, disbursements and/or the
like.
(c) Notwithstanding the foregoing, nothing in this Agreement shall be a
waiver of claims: (1) that may arise after the date on which you sign this
Agreement; (2) with
respect to your right to enforce your rights that survive termination under the
Employment Agreement or any other written agreement entered into between you and
the Company (including, any equity grants or agreements); (3) regarding rights
of indemnification, receipt of legal fees and directors and officers liability
insurance to which you are entitled to under the Employment Agreement, Company's
Certificate of Incorporation, By-laws or otherwise with regard to your service
with the Company; (4) relating to any benefit or perquisites under any plan or
program of the Company, including, without limitation, any amounts that may
become due to you under any employment continuation agreement or other
change-in-control arrangement; or (5) as a stockholder of the Company.
3. (a) This Agreement is not intended, and shall not be construed, as
an admission that any of the Company Entities has violated any federal, state or
local law (statutory or decisional), ordinance or regulation, breached any
contract or committed any wrong whatsoever against you.
(b) Should any provision of this Agreement require interpretation or
construction, it is agreed by the parties that the entity interpreting or
constructing this Agreement shall not apply a presumption against one party by
reason of the rule of construction that a document is to be construed more
strictly against the party who prepared the document.
4. This Agreement is binding upon, and shall inure to the benefit of,
the parties and their respective heirs, executors, administrators, successors
and assigns.
5. This Agreement shall be construed and enforced in accordance with
the laws of the State of Connecticut applicable to agreements made and to be
performed entirely within such State.
6. You acknowledge that you: (a) have carefully read this Agreement in
its entirety; (b) have had an opportunity to consider for at least twenty-one
(21) days the terms of this Agreement; (c) are hereby advised by the Company in
writing to consult with an attorney of your choice in connection with this
Agreement; (d) fully understand the significance of all of the terms and
conditions of this Agreement and have discussed them with your independent legal
counsel, or have had a reasonable opportunity to do so; (e) have had answered to
your satisfaction by your independent legal counsel any questions you have asked
with regard to the meaning and significance of any of the provisions of this
Agreement; and (f) are signing this Agreement voluntarily and of your own free
will and agree to abide by all the terms and conditions contained herein.
7. You understand that you will have at least twenty-one (21) days from
the date of receipt of this Agreement to consider the terms and conditions of
this Agreement. You may accept this Agreement by signing it and returning it to
the Company's General Counsel. at Xxx Xxxxxxxx Xxx, Xxxxxxxx, XX 00000 on or
before January 22, 2003. After executing this Agreement, you shall have seven
(7) days (the "Revocation Period") to revoke this Agreement by indicating your
desire to do so in writing delivered to the General Counsel. at the address
above by no later than 5:00 p.m. on the seventh (7th) day after the date you
sign this Agreement. The effective date of this Agreement shall be the eighth
(8th) day after you sign the Agreement (the "Effective Date"). If the last day
of the Revocation Period falls on a Saturday, Sunday or
holiday, the last day of the Revocation Period will be deemed to be the next
business day. In the event you do not accept this Agreement as set forth above,
or in the event you revoke this Agreement during the Revocation Period, this
Agreement, including but not limited to the obligation of the Company to provide
the payments and benefits provided in paragraph 1 above, shall be deemed
automatically null and void.
Print Name: Date:
-------------------------------- -------------------
Xxxx X. Xxxxx
Signature:
--------------------------------
Employee
The Phoenix Companies, Inc.
By:
---------------------------------------
Name:
Title:
