Exhibit 10.14
EMPLOYMENT AGREEMENT
BETWEEN
JOHN A. GRAF,
AXA FINANCIAL, INC. AND
AXA EQUITABLE LIFE INSURANCE COMPANY
This EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of the
14th day of March, 2005 (the "Effective Date"), between AXA Financial, Inc.
("AXA Financial") and AXA Equitable Life Insurance Company ("AXA Equitable"), on
the one hand (collectively, the "Company"), and John A. Graf, on the other (the
"Executive").
WHEREAS, the Company desires to employ the Executive as Vice Chairman
of the Board of AXA Financial and as President and Chief Operating Officer of
AXA Equitable and of MONY Life Insurance Company ("MONY Life"), and the
Executive is willing to be employed in such capacities, on the terms and
conditions set forth in this Agreement; and
WHEREAS, the Company considers the services of the Executive to be
unique and essential to the success of the Company's business;
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants, terms and conditions set forth herein, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is hereby agreed between the Company and the Executive as follows:
1. EMPLOYMENT. During the Employment Term (as defined below):
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(a) The Executive agrees to serve as the Vice Chairman of the
Board of AXA Financial reporting directly to the Chief
Executive Officer of AXA Financial.
(b) The Executive shall also serve as the President and Chief
Operating Officer of AXA Equitable and of MONY Life reporting
directly to the Chairman of the Board and Chief Executive
Officer, respectively, of AXA Equitable and MONY Life.
(c) The Executive shall also serve as a Director on the Boards of
Directors of AXA Financial, AXA Equitable and MONY Life.
2. EMPLOYMENT TERM. The employment of the Executive under this Agreement is
contingent upon the Executive successfully passing the Company's drug screening
test in accordance with the Company's policies. The term of the Executive's
employment under this Agreement shall commence on the earlier of (i) September
1, 2005 or (ii) the date upon which the Executive is not subject to any
restriction limiting the Executive's ability to execute and deliver this
Agreement, or immediately serve in the capacities and fully perform the services
contemplated in this Agreement, under the employment agreement dated as of May
11, 2001 between the Executive, American International Group, Inc. and American
General Corporation as amended by letter agreements dated July 27, 2001 and
March 25, 2003 (the "AIG Agreement"), (the "Employment Date") and shall continue
thereafter through the fifth anniversary of the Employment Date or until
terminated by either party on 30 days' written notice, whichever comes first
(the "Employment Term"). The Employment Term shall be automatically extended for
additional one-year periods,
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unless written notice of either party's intention not to extend has been
provided to other party at least 30 days prior to the expiration of the
Employment Term then in effect. If the Employment Term is extended under this
Section 2, all of the terms and conditions of this Agreement shall continue in
full force and effect.
3. DUTIES. During the Employment Term, and except for illness or incapacity
and reasonable vacation periods consistent with Company policies for other
senior officers, the Executive shall devote all of his business time, attention,
skill and efforts exclusively to the business and affairs of the Company and its
parent and subsidiaries, shall not be engaged in any other business activity,
and shall perform and discharge well and faithfully the duties of the offices of
the Company held by him, and such other duties and positions as may be assigned
to him from time to time by the AXA Financial, AXA Equitable and MONY Life
Boards of Directors or by the Chief Executive Officer of the Company not
inconsistent with the positions specified in Section 1 of this Agreement;
provided, however, that nothing in this Agreement shall preclude the Executive
from devoting time during reasonable periods required for:
(i) serving, in accordance with and after obtaining the approvals
required by Company policies and the approval of the Chief
Executive Officer of the AXA, a societe anonyme organized
under the laws of the Republic of France, as a director of
any company or organization involving no actual or potential
conflict of interest with the Company or any of its
affiliates;
(ii) delivering lectures and fulfilling speaking engagements; and
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(iii) engaging in charitable, community and other personal
activities in accordance with Company policies;
provided, however, that such activities do not materially affect or interfere
with the performance of the Executive's duties and obligations to the Company or
any of its affiliates.
4. PLACE OF PERFORMANCE. The principal place of employment of the Executive
shall be in New York City, New York, USA, but the Executive understands that his
duties under this Agreement will entail significant domestic and international
travel.
5. COMPENSATION. The Executive shall be compensated for services rendered
during the Employment Term as follows:
(a) Base Salary. The Executive shall be compensated at an annual
base salary of no less than Six Hundred Fifty Thousand
($650,000) Dollars (the base salary, at the rate in effect
from time to time, is hereinafter referred to as the "Base
Salary"). The Organization and Compensation Committee (the
"O&C Committee") of the Company's Board of Directors shall no
less than annually review and may, if appropriate, in its sole
discretion, increase this annual Base Salary during the
Employment Term. The first such review shall be in February
2006, and the effective date of any increase shall be consistent
with the practice of the Company for other senior officers.
(b) Annual Bonus. In addition to the Base Salary provided for in
Section 5(a) above, the Company shall provide an annual bonus
target incentive opportunity to the Executive under a
short-term incentive compensation
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plan for senior officers (the "Short Term Plan") in accordance with
the terms of the Short Term Plan and any performance measures
established thereunder. During the Employment Term, the Executive's
annual target incentive opportunity under the Short Term Plan will
be no less than Two Million Dollars ($2,000,000), subject to
proration based on a year of twelve months at the rate of $166,667
per whole or partial month worked in 2005.
(c) Target Long-Term Incentive. The Executive will participate in the
AXA Financial, Inc. 1997 Stock Incentive Plan or any successor plan
(the "Stock Plan"). The annual target present value of grants to the
Executive under the Stock Plan and any other long-term incentive
compensation plans of the Company or any of its affiliates will be
in the aggregate no less than Four Million ($4,000,000) Dollars,
subject to proration based on a year of twelve months at the rate of
$333,334 per whole or partial month worked in 2005. Except as
provided in this Section 5(c), the actual grant of stock options or
of other long-term incentive compensation, and the terms of such
options or other long-term compensation, will be subject to the
approval, in its sole discretion, of the O&C Committee of the AXA
Financial Board of Directors or a successor committee, subject to
the provisions of the relevant stock and other long-term incentive
compensation plans and consistent with the treatment of stock
options and other long-term incentive compensation granted to other
senior officers. The valuation of stock options and other
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long-term incentive compensation granted to the Executive will be
subject to the approval, in its sole discretion, of the O&C
Committee consistent with the treatment of stock options and other
long-term incentive compensation granted to other senior officers.
In the event the Executive's employment hereunder is terminated by
the Company other than for reasons defined in Section 8(a), or by
the Executive for reasons defined in Section 8(d), on or after the
third anniversary of the Employment Date and prior to the Executive
being offered the position of Chief Executive Officer of the
Company, an accelerated vesting schedule shall apply to any
long-term incentive compensation grants, pursuant to which 50% of
any such unvested grants shall vest upon the Executive's date of
termination if such termination occurs on or after the third
anniversary of the Employment Date, 75% if such termination occurs
on or after the fourth anniversary of the Employment Date and 100%
if such termination occurs on or after the fifth anniversary of the
Employment Date. Notwithstanding the terms of the Stock Plan or
other relevant long-term incentive compensation program of the
Company or any of its affiliates, the vested portion of such grants
that is exercisable at the date of such termination (including any
portion for which vesting is accelerated by reason of such
termination) shall be exercisable at any time prior to the earlier
of the expiration of the term of such grant or the fifth anniversary
of the date of such termination of employment.
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6. INITIAL GRANTS. In connection with the commencement of the Executive's
employment, the Company will grant, effective on the Employment Date, to the
Executive in accordance with the terms of the Stock Plan or other relevant
long-term incentive compensation program of the Company or any of its
affiliates:
(a) Five Hundred Thousand ($500,000) Dollars in face value on the
Employment Date of restricted AXA Group ADRs which shall have a
vesting schedule pursuant to which 100% of such restricted AXA Group
ADRs shall become non-forfeitable and transferable on the third
anniversary of the date of grant (unless the Executive's employment
is terminated by the Company other than for reasons defined in
Section 8(a), or by the Executive for reasons defined in Section
8(d), in which case such vesting shall accelerate to the date of
such termination). The number of restricted AXA Group ADRs granted
to Executive pursuant to this Section 6(a) shall be calculated by
dividing $500,000 by the closing price on the Employment Date for an
AXA Group ADR as reported on the composite transaction tape of the
New York Stock Exchange (as reported in the Wall Street Journal or
if not reported thereby, any other authoritative source chosen by
the O&C Committee) (the "Fair Market Value"). The Executive shall be
entitled to receive all dividends and other distributions paid with
respect to the restated AXA Group ADRs granted pursuant to this
Section 6(a), provided that if any such dividends or distributions
are paid in AXA Group ADRs, such
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AXA Group ADRs shall be subject to the same forfeiture restrictions
and restrictions on transferability as apply to the restricted AXA
Group ADRs with respect to which they were paid.
(b) Five Hundred Thousand ($500,000) Dollars in present value on the
date of the first meeting of the AXA Group Management Board on or
after the Employment Date (the "Option Grant Date") of options to
purchase AXA ordinary shares which shall have a vesting schedule
pursuant to which one-third of such options shall vest on each of
the second, third and fourth anniversaries of the Option Grant Date
(unless the Executive's employment is terminated by the Company
other than for reasons defined in Section 8(a), or by the Executive
for reasons defined in Section 8(d), in which case such vesting
shall accelerate to the date of such termination). The number of
options granted pursuant to this Section 6(b) shall be calculated by
dividing (x) the euro amount equal to the product of $500,000
multiplied by the U.S. dollar/euro exchange rate on the Option Grant
Date by (y) the product of 39% multiplied by the greater of (I) the
average of the opening prices of the AXA ordinary share on the
Euronext Paris over the 20 trading days immediately preceding the
Option Grant Date and (II) the closing price for an AXA ordinary
share, as published by Euronext Paris, on the Option Grant Date
(provided that if such date is not a trading day, the closing price
on the first trading day immediately preceding such date shall be
used) (the
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greater of (I) and (II) hereinafter referred to as the "Euro Fair
Market Value"). In the event (I) is greater than (II), the number of
options granted to the Executive under this paragraph 6(b) shall be
increased by an amount equal to the quotient obtained by dividing
(i) the product of the excess of (I) over (II) multiplied by the
number of options that would otherwise be granted to the Executive
under this paragraph 6(b) by (ii) 39% multiplied by the exercise
price of such options. All such options shall have an exercise price
in euro equal to the Euro Fair Market Value on the Option Grant Date
and a term of ten (10) years from the Option Grant Date and shall
otherwise be subject to the terms and conditions of the AXA Stock
Option Plan for AXA Financial Employees and Associates.
7. EMPLOYEE BENEFITS.
(a) General Provisions. Except as expressly provided in this Agreement,
the Executive shall be eligible to participate in all employee
benefit, welfare, pension, deferred compensation and stock plans
offered by the Company (collectively referred to as the "Benefit
Plans") subject to their terms and conditions on a basis which is no
less favorable to the Executive than that made available to other
senior officers of the Company.
(b) Vacation and Sick Leave. The Executive shall be entitled to vacation
and sick leave in accordance with the vacation and sick leave
policies adopted by the Company from time to time for senior
officers.
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(c) Business Travel and Expenses. The Executive shall be reimbursed by
the Company for reasonable business expenses, as approved by the
Company, which are incurred and accounted for in accordance with the
Company's normal practices and procedures for reimbursement of
expenses.
(d) Executive Car and Driver. In order to ensure the accessibility and
safety of the Executive during the Employment Term, the Company will
provide the Executive with a car and driver for business and
personal purposes.
(e) Air Travel. The Executive may travel for business purposes by means
of private aircraft at the Company's expense with such aircraft to
be provided by the Company by any commercially reasonable method as
long as such methods are available to the Company and subject to
reasonable limitations which may be imposed from time to time by the
Chief Executive Officer of the Company.
(f) Financial Counseling. The Executive will be entitled to
reimbursement by the Company of fees and disbursements incurred by
him for personal financial counseling services provided by a person
or company selected by him up to an aggregate annual amount of
$15,000.
(g) The Company will provide to the Executive the same benefits as the
Company provides to other senior officers with respect to:
(i) Parking,
(ii) Executive health examination, and
(iii) Life insurance under the Executive Survivor Benefits Plans of
AXA
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Equitable.
8. TERMINATION OF EMPLOYMENT. For purposes of determining
entitlements pursuant to this Agreement the following definitions shall apply:
(a) Termination by the Company for Cause. Termination for cause shall
mean termination because of (i) the willful failure by the Executive
to perform substantially his duties as an employee of the Company or
any of its affiliates after reasonable notice to the Executive of
such failure; (ii) the Executive's willful misconduct that is
materially injurious to the Company or any of its affiliates; (iii)
the Executive's having been convicted of, or entered a plea of nolo
contendere to, a crime that constitutes a felony (other than a
felony involving "limited vicarious liability" as defined in this
Section 8(a)); or (iv) the willful breach by the Executive of any
written covenant or agreement with the Company or any of its
affiliates not to disclose any information pertaining to the Company
or any of its affiliates or not to compete or interfere with the
Company or any of its affiliates. For purposes of this Section 8(a),
"limited vicarious liability" shall mean any liability which is (i)
based on acts of the Company for which the Executive is responsible
solely as a result of his office(s) with the Company and (ii)
provided that (x) he was not directly involved in such acts and
either had no prior knowledge of such intended actions or promptly
acted reasonably and in good faith to attempt to prevent the acts
causing such liability or (y) he did not have a reasonable basis to
believe that a law was being violated by
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such acts. No act or failure to act will be considered "willful" for
purposes of this Section 8(a) unless it is done, or omitted to be
done, by the Executive in bad faith and without reasonable belief
that this action or omission was in the best interests of the
Company.
(b) Termination by the Company for Excessive Absenteeism. Termination by
the Company for excessive absenteeism shall mean termination because
the Executive shall have been absent from his duties with the
Company on a full-time basis for one hundred twenty (120) days
within any six months period.
(c) Death. If the Executive's employment terminates by reason of death,
the date of his death shall be the date of termination for purposes
of this Agreement.
(d) Termination by the Executive for Good Reason. Termination for good
reason shall mean:
(i) termination of employment by the Executive after having
delivered to the Company a notice of termination within
thirty (30) days after the occurrence of one or more of the
following circumstances, without the Executive's express
written consent, which are not remedied by the Company within
thirty (30) days of its receipt of the Executive's notice of
termination:
(A) an assignment to the Executive of any duties materially
inconsistent with his position, duties,
responsibilities, and
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status with the Company, or any material limitation of
the powers of the Executive not consistent with the
powers of the Executive contemplated by Sections 1 and
3 hereof;
(B) any removal of the Executive from the positions
specified in Section 1 of this Agreement;
(C) a material diminution of the Executive's titles as
specified in Section 1 of this Agreement;
(D) the Company's requiring the Executive to be based at any
office or location more than 75 miles commuting distance
from the location referred to in Section 4 of this
Agreement;
(E) any failure by the Company to provide the Base Salary,
an annual bonus target incentive opportunity of at least
$2,000,000 or an annual target long-term incentive
opportunity of at least $4,000,000;
(F) any failure by the Company to comply with any of the
provisions of Section 5 or 6 of this Agreement;
(G) a failure of the Company to secure a written assumption
by any successor company as provided for in Section
12(h) hereof;
(H) AXA Financial's requiring the Executive to report to a
person other than the Chief Executive Officer of AXA
Financial;
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(I) AXA Equitable's requiring the Executive to report to a
person other than an executive officer of AXA Equitable
who is also the Chief Executive Officer of AXA
Financial;
(J) the Company requiring the Executive to report to a
person other than Christopher M. Condron, unless the
Executive is offered the position of Chief Executive
Officer of the Company; or
(K) the Company providing notice under Section 2 of its
intention not to extend the Employment Term, unless the
Executive is offered the position of Chief Executive
Officer of the Company; and
(ii) termination of employment by the Executive in the event of a
"change in control"(as hereinafter defined) of the Company
upon 30 days' written notice, with the effective date of such
termination to occur during the 30-day period immediately
following the first anniversary of the date of such "change
in control." For purposes of this Section 8(d)(ii), "change
of control" shall mean any of the following events:
(A) Any "person" (as defined in Section 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), excluding for this purpose, (i) AXA,
any affiliate of AXA, the Company or any subsidiary of
the Company, or (ii) any employee benefit plan of AXA,
any affiliate of AXA, the Company or any subsidiary of
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the Company, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly
or indirectly of securities of the Company representing
more than 50% of the combined voting power of the
Company's then outstanding voting securities entitled to
vote generally in the election of directors; provided,
however, that no Change in Control will be deemed to
have occurred as a result of a change in ownership
percentage resulting solely from an acquisition of
securities by AXA, any affiliate of AXA, the Company or
any subsidiary of the Company;
(B) AXA and its affiliates cease to control the election of
a majority of the Board of Directors of the Company; or
(C) approval by the stockholders of the Company of a
reorganization, merger or consolidation or sale or
other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in
each case, unless, following such Business Combination,
AXA and its affiliates own, directly or indirectly, more
than 50% of the combined voting power of the then
outstanding voting securities entitled to vote generally
in the
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election of directors of the company resulting from such
Business Combination (including, without limitation, a
company which, as a result of such transaction, owns the
Company or all or substantially all of the Company's
assets either directly or through one or more
subsidiaries).
9. COMPENSATION UPON TERMINATION.
(a) Absence From Work. If the Executive's employment hereunder is
terminated by the Company for excessive absenteeism as defined in
Section 8(b), then the Company shall pay the Executive, as soon as
practicable after the date of termination (i) any Base Salary and
any reimbursable expenses accrued or owing the Executive hereunder
as of the date of termination and (ii) any earned and unpaid bonus
relating to service performed by the Executive prior to termination
for excessive absenteeism.
(b) Termination for Cause or by the Executive other than for Good
Reason. If the Executive's employment hereunder is terminated by the
Company for Cause as defined in Section 8(a) or by the Executive
(other than for Good Reason as defined in Section 8(d)), then (i)
the Company shall pay the Executive, as soon as practicable after
the date of termination, any Base Salary and any reimbursable
expenses accrued or owing the Executive hereunder as of the date of
termination; (ii) the Executive shall immediately forfeit any
unvested stock options; and (iii) the Executive shall not be
entitled to any other benefits under any Company plan or policy
except as
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required by statute or the express provisions of this Agreement.
(c) Severance Benefits. In the event the Executive's employment
hereunder is terminated by the Company other than for reasons
defined in Section 8(a), 8(b) or 8(c), or by the Executive for
reasons defined in Section 8(d), the Executive shall be entitled to
continuation of Base Salary and participation in the Benefit Plans
for one year (subject to the provisions of Section 9(d) of this
Agreement) from the date of termination and the payment of an amount
equal to an annual bonus at target for the year in which the
termination occurred, prorated to the date of termination, and an
additional payment equal to one annual bonus at target for the year
in which termination occurred (payable at such times as the Company
in the ordinary course would pay annual bonuses for the year in
which the termination occurred and for the year succeeding the year
in which the termination occurred or at such later time as necessary
to avoid adverse tax consequences to the Executive under section
409A or any successor provision of the Internal Revenue Code of
1986, as amended), provided, however, that in the event the
Executive provides services as described in Section 10(a) of this
Agreement prior to the end of the calendar year following the year
in which any such termination occurs, the Executive's entitlement to
continuation of Base Salary and participation in the Benefit Plans
(except as otherwise expressly provided in this Agreement) shall
cease on the date the provision of such services commences, and the
amount
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of the additional payment to be made to the Executive shall be
reduced and shall be determined by (a) multiplying (x) the amount of
the additional payment by (y) a fraction whose numerator is the
number of days elapsed from the date of the Executive's termination
of employment to the date the provision of such services commences
and whose denominator is the number of days from the date of the
Executive's termination of employment to the end of the calendar
year following the year in which such termination occurs; and
provided further that the Executive shall not be entitled to the
severance benefits described in the foregoing Section 9(c) unless
the Executive executes a release substantially in the form of
Exhibit A to this Agreement; and provided also that the severance
benefits provided for herein shall be in lieu of any other severance
benefits under any Company plan or policy.
(d) Additional Benefits. In the event the Executive's employment
hereunder is terminated other than by the Company for reasons
defined in Section 8(a) or 8(c):
(i) such termination of the Executive's employment shall be
deemed to be a "retirement" for purposes of the Executive
Survivor Benefits Plans or any respective successor plan
thereto; and
(ii) the Executive shall be entitled to continued medical, dental,
vision, and life insurance coverage (excluding accident,
death, and disability insurance) for the Executive and the
Executive's eligible
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dependents or, to the extent such coverage is not
commercially available, such other arrangements reasonably
acceptable to the Executive, on the same basis as in effect
prior to such termination of the Executive's employment for a
period ending on the earlier of (A) the first anniversary of
the date of such termination of the Executive's employment
and (B) the commencement of comparable coverage by the
Executive with a subsequent employer.
10. NON-SOLICITATION AND NON-COMPETITION.
(a) During his employment with the Company and for a period of six
months from the date of the Executive's termination of employment
hereunder for any reason, the Executive will not provide services,
in any capacity, whether as an employee, consultant, independent
contractor, owner, partner, shareholder, director, or otherwise, to
any person or entity that provides products or services that compete
with any present or planned business of the Company and any of its
affiliates, including but not limited to any other life insurance or
financial services company, provided that nothing herein shall
prevent the Executive from, after the termination of his employment,
being a passive owner of not more than 5% of the outstanding stock
of any class of securities of a corporation that is publicly traded
and that may acquire any corporation or business that competes with
the Company or any of its affiliates.
(b) For a period of one year following the termination of the
Executive's
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employment for any reason, or, if longer, during the
period of his continuation of Base Salary pursuant to Section 9(c)
of this Agreement (the "Continuation Period"), the Executive will
not directly or indirectly solicit the business of any customer or
prospective customer of the Company or any of its affiliates for any
purpose other than to obtain, maintain and/or service the customer's
business for the Company or any of its affiliates.
(c) For a period of one year following the termination of the
Executive's employment for any reason, or, if longer, during the
Continuation Period, the Executive agrees not to, directly or
indirectly, recruit, solicit or hire any employees of the Company or
any of its affiliates to work for the Executive or any other person
or entity.
(d) Exclusive Property. The Executive confirms that all confidential
information is and shall remain the exclusive property of the
Company. All business records, papers and documents kept or made by
the Executive relating to the business of the Company or any of its
affiliates shall be and remain the property of the Company. Upon the
termination of his employment with the Company or upon the request
of the Company at any time, the Executive shall promptly deliver to
the Company, and shall not without the consent of the Company's
Boards of Directors retain copies of, any written materials not
previously made available to the public or any records and documents
made by the Executive in his possession concerning the business or
affairs of the Company or any of its affiliates.
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(e) Remedies. Without intending to limit the remedies available to the
Company, the Executive acknowledges that a breach of any of the
covenants contained in this Section 10 may result in material
irreparable injury to the Company or its affiliates for which there
is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event
of such a breach or threat thereof, the Company shall be entitled to
obtain a temporary restraining order and/or a preliminary or
permanent injunction restraining the Executive from engaging in
activities prohibited by this Section 10 or such other relief as may
be required to specifically enforce any of the covenants in this
Section 10.
11. CONFIDENTIALITY. From the Effective Date and continuing after the
Employment Term, and except as otherwise required by law, the Executive shall
not disclose or make accessible to any business, person or entity, or make use
of (other than in the course of the business of the Company) any trade secrets,
proprietary knowledge or confidential information which the Executive shall have
obtained during his employment by the Company and which shall not be generally
known to or recognized by the general public. All information regarding or
relating to any aspect of the business of the Company or any of its affiliates,
including but not limited to that relating to existing or contemplated business
plans, activities or procedures, current or prospective clients, current or
prospective contracts or other business arrangements, current or prospective
products, facilities and methods, manuals, intellectual property, price lists,
financial information
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(including the revenues, costs, or profits associated with any of the products
or services of the Company or any of its affiliates), or any other information
acquired because of the Executive's employment by the Company, shall be
conclusively presumed to be confidential; provided, however, that confidential
information shall not include any information known generally to the public
(other than as a result of unauthorized disclosure by the Executive). The
Executive's obligations under this Section 11 shall be in addition to any other
confidentiality or nondisclosure obligations of the Executive to the Company at
law or under any other Company policy or agreements.
12. OTHER MATTERS.
(a) Representation and Warranty of Executive. Executive represents and
warrants that he is subject to no agreement or restriction other
than the AIG Agreement that would limit his ability to execute and
deliver this Agreement, or, as of the Employment Date, immediately
serve in the capacities and fully perform the services contemplated
herein.
(b) Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Executive relating to the subject matter
hereof and supersedes any prior agreement or understandings and,
except to the extent expressly provided herein or as required by
law, any provisions of any plan, program, policy or other document
of the Company pertaining to the subject matter hereof.
(c) Assignment. Except as set forth below, this Agreement and the rights
and obligations contained herein shall not be assignable or
otherwise
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transferable by either party to this Agreement without the prior
written consent of the other party to this Agreement.
Notwithstanding the foregoing, any amounts owing to the Executive
upon his death shall inure to the benefit of his heirs, legatees,
personal representatives, executor or administrator.
(d) Notices. Any and all notices provided for under this Agreement shall
be in writing and hand delivered or sent by first class registered
or certified mail, postage prepaid, return receipt requested,
addressed to the Executive at his residence or to the Company,
attention General Counsel, at its usual place of business, and all
such notices shall be deemed effective at the time of delivery or at
the time delivery is refused by the addressee upon presentation.
(e) Amendment/Waiver. No provision of this Agreement may be amended,
waived, modified, extended or discharged unless such amendment,
waiver, extension or discharge is agreed to in writing signed by
both the Company and the Executive.
(f) Applicable Law. This Agreement and the rights and obligations of the
parties hereunder shall be construed, interpreted, and enforced in
accordance with the laws of the State of New York (applicable to
contracts to be performed wholly within such State).
(g) Severability. The Executive hereby expressly agrees that all of the
covenants in this Agreement are reasonable and necessary in order to
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protect the Company and its business. If any provision or any part
of any provision of this Agreement shall be invalid or unenforceable
under applicable law, such part shall be ineffective only to the
extent of such invalidity or unenforceability and shall not affect
in any way the validity or enforceability of the remaining
provisions of this Agreement, or the remaining parts of such
provision.
(h) Successor in Interests. In the event the Company merges or
consolidates with or into any other corporation or corporations, or
sells or otherwise transfers substantially all of its assets to
another corporation, the provisions of this Agreement shall be
binding upon and inure to the benefit of the corporation surviving
or resulting from the merger or consolidation or to which the assets
are sold or transferred and, prior to the consummation of any such
event, the Company shall obtain the express written assumption of
this Agreement by the other corporation (other than in the case of a
merger after which the Company is the surviving entity). All
references herein to the Company refer with equal force and effect
to any corporate or other successor of the corporation that acquires
directly or indirectly by merger, consolidation, purchase or
otherwise, all or substantially all of the assets of the Company.
(i) Reimbursement. The Company shall reimburse the Executive for any
loss of the bonus payable under section 3(b)(iii) of the AIG
Agreement for the calendar year within which the Executive
terminated employment under the AIG Agreement that arises out of, is
based on or results from the actions of the
24
Company, including without limitation the execution and delivery of
this Agreement. The Executive shall promptly notify the Company in
writing of any loss that could require reimbursement by the Company
under this Section 12(i). Any reimbursement of such loss shall be
payable by the Company to the Executive promptly after the
Employment Date subject to repayment in full by the Executive if his
employment is terminated by the Company for reasons defined in
Section 8(a), or by the Executive other than for reasons defined in
Section 8(d), prior to the first anniversary of the Employment Date.
If, after having incurred such loss, the Executive is subject under
the AIG Agreement to any restriction limiting the Executive's
ability to execute and deliver this Agreement, or immediately serve
in the capacities and fully perform the services contemplated in
this Agreement, and the Company notifies the Executive in writing
that it desires on the Executive's behalf to contest such loss and
or any such restriction under the AIG Agreement, the Executive shall
(i) take such actions in connection with such contest as the Company
shall reasonably request, including, without limitation, accepting
legal representation with respect to such contest by an attorney
reasonably selected by the Company and (ii) shall cooperate with the
Company in good faith in order to effectively pursue such contest,
provided, however, that the Company shall bear all costs and
expenses incurred in connection with such contest.
(j) Indemnity. The Company shall indemnify, defend and hold harmless the
Executive from and against any and all liabilities, costs, losses or
damages,
25
including reasonable attorneys' fees and disbursements, incurred as
a result of, or in connection with, any action, suit, proceeding or
claim by American International Group, Inc., or any of its
affiliates, that arises out of, is based on or results from actions
of the Company, including the execution and delivery of the
Agreement, or the performance of services by the Executive for the
Company. The Executive shall promptly notify the Company in writing
of any claim that could require indemnification under this Section
12(j). The Company shall control the defense in respect of any such
claim with an attorney reasonably selected by the Company. The
Company may not settle any such claim without the consent of the
Executive, which consent shall not be unreasonably withheld. If the
Company does not assume the defense of such claim, the Executive
shall have the right to select its own attorney and control the
defense thereof at the expense of the Company. Upon payment of any
such claim to or on behalf of the Executive, the Company shall be
subrogated to any and all claims that the Executive may have in
respect of the matters against which the indemnity under this
Section 12(j) was given. The Executive shall cooperate with the
Company in good faith and shall execute such instruments and take
such actions as the Company shall reasonably request in order to
effectively defend or pursue any claim under this Section 12(j).
13. APPLICABLE TAXES. There shall be deducted from any compensation payments
made under this Agreement any federal, state, and local taxes or other amounts
required to be withheld by any entity having jurisdiction over the matter. With
respect to the benefits
26
described in Sections 7(d) and (e) of this Agreement, the Company will provide
the Executive with full tax gross-up due to any imputed income therefrom, but
the Executive shall be personally responsible for payment of taxes on any other
imputed income resulting from any other benefits afforded under this Agreement.
14. INDEMNIFICATION AND INSURANCE. During the Employment Term and thereafter
to the extent provided in the Company's charter and by-laws and applicable
liability insurance policies, the Executive will be entitled to the protections
afforded by the indemnification provisions of the Company's charter and by-laws
and by the directors and officers liability insurance policies purchased form
time to time and maintained by the Company to the same extent as other directors
and senior officers of the Company.
15. CERTAIN PAYMENTS. In the event that the aggregate of all payments or
benefits made or provided to, or that may be made or provided to, the Executive
under this Agreement and under all other plans, programs and arrangements of the
Company (the "Aggregate Payment") is determined to constitute a "parachute
payment," as such term is defined in Section 280G(b)(2) of the Internal Revenue
Code, the Company shall pay to the Executive, prior to the time any excise tax
imposed by Section 4999 of the Internal Revenue Code ("Excise Tax") is payable
with respect to such Aggregate Payment, an additional amount which, after the
imposition of all income and excise taxes thereon, is equal to the Excise Tax on
the Aggregate Payment. The determination of whether the Aggregate Payment
constitutes a parachute payment and, if so, the amount to be paid to the
Executive and the time of payment pursuant to this Section 15 shall be made by
an independent auditor (the "Auditor") jointly selected by the Company and the
Executive and paid by the Company.
27
The Auditor shall be a nationally recognized United States public accounting
firm which has not, during the two (2) years preceding the date of its
selection, acted in any way on behalf of the Company or any affiliate thereof.
If the Executive and the Company cannot agree on the firm to serve as the
Auditor, then the Executive and the Company shall each select one accounting
firm and those two firms shall jointly select the accounting firm to serve as
the Auditor. Notwithstanding the foregoing, in the event that the amount of the
Executive's Excise Tax liability is subsequently determined to be greater than
the Excise Tax liability with respect to which an initial payment to the
Executive under this Section 15 has been made, the Company shall pay to the
Executive an additional amount with respect to such additional Excise Tax (and
any interest and penalties thereon) at the time and in the amount determined by
the Auditor so as to make the Executive whole, on an after-tax basis, with
respect to such Excise Tax (and any interest and penalties thereon) and such
additional amount paid by the Company. In the event the amount of the
Executive's Excise Tax liability is subsequently determined to be less than the
Excise Tax liability with respect to which any payment to the Executive has been
made under this Section 15, the Executive shall, as soon as practical after the
determination is made, pay to the Company the amount of the overpayment by the
Company, reduced by the amount of any relevant taxes already paid by the
Executive and not refundable, all as determined by the Auditor. The Executive
and the Company shall cooperate with each other in connection with any
proceeding or claim relating to the existence or amount of liability for Excise
Tax, and all expenses incurred by the Executive in connection therewith shall be
paid by the Company promptly upon notice of demand from the Executive.
28
16. TERMINATION BEFORE EMPLOYMENT DATE. The Company or the Executive may at any
time prior to the Employment Date give notice to the other that the employment
of Executive will not commence and the Agreement will be terminated, in which
event the terminating party shall pay $2,650,000 to the other party and the
obligations of the parties under this Agreement shall become null and void and
have no effect except for the obligations in Section 10(b), (c) and (d) and
Section 11, provided however, that this provision shall not apply (A) in the
event the Company gives such notice by reason of (i) the failure of the
Executive to successfully pass the Company's drug screening test or (ii) acts or
events that would constitute Cause under Section 8(a)(ii), (iii) or (iv) or (B)
upon the death or incapacity of the Executive.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed on its own behalf by its duly authorized officers, and the Executive
has executed this Agreement on his own behalf intending to be legally bound, as
of the Effective Date.
AXA FINANCIAL, INC.
By: /s/ Christopher M. Condron
--------------------------
Christopher M. Condron
President and Chief Executive Officer
AXA EQUITABLE LIFE INSURANCE COMPANY
By: /s/ Christopher M. Condron
--------------------------
Christopher M. Condron
Chairman and Chief Executive Officer
EXECUTIVE:
/s/ John A. Graf
----------------
John A. Graf
29
EXHIBIT A
CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE
This Confidential Separation Agreement and General Release (the
"Agreement") sets forth the agreement reached concerning the termination of
employment of John A. Graf ("Employee") with AXA Financial, Inc. and AXA
Equitable Life Insurance Company including its current and former parents,
subsidiaries and affiliates, and its and their respective current and former
successors, assigns, representatives, agents, attorneys, shareholders, officers,
directors and employees, both individually and in their official capacities
(collectively "the Company").
1. In consideration for signing this Agreement and in exchange for
the promises, covenants and waivers set forth herein, The Company will, provided
Employee has not revoked this Agreement as set forth below, provide Employee
with all of the benefits and payments contained in Section 9 of the Employment
Agreement (the "Employment Agreement") dated March 14, 2005 between the Company
and the Employee.
2. In consideration of the benefits and payments described above,
and for other good and valuable consideration, Employee hereby releases and
forever discharges, and by this instrument releases and forever discharges, The
Company from all debts, obligations, promises, covenants, agreements, contracts,
endorsements, bonds, controversies, suits, actions, causes of action, judgments,
damages, expenses, claims or demands, in law or in equity, which Employee ever
had, now has, or which may arise in the future, regarding any matter arising on
or before the date of Employee's execution of this Agreement, including but not
limited to all claims (whether known or unknown) regarding Employee's employment
with or termination of employment from The Company, any contract (express or
implied), any claim for equitable relief or recovery of punitive, compensatory,
or other damages or monies, attorneys' fees, any tort, and all claims for
alleged discrimination based upon age, race, color, sex, sexual orientation,
marital status, religion, national origin, handicap, disability, or retaliation,
including any claim, asserted or unasserted, which could arise under Title VII
of the Civil Rights Act of 1964; the Equal Pay Act of 1963; the Age
Discrimination in Employment Act of 1967 ("ADEA"); the Older Workers Benefit
Protection Act of 1990; the Americans With Disabilities Act of 1990; the Civil
Rights Act of 1866, 42 U.S.C. ss. 1981; the Employee Retirement Income Security
Act of 1974; the Family and Medical Leave Act of 1993; the Civil Rights Act of
1991; the Worker Adjustment and Retraining Notification Act of 1988; the
Sarbanes-Oxley Act; the New York State Human Rights Law; the New York City Human
Rights Law; and any other federal, state or local laws, rules or regulations,
whether equal employment opportunity laws, rules or regulations or otherwise, or
any right under any Company retirement, welfare, or stock plans; provided,
however, that this release does not apply to any vested benefits which Employee
may have. Such benefits shall be governed by the terms and conditions of the
applicable plan documents which the Company reserves the right to amend, modify
or terminate in its sole discretion. This release does not apply to
any rights Employee may have to recovery as a member of the certified class in
the action entitled HIRT, ET AL. V. THE RETIREMENT PLAN FOR EMPLOYEES, MANAGERS
AND AGENTS, ET AL., 01 Civ. 7920, currently pending in the Southern District of
New York. This Agreement may not be cited as, and does not constitute an
admission by the Company of, any violation of any such law or legal obligation
with respect to any aspect of Employee's employment or termination therefrom.
3. Employee represents and agrees that Employee has not filed any
lawsuits or arbitrations against the Company, or filed or caused to be filed any
charges or complaints against the Company with any municipal, state or federal
agency charged with the enforcement of any law or any self-regulatory
organization. Pursuant to and as a part of Employee's release and discharge of
the Company, as set forth herein, with the sole exception of Employee's right to
bring a proceeding pursuant to the Older Workers Benefit Protection Act of 1990
to challenge the validity of Employee's release of claims pursuant to the ADEA,
Employee agrees, not inconsistent with EEOC Enforcement Guidance On Non-Waivable
Employee Rights Under EEOC-Enforced Statutes dated April 11, 1997, and to the
fullest extent permitted by law, not to sue or file a charge, complaint,
grievance or demand for arbitration against the Company in any forum or assist
or otherwise participate willingly or voluntarily in any claim, arbitration,
suit, action, investigation or other proceeding of any kind which relates to any
matter that involves the Company, and that occurred up to and including the date
of Employee's execution of this Agreement, unless (a) required to do so by court
order, subpoena or other directive by a court, administrative agency,
arbitration panel or legislative body, or unless required to enforce this
Agreement; or (b) requested to engage in conduct permissible under paragraph 7d
of this Agreement. To the extent any such action may be brought by a third
party, Employee expressly waives any claim to any form of monetary or other
damages, or any other form of recovery or relief in connection with any such
action. Nothing in this Agreement shall prevent Employee (or Employee's
attorneys) from (i) commencing an action or proceeding to enforce this Agreement
or (ii) exercising Employee's right under the Older Workers Benefit Protection
Act of 1990 to challenge the validity of Employee's waiver of ADEA claims set
forth in paragraph 2 of this Agreement.
4. Employee represents, warrants and acknowledges that the Company
owes Employee no wages, commissions, bonuses, sick pay, personal leave pay,
severance pay, notice pay, vacation pay, or other compensation or benefits or
payments or form of remuneration of any kind or nature, other than that
specifically provided for in the Employment Agreement.
5. Employee agrees that Employee will not disparage or criticize the
Company, or issue any communication, written or otherwise, that reflects
adversely on or encourages any adverse action against the Company, except if
testifying truthfully under oath pursuant to any lawful court order or subpoena
or otherwise responding to or providing disclosures required by law.
6. Employee agrees not to disclose, nor use for Employee's benefit
or the benefit of any other person or entity, any information received from the
Company which is confidential or proprietary or covered by any of the Company's
non-disclosure or privacy policies and (i) which has not been disclosed publicly
by the Company, (ii)
2
which is otherwise not a matter of public knowledge, or (iii) which is a matter
of public knowledge but Employee knows or has reason to know that such
information became a matter of public knowledge through an unauthorized
disclosure. Proprietary or confidential information shall mean information the
unauthorized disclosure or use of which would reduce the value of such
information to the Company. Such information includes, without limitation, the
Company's client lists, its trade secrets, any confidential information about
(or provided by) any client or prospective or former client of the Company,
information concerning the Company's business or financial affairs, including
its books and records, commitments, procedures, plans and prospects, or current
or prospective transactions or business of the Company and any "inside
information." Employee hereby confirms that Employee has delivered to the
Company and retained no copies of any written materials, records and documents
(including those that are electronically stored) made by Employee or coming into
Employee's possession during the course of Employee's employment with the
Company which contain or refer to or are derived from any such proprietary or
confidential information. Employee further confirms that Employee has delivered
to the Company any and all property and equipment of the Company, including,
without limitation, laptop computers, any other Company equipment, hardware,
software and/or materials, Employee's card key, identification card and
passwords which may have been in Employee's possession.
7. Employee agrees not to disclose the terms, contents or execution
of this Agreement, the claims that have been or could have been raised against
the Company, or the facts and circumstances underlying this Agreement, except in
the following circumstances:
a. Employee may disclose the terms of this Agreement to
Employee's immediate family, so long as such family member agrees to be bound by
the confidential nature of this Agreement;
b. Employee may disclose the terms of this Agreement to (i)
Employee's financial and tax advisors so long as such financial and tax advisors
agree in writing to be bound by the confidential nature of this Agreement, (ii)
taxing authorities if requested by such authorities and so long as they are
advised in writing of the confidential nature of this Agreement, or (iii)
Employee's legal counsel; and
c. Pursuant to the order of a court or governmental agency of
competent jurisdiction, or for purposes of securing enforcement of the terms and
conditions of this Agreement.
d. Any non-disclosure provision in this Agreement does not
prohibit or restrict Employee (or Employee's attorneys) from responding to any
inquiry, or providing testimony about this Agreement or its underlying facts and
circumstances initiated by, or before, the Securities and Exchange Commission,
the National Association of Securities Dealers, Inc. or any other
self-regulatory organization or any other federal or state regulatory authority.
3
8. Upon service on Employee, or anyone acting on Employee's behalf,
of any subpoena, order, directive, request or other legal process requiring
Employee to engage in conduct encompassed within paragraphs 5, 6, or 7 of this
Agreement, Employee or Employee's attorney shall immediately notify the Company
of such service and of the content of any testimony or information to be
provided pursuant to such subpoena, order, directive, request or other legal
process and within two (2) business days send to the undersigned representative
of the Company via overnight delivery (at the Company's expense) a copy of said
documents served upon Employee; provided, however, that if Employee is requested
to engage in conduct permitted under paragraph 7d of this Agreement Employee
shall comply with Employee's obligations under this paragraph only after
Employee has responded to the inquiry or provided the testimony sought. Upon
submission of appropriate written documentation, the Company shall reimburse
Employee for reasonable, pre-approved expenses incurred in carrying out the
provisions of this paragraph.
9. Employee agrees that Employee will reasonably assist and
cooperate with the Company in connection with the defense or prosecution of any
claim that may be made against or by The Company, or in connection with any
ongoing or future investigation or dispute or claim of any kind involving The
Company, including any proceeding before any arbitral, administrative, judicial,
legislative, or other body or agency, including preparing for and testifying in
any proceeding to the extent such claims, investigations or proceedings relate
to services performed or required to be performed by Employee, pertinent
knowledge possessed by Employee, or any act or omission by Employee. Employee
further agrees to perform all acts and execute and deliver any documents that
may be reasonably necessary to carry out the provisions of this paragraph. Upon
submission of appropriate written documentation, The Company shall reimburse
Employee for reasonable, pre-approved expenses incurred in carrying out the
provisions of this paragraph.
10. Except for the provisions of the Employment Agreement that
survive the Employment Term (as such term is defined in Section 2 of the
Employment Agreement), this Agreement constitutes the entire agreement between
The Company and Employee with respect to the subject matter herein, and
supersedes and cancels all prior and contemporaneous written and oral
agreements, if any, between The Company and Employee with respect to the subject
matter herein. Employee affirms that, in entering into this Agreement, Employee
is not relying upon any oral or written promise or statement made by anyone at
any time on behalf of The Company.
11. This Agreement is binding upon Employee and Employee's
successors, assigns, heirs, executors, administrators and legal representatives.
12. If any of the provisions, terms or clauses of this Agreement are
declared illegal, unenforceable or ineffective in a legal forum, those
provisions, terms and clauses shall be deemed severable, such that all other
provisions, terms and clauses of this Agreement shall remain valid and binding
upon both parties.
13. Without detracting in any respect from any other provision of
this Agreement:
4
a. Employee, in consideration of the benefits and payments
described above, agrees and acknowledges that this Agreement constitutes a
knowing and voluntary waiver of all rights or claims Employee has or may have
against The Company as set forth herein, including, but not limited to, all
rights or claims arising under the ADEA, as amended, including, but not limited
to, all claims of age discrimination in employment and all claims of retaliation
in violation of the ADEA; and Employee has no physical or mental impairment of
any kind that has interfered with Employee's ability to read and understand the
meaning of this Agreement or its terms, and that Employee is not acting under
the influence of any medication or mind-altering chemical of any type in
entering into this Agreement.
b. Employee understands that, by entering into this Agreement,
Employee does not waive rights or claims that may arise after the date of
Employee's execution of this Agreement, including without limitation any rights
or claims that Employee may have to secure enforcement of the terms and
conditions of this Agreement.
c. Employee agrees and acknowledges that the consideration
provided to Employee under this Agreement is in addition to anything of value to
which Employee is already entitled.
d. The Company hereby advises Employee to consult with an
attorney prior to executing this Agreement.
e. Employee acknowledges that Employee was informed that
Employee had at least twenty-one (21) days in which to review and consider this
Agreement and to consult with an attorney regarding the terms and effect of this
Agreement.
14. Employee may revoke this Agreement within seven (7) days from
the date Employee signs this Agreement, in which case this Agreement shall be
null and void and of no force or effect on either The Company or Employee. Any
revocation must be in writing and received by The Company by 5:00 p.m. on or
before the seventh day after this Agreement is executed by Employee. Such
revocation must be sent to the attention of the Company's General Counsel at The
Company's Corporate Headquarters at 1290 Avenue of the Americas, New York, New
York 10104.
15. This Agreement may not be changed or altered, except by a
writing signed by an authorized executive officer of The Company and Employee.
This Agreement is entered into in the State of , and the laws of the State of
will apply to any dispute concerning it, excluding the conflict-of-law
principles thereof.
16. Employee understands and agrees that the terms set out in this
Agreement, including, but not limited to, the confidentiality provisions, shall
survive the signing of this Agreement and receipt of benefits hereunder.
EMPLOYEE EXPRESSLY ACKNOWLEDGES, REPRESENTS, AND WARRANTS THAT EMPLOYEE HAS READ
THIS AGREEMENT CAREFULLY; THAT EMPLOYEE FULLY UNDERSTANDS THE TERMS, CONDITIONS,
AND SIGNIFICANCE OF THIS
5
AGREEMENT; THAT THE COMPANY HAS ADVISED EMPLOYEE TO CONSULT WITH AN ATTORNEY
CONCERNING THIS AGREEMENT; THAT EMPLOYEE HAS HAD A FULL OPPORTUNITY TO REVIEW
THIS AGREEMENT WITH AN ATTORNEY; THAT EMPLOYEE UNDERSTANDS THAT THIS AGREEMENT
HAS BINDING LEGAL EFFECT; AND THAT EMPLOYEE HAS EXECUTED THIS AGREEMENT FREELY,
KNOWINGLY AND VOLUNTARILY.
PLEASE READ CAREFULLY. THIS AGREEMENT HAS IMPORTANT LEGAL CONSEQUENCES.
Date:
------------------------ -------------------------------------
John A. Graf
On this ___ day of _________ 200_, before me personally came _________________,
to me known to be the individual described in the foregoing instrument, who
executed the foregoing instrument in my presence, and who duly acknowledged to
me that ___(he/) executed the same.
-------------------------------------
Notary Public
EMPLOYEE MUST SIGN AND RETURN THIS AGREEMENT TO THE ATTENTION OF THE COMPANY'S
GENERAL COUNSEL AT THE COMPANY'S CORPORATE HEADQUARTERS AT 1290 AVENUE OF THE
AMERICAS, NEW YORK, NEW YORK 10104 NO LATER THAN 5:00 P.M. ON THE 21ST DAY
FOLLOWING THE DATE OF TERMINATION UNDER THE EMPLOYMENT AGREEMENT.
184172