September 27, 2002
Robert W. Fiondella,
29 Summerberry Circle,
Bristol, Connecticut 06010.
Re: Retirement and Transition Agreement
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Dear Mr. Fiondella:
We are proposing the following retirement and transition arrangements
in recognition of your over thirty years of service to The Phoenix Companies,
Inc. (the "Holding Company"), the Phoenix Life Insurance Company (the "Insurance
Company") and their affiliates (together, the "Group"). The proposal provides
for your continued service to the Holding Company and the Insurance Company
through June 30, 2003 and sets forth the arrangements relating to your
transition.
On your agreement, this letter becomes your RETIREMENT AND TRANSITION
AGREEMENT with the Holding Company and the Insurance Company.
1. PRIOR ARRANGEMENTS
This Agreement supersedes your Employment Letter Agreement with the
Insurance Company, dated December 20, 2000 (your "Prior Employment Agreement"),
your Change of Control Agreement with the Insurance Company, dated November 6,
2000 (your "Prior Change of Control Agreement") and any other severance or
similar rights you may have with the Group. Your Prior Employment Agreement and
Prior Change of Control Agreement are terminated, and no party will have any
further liability under those agreements.
2. YOUR SERVICE THROUGH DECEMBER 31, 2002
(a) Position and Authority. Through December 31, 2002, you will
continue to serve as Chief Executive Officer and Chairman of the Board of the
Holding Company and be employed as Chief Executive Officer and Chairman of the
Board of the Insurance Company. In each case, you will continue to have the
authority and responsibilities that correspond to your positions.
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(b) Performance. During your service and employment as Chief Executive
Officer and Chairman of the Board, you will devote your entire business time,
attention and efforts to your responsibilities and will use good faith efforts
to discharge your responsibilities to the best of your ability. Your services
will be performed in the Hartford, Connecticut metropolitan area (except for
travel required in connection with the performance of your responsibility).
(c) Resignation as Chief Executive Officer. Effective on the close of
business December 31, 2002, you will resign from your position as Chief
Executive Officer of both the Holding Company and the Insurance Company as well
as from all other positions as an officer of the Group. The only positions you
will retain are Chairman of the Board of both the Holding Company and the
Insurance Company and an employee of the Insurance Company. You understand that
your resignation will be irrevocable and that no other action is required for it
to become effective. You agree, however, to sign the additional letters of
resignation in the form attached in Annex 1.
3. YOUR SERVICE FROM JANUARY 1, 2003 THROUGH JUNE 30, 2003
(a) Your Retirement Date. Your "Retirement Date" will be June 30, 2003.
However, you, the Holding Company and the Insurance Company may mutually agree
on another Retirement Date between April 30, 2003 to June 30, 2003.
(b) Continuation as Chairman of the Board. From January 1, 2003 through
your Retirement Date, you will continue to serve as Chairman of the Board of the
Holding Company and be employed as Chairman of the Board of the Insurance
Company (in each case so long as you continue as a director of both the Holding
Company and the Insurance Company through that date).
(c) Authority. During your service and employment as Chairman of the
Board beginning January 1, 2003, you will have responsibility and authority for
Board relations and in collaboration with the Chief Executive Officer for the
Group's overall strategy and the Group's external affairs, including government
relations and trade associations.
(d) Performance. During your service and employment as Chairman of the
Board beginning January 1, 2003, you will devote attention and time during
normal business hours to the business and affairs of the Group to the extent you
determine in good faith to be necessary to discharge your responsibilities and
will use good faith efforts to discharge your responsibilities to the best of
your ability. Your services will be performed in the Hartford, Connecticut
metropolitan area (except for travel required in connection with the performance
of your responsibility).
(e) Resignation as Chairman of the Board. Effective on the close of
business on your Retirement Date, you will resign from your position as Chairman
of the Board of both the Holding Company and the Insurance Company as well as
from all other remaining positions as a director, officer or employee of the
Group. You understand that your resignation will be irrevocable and that no
other action is required for it to become effective. You agree, however, to sign
the additional letters of resignation in the form attached as Annex 1. Effective
on the close of business
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on your Retirement Date, the Group will have no further obligations to you
except as provided in Section 5.
4. YOUR COMPENSATION AND BENEFITS
(a) Salary. During your employment and until your Retirement Date, you
will receive an annual base salary at the rate currently in effect (your
"Salary"). Your Salary will be paid in accordance with the normal practices of
the Group for senior executives.
(b) Management Incentive Plan. You will continue to be entitled to
participate in the Management Incentive Plan ("MIP") for the 2002 fiscal year
with your current target incentive award of 115% of your Salary. You will not be
entitled to participate in the MIP for 2003, notwithstanding any provision in
the MIP to the contrary .
(c) No Long Term Incentive Plan. You will no longer be entitled to
participate in any long-term incentive plan maintained by any member of the
Group. Effective the date of this Agreement, you forfeit all your rights, vested
and unvested, to any existing or future long-term incentive plan of any member
of the Group.
(d) Employee Benefit Plans. During your employment and until your
Retirement Date, you will be entitled to continue to participate in each of the
Group's employee benefit, retirement, and welfare plans in accordance with the
normal practices of the Group for senior executives.
(e) Other Perquisites. During your employment and until your Retirement
Date, you will continue to receive perquisites, including secretarial support
and other business services, generally consistent with those you are currently
receiving. However, beginning January 1, 2003, you will be provided with
appropriate office space as agreed upon by you and the Group.
(f) Elections. You shall have until October 30, 2002 to specify any
special payment elections under the Group's pension or welfare arrangements.
5. TRANSITION PAYMENT
(a) Transition Payment. In connection with your transition, you will
receive the following (together, your "Transition Payment"):
(1) A payment of $8,000,000.
(2) Restricted stock units representing $8,000,000 of the Holding
Company's common stock, valued using the closing price on September
27, 2002. The terms of the restricted stock units will be
substantially as set forth in Annex 2.
(3) Deferred compensation of $4,000,000. The terms of the
deferred compensation will be substantially as set forth in Annex 3.
(b) Other Group Obligations to You After Transition. In addition to
your Transition Payment, you will also receive the following:
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(1) Any (A) unpaid Salary through your Retirement Date, (B)
accrued expense reimbursements and other cash entitlements through the
end of your employment, (C) other cash compensation accrued by you
through the end of your employment and (D) unpaid deferred
compensation at such times and in accordance with the terms of Annex 3
(together, your "Accrued Compensation"). Annex 4 sets forth the amount
of deferred compensation under each agreement in effect as of June 30,
2002, all amounts of which shall become subject to the terms of Annex
3 on the date hereof.
(2) Timely payment of any amounts and provision of any benefits
that are required, or to which you are entitled, under any pension or
retirement plan, contract or arrangement of the Group set forth on
Annex 5 as may be amended from time to time (provided that such
arrangements shall not be amended in a manner that is more adverse to
you than to other senior executives of the Group) (together, your
"Retirement Benefits").
(3) Timely payment of any amounts and provision of any benefits
that are required, or to which you are entitled under any welfare
plan, contract or arrangement of the Group, including retiree medical,
dental, vision and life insurance, on Annex 6 as may be amended from
time to time (provided that such arrangements shall not be amended in
a manner that is more adverse to you than to other senior executives
of the Group) (together, your "Welfare Benefits").
(4) Exercisability of your stock options and other equity awards
to which you are entitled under equity-based compensation plans on
Annex 7, in accordance with their terms, and accelerated vesting of
such awards in accordance with the terms of such plans in the event of
your termination of employment other than by the Group for Cause by
treating such termination as being an "Approved Retirement" as that
term is defined in the Holding Company's Stock Incentive Plan (your
"Equity Compensation"). Annex 7 also sets forth the amount of your
stock options and other equity awards as of September 30, 2002.
(c) Release and Letters of Resignation Required. The Holding Company
and the Insurance Company will not be required to make your Transition Payment
unless the Holding Company (for itself and the other members of the Group)
receives (1) an effective release from you of all liability or obligation or
potential liability or obligation other than the payments and benefits
contemplated by this Agreement, which shall be substantially in the form of
Annex 8, and (2) any letters of resignation in the form attached as Annex 1.
(d) Timing. Subject to Section 6, your Transition Payment will be paid
(or, in the case of the restricted stock units, provided) on the later of (1)
your Retirement Date or (2) the effectiveness of the release referred to in
Section 5(c)
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(provided that the deferred compensation amount shall be paid in
accordance with Annex 3, and the Restricted Stock Units will be paid in
accordance with Annex 2). The other payments and benefits provided for in this
Section 5 will be paid or provided in accordance with the normal practices of
the Group for senior executives and/or the applicable plan.
6. EFFECT OF EARLY TERMINATION
(a) Definitions.
"Cause" shall mean any one of the following events:
(1) your conviction in a court of law of a felony or of any
crime involving the misuse or misappropriation of money or other
property of another;
(2) any willful misconduct or illegal conduct by you that
has a material adverse effect on the Group; or
(3) any action by you which is a material violation of any
material provision of the Group's conflict of interest policy, as
in effect on the date hereof, which has not been remedied by you,
to the extent remediable, within 5 days of notice of such
violation, that has a material adverse effect on the Group.
Notwithstanding the foregoing provisions of this subparagraph, you
shall not be deemed to have been terminated for Cause for the purposes
of this Agreement unless and until there shall have been delivered to
you a resolution duly adopted by the affirmative vote of not less than
a majority of the entire membership of the Board of the Holding
Company (or successor) (the "Board") at a meeting called and held for
such purpose (after reasonable notice and an opportunity for you
together with your counsel, to be heard before the Board), finding in
the good faith opinion of the Board that you are guilty of conduct so
constituting Cause and stating the particulars thereof in detail.
"Disability" shall mean such physical or mental condition as
shall have rendered you unable (with reasonable accommodation by the
Group), for a period of more than one hundred eighty (180) days, to
perform the essential functions of your job and as leads the Board, in
its sole discretion, to determine to remove you from your position and
to appoint your successor in order to provide, in the judgment of the
Board, for the proper conduct of the Group's business. Notwithstanding
the foregoing, no termination shall be treated as on account of
Disability unless you are eligible at the time of such termination to
receive benefits under the Group's Short Term Disability Plan or Long
Term Disability Plan in accordance with the terms of those plans.
"Good Reason" shall mean (1) the failure of the Group to provide
to you the compensation and benefits required under Section 4, other
than an inadvertent failure that is remedied, to the extent
remediable, within 3
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days of notice of such failure or (2) any material breach of this
Agreement by the Group if such breach has not been remedied within 5
days of notice of such breach.
(b) Termination by the Group for Cause or Termination by You Other Than
for Good Reason. If the Holding Company or the Insurance Company terminates your
employment for Cause or you terminate your employment other than for Good
Reason, in each case before your Retirement Date, the obligations of the Holding
Company and the Insurance Company under Sections 2, 3, 4 and 5(a) will cease and
the resignation referred to in Section 3(e) will be effective as of your date of
termination (in which case, the Retirement Date will be the date of such
termination). You will be entitled to receive your Accrued Compensation through
the date of your termination and your Retirement Benefits, your Welfare
Benefits, and your Equity Compensation, in each case in accordance with the
normal practices of the Group for senior executives and the applicable plan, if
any, and as set forth herein.
(c) Termination by the Group other than for Cause, by You for Good
Reason or Termination for Death or Disability. If the Holding Company or the
Insurance Company terminates your employment other than for Cause, if you
terminate your employment for Good Reason, or your employment terminates as a
result of your death or Disability, the obligations of the Holding Company and
the Insurance Company to make the payments and provide the benefits set forth in
Sections 4 and 5 will continue unaffected and payments will be made (and
benefits provided) under those Sections (including, without limitation, for the
purposes of calculating your Management Incentive Plan benefits (for the year
2002), your Retirement Benefits, your Welfare Benefits and equity-based
compensation) as if your employment had continued through your Retirement Date
in accordance with the normal practices of the Group for senior executives and
applicable plan, if any, and as set forth herein; provided, however, that upon
termination of employment the Transition Payments of cash of $8,000,000 will be
paid, your Restricted Stock Units will be allocated to you and will be subject
to the terms of Annex 2, and your deferred compensation of $4,000,000 will be
credited to your Deferred Compensation Ledger Account and will be subject to the
terms of Annex 3.
(d) Notice of Termination. Any purported termination of your employment
by the Holding Company or the Insurance Company, shall be communicated by
written Notice of Termination to the other party hereto in accordance with 11(g)
hereof. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific basis for termination and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for the determination of the payment required to be made under this
Agreement.
7. YOUR CONTINUING OBLIGATIONS TO THE GROUP
(a) General Effect. This Section 7 applies during your employment and,
as stated below, for some time after your employment ends. After your Retirement
Date, you will have no further obligations to the Group except as provided in
this Section 7 or as may exist under any employee benefit plan, contract or
arrangement of the Group in which you participate (including any retirement or
pension plan in which you participate). This Section uses the following defined
terms:
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"Competitive Enterprise" means any business enterprise that
either (1) engages in the underwriting and distribution of life
insurance and annuities, the management of stocks and bonds related to
mutual funds, retail managed accounts or the retail and institutional
asset management businesses within the United States and competes with
the Group or (2) holds a 51% or greater equity, voting or profit
participation interest in any enterprise that engages in such a
competitive activity. Notwithstanding the foregoing, any business
enterprise with which your activities are those described in Annex 9
shall not be treated as a Competitive Enterprise and it shall not be
in violation of this Section 7 for you to engage in such activities.
"Client" means any client of the Group to whom you provided
services, or for whom you transacted business, in each case, since
December 31, 2000 and in connection with the underwriting and
distribution of life insurance and annuities, the management of stocks
and bonds related to mutual funds, retail managed accounts or the
retail and institutional asset management businesses within the United
States.
"Proprietary Information" means confidential or proprietary
information, knowledge or data concerning (1) the Group's businesses,
strategies, operations, financial affairs, organizational matters,
personnel matters, budgets, business plans, marketing plans, studies,
policies, procedures, products, ideas, processes, software systems,
trade secrets and technical know-how and (2) any matter relating to
Clients of the Group. Proprietary Information includes (a) investment
techniques and trading strategies used in, and the performance records
of, Client accounts or other investment products and (b) information
and materials concerning the personal affairs of employees of the
Group. In addition, Proprietary Information may include information
furnished to you orally or in writing (whatever the form or storage
medium) or gathered by inspection, in each case before or after the
date of this Agreement. However, Proprietary Information does not
include (w) information that was or becomes generally available to you
on a non-confidential basis, if the source of this information was not
reasonably known to you to be bound by a duty of confidentiality, (x)
information that was or becomes generally available to the public,
other than as a result of a disclosure by you, directly or indirectly,
(y) information that you can establish was independently developed by
you without reference to any Proprietary Information, or (z) the
names, addresses, and phone numbers of Clients and prospective clients
of the Group.
"Solicit" means any direct or indirect communication of any kind
that invites, advises, encourages or requests any person to take or
refrain from taking any action.
(b) Your Importance to the Group and the Effect of this Section 7. You
acknowledge that:
In return for the benefits you will receive from the Group and to
induce the Group to enter into this Agreement, and in light of the
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potential harm you could cause the Group, you agree to the provisions
of this Section 7.
(2) This Section 7 limits your ability to earn a livelihood in a
Competitive Enterprise and your relationships with Clients. You
acknowledge, however, that complying with this Section 7 will not
result in severe economic hardship for you or your family.
(c) Non-Competition. Until the third anniversary of the termination of
your employment (other than by the Group for Cause or by you without Good
Reason), you will not:
(1) hold a 5% or greater equity, voting or profit participation
interest in a Competitive Enterprise; or
(2) become a director, officer, employee, partner, consultant,
agent or advisor of a Competitive Enterprise and in connection with
your association engage, or manage or supervise personnel engaged, in
any activity:
(A) that is directly related to any activity that you were
engaged in, or
(B) that is directly related to any activity for which you
had direct or indirect managerial or supervisory responsibility;
in each case, for the Group at any time during the year before your
Retirement Date (or, if earlier, the year before the date of
determination).
(d) Non-Solicitation of Clients. Until the third anniversary of the
termination of your employment (other than by the Group for Cause or by you
without Good Reason), you will not attempt to:
(1) Solicit any Client to transact business with a Competitive
Enterprise (that is directly related to any activity that you were
engaged in, or that is directly related to any activity for which you
had direct or indirect managerial or supervisory responsibility) or to
reduce or refrain from doing any business with the Group, or
(2) willfully damage any relationship between the Group and a
Client;
in each case, unless you have obtained a waiver from the Holding Company and the
Insurance Company.
(e) Non-Solicitation of Group Employees. Until the third anniversary of
the termination of your employment (other than by the Group for Cause or by you
without Good Reason), you will not attempt to Solicit anyone who is then an
employee of the Group (or who was an employee of the Group within the six months
prior to your termination of employment) and who is important to the success of
the Group to resign from the Group or to apply for or accept employment with any
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Competitive Enterprise, unless you have obtained a waiver from the Holding
Company and the Insurance Company.
(f) Cooperation. Until the 3-month anniversary of the termination of
your employment (other than by the Group for Cause or by you without Good
Reason), you will take all actions the Group may reasonably request to maintain
for the Group the business, goodwill and business relationships with any
Clients. In addition, at all times after the date of this Agreement (1) you will
make yourself reasonably available and cooperate with reasonable requests from
the Group for information concerning any business or legal matters involving
facts or events relating to the Group that may be within your knowledge and (2)
you will cooperate with reasonable requests by the Group in connection with any
litigation, regulatory proceeding or investigation that may be brought by or
against any member of the Group. The Holding Company will pay or reimburse any
reasonable expenses you incur as a result of complying with this Section 7(f)
and pay a per diem fee as agreed upon between you and the Holding Company at the
time the services are rendered.
(g) No Public Statements or Disparagement. You will not make any public
statements regarding your employment or the termination of your employment (for
whatever reason), or this Agreement, that are not agreed to by the Holding
Company. You will not make any public statement or instigate or participate in
the making of any public statement that would libel, slander or disparage
(whether or not the disparagement legally constitutes libel or slander) any
member of the Group or any of their respective past or present officers,
directors, employees or agents. The Group will ensure that no member of the
Group and no senior managers or directors of either the Holding Company, the
Insurance Company or any member of the Group will, make any public statements
regarding your employment, the termination of your employment (for whatever
reason), or this Agreement, that are not agreed to by you, and will not make any
public statement or instigate or participate in the making of any publics
statement that would libel, slander or disparage you or members of your family
(whether or not the disparagement legally constitutes libel or slander).
However, nothing in this Section 7(g) is intended to interfere with any official
investigation by a governmental or regulatory authority, and any cooperation you
or any senior manager or director of either the Holding Company, the Insurance
Company or any member of the Group are requested to provide to governmental or
regulatory authorities will not violate this Section 7(g).
(h) Proprietary Information. You agree that:
(1) The Proprietary Information is the exclusive property of the
Group, and you will use and disclose Proprietary Information only for
the Group's benefit and in accordance with any restrictions placed on
its use or disclosure by the Group. In addition, nothing in this
Agreement will operate to weaken or waive any rights the Group may
have under statutory or common law, or any other agreement, to the
protection of trade secrets, confidential business information and
other confidential information.
(2) The existence of, and any information concerning, a dispute
between you and the Group will be Proprietary Information. However,
you
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may disclose information concerning the dispute to the arbitrator or
court that is considering the dispute and to your legal counsel (so
long as your counsel agrees not to disclose any such information other
than as necessary to the prosecution or defense of the dispute).
(3) As soon as reasonably practicable after your Retirement Date
(or if your employment is terminated before the Retirement Date,
promptly after termination of your employment), you agree to return to
the Group or destroy all Proprietary Information, including all notes,
mailing lists, rolodexes and computer files that contain any
Proprietary Information. You agree to do anything reasonably requested
by the Group in furtherance of perfecting the Group's possession of,
and title to, any Proprietary Information that was at any time in your
possession.
(4) Nothing in this Section 7(h) is intended to interfere with
any official investigation by a governmental or regulatory authority,
and any Proprietary Information you are requested to provide to
governmental or regulatory authorities will not violate this Section
7(h).
8. CHANGE IN CONTROL.
Upon a "Change in Control" as that term is defined in the Phoenix
Benefit Protection Trust, the amounts in your Deferred Compensation Ledger
Account shall be treated on the same basis as the accounts of other senior
executives of the Group in accordance with the terms of such trust as of the
date hereof.
9. SUCCESSORS.
(a) Payments on Your Death. Any amounts that become payable under this
Agreement after you die will be paid to your estate.
(b) Assignment by You. You may not assign this Agreement without the
Holding Company and Insurance Company's consent. Also, except as required by
law, your right to receive payments or benefits under this Agreement may not be
subject to execution, attachment, levy or similar process. Any attempt to effect
any of the preceding in violation of this Section 9(b), whether voluntary or
involuntary, will be void.
(c) Assumption by any Successor Company. The Holding Company and the
Insurance 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 Holding Company or Insurance Company to
unconditionally assume this Agreement in writing and will provide a copy of the
assumption to you. On such assumption, the successor company will be treated for
all purposes as the Holding Company or the Insurance Company (as the case may
be) under this Agreement.
10. DISPUTES.
(a) Employment Matter. This Section 10 applies to any controversy or
claim between you and any member of the Group arising out of or relating to or
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concerning this Agreement or any aspect of your employment with the Group or the
termination of that employment (together, an "Employment Matter").
(b) MANDATORY ARBITRATION. SUBJECT TO THE PROVISIONS OF THIS SECTION
10, ANY EMPLOYMENT MATTER WILL BE FINALLY SETTLED BY ARBITRATION IN HARTFORD
COUNTY, CONNECTICUT ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER
ITS COMMERCIAL ARBITRATION RULES THEN IN EFFECT. However, the rules will be
modified to provide that each arbitrator will agree to treat as confidential the
evidence and other information presented to the same extent as the information
is required to be kept confidential under Section 7(h).
(c) Injunctions and Enforcement of Arbitration Awards. You or the Group
may bring an action or special proceeding in any state or federal court located
in Hartford County, Connecticut to compel arbitration or to enforce any
arbitration award under Section 10(b). Also, the Group may bring such an action
or proceeding, in addition to its rights under Section 10(b) and whether or not
an arbitration proceeding has been or is ever initiated, to temporarily,
preliminarily or permanently enforce any part of Section 7. You agree that (1)
your violating any part of Section 7 would cause damage to the Group that cannot
be measured or repaired, (2) the Group therefore is entitled to an injunction,
restraining order or other equitable relief restraining any actual or threatened
violation of that Section, (3) no bond will need to be posted for the Group to
receive such an injunction, order or other relief and (4) no proof will be
required that monetary damages for violations of that Section would be difficult
to calculate and that remedies at law would be inadequate.
(d) JURISDICTION AND CHOICE OF FORUM. YOU AND THE GROUP IRREVOCABLY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN
HARTFORD COUNTY, CONNECTICUT OVER ANY NON-ARBITRAL MATTER RELATING TO AN
EMPLOYMENT MATTER, INCLUDING ANY ACTION OR PROCEEDING TO COMPEL ARBITRATION OR
TO ENFORCE AN ARBITRATION AWARD. Both you and the Group (1) acknowledge that the
forum stated in this Section 10(d) has a reasonable relation to this Agreement
and to the relationship between you and the Group and that the submission to the
forum will apply even if the forum chooses to apply non-forum law, (2) waive, to
the extent permitted by law, any objection to personal jurisdiction or to the
laying of venue of any action or proceeding covered by this Section 10(d) in the
forum stated in this Section, (3) agree not to commence any such action or
proceeding in any forum other than the forum stated in this Section 10(d) and
(4) agree that, to the extent permitted by law, a final and non-appealable
judgment in any such action or proceeding in any such court will be conclusive
and binding on you and the Group. However, nothing in this Agreement precludes
you or the Group from bringing any action or proceeding in any court for the
purpose of enforcing the provisions of Sections 10(b) and this 10(d).
(e) WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY LAW, YOU AND THE
GROUP WAIVE ANY AND ALL RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY MATTER.
(f) GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF CONNECTICUT APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN THAT STATE.
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(g) Costs. To the extent permitted by law, the Holding Company will pay
or reimburse any reasonable expenses, including reasonable attorney's fees, you
incur as a result of any Employment Matter. However, you agree to repay any
expenses paid or reimbursed by the Holding Company if it is determined pursuant
to Section 10(b) that you brought or contested the Employment Matter in bad
faith.
11. GENERAL PROVISIONS.
(a) Construction.
(1) References to (A) Sections are to sections of this Agreement
unless otherwise stated and (B) any contract (including this
Agreement) are to the contract as amended, modified, supplemented or
replaced from time to time,
(2) The various headings in this Agreement are for convenience of
reference only and in no way define, limit or describe the scope or
intent of any provisions or Sections of this Agreement.
(3) Unless the context requires otherwise, (A) words describing
the singular number include the plural and vice versa, (B) words
denoting any gender include all genders and (C) the words "include",
"includes" and "including" will be deemed to be followed by the words
"without limitation."
(4) It is your and the Group's intention that this Agreement not
be construed more strictly with regard to you or the Group.
(b) Withholding. You and the Group will treat all payments to you under
this Agreement as compensation for services. Accordingly, the Group may withhold
from any payment any taxes that are required to be withheld under any law, rule
or regulation.
(c) Allocation. The obligations of the Holding Company and the
Insurance Company under this Agreement are several (and not joint). The Holding
Company and the Insurance Company will allocate their respective obligations
under this Agreement in accordance with their customary practices, and the
allocation will be final and binding on you.
(d) Entire Agreement. This Agreement is the entire agreement between
you, on the one hand, and the Holding Company and Insurance Company, on the
other hand, with respect to the relationship contemplated by this Agreement and
supersedes any earlier agreement, written or oral, with respect to the subject
matter of this Agreement. In entering into this Agreement, no party has relied
on or made any representation, warranty, inducement, promise or understanding
that is not in this Agreement.
(e) Severability. If any provision of this Agreement is found by any
court of competent jurisdiction (or legally empowered agency) to be illegal,
invalid or unenforceable for any reason, then (1) the provision will be amended
automatically to the minimum extent necessary to cure the illegality or
invalidity and permit enforcement and (2) the remainder of this Agreement will
not be affected. In
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particular, if any provision of Section 7 is so found to violate law or be
unenforceable because it applies for longer than a maximum permitted period or
to greater than a maximum permitted area, it will be automatically amended to
apply for the maximum permitted period and maximum permitted area.
(f) No Set-off or Mitigation. Your and the Holding Company's and the
Insurance Company's respective obligations under this Agreement will not be
affected by any set-off, counterclaim, recoupment or other right you or any
member of the Group may have against each other or anyone else. You do not need
to seek other employment or take any other action to mitigate any amounts owed
to you under this Agreement, and those amounts will not be reduced if you do
obtain other employment (except as this Agreement specifically states).
(g) Notices. All notices, requests, demands, waivers and other
communications under this Agreement must be in writing and will be deemed given
(1) on the business day sent, when delivered by hand or facsimile transmission
(with confirmation) during normal business hours, (2) on the business day after
the business day sent, if delivered by a nationally recognized overnight courier
or (3) on the third business day after the business day sent if delivered by
registered or certified mail, return receipt requested, in each case to the
following address or number (or to such other addresses or numbers as may be
specified by notice that conforms to this Section 11(g)):
If to you, to the address on the first page of this Agreement.
with a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, NY 10004
Attention: Arthur Fleischer, Jr.
Facsimile: (212) 859-4000
If to the Holding Company or any other member of the Group, to:
The Phoenix Companies, Inc.
1 American Row
Hartford, Connecticut 06102
Attention: General Counsel
with a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Marc Trevino
Facsimile: 212-558-3588
(h) Consideration. This Agreement is in consideration of the mutual
covenants contained in it. You and the Group acknowledge the receipt and
sufficiency of the consideration to this Agreement and intend this Agreement to
be
-14-
legally binding. The Holding Company represents that Annex 4, 5, 6 and 7 contain
a true, correct and complete list of all (i) deferred compensation agreements
(and the amounts thereof as of June 30, 2002), (ii) pension and retirement
plans, (iii) welfare plans, and (iv) equity-based compensation (and the amount
of stock options and other equity awards as of September 27, 2002) in which you
participate as of the date hereof.
(i) Amendments and Waivers. Any provision of this Agreement may be
amended or waived but only if the amendment or waiver is in writing and signed,
in the case of an amendment, by you, the Holding Company and the Insurance
Company or, in the case of a waiver, by the party that would have benefited from
the provision waived. Except as this Agreement otherwise provides, no failure or
delay by you or the Group to exercise any right or remedy under this Agreement
will operate as a waiver, and no partial exercise of any right or remedy will
preclude any further exercise.
(j) Third Party Beneficiaries. Subject to Section 9, this Agreement
will be binding on, inure to the benefit of and be enforceable by the parties
and their respective heirs, personal representatives, successors and assigns.
This Agreement does not confer any rights, remedies, obligations or liabilities
to any entity or person other than you, the Holding Company and the Insurance
Company and your and the Holding Company's and the Insurance Company's permitted
successors and assigns, although (1) this Agreement will inure to the benefit of
the Group and (2) Section 9(a) will inure to the benefit of the most recent
persons named in a notice under that Section.
* * *
If this Agreement properly sets forth our understanding, please sign
both copies of this Agreement, keep one copy for your records and return one to
me.
Very truly yours,
/s/ Tracy L. Rich
Tracy Rich
Accepted by: /s/ Robert W. Fiondella
Retirement and Transition Agreement
Annex 1 Letters of Resignation
Annex 2 Terms of Restricted Stock Units
Annex 3 Terms of Deferred Compensation Agreement
Annex 4 List of Existing Deferred Compensation Agreements with amounts
deferred as of June 30, 2002 and related agreements
Annex 5 List of Existing Pension and Retirement Plans
Annex 6 List of Existing Welfare plans, contracts or arrangements
Annex 7 List of Equity-based Compensation Plans, amount of stock options and
other equity awards as of September 27, 2002
Annex 8 General Releases
Annex 9 Permitted Activities
ANNEX 1
FORM OF LETTER OF RESIGNATION
I, Robert W. Fiondella, hereby resign as the officer and/or director,
as applicable, from [insert name of corporation].
Dated:
---------------- -------------------------------------
Robert W. Fiondella
ANNEX 2
TERMS OF RESTRICTED STOCK UNITS
This Annex sets forth the terms of Restricted Stock Units to be awarded
to you (your "Award") under your Retirement and Transition Agreement, dated
September 27, 2002 (the "Agreement"), with The Phoenix Company, Inc. (the
"Holding Company") and the Phoenix Life Insurance 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 Holding Company, par value
$0.01 per share ("Common Shares"), after June 25, 2006.
Section 1.2. No Common Shares Issued Until the End of the Restricted
Period. The Common Shares that underlie your Restricted Stock Units will only be
issued after the end of the Restricted Period. The "Restricted Period" refers to
the period ending on June 25, 2006. No Common Shares will be issued at the time
your Award is granted, and the Holding 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 Holding 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 Holding 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 Holding 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 June 25, 2006 the Holding Company will deliver to
you the number of Common Shares then underlying your 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
date of grant through June 25, 2006.
-2-
(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 Holding 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 Holding Company will promptly pay you such
cash unless it determines that such payment would violate any law or regulation,
including Section 7312(w) of the New York Insurance Law. 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.
ARTICLE III
ADMINISTRATION
Section 3.1. Administration. The Holding 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 Holding Company with
respect to senior management under other similar equity compensation plans.
Determinations, interpretations or other actions made or taken by the Holding
Company pursuant to the provisions of this Annex shall be final, binding and
conclusive for all purposes and upon all persons. The Holding Company may
consult with legal counsel, who may be regular counsel to the Holding Company,
and shall not incur any liability for any action taken in good faith in reliance
upon the advice of counsel.
-3-
ARTICLE IV
MISCELLANEOUS
Section 4.1. Payment on Death. If any amounts are payable under your
Award after you die, the Holding Company will pay them to your estate.
Section 4.2. Tax Withholding. The Holding Company will have the power
to withhold, or require you to remit to the Holding 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 Holding Company may defer payment of cash or issuance or
delivery of Common Shares until such requirements are satisfied. The Holding
Company may, in its discretion, permit you to elect, subject to such conditions
as the Holding Company shall impose (a) to have Common Shares deliverable in
respect of your Award withheld by the Holding Company or (b) to deliver to the
Holding 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 Holding 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 Holding Company,
if your Restricted Stock Units remain outstanding, to unconditionally assume the
obligations of the Holding 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.
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 Holding
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 Holding 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
-4-
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 the date
as to which you shall have requested effectiveness) and the Company shall, prior
to the effectiveness of the registration, enter into a customary registration
rights agreement with you 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 Annex and your Award are subject to the
provisions of Section 9 of the Agreement.
-5-
ANNEX 3
DEFERRED COMPENSATION AGREEMENT
AGREEMENT entered into as of the date specified herein between Phoenix
Life Insurance Company, a company domiciled in the State of New York
(hereinafter referred to as `Phoenix" and by you ("the Participant").
Whereas, the Participant is currently rendering valuable services to
Phoenix and,
Whereas, it is the desire of Phoenix and the Participant that all
amounts deferred under Deferred Compensation agreements with Phoenix and its
affiliates be subject to the terms of this Agreement, and
Whereas, it is the desire of Phoenix to have the benefit of the
Participant's continued loyalty, service and counsel and also to assist the
Participant in planning for retirement and certain other contingencies, it is
hereby agreed:
SECTION I: DEFERRED COMPENSATION LEDGER ACCOUNT
A. By signing the Agreement (and completing the election form attached
to and made a part of this Agreement), the Participant has made an irrevocable
election as of your Retirement Date or such earlier time in accordance with
Section 6(c) of the Agreement to defer receipt of $4,000,000 from Phoenix.
B. Any amount deferred under the terms of this Agreement and under the
terms of all prior agreements with respect to deferred compensation shall be
controlled solely by the terms of this Agreement and shall be net of any
applicable employment taxes.
C. Any amounts deferred by the Participant shall be credited to a
Deferred Compensation Ledger Account established for such Participant the
balance of which is $___________ as of June 30, 2002. Payments from such
Deferred Compensation Ledger Account shall only be made at the time and under
the occurrences set forth in Section II of this Agreement.
D. At the time of the election to defer compensation and once each
calendar quarter thereafter, the Participant may designate in writing that
amounts deferred be deemed to be invested in one or more of the following:
1. The general account of Phoenix (including any special options
that may be offered as part of the general account). Phoenix
reserves the right to add or delete special options as it deems
necessary or appropriate provided that such changes shall be the
same as those applied to the other participants in such options.
2. One or more of various fund options made available under this
Agreement and attached hereto as Annex 3A. Phoenix shall provide
to the Participant a list of available funds and reserves the
right to add or delete available funds as it deems necessary or
-6-
appropriate provided that such changes in available funds shall
be the same as those applied to other participants in Fund
options in which the Participant's deferred amounts are deemed
invested.
E. The election to designate deemed investments, as described above,
shall be subject to restrictions as to minimum and maximum amounts as announced
from time to time by Phoenix. Both initial and subsequent investment allocations
must be made in 10% increments. Phoenix shall have the right at any time to add
new deemed investment options, cease to offer any or all of the deemed
investment options, and alter or adjust the basis or method of calculating any
interest or earnings for any of the investment options outlined above, provided
that such changes are applied to executive officers who are participants in
deferred compensation arrangements.
F. Credits or debits to the Deferred Compensation Ledger Account will
be made in a manner corresponding to the performance of the deemed investment or
investments of the Deferred Compensation Ledger Account as selected by the
Participant.
G. Phoenix reserves the right to reduce the interest or earnings on
deferred compensation amounts for any federal or state taxes which it may incur
as a result of interest or earnings on amount held under this Agreement,
provided that such reduction is applied to all executive officers who
participate in Fund options in which the Participant's deferred amounts are
deemed invested.
H. Phoenix shall be under no obligation to actually make any investment
as described in Paragraph D. Reference to any such investment shall be solely
for the purpose of aiding Phoenix in measuring and meeting its liabilities under
the terms of this Agreement, In any event, if any investments are made, Phoenix
shall be named the sole owner and shall have all of the rights and privileges
conferred by any instrument evidencing such investments. Such investments shall
not be segregated, set aside or held in trust or escrow and shall at all times
remain the unrestricted assets of Phoenix subject to the claim of its general
creditors.
I. Phoenix reserves the right, at its sole discretion, to terminate
this Agreement upon written notice to the Participant, provided, however, that
no termination of this Agreement shall be effective unless Phoenix also
terminates, at the same time and upon the same terms, all deferred compensation
agreements with respect to executive officers of Phoenix and that no termination
of this Agreement shall effect any rights or benefits accrued or in payment
status under the Agreement as of the date of such termination. Further, at its
sole discretion, Phoenix may elect, upon termination of this Agreement to
distribute in one (1) lump sum to the Participant or any beneficiary, as the
case may be, the value of the Deferred Compensation Ledger Account or the
commuted value of any remaining installment payments, consistent with the
treatment provided to executive officers of Phoenix.
-7-
SECTION II: PAYMENT OF DEFERRED COMPENSATION
A. At the time the election is made to defer receipt of compensation;
the Participant shall also make an election (attached to and made part of the
Agreement) as to the method of distribution of amounts deferred. The method of
distribution shall be either in a lump sum or as annual installments of over a
period of years not to exceed ten (10). The method of distribution elected in
any year shall be controlling for the entire Deferred Compensation Ledger
Account and the current election shall supercede any prior election as to
payment method. The Participant may elect to change the method of distribution
for the Deferred Compensation Ledger Account by written notice to Phoenix. Such
election shall become effective in the year following the year such election is
made. If the annual installment method is elected, no change in the number or
timing of such installments shall be permitted after such installments have
commenced.
B. The payment of the balance to the credit of the Participant in the
Deferred Compensation Ledger Account shall be made or commence to be made in
accordance with the manner elected by the Participant not later than 30 days
after the payment date specified in the Election Form. If no such date is
specified, payment shall be made upon the earliest of the Participant's
retirement, termination of employment with Phoenix, death or upon becoming
permanently disabled as reasonably determined by Phoenix. Any amount payable by
reason of the Participant's death shall be paid in one lump sum to the
Participant's beneficiary or beneficiaries designated by the Participant in the
Election Form.
C. If the annual installment method is elected, Phoenix, in its sole
discretion, may elect that all amounts held in the Deferred Compensation Ledger
Account be withdrawn therefrom up to thirty (30) days prior to the first
installment payment date and be applied to purchase a period certain annuity in
the name of Phoenix, the proceeds of which will be paid to the Participant in
accordance with the installment payment schedule elected.
SECTION III: BENEFITS NONASSIGNABLE
It being the intent of Phoenix that the benefits provided by this
Agreement will be available for the support and maintenance of the Participant
and the Participant's beneficiaries in the event of certain contingencies,
Phoenix wishes to limit the rights of the Participant and the Participant's
beneficiaries in a manner which will assure that those benefits will always be
of a size and duration sufficient to provide for the support and maintenance of
the Participant and the Participant's beneficiaries. Therefore, the benefits
provided hereunder will not be subject to alienation, garnishment, attachment or
any other legal process by creditors of the Participant or of any person or
persons designated as beneficiaries. Furthermore, except by will or the laws of
descent or distribution, the Participant and any beneficiary may not anticipate
the benefits provided hereunder by assignment, pledge, sale or similar act.
SECTION IV: OTHER RIGHTS
This Agreement creates no rights in the Participant to continue the
Participant's affiliation with Phoenix, if any, for any length of time, nor does
it create any rights in the Participant or obligations in the part of Phoenix
other than
-8-
those set forth herein. Furthermore, this Agreement does not guarantee any award
to the Participant or in any way obligate Phoenix to grant such award. Any
amounts deferred under this Agreement shall be contingent on the actual granting
of such award.
SECTION V: CLAIMS PROCEDURES
Claims for benefits under this Agreement shall be administered in
accordance with the Claims Review Process as set forth in the Phoenix Employee
Benefit Guide which has been made available to all Participants.
SECTION VI: REPRESENTATIONS
Phoenix represents that is it entering into this Agreement at the
Participant's request to fulfill its compensation obligations to the Participant
and to provide compensation on a tax-deferred basis. The Participant represents:
(a) that the Participant is entering into this Agreement primarily for
compensatory and tax deferral purposes; (b) that, the Participant has had access
to all material information concerning Phoenix and the operation of its general
account together with the opportunity to have any questions the Participant may
have about Phoenix and the operation of its general account answered by
representatives of Phoenix; (c) the Participant has been provided with upon
request, the Prospectuses for the mutual funds listed on the Election Form; and
(d) the Participant acknowledges receipt of the explanatory and disclosure
letter from Phoenix and acknowledge and concurs with all representations made
therein.
-9-
DEFERRED COMPENSATION AGREEMENT
ACCEPTANCE AND ELECTION FORM
Attached to and made part of the Participant's Deferred Compensation
Agreement,
I ____________________ (name of Participant) hereby irrevocably elect
to defer the $4,000,000 payable as Deferred Compensation under my Retirement and
Transition Agreement dated September ___, 2002.
I hereby irrevocably elect the payment of my installment Deferred
Compensation Ledger Account be paid or commenced to be paid to me:
[_] __________ (month) of _______ (not more than 1 year following
retirement)
I understand that, notwithstanding the payment date elected, payment
shall be made or commenced to be made upon the Participant's death if it occurs
prior to the date elected below.
I hereby elect that my Deferred Compensation Ledger Account balance be
paid to me:
[_] In one lump sum on the first day of _________________, _______
(month and year) but not later than ten (10) years from the date
of this agreement.)
[_] In ____ (2-10) annual installments. Installment payments will be
paid directly from the deferred compensation account.
[_] $________________ annual installment. Remainder to be
distributed at the end of the installment period
[_] Installments of declining balance. At the end of the
installment period, zero dollars remain. (10% on February 1
for the first three years, 20% for the next six years and
the remaining unpaid balance in year 10)
I further understand that I may change the method of payment of my
Deferred Compensation Ledger Account subject to the terms and conditions set
forth in the Deferred Compensation Agreement.
Please fill in the fund name(s) from the attached list or fill in
"General Account". All investments must be made in 10% increments or dollar
amounts.
My initial election for the deemed investment of the amounts specified
above is as follows:
A. $ ___________ [________________________________________] or
Write Amount
B. 1. _____% _______________________________________
-10-
DEFERRED COMPENSATION AGREEMENT
ACCEPTANCE AND ELECTION FORM
2. _____% _______________________________________
3. _____% _______________________________________
4. _____% _______________________________________
5. _____% _______________________________________
6. _____% _______________________________________
7. _____% _______________________________________
8. _____% _______________________________________
9. _____% _______________________________________
10._____% _______________________________________
BENEFICIARY DESIGNATION
The following are hereby designated as beneficiaries for the purpose of
payments in the event of the death of the Participant prior to the payment of
all benefits under this Agreement:
Primary:
---------------------------------------------
Contingent:
-------------------------------------------
I understand that I may change my beneficiary designation and my
investment election by calling (860) 403-2083 or (860) 403-2134 or by written
notice to:
Human Resources, Pension Plan Administration
100 Bright Meadow Boulevard
Enfield, CT 06082
THIS AGREEMENT is solely between Phoenix and the Participant. The
Participant and any beneficiaries as designated in this Election Form, shall
have recourse only against Phoenix for enforcement, and it shall be binding upon
the beneficial heirs, assignees, executors and administrators of the Participant
and upon the successors and assigns of Phoenix.
EXECUTED by the undersigned this __________ day of ____________ 2002.
-11-
DEFERRED COMPENSATION AGREEMENT
ACCEPTANCE AND ELECTION FORM
PHOENIX LIFE INSURANCE COMPANY
- -----------------------------------
Vice President, Human Resources
- ------------------------------------ -------------------------------------
Participant's signature Witness
-12-
ANNEX 3A
SCHEDULE OF DEFERRED COMPENSATION FUND OPTIONS
FUND NAME QUOTRON
- --------- -------
Phoenix-Aberdeen Global Small Cap Fund PAGAX
Phoenix-Aberdeen International Fund PHITX
Phoenix-Aberdeen New Asia Fund PAFAX
Phoenix-Aberdeen Worldwide Opportunities Fund NWWOX
Phoenix-Duff & Phelps Core Bond Fund PHGBX
Phoenix-Duff & Phelps Core Equity Fund PHCEX
Phoenix-Duff & Phelps Real Estate Securities Fund PHRAX
Phoenix-Engemann Aggressive Growth Fund PHSKX
Phoenix-Engemann Balanced Return Fund PABRX
Phoenix-Engemann Capital Growth Fund PHGRX
Phoenix-Engemann Focus Growth Fund PASGX
Phoenix-Engemann Nifty Fifty Fund PANFX
Phoenix-Engemann Small & Mid-Cap Growth Fund PAMAX
Phoenix-Euclid Market Neutral Fund EMNAX
Phoenix-Goodwin California Tax Exempt Bonds, Inc. CTESX
Phoenix-Goodwin Emerging Markets Bond Fund PEMAX
Phoenix-Goodwin High Yield Fund PHCHX
Phoenix-Goodwin Money Market Fund PMMXX
Phoenix-Goodwin Multi-Sector Fixed Income Fund, Inc. NAMFX
Phoenix-Goodwin Multi-Sector Short Term Bond Fund NARAX
-13-
FUND NAME QUOTRON
- --------- -------
Phoenix-Goodwin Tax Exempt Bond Fund PHTBX
Phoenix-Hollister Small Cap Value Fund PDSAX
Phoenix-Hollister Value Equity Fund PVEAX
Phoenix-Oakhurst Balanced Fund PHBLX
Phoenix-Oakhurst Growth & Income Fund PDIAX
Phoenix-Oakhurst Income & Growth Fund NAINX
Phoenix-Oakhurst Strategic Allocation Fund, Inc. PTRFX
Phoenix-Seneca Bond Fund SAVAX
Phoenix-Seneca Growth Fund SGCRX
Phoenix-Seneca Mid-Cap "EDGE" Fund EDGEX
Phoenix-Seneca Real Estate Securities Fund REALX
Phoenix-Seneca Strategic Theme Fund PSTAX
PNX Guaranteed Account Tracks PNX
-14-
ANNEX 4
SCHEDULE OF DEFERRED COMPENSATION AGREEMENTS
AND AMOUNTS AS OF JUNE 30, 2002
- --------------------------------------------------------------------------------
DATE DEFERRED AMOUNT DEFERRED
- --------------------------------------------------------------------------------
December 31, 1995 $502,700.28
- --------------------------------------------------------------------------------
December 31, 1996 $579,355.80
- --------------------------------------------------------------------------------
December 31, 1997 $584,948.46
- --------------------------------------------------------------------------------
December 31, 1998 $651,028.92
- --------------------------------------------------------------------------------
December 31, 1999 $730,782.92
- --------------------------------------------------------------------------------
December 31, 2000 $838,762.00
- --------------------------------------------------------------------------------
December 31, 2001 $3,001,160.00
- --------------------------------------------------------------------------------
June 30, 2002 $1,500,160.89
- --------------------------------------------------------------------------------
TOTAL: JUNE 30, 2002 $10,201,233.73
- --------------------------------------------------------------------------------
-15-
ANNEX 5
LIST OF PENSION OR RETIREMENT PLANS, CONTRACTS AND ARRANGEMENTS
1. Employee Pension Plan
2. Supplemental Executive Retirement Plan (SERP)
3. Savings and Investment Plan (SIP)
4. Excess Investment Plan
5. Deferred Compensation Plan
-16-
ANNEX 6
LIST OF WELFARE PLANS
1. Phoenix Home Life Mutual Insurance Company Medical Plan
2. Phoenix Home Life Mutual Insurance Company Dental Plan
3. Phoenix Home Life Mutual Insurance Company Vision Plan
4. Phoenix Home Life Mutual Insurance Company Life Insurance Plan
5. Phoenix Home Life Mutual Insurance Company Long Term Disability Plan
6. Phoenix Home Life Mutual Insurance Company Employee Assistance Plan
-17-
ANNEX 7
LIST OF EQUITY-BASED COMPENSATION AND AMOUNTS
The Phoenix Companies, Inc. Stock Incentive Plan
243,984 Non Qualified Stock Options
18,516 Incentive Stock Options
Exercise Price $16.20
-18-
ANNEX 8
GENERAL RELEASES, by Robert W. Fiondella (the "Executive") , The
Phoenix Companies, Inc. (the "Holding Company"), the Phoenix Life Insurance
Company (the "Insurance Company") and their affiliates (together, the "Group").
1. The Executive knowingly and voluntarily waives, terminates, cancels
and releases forever whatever rights, claims or causes of action he (or his
heirs, executors, administrators, successors, assigns and legal
representatives) has against the Company and any of its subsidiaries or
affiliates, and each of their respective predecessors, successors or
assigns, present and former directors, officers, employees, shareholders,
attorneys and agents, that are known by the Executive as of September 27,
2002.
2. The Group knowingly and voluntarily waives, terminates, cancels and
releases forever except to the extent prohibited by law whatever rights,
claims or causes of action the Group (or their respective predecessors,
successors or assigns, present and former directors, officers, employees,
shareholders, attorneys and agents) has against the Executive and his
heirs, executors, administrators, successors, assigns and legal
representatives, that are known by the Board of the Directors or executive
officers or executive vice presidents of either the Holding Company, the
Insurance Company or Phoenix Investment Partners as of September 27, 2002.
3. Paragraphs 1 and 2 includes, but is not limited to, all claims
under federal, state or local law or the national or local law of any other
country (statutory or decisional) for breach of contract, for tort, for
wrongful or abusive or unfair discharge or dismissal, for impairment of
economic opportunity or for defamation, for intentional infliction of
emotional distress, or for discrimination based upon race, color,
ethnicity, sex, age, national origin, religion, disability, sexual
orientation or any other unlawful criterion or circumstance. Under
Paragraph 1, such released rights and claims include, but are not limited
to, all rights or claims under the Age Discrimination in Employment Act of
1967 ("ADEA") (except that the Executive does not waive ADEA rights or
claims that may arise after the date of this Agreement).
4. The Executive affirms that, prior to the execution of this General
Release, the Executive was advised to consult with an attorney of his
choice concerning the terms and conditions of this General Release and that
he has been given up to 21 days to consider signing this General Release.
The Executive understands that he has seven days following his signing to
revoke and cancel this General Release, and the terms and conditions of
this General Release will not become effective or enforceable until the
revocation period has expired (the "Effective Date"). The Executive agrees
that a revocation will only be effective if he furnishes written notice to
the Company's Director of Human Resources within such seven-day period.
5. Notwithstanding any term of this General Release, this General
Release will not terminate, cancel or release the obligations of the
Holding Company and the Insurance Company under Section 5 of the Retirement
and Transition Agreement, dated September 27, 2002 (the "Agreement") and
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will not terminate, cancel or release the obligations of the Executive
under Section 7 of the Agreement.
____________ ___, 2003
-------------------------------
Robert W. Fiondella
-------------------------------
The Phoenix Companies, Inc.
By:
----------------------------
Its:
---------------------------
-------------------------------
Phoenix Life Insurance Company
By:
----------------------------
Its:
---------------------------
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ANNEX 9
PERMITTED ACTIVITIES
1. Serve as a director on the board(s) of one or more mutual funds;
2. Associate with a business enterprise that engages in a line of business
that the Group is not then engaged in, even though the Group may have been
engaged in such line of business in the past, provided that, excluding your
status as a director of PXRE Group Ltd. and of Hilb, Rogal and Hamilton
Company, you may not associate with a business enterprise that was
previously owned and sold by the Group within the twenty-four months
preceding the date of execution of the Agreement;
3. Associate with a business enterprise engaged in the application of
technology to the administration or sales of insurance products and
services, the underwriting and distribution of life insurance and
annuities, the management of stocks and bonds related to mutual funds,
retail managed accounts or the retail and institutional asset management
businesses;
4. Act in a non-executive capacity as a licensed agent or registered
representative with respect to insurance products and services, the
underwriting and distribution of life insurance and annuities, the
management of stocks and bonds related to mutual funds, retail managed
accounts or the retail and institutional asset management businesses;
5. Public speaking or publishing articles or books concerning non-confidential
information or management and technology;
6. Any activity mutually agreed upon by you and the Executive Committee of the
Holding Company; and/or
7. Associate with a venture capitalist business enterprise other than such an
enterprise in which the Group has invested within the twenty-four months
preceding the date of execution of the Agreement.
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