EXHIBIT 10.7
WILLIAM J. WHEELER
EMPLOYMENT CONTINUATION AGREEMENT
DATED DECEMBER 22, 2003
METLIFE, INC.
EMPLOYMENT CONTINUATION AGREEMENT
THIS AGREEMENT between METLIFE, INC., a Delaware corporation (the "Company"),
and William J. Wheeler (the "Executive"), dated as of this 22nd day of December,
2003.
W I T N E S S E T H :
WHEREAS, the Company or an Affiliate has employed the Executive in an
officer position and has determined that the Executive holds a critical position
with the Company or an Affiliate;
WHEREAS, the Company believes that, in the event it is confronted with
a situation that could result in a change in ownership or control of the
Company, continuity of management will be essential to its ability to evaluate
and respond to such situation in the best interests of its shareholders;
WHEREAS, the Company understands that any such situation will present
significant concerns for the Executive with respect to the Executive's financial
and job security;
WHEREAS, the Company desires to assure itself or its Affiliate of the
Executive's services during the period in which it is confronting such a
situation, and to provide the Executive certain financial assurances to enable
the Executive to perform the responsibilities of the Executive's position
without undue distraction and to exercise judgment without bias due to personal
circumstances;
WHEREAS, to achieve these objectives, the Company and the Executive
desire to enter into an agreement providing the Company and the Executive with
certain rights and obligations upon the occurrence of a Change of Control (as so
defined);
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is hereby agreed by and between the Company and the
Executive as follows:
1. Operation of Agreement. (a) Term. The initial term of this
Agreement shall commence on the date hereof and continue until the third
anniversary of the date hereof. Thereafter, this Agreement will automatically
renew for successive and consecutive additional three year periods following the
end of its initial term and any extended term, unless the Company or the
Executive gives the other party written notice at least 180 days prior to the
date the term hereof would otherwise renew that it or the Executive does not
want the term to be so extended; provided, however, that, the Company may not
deliver a notice of nonrenewal after a Change of Control (as defined in Section
2(a) hereof). Notwithstanding anything to the contrary in this Agreement, the
term of this Agreement shall in all events expire (regardless of when the term
would otherwise have expired) on the third anniversary of a Change of Control.
(b) Effective Date. Notwithstanding the provisions of Section 1(a)
hereof, this Agreement shall govern the terms and conditions of the Executive's
employment and the benefits and compensation to be provided to the Executive
commencing on the date on which a Change of Control occurs (the "Effective
Date") and ending on the date the term of this Agreement otherwise expires. If
the Executive is not employed by the Company or an Affiliate on the Effective
Date, this Agreement shall be void and without effect and shall neither
constitute a contract of employment or a guarantee of employment for any period
of time or limit in any way the right of the Company or any Affiliate to change
the terms and conditions of the Executive's employment or terminate the
Executive's employment.
2. Definitions. (a) Change of Control. For the purposes of this
Agreement, a "Change of Control" shall be deemed to have occurred if:
(i) any Person acquires "beneficial ownership" (within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), directly or indirectly, of securities of
the Company representing 25% or more of the combined Voting Power of
the Company's securities;
(ii) within any 24-month period, the persons who were
directors of the Company at the beginning of such period (the
"Incumbent Directors") shall cease to constitute at least a majority of
the Board of Directors of the Company (the "Board") or the board of
directors of any successor to the Company; provided, however, that any
director elected or nominated for election to the Board by a majority
of the Incumbent Directors then still in office shall be deemed to be
an Incumbent Director for purposes of this subclause 2(a)(ii);
(iii) the stockholders of the Company approve a merger,
consolidation, share exchange, division, sale or other disposition of
all or substantially all of the assets of the Company which is
consummated (a "Corporate Event"), and immediately following the
consummation of which the stockholders of the Company immediately prior
to such Corporate Event do not hold, directly or indirectly, a majority
of the Voting Power of (x) in the case of a merger or consolidation,
the surviving or resulting corporation, (y) in the case of a share
exchange, the acquiring corporation or (z) in the case of a division or
a sale or other disposition of assets, each surviving, resulting or
acquiring corporation which, immediately following the relevant
Corporate Event, holds more than 25% of the consolidated assets of the
Company immediately prior to such Corporate Event; or
(iv) any other event occurs which the Board declares to be
a Change of Control.
(b) Person. For purposes of the definition of Change of Control,
"Person" shall have the meaning ascribed to such term in Section 3(a)(9) of the
Exchange Act, as supplemented by Section 13(d)(3) of the Exchange Act, and shall
include any group
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(within the meaning of Rule 13d-5(b) under the Exchange Act);
provided, however, that "Person" shall not include (x) the Company or any
Affiliate, (y) the MetLife Policyholder Trust (or any person(s) who would
otherwise be described herein solely by reason of having the power to control
the voting of the shares held by that trust), or (z) any employee benefit plan
(including an employee stock ownership plan) sponsored by the Company or any
Affiliate.
(c) Voting Power. "Voting Power" shall mean such number of Voting
Securities as shall enable the holders thereof to cast all the votes which could
be cast in an annual election of directors of a company, and "Voting Securities"
shall mean all securities entitling the holders thereof to vote in an annual
election of directors of a company.
(d) Affiliate. An "Affiliate" shall mean any corporation,
partnership, limited liability company, trust or other entity which directly, or
indirectly through one or more intermediaries, controls, or is controlled by,
the Company.
3. Employment Period. Subject to Section 6 hereof, the Company
agrees to continue the Executive in its employ or the employ of an Affiliate,
and the Executive agrees to remain in the employ of the Company or an Affiliate,
for the period (the "Employment Period") commencing on the Effective Date and
ending on the expiration of the term of this Agreement.
4. Business Time. During the Employment Period, the Executive
agrees to devote full attention during normal business hours to the business and
affairs of the Company and Affiliates and to use the Executive's best efforts to
perform faithfully and efficiently the responsibilities assigned to the
Executive hereunder, to the extent necessary to discharge such responsibilities,
except for (i) time spent in managing the Executive's personal, financial and
legal affairs and serving on corporate, civic or charitable boards or
committees, in each case only if and to the extent not substantially interfering
with the performance of such responsibilities, and (ii) periods of vacation and
sick leave to which the Executive is entitled. It is expressly understood and
agreed that the Executive's continuing to serve on any boards and committees on
which the Executive is serving or with which the Executive is otherwise
associated immediately preceding the Effective Date shall not be deemed to
interfere with the performance of the Executive's services to the Company or
Affiliates.
5. Compensation and Location. (a) Base Salary. During the
Employment Period, the Executive shall receive a base salary at a monthly rate
at least equal to the monthly salary paid to the Executive by the Company and
any Affiliate immediately prior to the Effective Date. The base salary shall be
reviewed at least once each year after the Effective Date, and may be increased
(but not decreased) at any time and from time to time by action of the Board or
any committee thereof, or the Board of Directors of an Affiliate or any
committee thereof, or any individual having authority to take such action in
accordance with the regular practices of the Company or an Affiliate. The
Executive's base salary, as it may be increased from time to time, shall
hereafter be referred to as the "Base Salary". Neither the Base Salary nor any
increase in the Base
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Salary after the Effective Date shall serve to limit or reduce any other
obligation of the Company hereunder. During the Employment Period, the
Executive's Base Salary shall be paid no less frequently than monthly, except as
electively deferred by the Executive pursuant to any deferral programs or
arrangements that the Company or an Affiliate may make available to the
Executive.
(b) Total Incentive Compensation.
(i) During the Employment Period, in addition to the Base
Salary, the Executive shall be afforded the opportunity to (x) receive
an annual bonus in an amount which provides the Executive with at least
the same bonus opportunity as other executives of the Company and
Affiliates of a rank comparable to that of the Executive, and (y)
participate in all long-term incentive compensation programs for key
executives, including but not limited to those awards or grants made in
the form of cash, stock awards, restricted stock, stock options, and
other forms of long-term incentive compensation ("Long-Term
Compensation"), at a level that is at least commensurate with the level
made available from time to time to executives of the Company and
Affiliates of a rank comparable to that of the Executive.
(ii) For each fiscal year that ends during the Employment
Period, the aggregate of the value of the annual bonus awarded or
granted to the Executive attributable to that fiscal year (the "Annual
Bonus") plus the value of the Long-Term Compensation ("Total Incentive
Compensation") awarded or granted to the Executive attributable to that
year, shall be no lower than the aggregate value of Total Incentive
Compensation awarded or granted to the Executive attributable to any of
the prior three (3) fiscal years.
(iii) If any fiscal year commences but does not end during
the Employment Period, the Executive shall be awarded or granted at
least a pro-rated Annual Bonus attributable to the portion of the
fiscal year occurring during the Employment Period, and such amount
shall be no lower than the same pro-rated portion of the any of the
three (3) prior Annual Bonuses awarded or granted to the Executive
attributable to complete fiscal years.
(iv) Each Annual Bonus shall be paid as soon as
practicable following the year for which the amount (or any prorated
portion) is awarded or granted, unless electively deferred by the
Executive pursuant to any deferral programs or arrangements that the
Company may make available to the Executive.
(v) For all purposes of determining the value of Total
Incentive Compensation or any of its components pursuant to this
Section 5(b), (w) all compensation awarded or granted to the Executive
(or, with reference to Section 5(b)(i), which the Executive has the
opportunity to receive) prior to the beginning of the Employment Period
shall be valued using the methods as were used by the Company or
Affiliate (as applicable) in valuing that compensation for purposes of
communicating that annual Total Incentive Compensation to the Executive
in
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writing; (x) all compensation awarded or granted to the Executive (or,
with reference to Section 5(b)(i), which the Executive has the
opportunity to receive) during the Employment Period shall be valued
using the same methods as were used by the Company or Affiliate (as
applicable) in valuing compensation for purposes of communicating
annual Total Incentive Compensation to the Executive in writing for the
final fiscal year that began prior to the Employment Period and, should
that communication fail to value a particular form of compensation that
must be valued for purposes of this Section 5(b)(x), otherwise using
such methods as were presented or produced by the Board or the
committee thereof charged with responsibility for executive
compensation in writing in valuing the executive compensation programs
of enterprises competitive to the Company or any Affiliates for the
final fiscal year that began prior to the Employment Period; (y) with
regard to fiscal years or portions thereof during to the Employment
Period, only to the extent those awards or grants provided to the
Executive within that fiscal year or in the first quarter of the
following fiscal year free of Company or Affiliate discretion to reduce
the amount or value of the award or grant shall such awards or grants
be attributable to fiscal years or portions thereof; and (z)
notwithstanding any other subclause of this Section 5(b)(v), with
regard to the Metropolitan Life Insurance Company Long-Term Performance
Compensation Plan, opportunities set shall be considered to constitute
awards or grants and such opportunities set within four months after
the end of the fiscal year shall be attributed to the prior fiscal
year.
(c) Benefit Plans. During the Employment Period, the Executive
(and, to the extent applicable, the Executive's dependents) shall be entitled to
participate in or be covered under all pension, retirement, deferred
compensation, savings, medical, dental, health, disability, group life,
accidental death and travel accident insurance plans and programs of the Company
or Affiliate, whichever is applicable, at the level made available from time to
time to other similarly situated officers.
(d) Expenses. During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
the Executive in accordance with the policies and procedures of the Company or
Affiliate, whichever is applicable, as in effect from time to time with respect
to expenses incurred by other similarly situated officers.
(e) Vacation and Fringe Benefits. During the Employment Period,
the Executive shall be entitled to paid vacation and fringe benefits at a level
that is commensurate with the paid vacation and fringe benefits available from
time to time to other similarly situated officers.
(f) Indemnification. During and after the Employment Period, the
Company (if the Executive is an officer or employee of the Company at the time
of the events giving rise to the need for indemnity) and/or each Affiliate of
which the Executive is an officer or employee at the time of the events giving
rise to the need for indemnity, shall indemnify the Executive and hold the
Executive harmless from and against judgments, fines, amounts paid in settlement
and reasonable expenses, including attorneys' fees, on
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the same terms and conditions applicable from time to time with respect to the
indemnification of its other senior officers of comparable rank.
(g) Location. During the Employment Period, the Executive's
services shall be performed at the location where the Executive was employed
immediately preceding the Effective Date or at any other office or location not
more than 50 miles from such pre-Effective Date, except for travel reasonably
required in the performance of the Executive's responsibilities.
6. Termination. (a) Death, Disability or Retirement. Subject to
the provisions of Section 1 and Section 7 hereof, this Agreement shall terminate
automatically upon the Executive's death, termination due to "Disability" (as
defined below) or voluntary retirement under any of the Company's (or
Affiliate's, as applicable) retirement plans as in effect from time to time. For
purposes of this Agreement, "Disability" shall mean the Executive's inability to
perform the duties of the Executive's position, as determined in accordance with
the policies and procedures applicable with respect to the Company's (or
Affiliate's, as applicable) long-term disability plan, as in effect immediately
prior to the Effective Date; provided, however, that the Executive's employment
may not be terminated for Disability hereunder unless the Executive has
requested that the Executive be considered for, and has qualified to receive,
long-term disability benefits under such plan and that such termination is
consistent with law.
(b) Voluntary Termination. Notwithstanding anything in this
Agreement to the contrary, the Executive may voluntarily terminate employment
during the Employment Period for any reason (including early retirement under
the terms of any of the Company's (or Affiliate's, as applicable) retirement
plans as in effect from time to time), upon not less than 60 days' written
notice to the Company, provided that any termination by the Executive pursuant
to Section 6(d) hereof on account of Good Reason (as defined therein) shall not
be treated as a voluntary termination under this Section 6(b).
(c) Cause. The Company (or Affiliate, as applicable) may terminate
the Executive's employment for Cause. For purposes of this Agreement, "Cause"
means (i) the Executive's conviction or plea of nolo contendere to a felony;
(ii) an act of dishonesty or gross misconduct on the Executive's part which
results or is intended to result in material damage to the Company's business or
reputation; or (iii) repeated material violations by the Executive of the
Executive's obligations under Section 4 hereof, which violations are
demonstrably willful and deliberate on the Executive's part.
(d) Good Reason. After the Effective Date, the Executive may
terminate the Executive's employment at any time for Good Reason. For purposes
of this Agreement, "Good Reason" means the occurrence of any of the following,
without the express written consent of the Executive, after the Effective Date:
(i) any failure by the Company (or Affiliate, as
applicable) to comply with any of the provisions of Section 5 hereof,
other than an insubstantial or inadvertent failure remedied by the
Company promptly after receipt of notice thereof given by the
Executive;
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(ii) any failure by the Company to obtain the assumption
and agreement to perform this Agreement by a successor or to cause an
Affiliate, as applicable, to comply with the terms of this Agreement as
contemplated by Section 12(b) hereof.
In no event shall the mere occurrence of a Change of Control, absent any further
impact on the Executive, be deemed to constitute Good Reason.
(e) Notice of Termination. Any termination during the Employment
Period by the Company (or Affiliate, as applicable) for Cause or by the
Executive for Good Reason shall be communicated by Notice of Termination to the
other party hereto given in accordance with Section 13(e) hereof. For purposes
of this Agreement, a "Notice of Termination" means a written notice given, (i)
in the case of a termination for Cause, within 10 business days of the Company's
having actual knowledge of the events giving rise to such termination or (ii) in
the case of a termination for Good Reason, within 120 days of the Executive's
having actual knowledge of the events giving rise to such termination. Any such
Notice of Termination shall (i) indicate the specific termination provision in
this Agreement relied upon, (ii) set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated, and (iii) if the termination date
is other than the date of receipt of such notice, specify the termination date
of this Agreement (which date shall be not more than 15 days after the giving of
such notice). The failure by the Executive to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of Good
Reason shall not waive any right of the Executive hereunder or preclude the
Executive from asserting such fact or circumstance in enforcing the Executive's
rights hereunder.
(f) Date of Termination. For the purpose of this Agreement, the
term "Date of Termination" means (i) in the case of a termination for which a
Notice of Termination is required, the date of receipt of such Notice of
Termination or, if later, the date specified therein, as the case may be, and
(ii) in all other cases, the actual date on which the Executive's employment
terminates during the Employment Period.
(g) Transfer of Employment. For purposes of this Agreement, in no
event shall the mere transfer of employment from the Company or an Affiliate to
the Company or an Affiliate, absent any further impact on the Executive, be
deemed to constitute a termination of employment or Good Reason, notwithstanding
any technical termination of employment in connection with such a transfer.
7. Obligations of the Company upon Termination. (a) Death or
Disability. If the Executive's employment is terminated during the Employment
Period by reason of the Executive's death or Disability, this Agreement shall
terminate without further obligations to the Executive or the Executive's legal
representatives under this Agreement other than those obligations accrued
hereunder at the Date of Termination, and the Company shall pay to the Executive
(or the Executive's beneficiary or estate), at the times determined below, (i)
the Executive's full Base Salary through the Date of Termination (the "Earned
Salary"), (ii) any vested amounts or benefits owing to the
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Executive under or in accordance with the terms and conditions of the Company's
and Affiliates' otherwise applicable employee benefit plans and programs and any
accrued vacation pay not yet paid by the Company or Affiliate (the "Accrued
Obligations"), and (iii) any other benefits payable due to the Executive's death
or Disability under the Company's and Affiliates' plans, policies or programs
(the "Additional Benefits"). Any Earned Salary shall be paid in cash in a single
lump sum as soon as practicable, but in no event more than 30 days (or at such
earlier date required by law), following the Date of Termination. Accrued
Obligations and Additional Benefits shall be paid in accordance with the terms
of the applicable plan, program or arrangement.
(b) Cause and Voluntary Termination. If, during the Employment
Period, the Executive's employment shall be terminated for Cause or voluntarily
terminated by the Executive (other than on account of Good Reason), the Company
shall pay the Executive (i) the Earned Salary in cash in a single lump sum as
soon as practicable, but in no event more than 30 days, following the Date of
Termination, and (ii) the Accrued Obligations in accordance with the terms of
the applicable plan, program or arrangement.
(c) Termination by the Company or an Affiliate other than for
Cause and Termination by the Executive for Good Reason. The terms of this
Section 7(c) shall apply if and only if (x) the Company or an Affiliate
terminates the Executive's employment other than for Cause during the Employment
Period or (y) the Executive terminates employment at any time during the
Employment Period for Good Reason.
(i) Lump Sum Payments. The Company shall pay to the
Executive, at the times determined below, the following amounts:
(A) the Executive's Earned Salary;
(B) a cash amount (the "Severance Amount") equal to three
times the sum of
(1) the Executive's annual rate of Base Salary
as then in effect;
(2) the average of the annual bonuses awarded or
granted to the Executive under the Annual
Variable Incentive Plan (or any successor
plan thereto), and any other Annual Bonus,
for the each of the three fiscal years of
the Company (or, if less, the number of
prior fiscal years during which Executive
was an employee of the Company or an
Affiliate) ended immediately prior to the
Effective Date for which an annual bonus
amount had been determined by the Board (or
any committee thereof) prior to the
Effective Date. If the Executive was
employed by the Company or Affiliates (taken
as a whole) for only a portion of any fiscal
year included in the period for which the
average referred to in the immediately
preceding sentence is determined and the
bonus awarded or granted for such fiscal
year took into
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account such partial period of employment,
such bonus for such fiscal year shall be
annualized for purposes of calculating such
average; and
(3) if the Effective Date is on or prior to
December 31, 2003, the average of the
long-term incentive compensation amounts
awarded or granted to the Executive with
respect to each of the last three
performance periods (or, if the Executive
participated in the long-term compensation
program in respect to a lesser number of
such performance periods, such lesser
number) ended prior to the Effective Date
for which the amount awarded or granted had
been determined by the Board (or any
committee thereof) prior to the Effective
Date; provided, however, that, the amount
determined under this subclause (3) shall be
reduced (but not below zero) by the
"Determined Value" (as defined below) of any
vested stock options, restricted stock or
similar equity-based award or grant relating
to the Company's common equity on the
earlier to occur of the Executive's Date of
Termination or the date on which a Change of
Control occurs. For purposes of this
Agreement, Determined Value shall mean the
excess of the "Equity Value" over the price,
if any, payable by the Executive in respect
of such stock option or other award and
Equity Value shall be determined to be (x)
in the case of a Change of Control occurring
by reason of a merger, recapitalization or
similar transaction or as a result of a
tender offer, the value received by the
Company's equity holders in such transaction
or the price paid in such tender offer (with
the value of any non-cash consideration to
be determined in good faith by the
Compensation Committee of the Board as
constituted immediately prior to the
Effective Date) and (y) in the case of any
other Change of Control or where the date as
of which such Determined Value is measured
is the Executive's Date of Termination, the
average of the high and low reported sales
prices of such equity on the principal
securities market on which such equity is
traded on the relevant date; and
(C) the Accrued Obligations.
The Earned Salary and Severance Amount shall be paid in cash in a
single lump sum as soon as practicable, but in no event more than 30
days (or at such earlier date required by law), following the Date of
Termination. Accrued Obligations shall be paid in accordance with the
terms of the applicable plan, program or arrangement.
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(ii) Continuation of Benefits and Additional Pension
Credit. The Executive (and, to the extent applicable, the Executive's
dependents) shall be entitled, after the Date of Termination until the
third anniversary of the Date of Termination (the "End Date"), to
continue participation in all of the Company's (or Affiliate's, as
applicable) employee and executive plans providing medical, dental and
long-term disability benefits (collectively, the "Continuing Benefit
Plans"); provided, however, that the participation by the Executive
(and, to the extent applicable, the Executive's dependents) in any
Continuing Benefit Plan shall cease on the date, if any, prior to the
End Date on which the Executive becomes eligible for comparable
benefits under a similar plan, policy or program of a subsequent
employer ("Prior Date"). The Executive's participation in the
Continuing Benefit Plans will be on the same terms and conditions that
would have applied had the Executive continued to be employed by the
Company (or Affiliate, as applicable) through the End Date or the Prior
Date. To the extent any such benefits cannot be provided under the
terms of the applicable plan, policy or program, the Company shall
provide a comparable benefit under another plan or from the Company's
general assets. In addition, the Company (or Affiliate, as applicable)
shall grant the Executive service credit, for purposes of all pension
and defined benefit plans and arrangements of the Company and any
Affiliate in which the Executive participates, through the earlier of
(x) the third anniversary of the effective date of the Notice of
Termination, or (y) the sixty-fifth birthday of the Executive, such
that when the Executive's pension or defined benefit is determined such
credited service will be taken into account.
(d) Discharge of the Company's Obligations. Except as expressly
provided in the last sentence of this Section 7(d) hereof, the amounts payable
to the Executive pursuant to this Section 7 following termination of the
Executive's employment shall be in full and complete satisfaction of the
Executive's rights under this Agreement and any other claims the Executive may
have in respect of the Executive's employment by the Company or any of its
Affiliates. Such amounts shall constitute liquidated damages with respect to any
and all such rights and claims and, upon the Executive's receipt of such
amounts, the Company shall be released and discharged from any and all liability
to the Executive in connection with this Agreement or otherwise in connection
with the Executive's employment with the Company and its Affiliates.
(e) Modification of Payments by the Company.
(i) Application of Section 7(e) Hereof. In the event that
any amount or benefit paid or distributed to the Executive pursuant to
this Agreement, taken together with any amounts or benefits otherwise
paid or distributed to the Executive by the Company or any Affiliate
under any other plan, agreement, or arrangement that would be taken
into account for purposes of determining if an "excess parachute
payment" as defined in Section 280G of the Internal Revenue Code of
1986, as amended, has been made (collectively, the "Covered Payments"),
would be an "excess parachute payment" as defined in Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code"), and would
thereby subject the Executive to the tax (the "Excise Tax") imposed
under Section
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4999 of the Code (or any similar tax that may hereafter be imposed),
the Company shall pay to the Executive an additional amount (the "Tax
Reimbursement Payment") such that the net amount retained by the
Executive with respect to such Covered Payments, after deduction of any
Excise Tax on the Covered Payments and any Federal, state and local
(including foreign) income tax and Excise Tax on the Tax Reimbursement
Payment provided for by this Section 7(e), but before deduction for any
Federal, state or local (including foreign) income or employment tax
withholding on such Covered Payments, shall be equal to the aggregate
value of the Covered Payments; provided, however, that if the aggregate
value of all Covered Payments exceeds the maximum amount which can be
paid to the Executive without the Executive incurring an Excise Tax
(the "Cap Amount") by less than ten per cent (10%) of the Cap Amount,
the amounts payable to the Executive under this Section 7 shall be
reduced (but not below zero) to the maximum amount which may be paid
hereunder without the Executive becoming subject to such an Excise Tax
as a result of all Covered Payments (such reduced payments to be
referred to as the "Payment Cap"). In the event that Executive receives
reduced payments and benefits hereunder, the Executive shall have the
right to designate which of the payments and benefits otherwise
provided for in this Agreement that he will receive in connection with
the application of the Payment Cap.
(ii) Calculation of Benefits. Promptly after delivery of
any Notice of Termination, the Company shall notify the Executive of
the aggregate present value of all Covered Payments to which the
Executive would be entitled under this Agreement and any other plan,
program or arrangement as of the projected Date of Termination,
together with the projected maximum payments, determined as of such
projected Date of Termination that could be paid without the Executive
being subject to the Excise Tax.
(iii) Application of Section 280G. For purposes of
determining whether any of the Covered Payments will be subject to the
Excise Tax and the amount of such Excise Tax,
(A) such Covered Payments will be treated as "parachute
payments" within the meaning of Section 280G of the
Code, and all "parachute payments" in excess of the
"base amount" (as defined under Section 280G(b)(3) of
the Code) shall be treated as subject to the Excise
Tax, unless, and except to the extent that, in the
good faith judgment of the Company's independent
certified public accountants appointed prior to the
Effective Date or tax counsel selected by such
Accountants (the "Accountants"), the Company has a
reasonable basis to conclude that any amount or
benefit paid or distributed to the Executive pursuant
to this Agreement, or any amounts or benefits
otherwise paid or distributed to the Executive by the
Company or any Affiliate under any other plan,
agreement, or arrangement (in whole or in part),
either do not constitute "parachute payments" or
represent reasonable compensation for
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personal services actually rendered (within the
meaning of Section 280G(b)(4)(B) of the Code) in
excess of the portion of the "base amount allocable
to such Covered Payments," or such "parachute
payments" are otherwise not subject to such Excise
Tax, and
(B) the value of any non-cash benefits or any deferred
payment or benefit shall be determined by the
Accountants in accordance with the principles of
Section 280G of the Code.
(iv) Adjustments in Respect of the Payment Cap. If the
Executive receives reduced payments and benefits under this Section
7(e) (or this Section 7(e) is determined not to be applicable to the
Executive because the Accountants conclude that Executive is not
subject to any Excise Tax) and it is established pursuant to a final
determination of a court or an Internal Revenue Service proceeding (a
"Final Determination") that, notwithstanding the good faith of the
Executive and the Company in applying the terms of this Agreement, the
aggregate "parachute payments" within the meaning of Section 280G of
the Code paid to the Executive or for the Executive's benefit are in an
amount that would result in the Executive being subject an Excise Tax,
then the Accountants shall determine whether the Executive should have
received the Tax Reimbursement Payment described in Section 7(e)(i), or
whether the amounts payable to the Executive hereunder would still have
been reduced pursuant to Section 7(e)(i). If the Tax Reimbursement
Payment would have been due, the Accountants shall determine the amount
of any interest and penalties that may be imposed on the Executive by
reason having failed to have timely paid any Excise Tax (the "Penalty
Amount"), and the amount of the Tax Reimbursement Payment due, treating
the Penalty Amount as a Covered Payment. In the event a Tax
Reimbursement Payment is due, the Company shall promptly (but in no
event later than ten (10) business days after the Accountants have
determined and informed the Company of the amounts due hereunder) pay
the Executive such Tax Reimbursement Payment (as calculated in
accordance with the immediately preceding sentence) and the Penalty
Amount. If the Executive would still be subject to a reduction in the
Covered Payments due hereunder, the Accountants shall determine the
amount by which the Covered Payments exceeded the Cap Amount and such
excess parachute payments shall be deemed for all purposes to be a loan
to the Executive made on the date of receipt of such excess payments,
which the Executive shall have an obligation to repay to the Company on
demand, together with interest on such amount at the applicable Federal
rate (as defined in Section 1274(d) of the Code) from the date of the
payment hereunder to the date of repayment by the Executive. If the
Executive receives reduced payments and benefits by reason of this
Section 7(e) and it is established pursuant to a Final Determination
that the Executive could have received a greater amount without
exceeding the Cap Amount, then the Company shall promptly thereafter
pay the Executive the aggregate additional amount which could have been
paid without exceeding the Cap Amount, together with interest on such
amount at the applicable Federal rate (as defined in Section 1274(d) of
the Code) from the original payment due date to the date of actual
payment by the Company. For
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greater clarity, if the Executive receives increased payments and
benefits under this Section 7(e)(i), then this Section 7(e)(iv) shall
not apply.
(f) Notwithstanding anything else in this Section 7 to the
contrary, nothing in this Section 7 shall be construed to release the Company
from (or to otherwise waive or modify) the Company's obligation to indemnify the
Executive pursuant to Section 5(f) hereof.
8. Non-exclusivity of Rights. Except as expressly provided
herein, nothing in this Agreement shall prevent or limit the Executive's
continuing or future participation in any benefit, bonus, incentive or other
plan or program provided by the Company or any Affiliate and for which the
Executive may qualify, nor shall anything herein limit or otherwise prejudice
such rights as the Executive may have under any other agreements with the
Company or any Affiliate, including employment agreements or stock option
agreements. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan or program of the Company or any
Affiliate at or subsequent to the Date of Termination shall be paid in
accordance with such plan or program.
9. No Offset; Deferrals. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be diminished or otherwise affected by any circumstances,
including, but not limited to, any set-off, counterclaim, recoupment, defense or
other right which the Company may have against the Executive or others whether
by reason of the subsequent employment of the Executive or otherwise. For
purposes of this Agreement, except for Section 7(e), the value of an amount or
property awarded, granted, or paid to the Executive shall be determined
notwithstanding any elective deferrals of payment.
10. Legal Fees and Expenses. If the Executive asserts any claim in
any contest (whether initiated by the Executive or by the Company) as to the
validity, enforceability or interpretation of any provision of this Agreement,
the Company shall pay the Executive's legal expenses (or cause such expenses to
be paid) including, but not limited to, the Executive's reasonable attorney's
fees, on a quarterly basis, upon presentation of proof of such expenses in a
form acceptable to the Company, provided that the Executive shall reimburse the
Company for such amounts, plus simple interest thereon at the 90-day United
States Treasury Bill rate as in effect from time to time, compounded annually,
if the Executive shall not prevail, in whole or in part, as to at least one
material issue as to the validity, enforceability or interpretation of any
provision of this Agreement.
11. Surviving Agreements. The Agreement to Protect Corporate
Property previously executed by the Executive, any written stock option
agreement into which the Executive entered with the Company, and any
Compensation Protection Agreement into which the Executive entered with the
Company are incorporated herein and made a part hereof. The Executive and the
Company hereby reaffirm their respective commitments under the agreements to
which reference is made in this Section 11, and again agree to be
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bound by each of the covenants contained therein for the benefit of the Company
and Affiliates in consideration of the benefits made available to the Executive
hereby.
12. Successors. (a) This Agreement is personal to the Executive
and, without the prior written consent of the Company, shall not be assignable
by the Executive otherwise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors. The Company shall cause each Affiliate, as
applicable, to comply with the terms of this Agreement. The Company shall
require any successor to all or substantially all of the business and/or assets
of the Company, whether direct or indirect, by purchase, merger, consolidation,
acquisition of stock, or otherwise, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent as the Company would
have been required to perform if no such succession had taken place.
13. Miscellaneous. (a) Applicable Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
applied without reference to principles of conflict of laws.
(b) Arbitration. Except to the extent provided in Section 11(c)
hereof, any dispute or controversy arising under or in connection with this
Agreement shall be resolved by binding arbitration. The arbitration shall be
held in New York City and except to the extent inconsistent with this Agreement,
shall be conducted in accordance with the Expedited Employment Arbitration Rules
of the American Arbitration Association in effect at the time of the arbitration
(or such other rules as the parties may agree to in writing), and otherwise in
accordance with principles which would be applied by a court of law or equity;
provided for greater clarity, however, that in no event shall the arbitrator(s)
be bound to follow the rules of evidence, discovery, or procedure that would
applied by a court of law or equity. The arbitrator shall be acceptable to both
the Company and the Executive. If the parties cannot agree on an acceptable
arbitrator, the dispute shall be heard by a panel of three arbitrators, one
appointed by each of the parties and the third appointed by the other two
arbitrators.
(c) Amendments. This Agreement may not be amended or modified
other than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(d) Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the matters referred to
herein, and completely supersedes and replaces any prior Employment Continuation
Agreement (including any such amended and restated agreement) between the
Executive and the Company and/or an Affiliate. No other agreement relating to
the terms of the Executive's employment by the Company, oral or otherwise, shall
be binding between the parties unless it is in writing and signed by the party
against whom enforcement is sought. There are no promises, representations,
inducements or statements between the parties other than those
14
that are expressly contained herein. The Executive acknowledges entering into
this Agreement of the Executive's own free will and accord, and with no duress,
that the Executive has read this Agreement and understands it and its legal
consequences.
(e) Notices. All notices and other communications hereunder shall
be in writing and shall be given by hand-delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive: at the home address of the Executive
noted on the records of the Company
If to the Company: MetLife, Inc.
One Madison Avenue
New York, New York 10010
Attn.: Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(f) Tax Withholding. The Company shall withhold from any amounts
payable under this Agreement such Federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
(g) Severability; Reformation. In the event that one or more of
the provisions of this Agreement shall become invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not be affected thereby.
(h) Waiver. Waiver by any party hereto of any breach or default by
the other party of any of the terms of this Agreement shall not operate as a
waiver of any other breach or default, whether similar to or different from the
breach or default waived. No waiver of any provision of this Agreement shall be
implied from any course of dealing between the parties hereto or from any
failure by either party hereto to assert its or the Executive's rights hereunder
on any occasion or series of occasions.
(i) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
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(j) Captions. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and the Company has caused this Agreement to be executed in its
name on its behalf.
METLIFE, INC.
By: /s/ Lisa M. Weber
--------------------------------------
Title: Sr. Executive VP & Chief
Administrative Officer
WITNESSED:
/s/ Ana Molina
- ----------------------------
EXECUTIVE:
/s/ William J. Wheeler
------------------------------------------
WITNESSED:
/s/ Lily Salzberg
- ----------------------------
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