EXHIBIT 10.1
CHANGE IN CONTROL
AGREEMENT
This Change in Control Agreement (this
“ Agreement ”), effective as of January
1, 2010, is between The Phoenix Companies, Inc., a Delaware
corporation (the “ Company ”), and
«Name» (the “ Executive
”).
RECITALS
The Company or one of its Affiliates (as
defined below) has employed the Executive in an officer position
and has determined that the Executive holds a critical position
with the Company and/or such Affiliate.
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.
The Company understands that any such
situation will present significant concerns for the Executive with
respect to the Executive’s financial and job security. The
Company desires to assure the Company and its Affiliates 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 the Executive’s judgment without
bias due to the Executive’s personal circumstances. To
achieve these objectives, the Company and the Executive desire to
enter into an agreement providing the Company and its Affiliates
and the Executive with certain rights and obligations upon the
occurrence of a Change in Control (as defined below).
The Company and the Executive therefore
agree as follows:
1.
Operation of
Agreement .
(a)
Term . The initial term of this Agreement shall commence
on the date of this Agreement and continue through December 31,
2011, unless terminated earlier as provided in Section 5. Upon the
expiration of the initial or any renewal term, this Agreement shall
automatically renew for successive one-year terms, subject to
earlier termination as provided in Section 5, unless either party
provides the other party with a written notice at least sixty (60)
days prior to the end of the initial term or any renewal term that
the Company or the Executive does not want the term to be so
extended. 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
second anniversary of a Change in Control; provided that any
payment obligations
hereunder resulting from the
Executive’s termination of employment prior to the expiration
of the term shall continue in full force and effect following the
expiration of the term.
(b)
Effective Date
. If a Change in Control occurs during
the term of this Agreement, 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 in Control occurs (the “
Effective Date ”) and ending on the second
anniversary of the Effective Date; provided that if the Executive
is not employed by the Company or one of its Affiliates on the
Effective Date, this Agreement shall be void and without effect,
and shall not constitute a contract of employment or a guarantee of
employment for any period of time. Notwithstanding the preceding
sentence, in the event that prior to the Effective Date, the
Executive’s employment with the Company or any of its
Affiliates is terminated in connection with a Change in Control
(which shall in all events be deemed the case if such termination
is within 90 days prior to the Effective Date and deemed not to be
the case if such termination is more than 180 days before the
Effective Date) without Cause or for Good Reason (as such terms are
defined in Sections 5(b) and 5(c) below, but without regard to the
requirement under Section 5(c) that such termination occur after
the Effective Date), the Executive shall be entitled to receive the
benefits provided under Section 6(b), but only to the extent that
such benefits are in excess of those previously received by the
Executive as a result of the Executive’s prior
termination.
2.
Definitions
.
(a)
“ Affiliate ”
means any corporation, partnership, limited liability company,
trust or other entity which directly, or indirectly through one or
more intermediaries, controls, is under common control with, or is
controlled by, the Company.
(b)
“ Change in Control
” means the first occurrence of:
(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 (the
“ Board ”) or the board of directors of
any successor to the Company; provided that any director elected or
nominated for election to the Board by a majority of the Incumbent
Directors still in office shall be deemed to be an Incumbent
Director for purposes of this subclause 2(b)(ii);
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(iii)
the effective date of the consummation of
any merger, consolidation, share exchange, division, sale or other
disposition of all or substantially all of the assets of the
Company (a “ Corporate Event ”), if
immediately following the consummation of such Corporate Event
those Persons who were stockholders of the Company immediately
prior to such Corporate Event do not hold, directly or indirectly,
a majority of the Voting Power, in substantially the same
proportion as prior to such Corporate Event, of (x) in the
case of a merger or consolidation, the surviving or resulting
corporation or (y) 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;
(iv)
the approval by stockholders of the
Company of a plan of liquidation with respect to the Company;
or
(v)
the occurrence of any other event occurs
which the Board declares to be a Change in Control.
(c)
“ Code ” means
the Internal Revenue Code of 1986, as amended.
(d)
“ Delay Period
” means that period of
time between the Executive’s date of Separation from Service
and the earlier of (i) six months from the Separation from
Service date, and (ii) the Executive’s date of
death.
(e)
“ Employment Period
” means the period
during which the Executive remains employed with the Company or any
Affiliate following the Effective Date through the expiration of
the term of this Agreement.
(f)
“ Person ”
shall have the same meaning as ascribed to such term in Section
3(a)(9) of the Exchange Act, as supplemented by Section 13(d)(3) of
the Exchange Act, and shall include any group (within the meaning
of Rule 13d-5(b) under the Exchange Act); provided that Person
shall not include (i) the Company or any of its Affiliates, or
(ii) any employee benefit plan (including an employee stock
ownership plan) sponsored by the Company or any of its
Affiliates.
(g)
“ PIP ” means
the Company's Performance Incentive Plan (or any successor plan) or
similar annual incentive plan applicable to the
Executive.
(h)
“ Separation from Service
” shall have the meaning
set forth and described in the final regulations promulgated under
Code section 409A.
(i)
“ Voting Power
” means 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.
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(j)
“ Voting Securities
” shall mean all securities entitling the holders thereof to
vote in an annual election of directors of a company.
3.
Business Time
. During the Employment Period, the
Executive shall devote substantially the Executive’s full
business time and efforts to the performance of the
Executive’s duties on behalf of the Company, and its
Affiliates, except for periods of vacation and sick leave or other
leave period required by law. So long as the following activities
do not (individually or in the aggregate) materially interfere with
the performance of the Executive’s duties with the Company
and its Affiliates and are conducted in compliance with the
Company’s Code of Conduct (as in effect from time to time),
the Executive may: (a) participate in charitable, civic,
educational, professional, community or industry affairs or serve
on the boards of directors or advisory boards of not for profit
companies; and (b) manage his/her and his/her family’s
personal financial and legal affairs. The Executive may serve on
the boards of directors or similar governing bodies of any for
profit entity only with the prior written consent of the
Company’s Chief Executive Officer or, if the Executive is the
Company’s Chief Executive Officer, the Company’s Board
of Directors and only as long as such service is not in violation
of the Company’s Code of Conduct. It is expressly understood
and agreed that the Executive’s continuing to serve to the
same extent and in the same manner 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 and its
Affiliates.
4.
Compensation
.
(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 immediately prior
to the Effective Date. The base salary may be increased (but not
decreased) at any time and from time to time by action of the Board
or any committee thereof, the board of directors of any Affiliate
or any committee thereof in the event the Executive is employed by
an Affiliate, and any individual having authority to take such
action in accordance with the Company’s or any
Affiliate’s regular practices. The Executive’s base
salary, as it may be increased from time to time, shall hereafter
be referred to as the “ Base Salary
.”
(b)
Total Incentive
Compensation . During the
Employment Period, the total incentive compensation opportunities
made available to the Executive in each year in the form of
short-term incentive compensation and long-term incentive
compensation (“ Total Incentive Compensation
”), whether in equity or cash, shall not be less than the
Total Incentive Compensation made available to the Executive
immediately prior to the Effective Date. For purposes of this
Section 4(b), the amount of Total Incentive Compensation made
available to the Executive, whether prior to or after a Change in
Control, shall be conclusively determined by an independent
compensation consultant selected by the Company prior to the
occurrence of a Change in Control (or, if that entity is no longer
able to serve or declines to serve in such capacity, such other
independent
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compensation consultant that has no
existing client relationship with the Company and its Affiliates as
shall be selected by the designated consultant and reasonably
acceptable to the Board (either such consultant hereinafter
referred to as the “ Compensation Consultant
”)), using methods of valuation and comparison commonly used
in competitive compensation practices, which shall be consistently
applied. The Company shall provide the Compensation Consultant with
any and all data that the consultant shall reasonably request in
order to make its evaluations hereunder.
5.
Termination
.
(a)
Death, Disability, or Voluntary
Resignation . This
Agreement shall terminate automatically upon the Executive’s
termination due to death, termination due to
“Disability” (as defined below), voluntary retirement
(other than for Good Reason, as defined below) under any of the
retirement plans of the Company or its Affiliates applicable to the
Executive as in effect from time to time, or Executive’s
voluntary resignation for any reason (other than for Good Reason).
For purposes of this Agreement, “ Disability
” shall mean the Executive’s inability to perform his
or her material duties for six consecutive months due to a physical
or mental incapacity.
(b)
Cause . The Company and each of its Affiliates that employ
the Executive may terminate the Executive’s employment for
Cause. For purposes of this Agreement, “ Cause
” means: (i) the Executive’s conviction of or plea
of nolo contendere to, a felony (other than with respect to a
traffic violation or an incident of vicarious liability);
(ii) an act of willful misconduct on Executive’s part
with regard to the Company or its Affiliates having a material
adverse impact on the Company or its Affiliates (including, without
limitation, a willful violation of the Company’s Code of
Conduct), or (iii) the Executive’s failure in good faith
to attempt or refusal to perform legal directives of the Board or
executive officers of the Company, as applicable, which directives
are consistent with the scope and nature of the Executive’s
employment duties and responsibilities and which failure or refusal
is not remedied by the Executive within thirty (30) days after
notice of such non-performance is given to the Executive. The
Executive shall be provided an opportunity, together with his or
her counsel, to be heard before the Board prior to termination and
after such notice. If the majority of the members of the Board do
not confirm, through a duly-adopted resolution following such
opportunity, that the Company had grounds for a “Cause”
termination, the Executive shall have the option to treat his or
her employment as not having terminated or as having been
terminated pursuant to a termination without Cause. No event shall
constitute grounds for a “Cause” termination in the
event that the Company fails to take action within 90 days after
the Company’s Chairman or the Chairman of the Company’s
Audit Committee obtains actual knowledge of the occurrence of such
event. Additionally, for purposes of clause (ii) of this
definition, no act, or failure to act, on the Executive’s
part shall be deemed “willful” unless done, or omitted
to be done, by the Executive not in good faith
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and without reasonable belief that the
Executive’s act, or failure to act, was in the best interest
of the Company and its subsidiaries.
(c)
Good Reason
. After the Effective Date, the Executive
may resign from employment at any time for Good Reason. For
purposes of this Agreement, “ Good Reason
” means the occurrence after the Effective Date of any of the
following, without the express written consent of the Executive and
which occurrence is not remedied by the Company within thirty (30)
days after written notice of such occurrence is given to the
Company):
(i)
the material reduction in the
Executive’s title, position, duties or responsibilities from
the title, position, duties or responsibilities held or exercised
by the Executive prior to the Effective Date;
(ii)
any requirement by the Company that the
geographic location where the Executive regularly provides services
to the Company is materially changed to a location that is more
than 35 miles from where the Executive provides service to the
Company immediately prior to the Effective Date;
(iii)
a material diminution/reduction by the
Company of the Executive’s Base Salary or Total Incentive
Compensation opportunity or a reduction in the employee benefits
provided to the Executive under the Company’s employee
benefit plans (unless the Executive is provided with substantially
equivalent replacement benefits); or
(iv)
any failure to obtain the assumption and
agreement to perform this Agreement by a successor as contemplated
by Section 12(b).
(d)
Notice of
Termination . Any
termination of the Executive’s employment after the Effective
Date by the Company and/or its Affiliates for Cause or by the
Executive for Good Reason shall be communicated by Notice of
Termination to the other party hereto in accordance with Section
14(d). 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 or any Affiliate that employs the Executive
having actual knowledge of the events giving rise to such
termination; or (ii) in the case of a termination for Good
Reason, within 10 business days of the Executive’s having
actual knowledge of the events giving rise to such termination, but
in no event later than 90 calendar days after the actual event. Any
such Notice of Termination shall (x) indicate the specific
termination provision in this Agreement relied upon, (y) 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 (z) 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).
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(e)
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 Separation from Service occurs during the
Employment Period.
6.
Obligations of the Company or an
Affiliate upon Termination .
(a)
Death, Disability, Retirement,
Voluntary Resignation and Termination for Cause
. If the Executive’s employment is
terminated during the Employment Period by reason of the
Executive’s death, Disability, termination for Cause, or
voluntary termination due to his or her retirement or other
resignation (other than on account of Good Reason), 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 or the Affiliate that employs the
Executive shall pay to the Executive (or the Executive’s
beneficiary or estate), at the times determined below: (i) the
Executive’s full Base Salary through the Date of Termination
(the “ Earned Salary ”), (ii) any
vested amounts or benefits owing to the Executive under and in
accordance with the terms and conditions of any otherwise
applicable employee benefit plans, agreements and programs and any
accrued vacation pay not yet paid (the “ Accrued
Obligations ”), and (iii) any other benefits
payable in such situation under the plans, agreements, policies or
programs of the Company and its Affiliates
and in accordance with the terms of such plans, policies and
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 or later 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)
Termination Without Cause or for
Good Reason . If, during
the Employment Period, the Company or the Affiliate that employs
the Executive terminates the Executive’s employment other
than for Cause or the Executive terminates his or her employment
for Good Reason:
(i)
Pension Service Credit and
Payment . The
Executive’s accrued benefits under any qualified or
nonqualified defined benefit type pension plan or arrangement of
the Company, including, without limitation, the Employee Pension
Plan or any successor plan and the Supplemental Executive
Retirement Plan or the Supplemental Executive Retirement Plan B
(“ SERP ”) or any successor plan (all
such plans, the “ Pension Plans ” )
shall, to the extent not previously vested, be deemed vested as of
the Date of Termination. In addition, the Company shall
increase:
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(A) if the Executive is a grandfathered
participant under the new retirement program as implem
