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EXHIBIT 10.25
[LOGO] INTEROFFICE COMMUNICATION
JAMES H. GOULD
Vice President
Compensation, Benefits & HR Services, RW2A
(860) 273-8588
Fax: (860) 273-2030
To: L. Edward Shaw, Jr.
Date: November 16, 2000
Subject: Change in Control Excise Tax Policy for Selected Officers
Pursuant to the memorandum agreement (the "Agreement") provided to you by
Aetna Inc. (together with any successor, "Aetna") as of the date hereof
setting forth your severance protection in the event of a change in control,
you have agreed that you will be subject to the Aetna Change in Control
Excise Tax Policy for Selected Officers. This memorandum sets forth the terms
of that policy as it applies to you.
1. Initial Determinations by Accounting Firm.
In the event that a change in "the ownership or effective control" of
Aetna or "the ownership of a substantial portion of the assets" of Aetna
(a "Change in Ownership") occurs or is expected to occur (in either case
within the meaning of Section 280G of the Internal Revenue Code of 1986,
as amended (the "Code")), Aetna shall retain a national accounting firm
selected by Aetna and reasonably acceptable to you (the "Accounting
Firm") to perform the calculations necessary under this memorandum. The
Accounting Firm shall have discretion to retain an independent appraiser
with adequate expertise (the "Appraiser") to provide any valuations
necessary for the Accounting Firm's calculations hereunder. Aetna shall
pay all the fees and costs associated with the work performed by the
Accounting Firm and any Appraiser retained by the Accounting Firm. If
the Accounting Firm has performed services for any person, entity or
group in connection with the Change in Ownership, you may select an
alternative national accounting firm to be the Accounting Firm. If the
Appraiser otherwise performs work for any of the entities involved in
the Change in Ownership or their affiliates (or has performed work for
any such entity within the three years preceding the calculations
hereunder), then you may select an alternative appraiser of national
stature with adequate expertise to be the Appraiser. The Accounting Firm
shall provide promptly to both Aetna and you a written report setting
forth the calculations required under this memorandum, together with a
detail of all relevant supportive data, valuations and calculations. All
determinations of the Accounting Firm shall be binding on you and Aetna.
When making the calculations required hereunder, you shall be deemed to
pay:
- Federal income taxes at the highest applicable marginal rate of
Federal income taxation for the taxable year for which any such
calculation is made, and
- any applicable state and local income taxes at the highest
applicable marginal rate of taxation for the taxable year for which
any such calculation is made, net of the maximum reduction in
Federal income taxes which could be obtained from deduction of such
state and local taxes.
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The Accounting Firm shall determine (the "Initial Determination"):
(i) the aggregate amount of all payments, benefits and distributions
provided by Aetna to you or for your benefit, whether paid or
payable or distributed or distributable pursuant to the terms of
the Agreement or any other agreement, plan or arrangement of Aetna
or otherwise (other than any payment pursuant to this memorandum)
which are in the nature of compensation and contingent upon a
Change in Ownership (valued pursuant to Section 280G of the Code)
(collectively the "Payments"); and
(ii) the maximum amount of the Payments you would be entitled to receive
without being subject to the excise tax imposed by Section 4999 of
the Code (the "Payment Cap") (such excise tax, together with any
interest or penalties with respect to such excise tax, are
hereinafter collectively referred to as the "Excise Tax").
2. Initial Treatment of Payments.
(a) If the amount of the Payments does not exceed the Payment Cap, you
shall be entitled to receive the full amount of the Payments.
(b) If the amount of the Payments exceeds the Payment Cap by less than
10% of the Payment Cap amount, then, notwithstanding anything to
the contrary, the amount of the Payments payable to you shall be
reduced to the amount of the Payment Cap. In the event that the
Payments are subject to reduction hereunder, you shall have the
right to designate which of the Payments will be reduced or
eliminated.
(c) If the amount of the Payments exceeds the Payment Cap by more than
10% of the Payment Cap amount, then the amount of the Payments you
are entitled to receive shall not be reduced and Aetna shall pay to
you an additional payment (a "Gross-Up Payment") in an amount such
that after payment by you of all taxes (including any interest and
penalties imposed with respect to such taxes), including any Excise
Tax, imposed upon the Gross-Up Payment you retain an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
All determinations required to be made as to whether a Gross-Up
Payment is required and the amount of such Gross-Up Payment shall
be made by the Accounting Firm.
3. Redeterminations Based on IRS or Court Ruling.
If after the date of the Initial Determination (A) you become entitled
to receive additional Payments (including, without limitation,
severance) contingent upon the same Change in Ownership, or (B) you
become subject to the terms of any final binding agreement between you
and the Internal Revenue Service or any decision of a court of competent
jurisdiction which is not appealable or for which the time to appeal has
lapsed (a "Final Determination") and which is contrary to the Initial
Determination, then based upon such additional Payments or such Final
Determination (as the case may be), the Accounting Firm shall
recalculate:
(i) the aggregate Payments (such recalculated amount, the "Redetermined
Payments"); and
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(ii) the maximum amount of the Redetermined Payments you would be
entitled to receive without being subject to the excise tax imposed
by Section 4999 of the Code (the "Redetermined Payment Cap") (such
excise tax, together with any interest or penalties with respect to
such excise tax, are hereinafter referred to as the "Redetermined
Excise Tax").
4. Reconciliations Based on Redeterminations.
(a) If the Redetermined Payment Cap is greater than the Payment Cap
(and your Payments were reduced pursuant to paragraph 2(b)), then
Aetna shall promptly pay you the amount by which the Redetermined
Payments Cap exceeds the Payment Cap, together with interest on
such difference at the applicable Federal rate (as defined in
Section 1274(d) of the Code) (the "Federal Rate") from the original
Payment due date to the date of actual payment of the difference by
Aetna.
(b) If the aggregate value of the Redetermined Payments exceeds the
Redetermined Payment Cap by less than 10%, then, notwithstanding
anything to the contrary, the amount of the Redetermined Payments
that you are entitled to receive and retain shall be reduced to the
amount of the Redetermined Payment Cap. In the event that the
Redetermined Payments are subject to reduction under this paragraph
and any such portion of the Redetermined Payments have no yet been
paid to you, you shall have the right to designate which portion of
such unpaid Redetermined Payments should be reduced or eliminated.
If you have previously received any Payments in excess of the
Redetermined Payment Cap, such excess Payments shall be deemed for
all purposes to be a loan to you made on the date of receipt of
such excess Payments, which you shall have an obligation to repay
to Aetna 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 your receipt of such excess Payments to the date
of repayment by you. Notwithstanding the foregoing, if any portion
of such excess Payments which is to be refunded to Aetna has been
paid to any Federal, state or local tax authority, repayment
thereof shall not be required until actual refund or credit of such
portion has been made to you, and interest payable to Aetna shall
not exceed interest received or credited to you by such tax
authority for the period it held such portion. In addition, if,
pursuant to a Final Determination, any such excess Payments are not
deemed a loan and as a result you are subject to Redetermined
Excise Tax, then you shall be treated as if the aggregate value of
the Redetermined Payments exceeds the Redetermined Payment Cap by
more than 10% under paragraph 3(c) and you shall be entitled to the
Supplemental Gross-Up Payment, subject to all the attendant
conditions set forth below.
(c) If the aggregate value of the Redetermined Payments exceeds the
Redetermined Payment Cap by more than 10%, then the amount of the
Redetermined Payments you are entitled to receive and retain shall
not be reduced and Aetna shall pay to you an additional payment (a
"Supplemental Gross-Up Payment") in an amount such that after
payment by you of all taxes (including any interest and penalties
imposed with respect to such taxes), including any Redetermined
Excise Tax, imposed on the Supplemental Gross-Up Payment you retain
an amount of the Supplemental Gross-Up Payment; provided that if
you have previously received a Gross-Up Payment, the amount of the
Supplemental Gross-Up Payment shall be reduced by the amount of the
Gross-Up Payment you previously received, so that you will be
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fully reimbursed, but will not receive duplicative reimbursements.
If, however, the Excise Tax exceeds the Redetermined Excise Tax,
the excess Gross-Up Payment that has been paid to you shall be
deemed for all purposes to be a loan to you made on the date of
receipt of such excess Gross-Up Payment, which you shall have an
obligation to repay to Aetna 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 your receipt of such excess
Gross-Up Payment to the date of repayment by you. Notwithstanding
the foregoing, in the event any portion of the Gross-Up Payment to
be refunded to Aetna has been paid to any Federal, state or local
tax authority, repayment thereof shall not be required until actual
refund or credit of such portion has been made to you, and interest
payable to Aetna shall not exceed interest received or credited to
you by such tax authority for the period it held such portion. You
and Aetna shall mutually agree upon the course of action to be
pursued (and the method of allocating the expenses thereof) if your
good faith claim for refund or credit is denied.
5. Procedures With Respect to IRS Claims.
You shall notify Aetna in writing of any claim by the Internal Revenue
Service relating to any unpaid excise tax applicable to the Payments.
Such notification shall be given as soon as practicable but no later
than twenty business days after you know of such claim and shall apprise
Aetna of the nature of such claim, any assessment under such claim and
the date on which such assessment is requested to be paid. You shall not
pay such claim prior to the expiration of the thirty day period
following the date on which you give such notice to Aetna (or such
shorter period ending on the date that any payment of taxes with respect
to such claim is due). If Aetna notifies you in writing prior to the
expiration of such period that it desires to contest such claim, you
shall:
(a) give Aetna any information reasonably requested by Aetna relating
to such claim,
(b) take such action in connection with contesting such claim as Aetna
shall reasonably request in writing from time to time including,
without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by Aetna,
(c) cooperate with Aetna in good faith in order effectively to contest
such claim, and
(d) permit Aetna to participate in any proceedings relating to such
claim;
provided, however, that Aetna shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold you harmless,
on an after-tax basis, for any Excise Tax, Redetermined Excise Tax or
income tax, including interest and penalties with respect thereto,
imposed as a result of such representation and payment of costs and
expenses. Without limitation on the foregoing, Aetna shall control all
proceedings taken in connection with such contest and, at its sole
option, may pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct you to
pay the tax claimed and sue for a refund or contest the claim in any
permissible manner, and you agree to prosecute such contest to a
determination before any administrative tribunal, in a court
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of initial jurisdiction and in one or more appellate courts, as Aetna
shall determine; provided, however, that if Aetna directs you to pay
such claim and sue for a refund, Aetna shall advance the amount of such
payment to you, on an interest-free basis, and shall indemnify and hold
you harmless, on an after-tax basis, from any Excise Tax, Redetermined
Excise Tax or income tax, including interest and penalties with respect
thereto, imposed with respect to such advance or with respect to any
imputed income with respect to such advance; and further provided that
any extension of the statute of limitations relating to payment of taxes
for the taxable year of you with respect to which such contested amount
is claimed to be due is limited solely to such contested amount.
Furthermore, Aetna's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and
you shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
If after the receipt by you of an amount advanced by Aetna pursuant to
the foregoing, you become entitled to receive any refund with respect to
such claim, you shall (subject to Aetna's complying with the
requirements of above with respect to any contestation of an excise tax
claim) promptly pay to Aetna the amount of such refund (together with
any interest paid or credited thereon by the taxing authority after
deducting any taxes applicable thereto). If, after the receipt by you of
an amount advanced by Aetna hereunder, a determination is made that you
shall not be entitled to any refund with respect to such claim and Aetna
does not notify you in writing of its intent to contest such denial of
refund prior to the expiration of thirty days after such determination,
then such advance shall be forgiven and shall not be required to be
repaid and the amount of such advance shall offset, to the extent
thereof, the amount of the Supplemental Gross-Up Payment required to be
paid hereunder. The forgiveness of such advance shall be considered part
of the Supplemental Gross-Up Payment and subject to gross-up for any
taxes (including interest or penalties) associated therewith.
Upon the consummation of the Agreement and Plan of Restructuring and
Merger among ING America Insurance Holdings, Inc., Aetna Inc., et. al.
dated as of July 19, 2000, all undertakings by the Company hereunder
shall be obligations of Aetna U.S. Healthcare, Inc. and its subsidiaries
and you shall have no right to bring any claim or action against ING
America Insurance Holdings, Inc. or any of its subsidiaries or
affiliates.
The terms of this document shall not be amended, modified or curtailed
without your written consent.
