RESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT
Exhibit
10.10
In exchange for the mutual promises and consideration set forth
below, this Restrictive Covenant and Confidentiality Agreement
(“Agreement”) is entered into by and between the
Federal Home Loan Mortgage Corporation (“Xxxxxxx Mac”
or “Company”) and
(“Employee”), effective as of this day of
, 200 .
I. Definitions
The following terms shall have the meanings indicated when used
in this Agreement.
A. Competitor: The following entities, and
their respective parents, successors, subsidiaries, and
affiliates are competitors: (i) Xxxxxx Mae (ii) all
Federal Home Loan Banks (including the Office of Finance); and
(iii) such other entities to which Employee and the
Company may agree in writing from time-to-time.
B. Confidential Information: Information or
materials in written, oral, magnetic, digital, computer,
photographic, optical, electronic, or other form, whether now
existing or developed or created during the period of
Employee’s employment with Xxxxxxx Mac, that constitutes
trade secrets
and/or
proprietary or confidential information. This information
includes, but is not limited to: (i) all information marked
Proprietary or Confidential; (ii) information concerning
the components, capabilities, and attributes of Xxxxxxx
Mac’s business plans, methods, and strategies;
(iii) information relating to tactics, plans, or strategies
concerning shareholders, investors, pricing, investment,
marketing, sales, trading, funding, hedging, modeling, sales and
risk management; (iv) financial or tax information and
analyses, including but not limited to, information concerning
Xxxxxxx Mac’s capital structure and tax or financial
planning; (v) confidential information about Xxxxxxx
Mac’s customers, borrowers, employees, or others;
(vi) pricing and quoting information, policies, procedures,
and practices; (vii) confidential customer lists;
(viii) proprietary algorithms; (ix) confidential
contract terms; (x) confidential information concerning
Xxxxxxx Mac’s policies, procedures, and practices or the
way in which Xxxxxxx Mac does business; (xi) proprietary or
confidential data bases, including their structure and content;
(xii) proprietary Xxxxxxx Mac business software, including
its design, specifications and documentation;
(xiii) information about Xxxxxxx Mac products, programs,
and services which has not yet been made public;
(xiv) confidential information about Xxxxxxx Mac’s
dealings with third parties, including dealers, customers,
vendors, and regulators;
and/or
(xv) confidential information belonging to third parties to
which Employee received access in connection with
Employee’s employment with Xxxxxxx Mac. Confidential
Information does not include general skills, experience, or
knowledge acquired in connection with Employee’s
employment with Xxxxxxx Mac that otherwise are generally known
to the public or within the industry or trade in which Xxxxxxx
Mac operates.
II. Non-Competition
Employee recognizes that as a result of Employee’s
employment with Xxxxxxx Mac, Employee has access to and
knowledge of critically sensitive Confidential Information, the
improper disclosure or use of which would result in grave
competitive harm to Xxxxxxx Mac. Therefore, Employee agrees
that during Employee’s employment with Xxxxxxx
Mac, and for the twelve (12) months immediately following
termination of Employee’s employment for any reason, Employee will not consider offers of employment from, seek or accept
employment with, or otherwise directly or indirectly provide
professional services to any Competitor if the Employee will be expected to render duties,
responsibilities, or professional services for the Competitor
that are of the type or nature rendered or performed by
the individual during the past two years of his or
her employment with Xxxxxxx Mac. Employee acknowledges
and agrees that this covenant has unique, substantial and
immeasurable value to Xxxxxxx Mac, that Employee has sufficient
skills to provide a livelihood for Employee while this covenant
remains in force, and that this covenant will not interfere with
Employee’s ability to work consistent with
Employee’s experience, training and education. This
non-competition covenant applies regardless of whether
Employee’s employment is terminated by Employee, by
Xxxxxxx Mac, or by a joint decision.
If Employee is a licensed lawyer, this
non-competition covenant shall be interpreted
in a manner consistent with any rule applicable
to a legal licensed professional in the
jurisdiction(s) of Employee’s licensure or registration that
concerns the Employee's employment as counsel with,
or provisions of legal services to, a Competitor.
III. Non-Solicitation
and Non-Recruitment
During Employee’s employment with Xxxxxxx Mac and for a
period of twelve (12) months after Employee’s
termination date, Employee will not solicit or recruit, attempt
to solicit or recruit or assist another in soliciting or
recruiting any Xxxxxxx Mac managerial employee (including
manager-level, Director-level, or officer-level employee) with
whom Employee worked, or any employee whom Employee directly
or indirectly supervised at Xxxxxxx Mac, to leave the
employee’s employment with Xxxxxxx Mac for purposes of
employment or for the rendering of professional services. This
prohibition against solicitation does not apply if Xxxxxxx Mac
has notified the employee being solicited that
his/her
employment with the Company will be terminated pursuant to a
corporate reorganization or
reduction-in-force.
If Employee is a licensed lawyer, this non-solicitation covenant
shall be interpreted in a manner consistent
with any rule applicable to a licensed
legal professional in the jurisdiction(s) of Employee’s
licensure or registration.
IV. Treatment
of Confidential Information
A. Non-Disclosure. Employee recognizes that
Xxxxxxx Mac is engaged in an extremely competitive business and
that, in the course of performing Employee’s job duties,
Employee will have access to and gain knowledge about
Confidential Information. Employee further recognizes the
importance of carefully protecting this Confidential
Information
in order for Xxxxxxx Mac to compete successfully. Therefore,
Employee agrees that Employee will neither divulge
Confidential Information to any persons, including to other
Xxxxxxx Mac employees who do not have a Xxxxxxx Mac
business-related need to know, nor make use of the Confidential
Information for the Employee’s own benefit or for the
benefit of anyone else other than Xxxxxxx Mac. Employee further
agrees to take all reasonable precautions to prevent the
disclosure of Confidential Information to unauthorized persons
or entities, and to comply with all Company policies,
procedures, and instructions regarding the treatment of such
information.
B. Return of Materials. Employee agrees that
upon termination of Employee’s employment with Xxxxxxx Mac
for any reason whatsoever, Employee will deliver to
Employee’s immediate supervisor all tangible materials
embodying Confidential Information, including, but not limited
to, any documentation, records, listings, notes, files, data,
sketches, memoranda, models, accounts, reference materials,
samples, machine-readable media, computer disks, tapes, and equipment which in any way relate to Confidential Information,
whether developed by Employee or not. Employee further agrees
not to retain any copies of any materials embodying Confidential
Information.
C. Post-Termination Obligations. Employee
agrees that after the termination of Employee’s employment
for any reason, Employee will not use in any way whatsoever,
nor disclose any Confidential Information learned or obtained in
connection with Employee’s employment with Xxxxxxx Mac
without first obtaining the written permission of the Vice President of Human Capital Management of Xxxxxxx Mac. Employee
further agrees that, in order to assure the continued
confidentiality of the Confidential Information, Xxxxxxx Mac may
correspond with Employee’s future employers to advise them
generally of Employee’s exposure to and knowledge of
Confidential Information, and Employee’s obligations and
responsibilities regarding the Confidential Information.
Employee understands and agrees that any such contact may
include a request for assurance and confirmation from such
employer(s) that Employee will not disclose Confidential
Information to such employer(s), nor will such employer(s)
permit any use whatsoever of the Confidential Information. To
enable Xxxxxxx Mac to monitor compliance with the obligations
imposed by this Agreement, Employee further agrees to inform in
writing Xxxxxxx Mac’s Senior Vice President of Human
Capital Management of the identity of Employee’s subsequent
employer(s) and Employee’s prospective job title and
responsibilities prior to beginning employment. Employee agrees
that this notice requirement shall remain in effect for twelve
(12) months following the termination of Employee’s
Xxxxxxx Mac employment.
D. Ability to Enforce Agreement and Assist
Government Investigations. Nothing in this Agreement
prohibits or otherwise restricts you from: (1) making any
disclosure of information required by law; (2) assisting
any regulatory or law enforcement agency or legislative body to
the extent you maintain a legal right to do so notwithstanding
this Agreement; (3) filing, testifying, participating in or
otherwise assisting in a proceeding relating to the alleged
violation of any federal, state, or local law, regulation, or
rule, to the extent you maintain a legal right to do so
notwithstanding this Agreement; or (4) filing, testifying,
participating in or otherwise assisting the Securities and
Exchange Commission or any other proper authority in a
proceeding relating to allegations of fraud.
V. Consideration
Given to Employee
A. Employment. As consideration for agreeing to be bound by the terms,
conditions, and restrictions stated in this Agreement,
Xxxxxxx Mac will employ the Employee in the position
of .
Employee acknowledges that this is adequate consideration for
Employee’s agreement to be bound by the provisions of this Agreement.
B. Twelve-Months Severance. Employee acknowledges that
under Xxxxxxx Mac’s applicable Severance Policy, Employee may be
eligible to receive Severance upon termination of employment.
In the event Employee’s employment is terminated and
the facts and circumstances of the termination qualify Employee for
Severance under the Severance Policy, then Employee shall
receive Severance following
termination for a total of twelve (12) months. The Severance guarantee provided by this
Paragraph V(B) is in place of, and not in addition to,
Severance to which Employee would otherwise be entitled
under any other agreement between Employee and Xxxxxxx Mac.
VI. Reservation
of Rights
Employee agrees that nothing in this Agreement constitutes a
contract or commitment by Xxxxxxx Mac to continue
Employee’s employment in any job position for any period
of time, nor does anything in this Agreement limit in any way
Xxxxxxx Mac’s right to terminate Employee’s
employment at any time for any reason.
VII. Compliance
with the Code of Conduct and Corporate Policies &
Procedures
Employee understands that he/she will be subject to Xxxxxxx
Mac’s Code of Conduct (“Code”) and to Corporate
Policy 3-206,
Investment Limitations Policy (“Policy”) that, among
other things, limit the investment activities of Xxxxxxx Mac
employees. Employee agrees to fully comply with the Code and
the Policy, copies of which are enclosed for Employee’s
review.
Employee further agrees to be bound by, and comply fully with,
his/her
obligations under the Investment Limitations Policy. Employee
agrees to consult with Xxxxxxx Mac’s Chief Compliance
Officer as soon as practical prior to beginning employment about
any investments that Employee or a “covered household
member,” as that term is defined in the Policy, may have
that may be prohibited by the Policy. Employee also agrees to
disclose prior to beginning employment any other matter or
situation that may create a conflict of interest as such term is
defined in the Code.
In addition, prior to beginning employment Employee agrees to
disclose to Xxxxxxx Mac’s Human Resources Division the
terms of any employment, confidentiality or stock grant
agreements to which Employee may currently be subject and that may
affect Employee’s future employment or recruiting
activities. Employee understands that such disclosure is necessary
to enable Xxxxxxx Mac to ensure that
Employee’s employment by Xxxxxxx Mac and conduct as a
Xxxxxxx Mac employee are not inconsistent with
any of the terms of such agreements.
VIII. Absence
of Any Conflict of Interest
Employee represents that Employee does not have any
confidential information, trade secrets or other proprietary
information that Employee obtained as the result of
Employee’s employment with another employer that Employee
will be using in Employee’s position at Xxxxxxx Mac.
Employee also represents that Employee is not subject to any
employment, confidentiality or stock grant agreements, or any
other restrictions or limitations imposed by a prior employer,
which would affect Employee’s ability to perform the
duties and responsibilities for Xxxxxxx Mac in the job position offered, and further represents that
Employee has provided Xxxxxxx Mac with copies of any such
agreements or limitations so that Xxxxxxx Mac can make an
independent judgment that Employee’s employment with
Xxxxxxx Mac is not inconsistent with any of its terms.
IX. Enforcement
A. Employee acknowledges that Employee may be
subject to discipline, up to and including termination of
employment, for Employee’s breach or threat of breach of
any provision of this Agreement.
B. Employee agrees that irreparable injury will
result to Xxxxxxx Mac’s business interests in the event of
breach or threatened breach of this Agreement, the full extent
of Xxxxxxx Mac’s damages will be impossible to ascertain,
and monetary damages will not be an adequate remedy for Xxxxxxx
Mac. Therefore, Employee agrees that in the event of a breach
or threat of breach of any provision(s) of this Agreement,
Xxxxxxx Mac, in addition to any other relief available, shall be
entitled to temporary, preliminary, and permanent equitable
relief to restrain any such breach or threat of breach by
Employee and all persons acting for
and/or in
concert with Employee, without the necessity of posting bond or
security, which Employee expressly waives.
C. Employee agrees that each of Employee’s
obligations specified in this Agreement is a separate and
independent covenant, and that all of Employee’s
obligations set forth herein shall survive any termination, for
any reason, of Employee’s Xxxxxxx Mac employment. To the
extent that any provision of this Agreement is determined by a
court of competent jurisdiction to be unenforceable because it
is overbroad, that provision shall be limited and enforced to
the extent permitted by applicable law. Should any provision of
this Agreement be declared or determined by any court of
competent jurisdiction to be unenforceable or invalid under
applicable law, the validity of the remaining obligations will
not be affected thereby and only the unenforceable or invalid
obligation will be deemed not to be a part of this Agreement.
D. This Agreement is governed by, and will be
construed in accordance with, the laws of the Commonwealth of
Virginia, without regard to its or any other jurisdiction’s
conflict-of-law provisions. Employee agrees that any action
related to or arising out of this Agreement shall be brought
exclusively in the United States District Court for the Eastern
District of Virginia, and Employee hereby irrevocably consents
to personal jurisdiction and venue in such court and to service
of process by United States Mail or express courier service in
any
such action.
E. If any dispute(s) arise(s) between Xxxxxxx Mac and
Employee with respect to any matter which is the subject of
this Agreement, the prevailing party in such dispute(s) shall be
entitled to recover from the other party all of its costs and
expenses, including its reasonable attorneys’ fees.
Employee has been advised to discuss all aspects of this
Agreement with Employee’s private attorney. Employee
acknowledges that Employee has carefully read and understands
the terms and provisions of this Agreement and that they are
reasonable. Employee signs this Agreement voluntarily and
accepts all obligations contained in this Agreement in exchange
for the consideration to be given to Employee as outlined
above, which Employee acknowledges is adequate and
satisfactory, and which Employee further acknowledges Xxxxxxx Mac is not otherwise obligated to provide to
Employee. Neither Xxxxxxx Mac nor its agents, representatives,
Employees, officers or employees have made any representations
to Employee concerning the terms or effects of this Agreement,
other than those contained in this Agreement.
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Xxxxxxx Mac |
