EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 12th
day of July, 1999, by and between Xxxxxxxx X'Xxxxx, residing at 000 Xxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxxx, 00000, ("Executive"), and SLM Holding Corporation, a
corporation organized and existing under the laws of the State of Delaware
("SLM").
WHEREAS, as of the date hereof, the Student Loan Marketing
Association, a federally chartered corporation ("SLMA") and a wholly owned
subsidiary of SLM Holding Corporation, a Delaware corporation ("SLM") has
entered into a Stock Purchase Agreement with Xxxxxx Mae Corporation, a Delaware
corporation ("NMC") whereby SLMA will purchase all of the issued and outstanding
stock of NMC.
WHEREAS, in connection with the Stock Purchase Agreement, SLM
desires to have Executive employed by one of its principal subsidiaries, Xxxxxx
Xxx, Inc. (the "Company"), and Executive desires to be employed by the Company
for a period of time in the future upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained herein, and intending to be legally bound, the parties,
subject to the terms and conditions set forth herein, agree as follows:
1. EMPLOYMENT AND TERM. The Company hereby agrees to employ
Executive and Executive hereby agrees to accept employment with the Company as
Executive Vice President for a period commencing on the date of the closing of
the purchase and sale of the NMC shares provided for in the Stock Purchase
Agreement and continuing through June 30, 2002 unless sooner terminated pursuant
to Section 11 hereof (the "Term"). This Agreement is contingent on the closing
of the Stock Purchase Agreement between SLMA and NMC. In the event the closing
does not occur, this Agreement shall be deemed null and void. During the Term,
Executive will have the titles of Executive Vice President of SLM and President
and Chief Executive Officer of Xxxxxx Mae Corporation. If Executive continues to
be employed after the Term, Executive's status shall be that of an at will
employee, except that Sections 5, 6, 9, 10, 11.3, 23 and 24 of this Agreement
shall remain in effect for so long as Executive is employed by the Company or
thereafter in accordance with the provisions of said Sections.
2. DUTIES. During the Term, Executive shall serve the Company
faithfully and to the best of his ability and shall devote his full time,
attention, skill and efforts to the performance of the duties required by or
appropriate for his position as Executive Vice President. Executive agrees to
assume such duties and responsibilities as may be reasonably assigned to
Executive from time to time by the Board of Directors and the Chief Executive
Officer of SLM.
3. OTHER BUSINESS ACTIVITIES. Executive shall devote substantially
all of his full business time and energies to the business and affairs of the
Company provided, however, that nothing contained in this Paragraph 3 shall be
deemed to prevent or limit his right to: (i) own not more than one percent (1%)
of the securities of a company that is publicly traded on a securities exchange
or over-the-counter market, provided that Executive does not otherwise have any
relationship with such company; (ii) make passive investments in the securities
of any entity not engaged in a competing business with SLM or any of its
affiliates and with respect to which he is not obligated or required to, and
which he does not in fact, devote any substantial efforts which interfere with
his fulfillment of his duties hereunder; (iii) subject to the prior approval of
the Board of Directors of SLM, to serve as a member on the Board of Directors,
Board of Trustees or other similar body of other corporations, trade
associations, professional associations or entities; and (iv) subject to the
prior approval of the President of
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the Company, to serve as a member on the Board of Directors, Board of Trustees
or other similar body of charitable and community organizations or entities
provided that, in any event, Executive may continue to serve as a member on
boards of which he is currently a member, as identified on SCHEDULE 1 hereto.
4. COMPENSATION. The Company shall pay Executive, and Executive
hereby agrees to accept as compensation for all services rendered hereunder, a
salary at the annual rate of $400,000 (the "Base Salary"). The Base Salary shall
be inclusive of all applicable income, Social Security and other taxes and
charges which are required by law to be withheld by the Company or which are
requested to be withheld by the Company or which are requested to be withheld by
Executive, and which shall be withheld and paid in accordance with the Company's
normal payroll practice for its similarly-situated executives from time to time
in effect. The Base Salary will be increased at the discretion of the
Compensation Committee of SLM's Board of Directors effective as of each January
1, during the Term of the Agreement. In addition to the Base Salary, Executive
shall participate in the Company's Management Incentive Plan ("MIP") subject in
all respects to the terms and conditions of the MIP which currently provides for
a bonus to Executive Vice Presidents of up to 300% of Base Salary if specified
individual and corporate performance goals are achieved. For purposes of Fiscal
Year 1999, the individual performance goals and corporate performance goals are
weighted equally in determining the bonus for Executive Vice Presidents.
Further, on the closing date of the Stock Purchase Agreement, the Company shall
pay Executive a signing bonus of Six Hundred Fifteen Thousand Seven Hundred
Dollars ($615,700) less applicable withholding taxes.
5. STOCK OPTION GRANT. (a) On the closing date of the Stock Purchase
Agreement, Executive will receive stock options for a total of 270,000 shares of
common stock (the "Price 1 Stock Options") subject in all respects to the terms
and provisions of the SLM Holding Corporation Management Incentive Plan and the
Company's stock option agreement thereunder. The option price will be $43.3125
per share, the closing price of the stock on May 20, 1999 (the "Price 1 Grant
Date"). Provided that at the time Executive remains employed by the Company,
one-third of the Price 1 Stock Options, rounded to the nearest whole share
(i.e., options exercisable for 90,000 shares), shall first become exercisable on
the first anniversary of the Price 1 Grant Date; an additional one-third of the
Stock Options, rounded to the nearest whole share (i.e., options exercisable for
90,000 shares) shall first become exercisable upon the later of the first
anniversary of the Price 1 Grant Date and SLM's stock price reaching a closing
price of at least $57.14 a share for five days; and the final one-third of the
Stock Options (i.e., options exercisable for 90,000 shares) shall first become
exercisable upon the later of the first anniversary of the Price 1 Grant Date
and SLM's stock price reaching a closing price of at least $71.43 a share for
five days. Notwithstanding the foregoing, all such Stock Options shall
immediately become fully exercisable upon the eighth anniversary of the Price 1
Grant Date, provided that at the time Executive remains employed by the Company.
(b) On the closing date of the Stock Purchase Agreement, Executive
will receive stock options for a total of 60,000 shares of common stock (the
"Price 2 Stock Options") subject in all respects to the terms and provisions of
the SLM Holding Corporation Management Incentive Plan and the Company's stock
option agreement thereunder. The option price will be $41.1875 per share, the
closing price of the stock on May 26, 1999 (the "Price 2 Grant Date"). Provided
that at the time Executive remains employed by the Company, one-third of the
Price 2 Stock Options, rounded to the nearest whole share (i.e., options
exercisable for 20,000 shares), shall first become exercisable on the first
anniversary of the Price 2 Grant Date; an additional one-third of the Stock
Options, rounded to the nearest whole share (i.e., options exercisable for
20,000 shares) shall first become exercisable upon the later of the first
anniversary of the Price 2 Grant Date and SLM's stock price reaching a closing
price of at least $57.14 a share for five days; and the final one-third of the
Stock Options (i.e., options exercisable for 20,000 shares) shall first become
exercisable upon the later of the first anniversary of the Price 2 Grant Date
and SLM's stock price reaching a closing price of at least $71.43 a share for
five days. Notwithstanding the foregoing, all such Stock Options shall
immediately become fully exercisable upon the eighth anniversary of the Price 2
Grant Date, provided that at the time Executive remains employed by the Company.
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6. PERFORMANCE SHARES. On the closing date of the Stock Purchase
Agreement, Executive will receive a grant of 50,000 shares of Performance Stock
pursuant to the MIP (the "First Grant"), subject to all of the terms and
conditions listed below. Further, Executive will receive grants of 50,000 shares
of Performance Stock respectively on each of January 1, 2000 (the "Second
Grant") and January 1, 2001 (the "Third Grant") pursuant to the MIP and subject
to all of the terms and conditions below.
- All of the shares of Performance Stock shall be subject to
forfeiture and shall not be transferable except as provided
pursuant to these terms and conditions, which such terms and
conditions are intended to meet the applicable requirements for
"Qualifying Performance Criteria" listed in Section 10.2 of the
MIP, including subsection (n).
- Provided that at the time Executive remains employed by the
Company, one-third (16,667) of the shares of each grant of the
Performance Stock shall become vested and transferable and cease
to be subject to forfeiture on the date Xxxxxx Xxx Corporation
has originated $250 million aggregate principal amount of FFELP
loans (including PLUS) during the period beginning May 20, 1999
(the "Effective Date"); an additional one-third (16,667) of the
shares of each grant of Performance Stock shall become vested and
transferable and cease to be subject to forfeiture on the date
Xxxxxx Xxx Corporation has originated $500 million aggregate
principal amount of FFELP loans (including PLUS loans), on a
cumulative basis, during the period beginning on the Effective
Date; and an additional one-third (16,666) of the shares of each
grant of Performance Stock shall become vested and transferable
and cease to be subject to forfeiture on the date Xxxxxx Xxx
Corporation originates on a cumulative basis $750 million
aggregate principal amount of FFELP loans (including PLUS loans)
during the period beginning on the Effective Date. If on the date
of the Second Grant or Third Grant, any of the origination
targets referred to above have already been achieved, the
Performance Stock granted on such date shall become immediately
vested and transferable and no longer subject to forfeiture as of
such date to the same extent the Performance Stock issued in the
First Grant has vested.
- Unless previously vested pursuant to the foregoing provisions,
all of the Performance Stock then granted shall become vested
and transferable and cease to be subject to forfeiture upon a
"Change of Control" as that term is defined in Section 12.2 of
the MIP. In addition to the foregoing acceleration of vesting,
Executive shall receive a payment in an amount equal to the
number of shares of the Second Grant and Third Grant not yet
granted times the closing price of SLM common stock
immediately preceding the Change of Control.
- Unless previously vested pursuant to the foregoing provisions,
all of the Performance Stock then granted shall become vested and
transferable and cease to be subject to forfeiture in the event
of death, disability or involuntary termination other than for
gross misconduct as defined in Section 11.3. In addition to the
foregoing acceleration of vesting, Executive shall receive a
payment in an amount equal to the number of shares of the Second
Grant and Third Grant not yet granted times the closing price of
SLM common stock immediately preceding the event of death,
disability, or involuntary termination.
- Unless previously vested pursuant to the foregoing provisions,
the Performance Stock shall be forfeited immediately upon
Executive's voluntary termination of this Agreement or upon
Executive's employment being terminated for gross misconduct as
defined in Section 11.3.
7. PENSION BENEFITS. Executive will be entitled to participate in
the SLM Employees' Pension Plan and Supplemental Pension Plan (collectively the
"SLM Pension Plans") in accordance with the terms of such SLM Pension Plans as
they may be amended from time to time. Executive shall be credited with service
credit for purposes of vesting equal to his period of service with Xxxxxx Xxx
Corporation and its predecessors.
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Executive will also be credited with employer contributions based on years of
service for the proposed cash balance pension plan; Executive will not receive
credit for past service with Xxxxxx Mae Corporation and its predecessors for the
purpose of benefit accrual prior to the closing under the current Xxxxxx Xxx
defined benefit pension plan.
8. BENEFITS.
(a) VACATION. Executive shall be entitled to vacation equal to six
(6) weeks in each twelve month period commencing on the date of this Agreement
and ending on the first anniversary thereof and each twelve (12) month period
thereafter during the Employment Term.
(b) OTHER BENEFITS. Executive shall be entitled to receive or
participate in benefit and welfare plans offered by the Company to its executive
officers generally, in accordance with the plan terms, and subject to such
modifications and amendments to such plans as may be deemed appropriate by the
Company or as may be provided in this Agreement.
9. NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
(a) Executive and SLM acknowledge that Executive will, in the course
of his employment, come into possession of confidential, proprietary business
and technical information, and trade secrets of the Company and its Affiliates
(the "Proprietary Information"). Proprietary Information includes, but is not
limited to, the following:
- BUSINESS PROCEDURES. All information concerning or relating to
the way the Company and its Affiliates conduct their business,
which is not generally known to the public or within the industry
or trade in which the Company or its Affiliates compete (such as
Company contracts, internal business procedures, controls, plans,
licensing techniques and practices, supplier, subcontractor and
prime contractor names and contacts and other vendor information,
computer system passwords and other computer security controls,
financial information, distributor information, and employee
data) and the physical embodiments of such information (such as
check lists, samples, service and operational manuals, contracts,
proposals, printouts, correspondence, forms, listings, ledgers,
financial statements, financial reports, financial and
operational analyses, financial and operational studies,
management reports of every kind, databases, employment or
personnel records, and any other written or machine-readable
expression of such information as are filed in any tangible
media).
- MARKETING PLANS AND CUSTOMER LISTS. All information not generally
known to the public or within the industry or trade in which the
Company or its Affiliates compete pertaining to the Company's and
its Affiliates' marketing plans and strategies; forecasts and
projections; marketing practices, procedures and policies; goals
and objectives; quoting practices, procedures and policies; and
customer data including the customer list, contracts,
representatives, requirements and needs, specifications, data
provided by or about prospective customers, and the physical
embodiments of such information.
- BUSINESS VENTURES: All information not generally known to the
public or within the industry or trade in which the Company or
its Affiliates operate concerning new product development,
negotiations for new business ventures, future business plans,
and similar information and the physical embodiments of such
information.
- SOFTWARE. All information relating to the Company's and its
Affiliates' software or hardware in operation or various stages
of research and development, which are not generally known to the
pubic or within the industry or trade in which the Company or its
Affiliates compete and the
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physical embodiments of such information.
- LITIGATION. Information which is not a public record and is not
generally known to the public or within the industry or trade in
which the Company or its Affiliates compete regarding litigation
and potential litigation matters and the physical embodiments of
such information.
- INFORMATION NOT GENERALLY KNOWN. Any information which (a) is not
generally known to the public or within the industry or trade in
which the Company or its Affiliates compete, (b) gives the
Company or its Affiliates a significant advantage over its or
their competitors, or (c) has significant economic value or
potentially significant economic value to the Company or its
Affiliates, including the physical embodiments of such
information.
(b) Proprietary Information does not include (i) information known
to Executive prior to commencement of employment and (ii) information that is
generally known in the industry or trade in which the Company and its Affiliates
compete.
(c) Executive acknowledges that the Proprietary Information is a
valuable and unique asset of the Company and its Affiliates. Executive agrees
that he will not, at any time during his employment or after the termination of
his employment with the Company, without the prior written consent of the
Company or its Affiliates, as applicable, either directly or indirectly divulge
any Proprietary Information for his own benefit or for any purpose other than
the exclusive benefit of the Company and/or its Affiliates.
10. AGREEMENT NOT TO COMPETE.
(a) Executive agrees that he shall not compete with the Company or
its Affiliates for a period of two (2) years after the termination of
Executive's employment with the Company for any reason (the "Restricted
Period"). For purposes of this Section 10, "compete" shall mean working or
serving as a director, officer, employee, consultant, agent, representative, or
in any other capacity, with or without compensation, in the student loan
business or on behalf of one or more entities engaged in the student loan
business. For purposes of this Agreement, "student loan business" shall mean the
business of originating, funding, guaranteeing, buying, selling, servicing or
securitizing student loans in the United States. Executive expressly agrees that
(i) the markets served by the Company and its Affiliates are national and are
not dependent on the geographic location of the executive personnel or the
businesses by which they are employed and (ii) the restrictions set forth in
this Section 10 have been designed to be reasonable and are no greater than are
required for the protection of the Company and its Affiliates.
(b) For purposes of this Agreement, the term "Affiliate" shall be
deemed to refer to SLM, and any entity (whether or not existing on the date
hereof) controlling, controlled by or under common control with the Company.
11. TERMINATION. Executive's employment hereunder may be terminated
during the Term upon the occurrence of any one of the events described in this
Section 11. Upon termination, Executive shall be entitled only to such
compensation and benefits as described in this Section 11.
11.1. TERMINATION FOR DISABILITY.
(a) To the extent Executive becomes physically or mentally disabled
to such an extent that he is not able to perform the duties provided for
pursuant to Section 2 of this Agreement, with or without a reasonable
accommodation, for a period of more than 180 days, either consecutively or
within any 365-day period ("Disability"), the Company may terminate Executive's
employment hereunder.
(b) If the Company terminates Executive's employment during the Term
due to a Disability,
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Executive will be entitled to receive whatever benefits are available to him
under any disability benefit plan(s) applicable to him at the time of such
termination, all accrued but unpaid (as of the effective date of such
termination) Base Salary and benefits, and the payments set forth in Section
11.3. In addition, the Stock Option and Performance Stock shall immediately
become fully exercisable and vested and Executive will have one year from the
date of Termination under this Section 11.1 to exercise any vested stock
options.
(c) The determination of whether a Disability has occurred will be
made by a licensed physician selected by Executive and shall be based upon a
full physical examination and good faith opinion by such physician. In the event
that the SLM Board of Directors disagrees with such physician's conclusion, the
SLM Board of Directors may require that Executive submit to a full physical
examination by another licensed physician selected by the SLM Board of Directors
and reasonably acceptable to Executive. If the two opinions shall be
inconsistent, a third opinion shall be obtained after a full physical
examination by a third licensed physician selected by the first two physicians.
The third opinion shall be conclusive.
11.2. TERMINATION BY DEATH. If Executive dies during the Term, the
Company shall pay to Executive's executors, legal representatives or
administrators the payments set forth in Section 11.3 and all accrued but unpaid
(as of the effective date of the termination) Base Salary and benefits. Further,
if Executive dies during the Term, the Stock Options and Performance Stock shall
immediately become fully exercisable and vested and, Executive's executors shall
have one year from the date of Termination under this Section 11.2 to exercise
any vested stock options.
Except as specifically set forth in this Section 11.2 or under applicable laws,
the Company shall have no liability or obligation hereunder to Executive's
executors, legal representatives, administrators, heirs or assigns or any other
person claiming under or through him by reason of Executive's death, except that
Executive's executors, legal representatives or administrators will be entitled
to receive any death benefit that may be payable to them as beneficiaries under
any insurance policy or other benefits plans in which Executive participates as
an employee of the Company and to exercise any rights afforded them under any
benefit plan then in effect.
11.3. INVOLUNTARY TERMINATION; TERMINATION PAYMENTS. The Company may
terminate Executive's employment hereunder at any time upon written notice to
Executive. In the event of an involuntary termination of employment, other than
for gross misconduct, pursuant to the first sentence of this Section 11.3, or in
the event Executive's employment is terminated on account of Disability under
Section 11.1 or death under Section 11.2, Executive (or Executive's executors
under Section 11.2) shall receive all accrued but unpaid Base Salary and
benefits through the effective date of such termination and (i) $4.0 million, if
the date of such termination of employment occurs prior to July 1, 2000; (ii)
$3.0 million, if the date of such termination of employment occurs on or after
July 1, 2000 and prior to July 1, 2001, and (iii) $2.0 million, if the date of
such termination of employment occurs on or after July 1, 2001 and prior to June
30, 2002. Further, in the event of an involuntary termination of employment
other than for gross misconduct, the Stock Options and Performance Stock shall
be immediately vested and exercisable.
For purposes of this Agreement, "gross misconduct" is defined as (i)
the willful engaging by Executive in misconduct which is materially injurious to
the Company, monetarily or otherwise, (ii) the willful violation by Executive of
any material provision of this Agreement, (iii) any material violation of
Section 9 of this Agreement, or (iv) Executive's conviction of a felony.
11.4 CHANGE IN CONTROL.
(a) In the event that Executive's employment with the
Company terminates for any reason within eighteen months after a Change in
Control (as defined in Section 11.4(c) below), Executive shall be entitled to
receive the payments set forth in Section 11.3.
(b) In the event of a Change in Control as defined in
Section 11.4(c) below, all of the Stock Options
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and Performance Shares shall be immediately vested and exercisable.
(c) For purposes of this Agreement, "Change in Control" shall mean
an occurrence of any of the following events after the closing date:
(i) an acquisition (other than directly from SLM) of any voting
securities of SLM (the "Voting Securities") by any "person
or group" (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934) other than
an employee benefit plan of SLM, immediately after which
such Person has "Beneficial Ownership" (within the meaning
of Rule 13d-3 under the Exchange Act) of more than fifty
percent (50%) of the combined voting power of SLM's then
outstanding Voting Securities or;
(ii) approval by the stockholders of (1) a merger, consolidation
or reorganization involving SLM, unless the company
resulting from such merger, consolidation or reorganization
(the "Surviving Corporation") shall adopt or assume this
Agreement and the Stock Options and either (A) the
stockholders of SLM immediately before such merger,
consolidation or reorganization own, directly or indirectly
immediately following such merger, consolidation or
reorganization, at least seventy-five percent (75%) of the
combined voting power of the Surviving Corporation in
substantially the same proportion as their ownership
immediately before such merger, consolidation or
reorganization, or (B) at least a majority of the members of
the Board of Directors of the Surviving Corporation were
directors of SLM immediately prior to the execution of the
agreement providing for such merger, consolidation or
reorganization, or (2) a complete liquidation or dissolution
of SLM.
(d) Notwithstanding any provision to the contrary in this Agreement,
if any part of the payments provided for under or pursuant to this Agreement
(the "Agreement Payments"), together with all payments in the nature of
compensation to or for the benefit of Executive under any other arrangement,
would if paid constitute a "parachute payment" under Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"), then the amount payable
to Executive under or pursuant to this Agreement in such circumstances shall be
subject to the following sentence of this Section 11.4(d). If (i) the value of
the Agreement Payments plus the value of all other payments to or for the
benefit of Executive that constitute "parachute payments," minus the amount of
any excise taxes payable under Code Section 4999 with respect to such payments
and the amount of any similar or comparable taxes payable only in connection
with a Change in Control, is greater than (ii) the greatest value of payments in
the nature of compensation contingent upon a change in control that could be
paid at such time to or for the benefit of Executive and not constitute a
"parachute payment" (the "Alternative Payment"), then the Agreement Payments
shall be payable to Executive; otherwise, only the Alternative Payment shall be
payable to Executive.
11.5 OTHER TERMINATION OF EMPLOYMENT. In the event that Executive's
employment with the Company terminates on account of a voluntary termination of
employment or in the event Executive's employment is terminated by the Company
for gross misconduct as defined in Section 11.3, Executive shall receive only
all accrued but unpaid (as of the effective date of such termination) Base
Salary, bonus and benefits.
12. OTHER AGREEMENTS. Executive represents and warrants to the
Company that:
(a) There are no restrictions, agreements or understandings
whatsoever to which Executive is a party or by which he is bound that would
prevent or make unlawful Executive's execution of this Agreement or Executive's
employment hereunder, or which is or would be inconsistent or in conflict with
this Agreement or Executive's employment hereunder, or would prevent, limit or
impair in any way the performance by Executive
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of his obligations hereunder.
(b) Executive shall disclose the existence and terms of the
restrictive covenants set forth in this Agreement to any employer by whom
Executive may be employed during the Term (which employment is not hereby
authorized) or during the Restricted Period as defined in the Agreement Not to
Compete by and between Executive and the Company set forth in Section 10 hereof.
13. SURVIVAL OF PROVISIONS. The provisions of this Agreement set
forth in Sections 9, 10, 23 and 24 hereof shall survive the termination of
Executive's employment hereunder and the payment of all amounts payable pursuant
to this Agreement incident to any such termination of employment.
14. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon SLM and the Company and its and their successors
or permitted assigns and Executive and his executors, administrators or heirs.
Executive may not assign any obligations or responsibilities under this
Agreement or any interest herein, by operation of law or otherwise, without the
prior written consent of the Company. The SLM Board of Directors may assign any
or all of its responsibilities hereunder to any committee of the SLM Board, in
which case references to the SLM Board of Directors shall be deemed to refer to
such committee.
15. EXECUTIVE BENEFITS. This Agreement shall not be construed to be
in lieu of or to the exclusion of any other rights, benefits and privileges to
which Executive may be entitled as an executive of the Company under any
retirement, pension, profit-sharing, insurance, hospitalization or other plans
or benefits which may now be in effect or which may hereafter be adopted.
16. NOTICES. All notices required to be given to any of the parties
of this Agreement shall be in writing and shall be deemed to have been
sufficiently given, subject to the further provisions of this Section 16, for
all purposes when presented personally to such party, or sent by facsimile
transmission, any national overnight delivery service, or certified or
registered mail, to such party at its address set forth below:
(a) If to Executive:
Xxxxxxxx X'Xxxxx
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
(b) If to SLM or the Company:
SLM Holding Corporation
Xxxxxx Mae, Inc.
00000 Xxxxxx Xxx Xxxxx
Xxxxxx, XX 00000
ATTENTION: General Counsel
Fax No. (000) 000-0000
Such notice shall be deemed to be received when delivered if delivered
personally, upon electronic or other confirmation of receipt if delivered by
facsimile transmission, the next business day after the date sent if sent by a
national overnight delivery service, or three (3) business days after the date
mailed if mailed by certified or registered mail. Any notice of any change in
such address shall also be given in the manner set forth above. Whenever the
giving of notice is required, the giving of such notice may only be waived in
writing by the party entitled to receive such notice.
17. ENTIRE AGREEMENT; AMENDMENTS. This Agreement and any other
documents, instruments or other writings delivered or to be delivered in
connection with this Agreement as specified herein constitute the entire
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agreement among the parties with respect to the subject matter of this Agreement
and supersede all prior and contemporaneous agreements, understandings, and
negotiations, whether written or oral, with respect to the terms of Executive's
employment by the Company. This Agreement may be amended or modified only by a
written instrument signed by all parties hereto.
18. WAIVER. The waiver of the breach of any term or provision of
this Agreement shall not operate as or be construed to be a waiver of any other
or subsequent breach of this Agreement.
19. GOVERNING LAW. This Agreement shall be governed and construed as
to its validity, interpretation and effect by the laws of the Commonwealth of
Virginia without reference to the provisions thereof regarding conflicts of
laws.
20. SEVERABILITY. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or such provisions, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
21. SECTION HEADINGS. The section headings in this
Agreement are for convenience only; they form no part of this Agreement and
shall not affect its interpretation.
22. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute one and the same
instrument.
23. SPECIFIC ENFORCEMENT; EXTENSION OF PERIOD. Executive
acknowledges that the restrictions contained in Sections 9 and 10 hereof are
reasonable and necessary to protect the legitimate interests of the Company and
its Affiliates and that SLM would not have entered into this Agreement in the
absence of such restrictions. Executive also acknowledges that any breach by him
of Sections 9 or 10 hereof will cause continuing and irreparable injury to the
Company and SLM for which monetary damages would not be an adequate remedy.
Executive shall not, in any action or proceeding by the Company or SLM to
enforce Sections 9 or 10 of this Agreement, assert the claim or defense that an
adequate remedy at law exists. In the event of such breach by Executive, the
Company and SLM shall have the right to enforce the provisions of Sections 9 and
10 of this Agreement by seeking injunctive or other relief in any court, and
this Agreement shall not in any way limit remedies at law or in equity otherwise
available to the Company and SLM. In the event that the provisions of Sections 9
or 10 hereof should ever be adjudicated to exceed the time, geographic, or other
limitations permitted by applicable law in any applicable jurisdiction, then
such provisions shall be deemed reformed in such jurisdiction to the maximum
time, geographic, or other limitations permitted by applicable law.
24. ARBITRATION. Any dispute or claim other than those referred to
in Section 23, arising out of or relating to this Agreement or otherwise
relating to the employment relationship between Executive and SLM or the
Company, shall be submitted to Arbitration, in Fairfax County, Virginia, before
the American Arbitration Association in accordance with the rules of the
American Arbitration Association as the exclusive remedy for such claim or
dispute. Executive and the Company agree that such arbitration will be
confidential and no details, descriptions, settlements or other facts concerning
such arbitration shall be disclosed or released to any third party without the
specific written consent of the other party, unless required by law or court
order or in connection with enforcement of any decision in such arbitration. Any
damages awarded in such arbitration shall be limited to the contract measure of
damages, and shall not include punitive damages. Judgment on the arbitration
award can be entered in any court of competent jurisdiction.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed the day and year first written above.
SLM Holding Corporation
By: /s/ J. XXXX XXXXX /s/ XXXXXXXX X'XXXXX
---------------------------------- --------------------------
J. Xxxx Xxxxx Xxxxxxxx X'Xxxxx
Title: EXECUTIVE VICE PRESIDENT
43
