RETAINER AGREEMENT
EXHIBIT 10.30
THIS RETAINER AGREEMENT (the “Agreement”) is entered into by and between Xxxxxxx X.
Xxxxxxxxxxx (“Xxxxxxxxxxx”) and SLM Corporation, a corporation organized and existing under the
laws of the State of Delaware (the “Company”).
WHEREAS, on January 7, 2008 (the “Commencement Date”), the Board of Directors of the Company
(the “Board”) appointed Xxxxxxxxxxx as a director and to serve as non-executive Chairman of the
Board;
WHEREAS, the Company and Xxxxxxxxxxx wish to enter into an agreement documenting the terms of
Xxxxxxxxxxx’x compensation for service as Chairman;
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. Term. The term of this Agreement shall be the period beginning on the Commencement Date,
and ending on the earlier of the cessation of Xxxxxxxxxxx’x service as Chairman of the Board or the
third anniversary of the Commencement Date (the “Term”).
2. Duties. During the Term, Xxxxxxxxxxx shall serve as non-executive Chairman of the Board.
Xxxxxxxxxxx agrees to assume such duties and responsibilities of the Chairman as set forth in the
Company’s by-laws and governance guidelines and as may be reasonably assigned to Xxxxxxxxxxx from
time to time by the Board in a manner consistent with applicable legal and corporate governance
standards, which responsibilities shall include presiding at meetings of the Board, serving as
liaison between management and the Board and participating in communications with the Company’s
significant shareholders.
3. Commitment. During and throughout the Term, Xxxxxxxxxxx will use good faith efforts to
discharge the duties and responsibilities assigned to Xxxxxxxxxxx hereunder faithfully and to the
best of his ability and will devote such time, attention, skill and efforts to the business and
affairs of the Company as he determines in good faith is necessary. The Company and Xxxxxxxxxxx
currently anticipate that Xxxxxxxxxxx’x duties to the Company will occupy approximately 20% of
Xxxxxxxxxxx’x regular business time.
4. Other Business Activities. It is understood that Xxxxxxxxxxx will be a director and not an
employee of the Company. For the avoidance of doubt, during the Term, Xxxxxxxxxxx will be
permitted to render services to other persons, so long as such activities do not significantly
interfere with Xxxxxxxxxxx’x performance of his responsibilities under this Agreement.
Notwithstanding anything herein to the contrary, Xxxxxxxxxxx’x service as Chairman shall not limit
or affect his ability to engage in those activities in which he was engaged prior to his
appointment as Chairman, including serving as a director of IKON Office Solutions, Inc., TradeCard
Inc., and Xxxxx, Inc., and serving on the Board of Trustees of Monmouth Medical Center, and
activities in connection with (i) serving on corporate, civic or charitable boards or
1
committees provided that such service shall not result in a conflict of interest or violate
applicable law, (ii) delivering lectures, fulfilling speaking engagements or teaching at
educational institutions and (iii) managing personal investments; provided, however, that any such
activities in clauses (i) – (iii) do not significantly interfere with Xxxxxxxxxxx’x performance of
his responsibilities pursuant to this Agreement. In recognition of the time to be devoted to
service as Chairman, Xxxxxxxxxxx agrees not to serve on any additional boards of directors without
prior notice to and approval by the Nominations and Governance Committee of the Board (which
approval will not be unreasonably withheld).
5. Annual Cash Retainer. During the Term, Xxxxxxxxxxx shall be entitled to receive an annual
director’s fee of $600,000 for services as Chairman, which shall be paid quarterly, in advance in
cash in accordance with the Company’s normal practice for non-employee directors in effect from
time to time (the “Annual Cash Retainer”).
6. Equity Compensation.
6.1 Grant. On the Commencement Date, Xxxxxxxxxxx was granted a stock option award covering
five hundred thousand (500,000) shares of the Company’s common stock (the “Stock Option”) and a
stock award covering two hundred thousand (200,000) shares of the Company’s common stock (the
“Stock Award”), in each case, pursuant to the terms of the Company’s Directors Stock Plan (the
“Plan”).
6.2 Option Exercise Price; Net Exercise of Option. The Stock Option has a per share exercise
price equal to $17.83, which price was the per share closing price of the Company’s common stock on
the Commencement Date. Xxxxxxxxxxx shall be entitled to pay the exercise price in cash to the
extent sufficient shares are available for issuance under all awards then outstanding under the
Plan or in any event by the Company withholding from the shares of common stock otherwise issuable
to the optionholder upon the exercise of the Stock Option (or portion thereof) the whole number of
shares (rounded up) having a fair market value (as determined pursuant to the Plan) on the date of
exercise sufficient to satisfy the exercise price. If the withheld shares are more than sufficient
to satisfy the exercise price the Company shall make such arrangement as it determines appropriate
to credit such amount for the optionholder’s benefit.
6.3 Vesting Schedule. The Stock Option and the Stock Award were not vested and the Stock
Option was not exercisable at the time of grant. Subject to Xxxxxxxxxxx’x continuous service as a
member of the Board through each applicable vesting date, the Stock Option shall vest and become
exercisable and the Stock Award shall vest and the shares subject thereto shall become free of any
restrictions or limitations in three equal installments on the first, second and third
anniversaries of the Commencement Date.
6.4 Stock Option Expiration. Subject to earlier termination pursuant to Section 8, the Stock
Option will expire and cease to be exercisable on January 6, 2018 (the “Option Expiration Date”).
6.5 Anti-Dilution Adjustments. If the outstanding securities of the class subject to the
Stock Option and Stock Award are increased, decreased or exchanged for or
2
converted into cash, property or a different number or kind of shares or securities, or if
cash, property or shares or securities are distributed in respect of such outstanding securities,
in either case as a result of a merger, consolidation, reorganization, reclassification, dividend
(other than a regular, quarterly cash dividend) or other distribution, stock split, reverse stock
split, spin-off or the like, or if substantially all of the property and assets of the Company are
sold, then the number of shares subject to the Stock Option and Stock Award and the exercise price
of the Stock Option shall be appropriately adjusted by the Compensation Committee of the Board.
6.6 Other Terms and Conditions. The Stock Option and the Stock Award shall be subject to the
terms and conditions set forth in this Agreement. To the extent not addressed or provided
otherwise in this Agreement, the Stock Option and the Stock Award shall also be subject to the
terms and conditions of the Plan (including the administrative terms).
7. Other Benefits.
7.1 Expenses and Business Support. The Company agrees to reimburse Xxxxxxxxxxx for all
reasonable business expenses incurred by Xxxxxxxxxxx in performing his duties pursuant to this
Agreement, in accordance with the Company’s generally applicable expense reimbursement policies.
When Xxxxxxxxxxx is performing services as Chairman of or on behalf of the Company, the Company
will provide Xxxxxxxxxxx with appropriate travel arrangements, including use of the corporate jet.
7.2 Office Support. During the Term, Xxxxxxxxxxx shall be provided with an office at the
Company’s primary executive offices of a size and with furnishings and other appointments as
provided to the most senior executives of the Company, and other administrative support at the
Company’s headquarters commensurate with Xxxxxxxxxxx’x position.
7.3 Other Support. During the Term, Xxxxxxxxxxx shall be provided (i) secretarial assistance
at a location convenient to him, and (ii) payment for one-fifth (or such greater amount as approved
from time to time by the Board of Directors) of the cost of a car and driver reasonably acceptable
to him; provided that the cost of the services described in this paragraph shall be reasonably
consistent with the estimates previously provided to the Company.
7.4 Indemnification. The Company shall indemnify, defend and hold harmless Xxxxxxxxxxx from
and against any expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative,
arising from or out of or relating to Xxxxxxxxxxx’x performance, service or status as a director
and/or Chairman of the Company or in any other capacity, including serving at the request of the
Company Corporation as a director or officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise to the maximum extent
permitted under applicable law. In furtherance of the foregoing, the Company shall enter into its
standard form of Director’s Indemnification Agreement with Xxxxxxxxxxx.
8. Effect of Service Event.
3
8.1 If a Service Event occurs during the Term and notwithstanding anything herein to the
contrary, Xxxxxxxxxxx’x right to the Annual Cash Retainer and other support referred to in Section
7.3 shall vest and shall be paid and/or provided for the remainder of the scheduled Term (as if the
Service Event had not occurred) in accordance with this Agreement notwithstanding any cessation of
Xxxxxxxxxxx’x service as Chairman of the Board.
8.2 Notwithstanding anything herein to the contrary, the Stock Option shall become immediately
fully vested and exercisable and the Stock Award shall become immediately fully vested and the
shares subject thereto free of any restrictions (a) upon Xxxxxxxxxxx’x death or Disability, or (b)
upon a Service Event, provided that after any such acceleration upon a Service Event Xxxxxxxxxxx
shall hold the net number of shares received upon any exercise of the Stock Option and vesting of
the Stock Award (net of any shares disposed of to pay estimated taxes and to pay the Stock Option
exercise price) until the earlier of (i) the date his service as a director ceases and (ii) the
date the Stock Option and Stock Award would have become vested and exercisable if the Service Event
had not occurred.
8.3 Upon the cessation of Xxxxxxxxxxx’x service as a member of the Board for Cause or for any
reason other than death, Disability or upon or following a Service Event, any then unvested portion
of the Stock Option and Stock Award (after taking into account any vesting acceleration pursuant to
Section 8.2) shall immediately expire, cease to be exercisable and be forfeited back to the
Company; provided, however, that the then vested portion of the Stock Option shall remain
outstanding and exercisable until the Option Expiration Date. In addition, the Stock Option shall
immediately expire and cease to be exercisable, and any then unvested portion of the Stock Award
shall immediately be forfeited, upon the removal of Xxxxxxxxxxx from the position of Chairman of
the Board for Cause.
8.4 Definitions.
(a) For purposes of this Agreement, “Service Event” shall mean:
(i) the failure of the Company’s stockholders to reelect Xxxxxxxxxxx as a
member of the Board (other than as a result of conduct that constitutes Cause (as
defined below));
(ii) removal of Xxxxxxxxxxx from the position of Chairman of the Board without
Cause
(iii) a Change in Control; or
(iv) the failure of any successor to assume this Agreement pursuant to Section
13 hereof.
(b) For purposes of this Agreement, “Cause” shall mean:
(i) the continued failure of Xxxxxxxxxxx to perform substantially the duties of
Chairman (other than any such failure resulting from incapacity due to physical or
mental illness), after a written demand for substantial performance is delivered to
Xxxxxxxxxxx by the Board which specifically identifies the manner in
4
which the Board believes that Xxxxxxxxxxx has not substantially performed
Xxxxxxxxxxx’x duties;
(ii) the willful engaging by Xxxxxxxxxxx in illegal conduct or gross misconduct
which is materially and demonstrably injurious to the Company; or
(iii) conviction of a felony or guilty or nolo contendere plea by Xxxxxxxxxxx
with respect thereto.
For purposes of this Section 8.4(b), no act or failure to act, on the part of
Xxxxxxxxxxx, shall be considered “willful” unless it is done, or omitted to be
done, by Xxxxxxxxxxx in bad faith or without reasonable belief that Xxxxxxxxxxx’x
action or omission was in the best interests of the Company. For purposes of this
Agreement, any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be done, by
Xxxxxxxxxxx in good faith and in the best interests of the Company. The removal of
Xxxxxxxxxxx from the position of Chairman of the Board shall not be deemed to be
for Cause unless and until there shall have been delivered to Xxxxxxxxxxx a copy of
a resolution duly adopted by the affirmative vote of not less than two-thirds of
the entire membership of the Board (not including Xxxxxxxxxxx) at a meeting of the
Board called and held for such purpose (after reasonable notice is provided to
Xxxxxxxxxxx and Xxxxxxxxxxx is given an opportunity, together with counsel, to be
heard before the Board), finding that, in the good faith opinion of the Board,
Xxxxxxxxxxx has engaged in the conduct described above, and specifying the
particulars thereof in detail.
(c) For purposes of this Agreement, “Change in Control” shall mean an occurrence of one or
more of the following events:
(i) an acquisition (other than directly from the Company) of any voting
securities of the Company (the “Voting Securities”) by any “person or group” (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) other than an
employee benefit plan of the Company, immediately after which such person or group
has “beneficial ownership’’ (within the meaning of Rule ,136-3 under the Exchange
Act) of more than fifty percent (50%) of the combined voting power of the Company’s
then outstanding Voting Securities;
(ii) approval by the stockholders of (i) a merger, consolidation or
reorganization involving the Company, unless the Company resulting from such merger,
consolidation or reorganization (the “Surviving Corporation”) shall adopt or assume
the Plan and this Option and either (A) the stockholders of the Company 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
5
(B) at least a majority of the members of the Board of Directors of the
Surviving Corporation were directors of the Company immediately prior to the
execution of the agreement providing for such merger, consolidation or
reorganization, or (ii) a complete liquidation or dissolution of the Company; or
(iii) such other events as the Committee or the Board from time to time may
specify.
(d) For purposes of this Agreement, “Disability” shall mean: the absence of Xxxxxxxxxxx from
Chairman’s duties with the Company for 180 consecutive days as a result of incapacity due to mental
or physical illness which is determined to be total and permanent by a physician selected by the
Company or its insurers and reasonably acceptable to Xxxxxxxxxxx or Xxxxxxxxxxx’x legal
representative.
9. Certain Additional Payments by the Company.
9.1 Anything in this Agreement to the contrary notwithstanding and except as set forth below,
in the event that the Company determines in good faith that any payment or distribution by the
Company to or for the benefit of Xxxxxxxxxxx (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but determined without regard
to any additional payments required under this Section 9) (a “Payment”) would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code) or
any interest or penalties are incurred by Xxxxxxxxxxx with respect to such excise tax (such excise
tax, together with any such interest and penalties, are hereinafter collectively referred to as the
“Excise Tax”), then Xxxxxxxxxxx shall be entitled to receive an additional payment (a “Gross-Up
Payment”) in an amount such that after payment by Xxxxxxxxxxx of all taxes (including any interest
or penalties imposed with respect to such taxes), including, without limitation, any income taxes
(and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the
Gross-Up Payment, Xxxxxxxxxxx retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 9.1, if it
shall be determined that Xxxxxxxxxxx is entitled to a Gross-Up Payment, but that the Payments do
not exceed 110% of the greatest amount (the “Reduced Amount”) that could be paid to Xxxxxxxxxxx
such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment
shall be made to Xxxxxxxxxxx and the Payments, in the aggregate, shall be reduced to the Reduced
Amount by reducing the Annual Cash Retainer (with the last installments being reduced first).
9.2 Subject to the provisions of Section 9.3, all determinations required to be made under
this Section 9, including whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be
made by the Company’s independent auditors or such other registered public accounting firm selected
by the Company and acceptable to Xxxxxxxxxxx (such acceptance not to be unreasonably withheld) (any
such firm, the “Accounting Firm”) which shall provide detailed supporting calculations both to the
Company and Xxxxxxxxxxx within 15 business days of the receipt of notice from the Company that
there has been a Payment, or such earlier time as is requested by the Company. All fees and
expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as
determined pursuant to this Section 9, shall be paid
6
by the Company to Xxxxxxxxxxx within five days of the later of (a) the due date for the
payment of any Excise Tax, and (b) the receipt of the Accounting Firm’s determination, but in no
event later than December 31 of the year following the year in which the Excise Tax is due. Any
determination by the Accounting Firm shall be binding upon the Company and Xxxxxxxxxxx. As a result
of the uncertainty in the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will
not have been made by the Company should have been made (“Underpayment”), consistent with the
calculations required to be made hereunder. In the event that the Company exhausts its remedies
pursuant to Section 9.3 and Xxxxxxxxxxx thereafter is required to make a payment of any Excise Tax,
the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of Xxxxxxxxxxx.
Xxxxxxxxxxx shall report Payments on Xxxxxxxxxxx’x tax returns in a manner consistent with the
Company’s treatment of such payments for tax purposes.
9.3 Xxxxxxxxxxx shall notify the Company in writing of any claim by the Internal Revenue
Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later than 10 business days after
Xxxxxxxxxxx is informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. Xxxxxxxxxxx shall not pay such
claim prior to the expiration of the 30-day period following the date on which it gives such notice
to the Company (or such shorter period ending on the date that any payment of taxes with respect to
such claim is due). If the Company notifies Xxxxxxxxxxx in writing prior to the expiration of such
period that it desires to contest such claim, Xxxxxxxxxxx shall:
| (a) | give the Company any information reasonably requested by the Company relating to such claim; | ||
| (b) | take such action in connection with contesting such claim as the Company 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 the Company; | ||
| (c) | cooperate with the Company in good faith in order effectively to contest such claim; and | ||
| (d) | permit the Company to participate in any proceedings relating to such claim; |
provided, however, that the Company 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 Xxxxxxxxxxx harmless, on an after-tax basis, for any 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 provisions of this Section 9.3, the
Company shall control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and
7
may, at its sole option, either direct Xxxxxxxxxxx to pay the tax claimed and xxx for a refund or
contest the claim in any permissible manner, and Xxxxxxxxxxx agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial jurisdiction and in one or
more appellate courts, as the Company shall determine; provided, however, that if the Company
directs Xxxxxxxxxxx to pay such claim and xxx for a refund, the Company shall advance the amount of
such payment to Xxxxxxxxxxx, on an interest-free basis and shall indemnify and hold Xxxxxxxxxxx
harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or 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 Xxxxxxxxxxx with respect to which such
contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the
Company’s control of the contest shall be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder and Xxxxxxxxxxx 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.
9.4 If, after the receipt by Xxxxxxxxxxx of an amount advanced by the Company pursuant to
Section 9.3, Xxxxxxxxxxx becomes entitled to receive any refund with respect to such claim,
Xxxxxxxxxxx shall (subject to the Company’s complying with the requirements of Section 9.3)
promptly pay to the Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by Xxxxxxxxxxx of an amount advanced
by the Company pursuant to Section 9.3, a determination is made that Xxxxxxxxxxx shall not be
entitled to any refund with respect to such claim and the Company does not notify Xxxxxxxxxxx in
writing of its intent to contest such denial of refund prior to the expiration of 30 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 Gross-Up Payment
required to be paid.
10. No Other Compensation; Full Settlement; No Mitigation.
10.1 Except as set forth in Sections 5 through 9 above, Xxxxxxxxxxx shall have no right to any
other remuneration from the Company in respect of his services as non-executive Chairman of the
Board or as a director of the Company during the Term. Upon the cessation of Xxxxxxxxxxx’x service
as a member of the Board, Xxxxxxxxxxx shall not be entitled to any additional compensation pursuant
to this Agreement, except to the extent described in Sections 5 through 9 above.
10.2 The Company may withhold from any amounts payable to Xxxxxxxxxxx such Federal, state,
local or foreign taxes as shall be required to be withheld pursuant to any applicable law or
regulation, if any, but the Company’s obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not otherwise be affected by any
set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may
have against Xxxxxxxxxxx or others.
10.3 In no event shall Xxxxxxxxxxx be obligated to seek outside employment or take any other
action by way of mitigation of the amounts payable to Xxxxxxxxxxx under any of
8
the provisions of this Agreement and, such amounts shall not be reduced whether or not
Xxxxxxxxxxx obtains outside employment.
11. Other Agreements. Xxxxxxxxxxx represents and warrants to the Company that there are no
restrictions, agreements or understandings whatsoever to which Xxxxxxxxxxx is a party or by which
he is bound that would prevent or make unlawful Xxxxxxxxxxx’x execution of this Agreement or
Xxxxxxxxxxx’x service hereunder.
12. Survival of Provisions. The provisions of this Agreement shall survive the cessation of
Xxxxxxxxxxx’x service hereunder and the payment of all amounts payable and delivery of all
compensation and benefits pursuant to this Agreement incident to any such cessation.
13. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the Company and its successors or permitted assigns and Xxxxxxxxxxx and his executors,
administrators or heirs. Xxxxxxxxxxx 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 Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company to assume expressly and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform it if no such succession had
taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined
and any successor to its business and/or assets as aforesaid which assumes and agrees to perform
this Agreement by operation of law, or otherwise.
14. 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 14, 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 Xxxxxxxxxxx: | |||
| Xxxxxxx X. Xxxxxxxxxxx | ||||
| (b) | If to the Company: | |||
| SLM Corporation | ||||
| Xxxxxx Mae, Inc. | ||||
| 00000 Xxxxxxxx Xxx | ||||
| Xxxxxx, XX 00000 | ||||
| Attention: General Counsel | ||||
| Fax No. (000) 000-0000 |
9
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 of 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 be waived in writing by the party entitled to receive such
notice.
15. Entire Agreement; Amendments; Waiver. This Agreement, the terms and conditions of the
Plan as referenced in Section 6 of 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 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 Xxxxxxxxxxx’x service hereunder. This
Agreement may be amended or modified only by a written instrument signed by all parties hereto.
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.
16. Governing Law. This Agreement shall be governed and construed as to its validity,
interpretation and effect by the laws of the State of Delaware.
17. 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.
18. Miscellaneous.
18.1 Xxxxxxxxxxx agrees that during the Term and for a period of two years thereafter (the
“Restricted Period”) he shall not solicit any employee of the Company to separate employment with
the Company or to pursue any business or employment not involving the Company. Xxxxxxxxxxx
acknowledges that any breach by him of this Section 18.1 will cause continuing and irreparable
injury to the Company for which monetary damages would not be an adequate remedy. Xxxxxxxxxxx
shall not, in any action or proceeding by the Company to enforce this Section 18.1, assert the
claim or defense that an adequate remedy at law exists. In the event of such breach by
Xxxxxxxxxxx, the Company shall have the right to enforce the provisions of this Section 18.1 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. In the event that the provisions
of Section 18.1 should ever be adjudicated to exceed the time 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 or other limitations permitted by applicable law.
18.2 The section headings in this Agreement are for convenience only; they form no part of
this Agreement and shall not affect its interpretation. This Agreement may be
10
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.
19. Arbitration. Any dispute or claim, other than those referred to in Section 18.1, arising
out of or relating to this Agreement or otherwise relating to the service relationship between
Xxxxxxxxxxx and the Company (including but not limited to any claims under Title VII of the Civil
Rights Act of 1964, as amended; the Americans with Disabilities Act; the Age Discrimination in
Employment Act; the Family Medical Leave Act; and the Employee Income Retirement Security Act)
shall be submitted to Arbitration, in Fairfax County, Virginia, and except as otherwise provided in
this Agreement shall be conducted in accordance with the rules of, but not under the auspices of,
the American Arbitration Association. The arbitration shall be conducted before an arbitration
tribunal comprised of three individuals, one selected by the Company, one selected by Xxxxxxxxxxx,
and the third selected by the first two. The parties and the arbitrators selected by them shall
use their best efforts to reach agreement on the identity of the tribunal within ten (10) business
days of either party to this Agreement submitting to the other party a written demand for
arbitration. The proceedings before the tribunal shall take place within twenty (20) business days
of the selection thereof. Xxxxxxxxxxx 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. To the full extent permitted by law, the
Company shall pay, as incurred, (i) the costs of the arbitrators, and (ii) all reasonable legal
fees and expenses which Xxxxxxxxxxx may reasonably incur as a result of any contest (regardless of
the outcome thereof provided that Xxxxxxxxxxx has acted in good faith and that the Company is
provided with such evidence of fees and expenses as it may reasonably require) by the Company,
Xxxxxxxxxxx or others of the validity or enforceability of, or liability under, any provision of
this Agreement or any guarantee of performance thereof (including as a result of any contest by
Xxxxxxxxxxx about the amount of any payment pursuant to this Agreement), plus in each case interest
on any payment required by this Section 19 that is not paid by the Company within fifteen days
after receipt of written notice from Xxxxxxxxxxx requesting such payment at the applicable Federal
rate provided for in Section 7872(f)(2)(A) of the Code.
11
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed effective as of the day
and year first written above.
| XXXXXXX X. XXXXXXXXXXX | ||||
| /s/ Xxxxxxx X. Xxxxxxxxxxx |
||||
| SLM CORPORATION | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
Title: |
Senior Vice President and General Counsel | |||
12
