EXECUTIVE SEPARATION AGREEMENT
Exhibit
99.1
THIS EXECUTIVE SEPARATION AGREEMENT (“Agreement”) is entered into by
and between XXXXX X.
XXXXXXX (“Executive”) and CENTEX SERVICE COMPANY, LLC, a
Nevada limited liability company (“Centex”).
1. Termination
of Employment. Executive’s
employment with Centex will terminate effective as of the close of business on
March 31, 2009 (the “Separation
Date”).
2. Severance
Pay. In
consideration of Executive’s release of all claims as provided in this
Agreement, and Executive’s other agreements herein, Centex will pay the
following amounts (collectively, the “Severance
Pay”) to
Executive:
a. The
sum of $712,500.00, which is equivalent to 18 months of Executive’s current
annual base salary.
b. The
sum of $1,425,000.00, which is equivalent to one and one-half times the target
cash bonus that Executive could receive for Fiscal Year 2009 (ending March 31,
2009).
Executive
agrees that the Severance Pay is over and above any sums earned by Executive as
wages, commissions and/or bonuses through the Separation Date; however,
Executive understands and agrees that Executive is expressly not entitled to
short-term incentive compensation or a cash bonus for Fiscal Year
2009.
Centex
will pay the Severance Pay to Executive within 30 days following the later of
the Separation Date or the Effective Date (defined in Section
25.h), subject to Executive’s return of Centex property as
required in Section
10. To avoid adverse tax consequences, the parties
agree that the outside date for Centex’s obligation to pay the Severance Pay is
March 15, 2010.
3. Other
Payments. In
addition to the payment of the Severance Pay, Centex will pay Executive the
following:
a. Salary. Executive’s
current annual base salary and applicable benefits through the Separation
Date.
b. Vacation. $32,885.00,
which represents 18 days of vacation, being Executive’s
earned and unused vacation time as of the Separation
Date. Centex will pay this sum within the time period required
by applicable law. Executive acknowledges that this amount is the
full amount of vacation wages due to Executive by Centex. Executive
acknowledges that Centex has paid all wages concededly due, including vacation
wages due from employment. Executive further acknowledges that no
further wages, including vacation wages, are due.
c. Payment
of Expenses. All
reimbursable business expenses incurred on or before the Separation Date, as
long as Executive submits a written request (following Centex’s standard
business procedure) on or before 7 business days following the Separation
Date. Centex will pay this reimbursement in the ordinary course of
Centex’s business. If Executive fails to timely submit a request for
reimbursement, Executive will be deemed to have waived the claim for
reimbursement. Centex will not reimburse Executive for expense
reports submitted after 7 business days following the Separation
Date.
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d. No
Other Compensation. Other
than the amounts specifically described in this Agreement, Executive will
receive no other compensation for services rendered to Centex during the period
before the Separation Date. As an example of what this means,
Executive will only receive the payments described in this Agreement and is not
entitled to payments under any incentive programs to which Executive may have
been previously entitled for Fiscal Year 2009 or any subsequent
period.
By signing this Agreement, Executive hereby authorizes Centex, to the extent
permitted by law, to deduct from the Severance Pay any indebtedness that
Executive owes to Centex, including, but not limited to, advances, loans, credit
card charges, and any other obligations of valuable consideration.
4. Outplacement
Services. As
further consideration for Executive’s release of all claims as provided in this
Agreement, and Executive’s other agreements herein, Centex, at its expense, will
provide Executive certain outplacement services from an established outplacement
firm of its choice. Executive must commence utilizing such services
within 30 days following the Separation Date and complete all services by the
end of the second calendar year following the Separation Date. The
cost to Centex of such outplacement services will not exceed
$25,000. Executive will not be entitled to a cash payment in lieu of
outplacement services.
5. Benefit
Plans or Programs. Except
as provided below, Executive’s participation in all employee benefit plans
and/or programs at Centex will cease as of Executive’s Separation
Date.
6. Stock
Options/Stock Units/Executive Deferred
Compensation.
a. Executive
acknowledges that all vested and unexercised stock options, stock units and/or
executive deferred compensation previously granted to Executive will not be
modified by this Agreement, except as provided in Section
7, as applicable, and will remain subject to the terms
and conditions of the applicable Centex Corporation long-term incentive
compensation plan under which the award was granted. In other words,
(i) all vested stock options (including any stock options whose vesting has been
accelerated) will be exercisable after the Separation Date for the period
specified in the applicable plan (either 90 or 120 days following the Separation
Date, depending on the applicable plan), provided, however, that because
Executive meets the test for 55/10/70 status as of the Separation Date, all
stock options that were awarded and outstanding as of April 1, 2006, may be
exercised during a period that is the shorter of (1) 12 months following the
Separation Date, or (2) the original expiration date of the stock option, and
(ii) subject to Section
7, all vested stock units and/or executive deferred
compensation granted pursuant to the applicable plans will be distributed as
soon as reasonably practicable following the Separation Date in accordance with
the applicable plan, award agreement and/or payout election, as
applicable.
b. As
further consideration for Executive’s promises and performance under this
Agreement, portions of (i) unvested or restricted equity awards (i.e., stock
options, stock
units and any performance shares or similar security) and (ii) executive
deferred compensation awards (i.e., deferred
cash) (collectively, the “Long-Term Incentive
Compensation Awards”) that Executive has as of the Separation Date will
become vested and/or free from restrictions on transfer as soon as reasonably
practicable following the later of (x) the Effective Date or (y) the Separation
Date, subject to Section
7. The portions of the Long-Term Incentive
Compensation Awards to be accelerated are those that would vest and/or become
unrestricted during the period beginning on the day immediately after the
Separation Date and ending eighteen months thereafter. In other
words, all Long-Term Incentive Compensation Awards that would have vested if
Executive remained employed through September 30, 2010, will vest as of the
later of
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the Effective Date or the Separation Date, and all
newly-vested stock options will be exercisable after the Separation Date for the
period specified in the applicable plan (either 90 or 120 days following the
Separation Date, depending on the applicable plan), and subject to Section
7, all newly-vested stock units and/or executive deferred
compensation granted pursuant to the applicable plans will be distributed as
soon as reasonably practicable following the Separation Date in accordance with
the applicable plan, award agreement and/or payout election, as
applicable.
c. Except
as expressly provided herein, nothing in this Agreement supersedes the
provisions of the applicable plans or award agreements that govern unvested or
restricted awards. Acceleration of vesting in the case of stock
units, executive deferred compensation and similar awards will not affect the
payout date for amounts that vested or became unrestricted before the Separation
Date, which will continue to be subject to the terms of the applicable plan,
award agreement and/or payout election, as applicable.
d. Executive’s
ability to exercise Executive’s stock options after the Separation Date is
subject to any pending black-out period applicable to Executive as of the
Separation Date.
7. Key
Employee. Executive
acknowledges that Executive is identified as a “key employee” under IRS guidance
regarding the application of the deferred compensation legislation (the American
Jobs Creation Act), and that Executive’s receipt of certain long-term
compensation, such as stock units and deferred cash that vest after December 31,
2004, including, without limitation, that portion of the Long Term Incentive
Compensation Awards for which vesting is accelerated under Section
6.b, may be delayed for six months and two days to the extent
required by final regulations issued under Section 409A. Section 409A
of the Tax Code or applicable treasury regulation or guidance requires that any
certain payments of compensation deferred under a nonqualified deferred
compensation plan be delayed because the Executive is a “key employee” within
the meaning of Section 409A. Notwithstanding any other provision of this
Agreement or any other agreement, plan or arrangement, Centex will delay
providing the applicable pay or benefit to which the Executive is otherwise
entitled to the date and extent required under Section 409A.
8. COBRA. Centex
will deliver to Executive a letter outlining the terms of the Consolidated
Omnibus Budget Reconciliation Act of 1985 (“COBRA”), including the COBRA
premiums. Executive will have the option to elect to continue health
care coverage under COBRA, as explained in the COBRA letter. Under
the terms of COBRA, Centex-sponsored health care plan participants are offered
the ability to participate in a Centex-sponsored health care plan for up to
18 months after their separation dates. The COBRA letter will
explain that to obtain such coverage, Executive must pay on a timely basis the
Executive’s portion of the monthly COBRA premium. COBRA participants
do not receive monthly invoices, and are expected to make sure that their
monthly premium payments are received by the Centex COBRA Administrator by the
applicable due dates. Executive’s failure to make a timely payment
will result in loss of coverage and, once lost, the coverage cannot be
reinstated.
9. Release
of Termination and Other Claims. In
consideration of Centex’s agreement to (x) pay Executive the Severance Pay, (y)
provide outplacement services and (z) accelerate the vesting of certain
Long-Term Incentive Compensation Awards, as set forth in Sections
2, 4 and
6, respectively, of this Agreement (collectively, the “Severance
Benefits”), Executive hereby fully, finally, completely, knowingly and
voluntarily releases Centex and its predecessors, successors, parent,
subsidiaries, affiliates, related entities, merged entities, and partners, and
their respective current and former officers, directors, shareholders,
employees, employee benefit plans and the fiduciaries and agents of said plans,
trustees, agents, attorneys, insurers, representatives and assigns
(collectively, the “Released
Parties”), from
any
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and
all claims, actions, demands, and/or causes of action for general, special or
punitive damages, attorneys’ fees, expenses, and other compensation or damages
(collectively, “Claims”),
whether now known or unknown, arising from, relating to, or in any way connected
with Executive’s employment with or termination of employment from Centex and/or
the compensation to be paid by Centex to Executive arising out of Executive’s
employment with Centex, and any other facts or events occurring on or before the
date on which Executive signs this Agreement. Executive
agrees that this Agreement includes a release of any and all negligence claims,
contractual claims, wrongful discharge claims, and claims of discrimination of
every possible kind, including but
not limited to, Claims under Title VII of the Civil Rights Act of 1964, as
amended; the Age Discrimination in Employment Act of 1967, as amended, including
the Older Workers Benefit Protection Act of 1990; the Civil Rights Act of 1866,
as amended; the Civil Rights Act of 1991; the Americans with Disabilities Act of
1990; the Workers Adjustment and Retraining Notification Act of 1988; the
Employee Retirement Income Security Act of 1974, as amended; the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended; the Family and Medical
Leave Act of 1993; the California Xxxxx Civil Rights Act; claims in connection
with workers’ compensation or “whistleblower” statutes; and/or contract, tort,
defamation, wrongful termination or any other state or federal regulatory,
statutory or common law; claims that stem from or are related to the
administration of any employee benefit plans (the “Plans”)
sponsored by Centex Corporation, personal injury claims, and related attorneys’
fees and costs claims, if any, that Executive may have against Centex or any of
the Released Parties (as well as the fiduciaries and administrators of the
Plans). Executive waives and releases Centex and the Released Parties
from any claims that this Agreement was procured by fraud or signed under duress
or coercion so as to make any of the terms or provisions of this Agreement not
binding. Executive understands and agrees that by signing this
Agreement, Executive is giving up the right to pursue any legal or
administrative claims that Executive may have against Centex or any of the
Released Parties, except as otherwise may be specifically set forth
herein. This release excludes any claim that cannot be released by
private agreement.
Except as described below,
Executive agrees and covenants not to file any suit, charge or complaint against
Centex or the Released Parties in any court or administrative agency, with
regard to any claim, demand, liability or obligation arising out of Executive’s
employment with Centex or separation therefrom. Executive further
represents that no claims, complaints, charges or other proceedings are pending
in any court, administrative agency, commission or other forum relating directly
or indirectly to Executive’s employment by Centex.
Nothing in this
Agreement will be construed to prohibit Executive from (i) bringing a claim or
lawsuit against Centex to enforce Centex’s obligations to Executive under this
Agreement, (ii) making any disclosure of information required by law, (iii)
filing a charge with or participating in any investigation or proceeding
conducted by the Equal Employment Opportunity Commission or a comparable state
or local agency, or (iv) providing information to, or testifying or otherwise
assisting in any investigation or proceeding brought by, any federal regulatory
or law enforcement agency or legislative body, any self-regulatory organization,
or Centex’s legal, compliance or human resources
officers. Notwithstanding the foregoing, Executive agrees to waive
any right to recover monetary damages in any charge, complaint or lawsuit filed
by Executive or by anyone else on Executive’s behalf.
Executive
agrees that all rights under Section 1542 of the Civil Code of the State of
California are hereby waived by Executive. Section 1542 provides as
follows:
| A general release does not extend to claims which the creditor does not know or suspect to exit in Executive's favor at the time of executing the release, which if know by Executive must have materially affected his settlement with the debtor. |
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Notwithstanding
the provisions of Section 1542 of the Civil Code of the State of California,
Executive hereby irrevocably and unconditionally releases and forever discharges
Centex and the Released Parties from any and all charges, complaints, claims and
liabilities of any kind or nature whatsoever, known or unknown, suspected or
unsuspected, which Executive at any time heretofore had or claimed to have
against Centex and/or the Released Parties regarding events that have occurred
as of the date of this Agreement.
10. Return
of Centex Property. Centex’s
obligation to provide the Severance Benefits is also contingent upon Executive’s
return to Centex, on or before the Effective Date, of all of Centex’s property
in Executive’s possession or control, including, but not limited to, the company
car (unless Executive purchases the company car, as described in Section
12), paper and electronic documents, files and/or reports,
laptop computers, credit cards, pagers, cellular phones, hand-held communication
devices (e.g.,
BlackBerry devices), security cards and keys.
11. Profit
Sharing/401(k)/SERP.
Executive acknowledges that this Agreement does not affect Executive’s rights to
Executive’s accounts, if any, under (a) the Centex Corporation Saving for
Retirement Plan (“401(k) plan”), or (b) the
Centex Corporation Supplemental Executive Retirement Plan (“SERP”). No
additional profit sharing contributions or SERP contributions will be made to
Executive’s accounts for any periods following the Separation
Date. There will be no profit sharing or SERP contributions for
partial calendar year periods.
12. Company
Car. Executive
will return to Centex the 2005 Ford Expedition, VIN 0XXXX00000XX00000,
owned by Centex but used by Executive (the “Company Car”), along with
all keys for the vehicle. Executive may choose to purchase the
Company Car “AS-IS” from
Centex for an amount equal to the ARI Fleet LT fair market valuation of
$12,600.00. Executive will be responsible for the purchase price of
the Company Car, along with any incidental costs associated with the transfer of
ownership and title, such as tax, title and license, and for insurance coverage
of the Company Car immediately following the Separation
Date.
13. Cooperation. Executive
agrees that continuing after the Effective Date, Executive will cooperate fully
with Centex and the Released Parties (a) in the defense or prosecution of or
preparation for any lawsuit, dispute, investigation or other legal proceedings
that may be ongoing, anticipated or threatened (collectively, the “Proceedings”), and (b) in
any other matters (“Matters”) related to
Centex’s business during the period of Executive’s employment with
Centex. Centex agrees to reimburse Executive for reasonable
out-of-pocket expenses that Executive incurs in connection with such
cooperation, subject to reasonable documentation.
Executive will (i) provide information, affidavits or testimony concerning
matters at issue about which Executive has knowledge as Centex may request from
time to time; and (ii) cooperate without remuneration, but Centex will promptly
reimburse Executive for all reasonable expenses incurred for attorneys’ fees,
transportation, accommodations, and meals. If Executive is (x)
specifically made aware of any non-public Proceedings or non-public Matters
related to Centex or any of the Released Parties, (y) requested in writing by a
third party to provide non-public information regarding Centex or any of the
Released Parties, or (z) called by a third party as a witness to testify in any
matter related to Centex or any of the Released Parties, Executive will promptly
notify Centex in order to give Centex or the Released Parties a reasonable
opportunity to respond.
14. Waiver
of Age
Claims. Executive
represents that the statutory requirements for a waiver of Executive’s rights
and claims under the Age Discrimination in Employment Act of 1967 (“ADEA”) and the Older
Workers’ Benefit Protection Act (“OWBPA”) have
been satisfied. Specifically, Executive acknowledges and agrees
that:
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a. This
Agreement is written in a manner calculated to be understood by Executive and
that Executive in fact fully understands the terms, conditions and effects of
this Agreement;
b. Executive
specifically refers to any releases, rights and/or claims arising under the ADEA
and/or the OWBPA;
c. Executive
does not waive any rights or claims that may arise after the date on which
Executive signs this Agreement;
d. Executive
waives the rights and claims in this Agreement only in exchange for
consideration provided by Centex in addition to anything of value to which
Executive is already entitled;
e. By
Centex’s delivery of this Agreement to Executive, Centex has advised Executive,
in writing, to consult with Executive’s attorney before signing this Agreement,
and Executive has, in fact, had an opportunity to do so;
f. Executive
has 45 days in which to consider the Agreement before accepting it, but need not
take that long if Executive does not wish to;
g. This
Agreement allows for a period of 7 days following execution in which Executive
may revoke this Agreement by giving Centex written notice of such revocation;
and
h. By
executing and delivering this Agreement to Centex, Executive acknowledges that
Centex provided Executive with the OWBPA notice and analysis required under the
ADEA, which was sufficiently understandable to enable Executive to make an
informed choice about whether to sign this Agreement.
Executive understands that nothing in this Agreement is intended to interfere
with or deter (i) Executive’s right to challenge the above waiver of an ADEA
claim or state law age discrimination claim as not knowing or voluntary, or (ii)
Executive’s right to file an ADEA charge or ADEA complaint or state law age
discrimination complaint or charge with the Equal Employment Opportunity
Commission or any state discrimination agency or commission as a result of the
above release not being knowing or voluntary, or (iii) Executive’s right to
participate in any investigation or proceeding conducted by those
agencies. Further, Executive understands that (x) nothing in this
Agreement would require Executive to tender back the money received under this
Agreement if Executive seeks to challenge the validity of the above ADEA or
state law age discrimination waiver, (y) Executive does not agree to ratify any
ADEA or state law age discrimination waiver that fails to comply with the OWBPA
by retaining the money received under this Agreement, and (z) nothing in this
Agreement is intended to require the payment of damages, attorneys’ fees or
costs to Centex should Executive challenge the waiver of an ADEA or state law
age discrimination claim or file an ADEA or state law age discrimination claim,
except as authorized by federal or state law.
15. Confidentiality
and Non-Disparagement. Executive
agrees to keep the terms and conditions of this Agreement confidential to the
extent allowed by law, except Executive may supply a copy to Executive’s
accountant or other financial advisor solely in connection with preparing
Executive’s income tax return, and Executive may disclose this Agreement to
Executive’s immediate family members and to Executive’s attorney on a
confidential basis.
Executive agrees to refrain from any libel, slander, defamation or other
disparaging comments about Centex or any of the Released
Parties. Executive further agrees not to take any action, or assist
any
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person
taking any other action, that is (a) materially adverse to the interests of, (b)
inconsistent with fostering the goodwill of, and/or (c) detrimental
to the business of Centex and/or its parent, affiliates and/or subsidiaries;
however, nothing in this Agreement will restrict the communication of
information by Executive to any state or federal law enforcement agency or
require notice to Centex thereof, and Executive will not be in breach of the
covenant contained in this Section solely by reason of Executive’s testimony
which is compelled by process of law. Furthermore, Executive agrees
to participate in media interviews about Centex or any of the Released Parties
only after receiving permission from Centex and in cooperation with Centex’s
communications department.
Executive acknowledges that, in the course of employment with Centex, Executive
has come to know general and specific information that is confidential and
proprietary to Centex and/or its parent, affiliates and/or subsidiaries
(collectively, the “Confidential and
Proprietary Information”). Confidential and Proprietary
Information includes oral and written information about, relating to or
concerning Centex and/or its parent, affiliates and/or subsidiaries, that Centex
has by its policies or otherwise indicated (i) should be kept confidential, (ii)
should reasonably be deemed confidential by Executive whether or not it was
designated as confidential, or (iii) if disclosed could be injurious to Centex
and/or its parent, affiliates and/or subsidiaries. Confidential and
Proprietary Information includes but is not limited to Centex’s business plans,
concepts, strategies, proposals, processes, methods, internal procedures,
financial statements, projections, technical specifications, data, supplier
lists, marketing plans, sales strategies, product designs, customer information,
and other confidential operational information. Without limiting the
generality of the foregoing, Confidential and Proprietary Information
specifically includes personnel lists and files, and related confidential
information; hiring plans and strategies; compensation data and strategies;
talent management plans and strategies; the SLiCE program, sales and marketing
strategies and the ACE program and strategies. Centex acknowledges
that information that is generally known in the home building industry is not
Confidential and Proprietary Information.
In accordance with the terms of the Centex Corporation Executive Severance
Policy dated effective June 2, 2006, as amended and restated (the “Severance
Policy”), and as a condition of receiving the Severance Benefits under
the Severance Policy and this Agreement, Executive agrees that Confidential and
Proprietary Information is the sole and exclusive property of Centex, and
Executive agrees to hold, in a fiduciary capacity for the benefit of Centex, all
Confidential and Proprietary Information acquired by the Executive while
employed by Centex. In further consideration of the Severance
Benefits received by Executive pursuant to the Severance Policy and this
Agreement, Executive agrees and covenants that Executive (i) shall not use to
Centex’s detriment and (ii) shall not divulge, publicly or privately, any
specified or other Confidential and Proprietary Information regarding any aspect
of Centex’s business acquired during or as a result of Executive’s employment
with Centex. Furthermore, to the extent that disclosure of any
Confidential and Proprietary Information is controlled by statute, regulation or
other law, Executive agrees that Executive is bound by such laws and that
neither the Severance Policy nor this Agreement shall operate as a waiver of any
such non-disclosure requirement.
16. Non-Solicitation
Clause. In
accordance with the Severance Policy and as a condition of receiving the
Severance Benefits provided under the Severance Policy and this Agreement,
Executive agrees that for eighteen months following the Separation Date,
Executive will not directly or indirectly, without Centex’s consent, hire, call
on, solicit, or take away or attempt to hire, call on, solicit, or take away any
of Centex’s employees (or those of its parent, affiliates or subsidiaries)
listed on EXHIBIT
A for the
purpose of hiring such employees and/or encouraging them to terminate their
employment with Centex or its parent, affiliates or subsidiaries. If
Executive breaches the provisions set forth in this Section, Centex will be
entitled to injunctive relief, in addition to all other rights it may have at
law or in equity. It is further agreed that if the non-solicitation
covenants contained in this Agreement should be
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held
by any court or other constituted legal authority to be effective only if said
covenants are modified to limit the duration or number of individuals included,
then the parties hereto shall consider such non-solicitation covenants to be
amended and modified with respect to that particular area or jurisdiction so as
to comply with the order of any court or other constituted legal authority, and
as to all other political subdivisions of the United States, the
non-solicitation covenants contained herein shall remain in full force and
effect as originally written.
17. Restrictions
on Unfair Competition. Executive
acknowledges that because Executive has had access to Centex’s Confidential and
Proprietary Information, if Executive became employed by a competitor
to Centex Corporation or Centex Homes or their affiliates, Executive’s knowledge
of Centex’s Confidential and Proprietary Information could allow the competitor
to unfairly compete with Centex. Therefore, Executive agrees that,
for eighteen months following the Separation Date, Executive will not, directly
or indirectly, as an employee, consultant, advisor, contractor, shareholder,
director, partner, joint-venturer, or investor, assist any of the homebuilders
listed in the following sentence, which are deemed by the parties hereto to be
competitors of Centex Corporation, Centex Homes and/or their
affiliates. Executive and Centex agree that the homebuilding
competitors are (1) XX Xxxxxx, Inc., Pulte Homes Inc., Lennar Corporation,
NVR, Inc., KB Home, Hovnanian Enterprises, Inc., The Xxxxxx Group,
Inc., and Beazer Homes USA, Inc. (and their successors by merger or
consolidation, if applicable), and (2) the top four (by
revenue) regional/specialty homebuilders with operations in California not
listed in clause (1). The foregoing will not prohibit passive
investments such as mutual funds or direct or indirect ownership of less than 1%
of a publicly held company’s outstanding stock. Executive agrees that
the covenants in this Section are (a) reasonable and necessary for the
protection of Centex’s legitimate business interests, and (b) do not place an
unreasonable burden upon the Executive’s ability to earn a living. It
is further agreed that if the non-competition covenants contained in this
Agreement should be held by any court or other constituted legal authority to be
effective in any particular area or jurisdiction only if said covenants are
modified to limit their duration or scope, then the parties hereto shall
consider such non-competition covenants to be amended and modified with respect
to that particular area or jurisdiction so as to comply with the order of any
court or other constituted legal authority, and as to all other political
subdivisions of the United States, the non-competition covenants contained
herein shall remain in full force and effect as originally
written.
18. Covenant
Not to Xxx. Except as
required by law, Executive agrees not to institute, maintain, or prosecute, or
induce or assist in the instigation, commencement, maintenance or prosecution of
any legal proceedings involving any claim released under this
Agreement. Executive will not seek or accept any equitable or
monetary relief in any legal proceedings filed by Executive or on Executive’s
behalf against Centex or its parent, affiliates or subsidiaries, and agrees to
opt out of any class action filed against Centex or its parent, affiliates or
subsidiaries with respect to any period during which Executive was employed by
Centex. Centex is not currently aware of any claim it or its
affiliates may have against Executive.
19. Injunctive
Relief. Executive
agrees that the remedy at law for any breach by Executive of the covenants
contained in this Agreement will be inadequate and that damages flowing from
such a breach are not readily susceptible to being measured in monetary
terms. Accordingly, upon a violation or threatened violation by
Executive of any legally enforceable provision in this Agreement, Centex will be
entitled, in addition to all other rights and remedies, to seek immediate
injunctive relief and may obtain a temporary and permanent injunction or
restraining order enjoining and prohibiting any such further breach or
threatened breach, without posting bond or furnishing similar
security. Nothing in this Section or in other provisions of this
Agreement will be deemed to limit or negate Centex’s remedies at law or in
equity for any breach by Executive of any of the provisions of this Section,
which may be pursued by Centex.
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20. Taxes. All
payments made by Centex under this Agreement will be subject to applicable
federal, state and local taxes, and withholdings required for the same, which
taxes will be the responsibility of Executive.
21. Claims
Procedure. Any
claims relating to the benefits paid or to be paid under this Agreement will be
handled in accordance with the terms of the Severance
Policy.
22. Waiver
of Jury Trial. As a
further condition of receiving the Severance Benefits, Executive hereby waives
irrevocably the right to trial by jury with respect to any dispute, controversy,
claim or cause of action arising out of or relating to Executive’s employment
and termination of that employment, the Severance Policy, and/or this
Agreement.
23. Recoupment
in Restatement Situations. According
to the general policy adopted by the Board of Directors of Centex Corporation
(the “Board”) on February
13, 2007 and incorporated by reference in the Severance Policy, if the
financial results of Centex and/or Centex Corporation are restated due to fraud
or intentional misconduct by Executive, the Board, or an appropriate committee
designated by the Board will review the incentive compensation paid or awarded
to Executive and will, to the extent permitted by applicable law, require
recoupment of (a) up to half of the Severance Pay and (b) amounts paid or
awarded to Executive as incentive compensation if (i) the Board or the reviewing
committee, as applicable, concludes in good faith that Executive engaged in
fraud or intentional misconduct that caused or partially caused the need for the
restatement, (ii) the amount of the incentive compensation was calculated upon
the achievement of certain financial results that were subsequently the subject
of a restatement, and (iii) the amount of the incentive compensation that would
have been awarded to Executive had the financial results been properly reported
would have been lower than the amount actually awarded. The Board
will not seek to recover incentive compensation awarded more than three years
before the date the applicable restatement is disclosed. For the
purposes of recoupment, “incentive
compensation” includes cash bonus, restricted stock, deferred stock
units, stock options, deferred cash compensation and other long-term measures,
and the proceeds from any exercise or sale thereof, but “incentive
compensation” does not include the Severance
Pay.
24. Indemnification. Nothing
in this Agreement is intended to affect any obligation Centex may have under
applicable law or its governing documents to indemnify
Executive.
25. Miscellaneous.
a. Entire
Agreement/No Assignment. This
Agreement sets forth the entire agreement between the parties, and no
representation, promise, or condition not contained herein will modify these
terms. Executive represents that Executive has not assigned any of
the claims related to the matters set forth herein, and agrees not to assign
Executive’s rights under this Agreement without Centex’s prior written
consent.
b. Attorneys’
Fees. In
connection with any dispute arising under, from or as a result of this
Agreement, the parties agree that the prevailing party will be entitled to
recover all costs and expenses incurred, including, without limitation,
attorneys’ fees and fees for the services of accountants, paralegals, legal
assistants and similar persons (including any appeals from any litigation and
enforcement of judgments).
c. No
Admission of Liability. Centex’s
payment of the Severance Pay does not constitute the admission of any
liability.
9
d. Read
Agreement/Advice of Attorney. Executive
acknowledges that Executive has read and understood this Agreement, has been
advised to and has had the opportunity to discuss it with an attorney of
Executive’s own choice, agrees to its terms, acknowledges receipt of a copy of
it and the sufficiency of the payment recited herein, and signs this Agreement
voluntarily.
e. Applicable
Law and Severability. The
parties agree that the terms of this Agreement are contractual in nature and not
merely recitals, and will be governed and construed in accordance with the laws
of the State of Texas. Proper venue for any litigation brought by
either party with respect to this Agreement shall be Dallas County,
Texas. The parties further agree that should any part of this
Agreement be determined by a court of competent jurisdiction to be illegal,
invalid, or unenforceable, the parties intend the legality, validity and
enforceability of the remaining parts will not be affected thereby, and any
illegal, invalid, or unenforceable part will be deemed not to be a part of this
Agreement.
f. Notice. Any
notice to be given to Centex hereunder will be deemed sufficient if addressed to
Centex in writing and hand-delivered or mailed by certified mail to Xxx Xxxxx,
Senior Vice President of Centex at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxx
00000. Any notice to be given to Executive hereunder will be deemed
sufficient if addressed to Executive in writing and hand-delivered or mailed by
certified mail to Executive at 00 Xxxxxx Xxxxx Xxxxx, Xxxxx,
Xxxxxxxxxx 00000. Either party may designate a different
address or addresses by giving notice according to this Section.
g. Officer
Resignation. Executive must resign as an officer
from all official positions related to Executive's employment by Centex as of
the Separation Date by delivering to Centex with Executive's signed copy of
this Agreement the Officer Resignation attached hereto as EXHIBIT B, and incorporated herein
by reference.
[Remainder
of Page Intentionally Left Blank]
10
h. Revocation
and Effective Date. Executive may revoke this Agreement in its
entirety during the 7 days following execution by Executive (the “Revocation
Period”). Any revocation of this Agreement must be in writing
and delivered to Centex prior to the expiration of the Revocation Period at the
address shown in Section
25.f above. Unless it is properly revoked
during the Revocation Period, this Agreement will become effective and
enforceable 7 days following execution of the Agreement by Executive but in no
event earlier than March 31, 2009 (the “Effective
Date”). In the event this Agreement is revoked by Executive
during the Revocation Period, then this Agreement, including Centex’s
obligations thereunder, will be null and void, unless Centex pays the Severance
Pay to Executive within six months after Executive signs and delivers this
Agreement, in which case this Agreement shall be a valid, binding and
enforceable agreement of both parties.
|
CENTEX:
|
|||
|
CENTEX
SERVICE COMPANY, LLC,
|
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|
a
Nevada limited liability company
|
|||
|
Date: March
13, 2009
|
By:
|
/s/ Xxxxxx
X. Xxxxx
|
|
|
Xxxxxx
X. Xxxxx
|
|||
|
Senior
Vice President – Human
Resources
|
|||
|
EXECUTIVE:
|
|||
|
Date:
March 18, 2009
|
/s/ Xxxxx
X. Xxxxxxx
|
||
|
XXXXX
X. XXXXXXX
|
|||
11
EXHIBIT A
Protected
Employees
All
Centex Homes Division Presidents, Division Sales Managers, Division Finance
Managers, Directors of Construction Operations, Directors of Land Acquisition,
and Directors of Land Development
All
Centex Corporation Vice Presidents
12
EXHIBIT B
Officer
Resignation
[The
form of Resignation Letter is attached]
13
March
31, 2009
To
the Board of Directors of
Centex
Corporation
I
hereby resign as an officer, director or manager of the subsidiaries, affiliates
and committees, as the case may be, of Centex Corporation, including but not
limited to the positions listed on the attached Schedule
A, as of the close of business on March 31, 2009.
Respectfully
submitted,
/s/ Xxxxx
X. Xxxxxxx
Xxxxx
X. Xxxxxxx
Schedule
A
Xxxxx
X. Xxxxxxx
Officer,
Director/Manager and Committee Positions
as
of March 31, 2009
|
Company
|
Position
|
|
Benicia
CS Developers, LLC
|
Executive
Committee Member
|
|
CDP
West Realty, Inc.
|
Director
|
|
Centex
Building Services, Inc.
|
Director
|
|
Centex
Homes, Inc.
|
Director
|
|
Centex
Homes of California, LLC
|
Manager*
|
|
President
|
|
|
Centex
Homes Realty Company
|
Director*
President
|
|
Centex
Real Estate Construction Company
|
Director
|
|
Chairman
of the Board and Chief Executive Officer
|
|
|
Centex
Real Estate Corporation
|
President
– Land Division
|
|
Fox
& Xxxxxx, Inc.
|
Director
|
|
Marina
Community Partners, LLC
|
Executive
Committee Member
|
|
Nomas
Corp.
|
Director
President
and Chief Executive Officer
|
|
Novato
Community Partners, LLC
|
Executive
Committee Member
|
|
PL
Roseville, LLC
|
Executive
Committee Member (Alternate)
|
