EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the closing date (the
"Closing Date") of the transactions contemplated by the Purchase Agreement among
SLM Holding Corporation, USA Group, Inc. and certain of its affiliates (the
"Purchase Agreement") by and between Xxxxx X. Xxxxxxxxxx, residing at 00000 Xxxx
Xxxxx, Xxxxxxx, Xxxxxxx 00000 ("Executive"), and SLM Holding Corporation, a
corporation organized and existing under the laws of the State of Delaware
("SLM").
WHEREAS, SLM has entered into the Purchase Agreement with USA Group, Inc.
(`Group"), a private not-for-profit Delaware corporation ("USA"), USA Group Loan
Services, Inc. (`Loan Services"), a non-stock Delaware corporation of which
Group is the sole member, and USA Group Guarantee Services, Inc. ("Guarantee
Services"), a non-stock Delaware corporation of which Group is the sole member,
whereby SLM will purchase substantially all of the assets of Group, Loan
Services and Guarantee Services; and
WHEREAS, in connection with the Purchase Agreement, SLM desires to have
Executive employed by SLM and by one or more of its principal operating
subsidiaries and Executive desires to be employed by SLM 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.
(a) SLM hereby agrees to employ Executive and Executive hereby agrees to
accept employment with SLM as President and Chief Operating Officer for a period
commencing on the Closing Date and continuing through July 31, 2003 unless
sooner terminated pursuant to Section 12 hereof (the "Original Term"). The
Original Term shall be extended automatically for additional one-year periods
(each a "Renewal Term" and together with the Original Term, the "Term") unless
written notice that the then current Original Term or Renewal Term, as
applicable, will not be extended is given by either party to the other at least
30 days prior to the expiration of the Original Term or any Renewal Term.
Executive shall also serve as a member of the Board of Directors of SLM during
the Term, including any Renewal Terms, subject to the requisite shareholder
vote. SLM shall nominate Executive to serve as a member of the SLM Board of
Directors during the Term and shall use its reasonable best efforts to obtain
the requisite shareholder vote.
(b) This Agreement is contingent on the closing of the transaction
contemplated by the Purchase Agreement. In the event such closing does not
occur, this Agreement shall be deemed null and void.
2. DUTIES. During the Term, Executive shall serve SLM faithfully and to the
best of his ability and shall devote his full business time, attention, skill
and efforts to the performance of the duties required by or appropriate for his
position as President and Chief Operating Officer. Executive agrees to assume
such duties and responsibilities that are consistent with such position as may
be reasonably assigned to Executive from time to time by the Board of Directors
and the Chief Executive Officer of SLM. Executive shall be principally
responsible for managing loan servicing, guarantor servicing, information
technology and human resource functions for the combined SLM/USA companies and
Executive's employment pursuant to this Agreement shall be deemed to encompass
employment with all of the subsidiaries through which SLM principally conducts
such functions. In addition, Executive shall have duties with respect to the
planning and implementation of merger integration as a member of the Integration
Steering Committee.
3. OTHER BUSINESS ACTIVITIES. Executive shall devote substantially all of
his full business time and energies to the business and affairs of SLM and its
Affiliates; provided, however, that nothing contained in this Section 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 Chief Executive Officer 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 Chief Executive Officer of SLM, 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. SLM shall pay (or cause to be paid to) Executive, and
Executive hereby agrees to accept as compensation for all services rendered
hereunder, a salary at the annual rate of $500,000 (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 SLM or which are
requested to be withheld by Executive, and which shall be withheld and paid in
accordance with SLM's normal payroll practice for its similarly-situated
executives from time to time in effect. The Base Salary may be increased (but
may not be decreased) 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 SLM's
Management Incentive Plan ("MIP") subject in all respects to the terms and
conditions of the MIP, except that for the year ending December 31, 2000,
Executive shall receive under the MIP and as approved by SLM's Compensation and
Personnel Committee of the Board of Directors, a bonus equal to no less than
200% of Base Salary, assuming that the corporate performance results for the
2000 MIP are at or above 80% of target, and provided that as of January 1, 2001
Executive remains employed by SLM.
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5. PRINCIPAL LOCATION. The principal location at which Executive will
perform his duties will initially be in Indianapolis, Indiana. Executive shall
be entitled to reimbursement for all ordinary and reasonable out-of-pocket
business expenses which are reasonably incurred by him in furtherance of SLM's
business, including reimbursement for all reasonable expenses incurred by
Executive in travelling between Indianapolis and Reston in connection with the
performance of his services hereunder, including the cost of travel in the same
class as the Chief Executive Officer and the President and Chief Marketing
Officer and suitable temporary living accommodations. In the event that the
principal location of Executive's duties is transferred to SLM's corporate
headquarters currently located in Reston, Virginia, Executive will receive
relocation benefits in connection with the reassignment of his duties from
Indianapolis to SLM's headquarters in accordance with SLM's policies as
described in Schedule 2 hereto.
6. STOCK OPTION GRANT. (a) On the date of the execution of the Purchase
Agreement, Executive will receive stock options for a total of 700,000 shares of
common stock of SLM (the "Stock Options") subject in all respects to the terms
and provisions set forth in the stock option agreement, approved on June 13,
2000 by the SLM Compensation Committee and provided to Executive, a copy of
which is attached hereto as Schedule 3.
7. ADDITIONAL COMPENSATION. On the Closing Date, Executive will be granted
50,000 shares of Performance Stock and an Incentive Bonus Award equal to Three
Million Eight Hundred Thousand dollars ($3,800,000) under the MIP. All terms and
conditions affecting the vesting and payment of such awards will be set as set
forth on the term sheet approved on June 13, 2000 by the SLM Compensation
Committee and provided to Executive.
In addition to the awards described above, SLM agrees to grant 50,000
shares of Performance Stock under the MIP to Executive on January 1, 2002. All
terms and conditions affecting the vesting and payment of this award will be as
set forth on the term sheet approved on June 13, 2000 by the SLM Compensation
Committee and provided to Executive.
8. PENSION BENEFITS. Executive shall receive pension benefits as provided
in Section 5.3(k) of the Purchase Agreement.
9. BENEFITS.
(a) VACATION. Executive shall be entitled to vacation equal to five (5)
weeks in each twelve-month period commencing on the Closing Date and ending on
the first anniversary thereof and each twelve (12) month period thereafter
during the Term.
(b) OTHER BENEFITS. Executive shall be entitled to receive or participate
in benefit and welfare plans offered by SLM 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 SLM or as may be
provided in this Agreement.
(c) SUPPLEMENTAL LIFE INSURANCE. SLM shall continue Executive's current
supplemental life insurance providing a death benefit of at least $1 million.
SLM will pay all premiums due under the policy.
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10. NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
(a) Executive and SLM acknowledge that Executive has in the course of his
employment with Group and will, in the course of his employment with SLM and its
Affiliates, come into possession of confidential, proprietary business and
technical information, and trade secrets of SLM and its Affiliates (the
"Proprietary Information"). Proprietary Information includes, but is not limited
to, the following:
o BUSINESS PROCEDURES. All information concerning or relating to the way
the SLM and its Affiliates conduct their business, which is not
generally known to the public or within the industry or trade in which
SLM or its Affiliates compete (such as 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).
o MARKETING PLANS AND CUSTOMER LISTS. All information not generally
known to the public or within the industry or trade in which SLM or
its Affiliates compete pertaining to SLM'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.
o BUSINESS VENTURES: All information not generally known to the public
or within the industry or trade in which SLM 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.
o SOFTWARE. All information relating to SLM'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 SLM or its Affiliates compete and the
physical embodiments of such information.
o LITIGATION. Information which is not a public record or is not
generally known to the public or within the industry or trade in which
SLM or its Affiliates compete
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regarding litigation and potential litigation matters and the physical
embodiments of such information.
o INFORMATION NOT GENERALLY KNOWN. Any information which (a) is not
generally known to the public or within the industry or trade in which
SLM or its Affiliates compete, (b) gives SLM or its Affiliates a
significant advantage over its or their competitors, or (c) has
significant economic value or potentially significant economic value
to SLM 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 with Group and Group's Affiliates
and (ii) information that is known to the public or generally known in the
industry or trade in which SLM and its Affiliates compete.
(c) Executive acknowledges that the Proprietary Information is a valuable
and unique asset of SLM and its Affiliates. Executive agrees that he will not,
at any time during his employment or after the termination of his employment
with SLM, without the prior written consent of SLM 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 SLM
and/or its Affiliates.
11. AGREEMENT NOT TO COMPETE.
(a) Executive agrees that, without the express written consent of SLM, he
shall not compete with SLM or its Affiliates during the term of this Agreement
and for a period of two (2) years after the termination of Executive's
employment with SLM for any reason (the "Restricted Period") if such termination
occurs within the first 2 years of the date of execution of this Agreement. In
the event Executive's employment terminates for any reason after such two year
period, the Restricted Period shall be one (1) year. For purposes of this
Section 11, "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. SLM will not withhold its consent if the Executive's expected
duties within an otherwise competing organization are not related directly or
indirectly to the student loan business. Executive will provide any request for
consent to SLM in writing, describing the position, organization and expected
duties. SLM will respond to such request in writing within fifteen (15) days of
receipt, granting or withholding its consent and stating its reasons if consent
is withheld. Executive expressly agrees that (i) the markets served by SLM 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 11 have been designed to be
reasonable and are no greater than are required for the protection of SLM and
its Affiliates.
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(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 SLM.
12. TERMINATION. Executive's employment hereunder may be terminated
during the Term upon the occurrence of any one of the events described in this
Section 12. Upon termination, Executive shall be entitled only to such
compensation and benefits as described in this Section 12.
12.1. 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"), SLM may terminate Executive's employment hereunder.
(b) If SLM terminates Executive's employment during the Term due to a
Disability, 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 applicable payments set
forth in Section 12.4 based on the date of such termination of employment.
Further, the Stock Options shall immediately become fully exercisable and vested
and Executive will have one year from the date of termination under this Section
12.1 to exercise such vested Stock Options. In addition unless previously paid,
the Performance Stock and Incentive Bonus Award described in Section 7 shall be
paid and shares issued in satisfaction thereof as soon as administratively
feasible.
(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.
12.2. TERMINATION BY DEATH. If Executive dies during the Term, SLM shall
pay to Executive's executors, legal representatives or administrators the
applicable payments set forth in Section 12.4 based on the date of such
termination of employment 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 shall immediately become fully exercisable and
vested and Executive's executors shall have one year from the date of
termination under this Section 12.2 to exercise such vested Stock Options. In
addition, unless previously paid, the Performance Stock and Incentive Bonus
Award described in Section 7 shall be paid and shares issued in satisfaction
thereof to Executive's executors as soon as administratively feasible. Except as
specifically set
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forth in this Section 12.2 or under applicable laws, SLM 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 SLM and to
exercise any rights afforded them under any benefit plan then in effect.
12.3 TERMINATION FOR GOOD REASON. Executive may terminate his employment
hereunder for good reason, as defined below by delivering written notice thereof
to SLM. In the event Executive terminates his employment for Good Reason,
Executive shall receive all accrued but unpaid Base Salary and benefits through
the effective date of such termination, and the applicable payments set forth in
Section 12.4 based on the date of such termination of employment. Further, the
Stock Options shall immediately become fully exercisable and vested and
Executive will have one year from the date of termination under this Section
12.3 to exercise such vested Stock Options. In addition, unless previously paid,
the Performance Stock and Incentive Bonus Award described in Section 7 shall be
paid and shares issued in satisfaction thereof as soon as administratively
feasible.
For purposes of this Agreement "Good Reason" is defined as, in the absence
of a prior written consent of Executive, (i) a significant diminution of the
Executive's assigned duties and responsibilities, including without limitation,
any removal of the Executive's title(s) or any material diminution of the powers
associated with Executive's positions, excluding for this purpose isolated,
insubstantial and, inadvertent action not taken in bad faith and which is
remedied by SLM within 30 days after receipt of notice thereof given by
Executive; (ii) any failure by SLM to comply with any material provisions of the
Employment Agreement, other than an isolated, insubstantial and inadvertent
failure not occurring in bad faith and which is remedied by SLM within 30 days
after receipt of notice thereof given by Executive; or (iii) for any reason
following the six month anniversary of (x) a Change of Control as defined in
Section 12.5 below or (y) unless Executive is promoted to the position of Chief
Executive Officer, the current Chief Executive Officer ceasing to serve as Chief
Executive Officer of SLM; or (iv) from and after the second anniversary of the
Closing Date, for any reason following the date the current Chief Executive
Officer of SLM ceases to serve as Chief Executive Officer of SLM unless
Executive is promoted to the position of Chief Executive Officer of SLM.
12.4. INVOLUNTARY TERMINATION; TERMINATION PAYMENTS. SLM may terminate
Executive's employment hereunder at any time upon written notice to Executive.
In the event of an involuntary termination of Executive's employment, other than
for gross misconduct, pursuant to the first sentence of this Section 12.4, or in
the event Executive's employment is terminated by Executive for Good Reason as
defined in Section 12.3, or by SLM on account of Disability under Section 12.1
or death under Section 12.2, Executive (or Executive's executors under Section
12.2) shall receive all accrued but unpaid Base Salary and benefits through the
effective date of such termination and (i) $5.0 million less applicable
withholding taxes, if the date of such termination of employment occurs prior to
August 1, 2001; (ii) $3.0 million less applicable withholding taxes, if the date
of such termination of employment occurs on or after
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August 1, 2001 and prior to August 1, 2002, and (iii) $2.0 million less
applicable withholding taxes, if the date of such termination of employment
occurs on or after August 1, 2002 and prior to August 1, 2003. Further, in the
event (i) SLM gives written notice to Executive pursuant to Section 1 of SLM's
desire not to renew the Employment Agreement, (ii) of an involuntary termination
of Executive's employment, other than for gross misconduct, or (iii) Executive's
employment is terminated by Executive for Good Reason, (x) the Stock Options
shall be immediately vested and exercisable and Executive shall have one year
from the date of termination to exercise such vested Stock Options and (y)
unless previously paid, the Performance Stock and Incentive Bonus Award
described in Section 7 shall be paid and shares issued in satisfaction thereof
as soon as administratively feasible. As a condition to receiving any of the
consideration described in this Section 12.3, other than unpaid Base Salary,
Executive and SLM shall sign a mutual release of claims.
For purposes of this Agreement, "gross misconduct" is defined as (i) the
willful engaging by Executive in misconduct which is materially injurious to
SLM, monetarily or otherwise, (ii) the willful violation by Executive of any
material provision of this Agreement, (iii) any knowing material violation of
Section 10 of this Agreement, or (iv) Executive's conviction of a felony.
12.5 CHANGE IN CONTROL.
(a) In the event that Executive's employment with SLM terminates for any
reason other than for gross misconduct within eighteen months after a Change in
Control (as defined in Section 12.5(c) below), Executive shall be entitled to
receive the payments set forth in Section 12.4.
(b) In the event of a Change in Control as defined in Section 12.5(c)
below, all of the Stock Options shall be immediately vested and exercisable and
unless previously paid, the Performance Stock and Incentive Bonus Award
described in Section 7 shall be paid and shares issued in satisfaction thereof
immediately prior to the Change in Control.
(c) For purposes of this Agreement, "Change in Control" is as defined in
Section 12.2 of the MIP.
(d) Notwithstanding any provision to the contrary in this Agreement, if
any part of the payments provided for under or pursuant to this Agreement to
Executive as a result of Executive's termination of his employment for Good
Reason (other than for the Good Reason event described in clause (iii)(x) of the
definition thereof in Section 12.3) (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")
solely by reason of the payment of such Agreement Payments to Executive being
deemed to be contingent upon the change in control of Group contemplated by the
Purchase Agreement (a "Group Change in Control"), 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 12.5(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" solely by reason of
such payments being deemed to be
8
contingent on a Group Change in Control minus the amount of any unreimbursed
excise taxes payable under Code Section 4999 with respect to such payments and
the amount of any unreimbursed similar or comparable taxes payable only in
connection with a Group Change in Control, is greater than (ii) the greatest
value of payments in the nature of compensation contingent upon a Group 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.
(e) Excess Parachute Payment Dispute Resolution. SLM shall notify the
Executive in writing within ten (10) days after an event triggering "parachute
payments" (as such terms are defined in Section 280G of the Internal Revenue
Code), of the amounts of payments to be made by SLM under this Agreement,
together with any other payments made or to be made by SLM to the Executive,
that constitute parachute payments and the excess payments and of the amount of
the reduction, if any, required by Section 12.5. Within thirty (30) days after
such notice is given, the Executive shall notify SLM in writing whether or not
he agrees with SLM's characterization and calculation of the amount of parachute
payments and excess parachute payments, and the amount of any reduction. If the
Executive does not agree with SLM's characterization or calculations, the
Executive shall inform SLM of the characterization or amounts he believes to be
the correct characterization or amounts. If SLM and the Executive cannot agree
within forty five 45) days after SLM provides the notice of the amount of
parachute payments and excess parachute payments, and on the amount of any
reduction, the characterization and calculation of such amounts (and reduction)
shall be made by an independent tax accountant selected by SLM's independent
auditors and reasonably acceptable to Executive. Such determination shall be
completed within fifteen (15) days after it is submitted to such independent
counsel and shall be conclusive and binding on the parties.
12.6 OTHER TERMINATION OF EMPLOYMENT. In the event that Executive's
employment with SLM terminates on account of a voluntary termination of
employment by Executive other than pursuant to Section 12.3, or in the event
Executive gives written notice under Section 1 of his desire not to renew the
Employment Term, or in the event Executive's employment is terminated by SLM for
gross misconduct as defined in Section 12.4, Executive shall receive only all
accrued but unpaid (as of the effective date of such termination) Base Salary,
MIP bonus and benefits.
13. OTHER AGREEMENTS. Executive represents and warrants to SLM 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 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
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(which employment is not hereby authorized) or during the Restricted Period as
defined in Section 11 hereof.
14. SURVIVAL OF PROVISIONS. The provisions of this Agreement set forth in
Sections 10, 11, 12, 13(b), 24 and 25 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.
15. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon SLM and its successors and, provided that the obligations of
SLM under this Agreement are expressly assumed in a manner reasonably acceptable
to Executive, 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 SLM. 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.
16. 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 SLM 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.
17. 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 17, 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:
Xxxxx Xxxxxxxxxx
00000 Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
(b) If to SLM:
SLM Holding Corporation
Xxxxxx Xxx, 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)
10
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.
18. 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 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 SLM.
This Agreement may be amended or modified only by a written instrument signed by
all parties hereto.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. SPECIFIC ENFORCEMENT; EXTENSION OF PERIOD. Executive acknowledges
that the restrictions contained in Sections 10 and 11 hereof are reasonable and
necessary to protect the legitimate interests of SLM 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 10
or 11 hereof will cause continuing and irreparable injury to SLM for which
monetary damages would not be an adequate remedy. Executive shall not, in any
action or proceeding by SLM to enforce Sections 10 or 11 of this Agreement,
assert the claim or defense that an adequate remedy at law exists. In the event
of such breach by Executive, SLM shall have the right to enforce the provisions
of Sections 10 and 11of 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 SLM. In the event that the provisions of Sections 10
or 11 hereof should ever be adjudicated to exceed the time, geographic, or other
limitations permitted by
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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.
25. ARBITRATION. Any dispute or claim other than those referred to in
Section 24, arising out of or relating to this Agreement or otherwise relating
to the employment relationship between Executive and SLM, 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 SLM 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/ Xxxxxxxx X. Xxxxx /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------- --------------------------------------
Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President
-----------------------------
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