EMPLOYMENT CONTRACT
AGREED, as of the 1st day of February 2000, between the Federal
Agricultural Mortgage Corporation ("Xxxxxx Mac") and Xxxxxx X. Xxxxxx
("Employee" or "you"), that the following terms and conditions shall apply to
the employment relationship between the parties:
1. Term. The term of your employment shall continue until June 1, 2001 or
any earlier effective date of termination pursuant to Paragraph 7 hereof (the
"Term").
2. Scope of Authority and Employment. You will report directly to the
President of Xxxxxx Mac. You will have responsibility for the general legal
affairs of the corporation under business plans submitted by management to, and
approved by, the Board of Directors of Xxxxxx Mac. You shall be an officer of
Xxxxxx Mac, with the title of Vice President - General Counsel and Secretary.
You will devote your best efforts and substantially all your time and
endeavor to your duties hereunder, and you will not engage in any other gainful
occupation without the prior written consent of Xxxxxx Mac; provided, however,
that this provision will not be construed to prevent you from personally, and
for your own account or that of members of your immediate family, investing or
trading in real estate, stocks, bonds, securities, commodities, or other forms
of investment, so long as such investing or trading is not in conflict with the
best interests of Xxxxxx Mac. You will be employed to perform your duties at the
principal office of Xxxxxx Mac. Notwithstanding this, it is expected that you
will be required to travel a reasonable amount of time in the performance of
your duties under this Agreement.
3. Compensation. Xxxxxx Mac will pay to you the following aggregate
compensation for all services rendered by you under this Agreement:
(a) Base Salary. You will be paid a base salary (the "Base Salary")
during the Term of One Hundred Fifty-Nine Thousand Five Hundred Dollars
($159,500) per year, payable in arrears on a bi-weekly basis;
(b) Deferred Compensation. In addition to your Base Salary, you will be
granted restricted stock having a value of $50,000 as of the close of trading
on February 3, 2000. Your rights to the restricted stock will vest on May 31,
2001, subject to the terms of the restricted stock award agreement evidencing
such grant.
(c) Incentive Compensation. In addition to your Base Salary, you will be
paid additional payments during the term of this Agreement in respect of the
work performed by you during the preceding "Planning Year" (June 1 through
May 31), or portion thereof as follows: on June 1 of each year through and
including the effective date of termination, an additional payment in an
amount at the sole discretion of the Board of Directors if it determines that
you have performed in an extraordinary manner your duties, pursuant to
business plans proposed by management and approved by the Board of Directors,
during the preceding Planning Year.
4. Expenses. Xxxxxx Mac will reimburse you for your reasonable and necessary
expenses incurred in carrying out your duties under this Agreement, including,
without limitation, expenses for: travel; attending approved business meetings,
continuing legal education, conventions and similar gatherings; and business
entertainment. Reimbursement will be made to you within ten (10) days after
presentation to Xxxxxx Mac of an itemized accounting and documentation of such
expenses. You will notify the President of Xxxxxx Mac prior to incurring any
such expenses of an extraordinary or unusual nature.
5. Vacation and Sick Leave. You will be entitled to four (4) weeks of paid
vacation for each full Planning Year during the Term of this Agreement, to be
taken in spans not exceeding two (2) weeks each. Vacation rights must be
exercised within two months after the end of the Planning Year or forfeited. You
will be entitled to reasonable and customary amounts of sick leave.
6. Employee Benefits. Xxxxxx Mac will provide you with all employee benefits
regularly provided to employees of Xxxxxx Mac and the following other (or
upgraded) benefits: the best level of personal and family health insurance
obtainable by Xxxxxx Mac on reasonable terms; an annual medical examination;
business travel and personal accident insurance; life insurance in the amount of
Two Hundred Fifty Thousand Dollars ($250,000); disability benefits at least
equal to statutory benefits in the District of Columbia; participation in the
Xxxxxx Mac Pension Plan; and participation in a savings plan established under
Paragraph 401(k) of the Internal Revenue Code. The providers of any insurance
will be listed in Best's Insurance Guide. All of the foregoing is subject to the
limitation that the total cost thereof will not exceed twenty five percent (25%)
of your Base Salary, exclusive of administrative expense. In the event that such
cost limitation would be exceeded in any year, you may be required to select
from among the foregoing a group of benefits within that cost limitation.
7. Termination.
(a) Events of Termination. This Agreement will be terminated and the
employment relationship between you and Xxxxxx Mac will be severed as set
forth below:
(1) Xxxxxx Mac may terminate your employment effective upon notice
to you (or your legal representative) if you die or are incapacitated
or disabled by accident, sickness or otherwise so as to render you (in
the opinion of an independent medical consultant on the full-time
faculty of Georgetown University School of Medicine) mentally or
physically incapable of performing the services required to be
performed by you under the terms of this Agreement for a period of at
least sixty (60) consecutive days, or for sixty (60) days (whether
consecutive or not) during any six-month period.
(2) Xxxxxx Mac may terminate your employment effective upon notice
to you at any time for "cause." For the purposes of this subsection,
"cause" will mean only: (A) your willful failure to perform
substantially your duties hereunder, other than any such failure
resulting from your incapacity due to physical or mental illness; or
(B) your willful engagement in activities contrary to the best
interests of Xxxxxx Mac. For purposes of this subsection, no act, or
failure to act on your part, shall be considered "willful" unless done,
or omitted to be done, by you not in good faith and without reasonable
belief that your action or omission was in the best interests of Xxxxxx
Mac.
(3) Xxxxxx Mac may terminate your employment without "cause" at
any time. Such termination shall become effective June 1, 2001.
(4) Notwithstanding the provisions of subsection 7(a)(3) above,
Xxxxxx Mac may terminate your employment at any time after the passage
by the Board of Directors of Xxxxxx Mac of a resolution authorizing the
dissolution of Xxxxxx Mac. Such termination of your employment shall
become effective on the later of twelve (12) months after notice of
termination or the date that such dissolution of Xxxxxx Mac becomes
final as a matter of law, provided, however, that neither of the
following shall be deemed to be a dissolution for the purposes of this
Agreement: (i) dissolution of Xxxxxx Mac which becomes final as a
matter of law more than twelve (12) months after adoption of the
resolution of dissolution; or (ii) incorporation, organization or
reorganization of a corporation or other business entity which is
substantially similar to Xxxxxx Mac and which uses substantially the
same assets or equity as Xxxxxx Mac, within twelve (12) months after
adoption of the resolution of dissolution. As used herein, the term
"reorganization" shall have the same meaning as in Section 368(a) of
the Internal Revenue Code of 1986.
(b) Payment of Accrued Compensation.
(1) Upon termination of this Agreement pursuant to preceding
subsection (a), you (or your estate or heirs, as the case may be) will
be entitled to receive all Base Salary, Incentive Compensation, expense
reimbursements, vacation pay, and similar amounts accrued and unpaid as
of the date of such termination. The obligations of Xxxxxx Mac under
this subsection (b) will survive any termination of this Agreement.
(2) In the event of your voluntary termination of employment
hereunder, Xxxxxx Mac will not be obligated to make any further
compensation payments to you beyond those accrued prior to the
effective date of such termination.
(c) Disability Pay. Upon termination of this Agreement pursuant to the
preceding subsection (a)(1), Xxxxxx Mac, in its discretion, will either:
(1) continue to pay you (or your estate or heirs, as the case may
be) for the lesser of two (2) years or the balance of the Term the
difference between your current Base Salary and the amount of
disability insurance payments received by you under insurance policies
provided by Xxxxxx Mac in accordance with this Agreement; or
(2) pay you (or your estate or heirs, as the case may be) the
present value of the payments described in preceding subsection (c)(1),
discounted at a rate equal to the yield then available for two-year
U.S. Treasury Notes, plus 50 basis points (0.50%).
(d) Severance Pay. Upon termination of this Agreement pursuant to
preceding subsection 7(a)(3) or 7(a)(4), Xxxxxx Mac will pay you within
thirty (30) days after such termination an aggregate amount in cash equal to
one hundred percent (100%) of all Base Salary scheduled to be paid and not
yet paid to you under this Agreement for the balance of the Term.
In the event of Xxxxxx Mac's severance of your employment pursuant
to preceding subsection 7(a)(1), (3), or (4), the amount to be paid by Xxxxxx
Mac to you hereunder will not be mitigated by any subsequent earnings by you
from any source.
(e) Constructive Termination. You may, at your option, deem this
Agreement to have been terminated by Xxxxxx Mac in the event of its breach,
including prospective breach, of any term hereof unremedied for thirty (30) days
after notice thereof to Xxxxxx Mac. Upon notice to Xxxxxx Mac of your exercise
of this option, you will have the same rights under such a constructive
termination as if Xxxxxx Mac had terminated your employment pursuant to
preceding subsection (a)(3).
8. Agreement Not to Compete with Xxxxxx Mac.
Notwithstanding anything in this Agreement to the contrary, in the
event of the termination of your employment, for a period of two years
thereafter, you shall not, without the prior written consent of Xxxxxx Mac,
directly or indirectly, engage in any business or activity, whether as
principal, agent, officer, director, partner, employee, independent contractor,
consultant, stockholder or otherwise, alone or in association with any other
person, firm, corporation or other business organization, that directly or
indirectly competes with any of the businesses of Xxxxxx Mac in any manner,
including without limitation, the acquisition and securitization (for capital
market sale) of agricultural mortgage loans or USDA "guaranteed portions"
(hereinafter referred to as "Xxxxxx Mac Qualified Loans"); provided, however,
that such prohibited activity shall not include the ownership of up to 20% of
the common stock in a public company.
9. Agreement Not to Use Confidential or Proprietary Information.
Xxxxxx Mac and you both recognize that you have access to and acquire,
and may assist in developing, confidential and proprietary information relating
to the business and operations of Xxxxxx Mac as a result of your employment or
association with Xxxxxx Mac. You hereby covenant and agree that you will retain
all "Confidential Information" (as defined below) in trust for the sole benefit
of Xxxxxx Mac and its successors and assigns. You hereby covenant further that,
in addition to your fiduciary responsibilities as an officer not to disclose
certain information of or relating to Xxxxxx Mac, you will not, at any time
during or after the term of this Agreement, without the prior written consent of
Xxxxxx Mac, directly or indirectly communicate or divulge any such Confidential
Information to any person, firm, corporation or other business organization, or
use any such Confidential Information for your own account or for the account of
any other person, except as required in connection with the performance of your
services hereunder. The term "Confidential Information" shall mean any trade
secret, data or other confidential or proprietary information related to the
business and activities of Xxxxxx Mac. Notwithstanding the foregoing,
Confidential Information shall not include any information that is or becomes a
part of the public domain or generally available to the public (unless such
availability occurs as a result of any breach by you of this Section 11), or
becomes available to you on a non-confidential basis from a source (other than
Xxxxxx Mac) that is not bound by a confidentiality agreement and does not breach
his or her fiduciary responsibilities. The provisions of this Section 9 shall
survive the termination of this Agreement and the termination of your employment
hereunder.
10. Agreement Not to Solicit Xxxxxx Mac Employees.
For a period of two years after the termination of your employment
hereunder, you shall not, directly or indirectly, induce any employee of Xxxxxx
Mac who is a "member of management" (as defined below) or is directly involved
in the acquisition and securitization (for capital market sale) of Xxxxxx Mac
Qualified Loans to engage in any activity in which you are prohibited from
engaging in under this Agreement, or to terminate such person's employment with
Xxxxxx Mac. You shall not directly or indirectly, either individually or as
owner, agent, employee, consultant or otherwise, employ, offer employment to,
lure, entice away or assist others in recruiting or hiring any person who is or
was employed by Xxxxxx Mac unless such person shall have ceased to be employed
by Xxxxxx Mac for a period of at least six months and is not subject to any
non-compete covenants substantially similar in nature to those contained in
Section 8 hereof. "Member of management" means the President, any Vice
President, the Controller of Xxxxxx Mac or attorney or paralegal in the employ
of Xxxxxx Mac.
11. Notices. Any notice given under this Agreement will be sufficient if in
writing and either: (a) mailed postage prepaid by registered or certified mail,
return receipt requested; or (b) delivered by hand to, in the case of Xxxxxx
Mac, 000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, attention President or, in
the case of the Employee, 00000 Xxxxxxx Xxxxx Xxx, Xxxxx, XX 00000 (or to such
other addresses as may be from time to time designated by notice from the
recipient party to the other). Any such notice will be effective upon actual
receipt or refusal thereof.
12. Miscellaneous.
(a) Governing Law. This Agreement will be governed by, and interpreted
and enforced in accordance with, the laws of the District of Columbia.
(b) Waiver. The waiver by any party of a breach of any provision of
this Agreement will not operate as a waiver of any other breach of any
provision of this Agreement by any party.
(c) Entire Agreement. This Agreement sets forth the entire
understanding of the parties concerning the subject matter hereof, and may
not be changed or modified except by a written instrument duly executed by or
on behalf of the parties hereto.
(d) Successors and Assigns. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors,
heirs, personal representatives and assigns. This subsection is not to be
construed to permit you to assign your obligation to perform the duties of
your employment hereunder. This subsection permits Xxxxxx Mac the right to
assign this Agreement to a successor entity.
(e) Severability. If any term, condition, or provision of this
Agreement or the application thereof to any party or circumstances will, at
any time or to any extent be invalid or unenforceable, the remainder of this
Agreement, or the application of such term, condition or provision to parties
or circumstances other than those to which it is held invalid or
unenforceable, will not be affected thereby, and each term, condition and
provision of this Agreement will be valid and enforceable to the fullest
extent permitted by law.
(f) Action by Xxxxxx Mac. Except as expressly provided otherwise in
this Agreement, reference to actions, decisions, determinations or similar
occurrences by Xxxxxx Mac (other than the execution of this Agreement and any
modifications hereto or notices given hereunder) will mean the action,
decision or determination of the Board of Directors or the President of
Xxxxxx Mac.
FEDERAL AGRICULTURAL MORTGAGE CORPORATION
By:______________________________________
Xxxxx X. Xxxxxxx
President and Chief Executive Officer
EMPLOYEE
______________________________________
Xxxxxx X. Xxxxxx
