EXHIBIT 10.14
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
as of the 30th day of January, 2004, by and between Mortgage Guaranty Insurance
Corporation, a Wisconsin corporation, with its principal place of business
located at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 ("MGIC"), and
Xxxxx X. XxxXxxx, an individual residing at [address appears in executed
agreement] ("XxxXxxx").
WITNESSETH:
WHEREAS, XxxXxxx currently is employed by MGIC as its Executive Vice
President - Field Operations; and
WHEREAS, XxxXxxx previously has submitted to MGIC his resignation as an
officer and employee of MGIC, to become effective upon his retirement on January
30, 2004; and
WHEREAS, following XxxXxxx'x retirement, MGIC desires to retain, from
time to time, the consulting services of XxxXxxx, subject to the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, XxxXxxx and MGIC
hereby agree as follows:
1. CONFIRMATION OF RETIREMENT AND RESIGNATION. XxxXxxx shall retire and
resign all of his officer and employee positions with MGIC and all of MGIC's
parent, subsidiary, and affiliated corporations, effective as of the close of
MGIC's business on Friday, January 30, 2004 (the "Retirement Date").
2. CONSULTING ASSIGNMENTS. Following the Retirement Date, XxxXxxx will
provide consulting services to MGIC and its affiliates on a project basis. The
nature of each project shall be specified by either the Chief Executive Officer
or the Executive Vice President - Field Operations of MGIC, and shall be subject
to acceptance by XxxXxxx. Each such project shall be commensurate with XxxXxxx'x
prior officer position and status with MGIC. Nothing contained herein shall be
deemed to confer upon XxxXxxx any right to perform services for MGIC or receive
fees from MGIC for any particular period of time, it being understood and agreed
that either party may terminate the consulting relationship at anytime pursuant
to Section 7 below.
3. COMPENSATION. MGIC shall pay XxxXxxx fees ("Consulting Fees") in the
amount of Two Hundred Dollars ($200.00) per hour for services performed by
XxxXxxx hereunder. In addition to the Consulting Fees, MGIC shall pay, or
reimburse XxxXxxx, for reasonable travel and living expenses, if any, incurred
by XxxXxxx in performing the Services, including transportation, hotel
accommodations and meal expenses, subject to MGIC's established expense
reimbursement guidelines and policies. XxxXxxx shall be responsible for all
other costs and expenses incurred by XxxXxxx in performing services hereunder.
XxxXxxx shall prepare invoices on a bi-weekly basis itemizing the number of
hours worked and the
reimbursable expenses incurred during the previous two week period pursuant to
this Agreement. MGIC shall pay the Consulting Fees earned by XxxXxxx, and pay or
reimburse XxxXxxx for the reimbursable expenses, reflected on such invoices
within five (5) business days after MGIC's receipt of such invoices.
4. CONFIDENTIALITY. XxxXxxx hereby acknowledges and agrees that MGIC is
engaged in a service business involving Confidential Information, that such
Confidential Information is used by MGIC in its business to obtain a competitive
advantage over Competitors, and that the success of MGIC's business is in large
part due to MGIC's exclusive retention of said Confidential Information. XxxXxxx
further acknowledges that the protection of such Confidential Information
against unauthorized disclosure and use is of critical importance to MGIC in
maintaining its competitive position. Accordingly, XxxXxxx agrees that the
following terms and conditions shall apply to all Confidential Information:
A. For purposes of this Agreement, the term "Confidential
Information" shall include, without limitation, all data,
reports, specifications, know how, programs, plans,
strategies, marketing research, documents, procedures, forms,
customer information, systems, software, Work Product (as
defined in Section 5 hereof), and other materials and
information concerning MGIC or its activities which XxxXxxx
may be provided, may come in contact with, or may develop
during the course of this relationship, that are not generally
available to the public.
B. All Confidential Information will be used by XxxXxxx only for
the purpose of providing consulting services to MGIC.
X. XxxXxxx will not reproduce or duplicate any Confidential
Information without the written consent of MGIC.
D. Except as otherwise required by any law, court order or
subpoena, XxxXxxx will not disclose, make any independent use
of, publish, furnish, sell, assign or transfer any
Confidential Information to any third party, or authorize
anyone else to disclose, publish, furnish, sell, assign or
transfer any Confidential to any person or entity, without the
prior written approval or instruction of an authorized officer
of MGIC.
E. The terms, conditions and provisions of this Section 3 shall
survive the expiration and termination of this Agreement.
5. RETURN OF DOCUMENTS AND RECORDS. XxxXxxx hereby acknowledges and
agrees that all written or electronically stored materials received by XxxXxxx
from MGIC during the course of this Agreement are, and will remain at all times,
the sole property of MGIC. Promptly upon the expiration or termination of this
Agreement for any reason, or at any other time upon request by MGIC, XxxXxxx
will promptly deliver to MGIC all documents and records in the possession or
under the control of XxxXxxx which pertain to MGIC, any of its activities, or
any of XxxXxxx'x services provided hereunder.
6. WORK PRODUCT. The work product of XxxXxxx shall include, without
limitation, all tangible products, reports, plans, programs, procedures,
recommendations, forms, information recorded by any medium, documents, written
materials, inventions, software, data, and any and all
other work product, or any portion thereof, prepared, generated or provided by
XxxXxxx in connection with XxxXxxx'x performance under this Agreement ("Work
Product"). All Work Product shall be deemed "Work Made for Hire" and shall be
the sole property of MGIC. XxxXxxx hereby assigns all rights, title and interest
to MGIC in any and all Work Product, and all drafts thereof, including, without
limitation, all worldwide copyright, trademark, trade secret and other
proprietary rights in such Work Product. XxxXxxx further agrees to execute any
documentation reasonably required by MGIC in the future to reflect MGIC's rights
in and to such Work Product.
7. INDEPENDENT CONTRACTOR. In the performance of services hereunder,
XxxXxxx shall be an independent contractor and not an employee or agent of MGIC.
XxxXxxx shall have no authority to enter agreements on behalf of MGIC or
otherwise bind MGIC to any third party. XxxXxxx shall have no authority to act
in any way as a representative of MGIC, unless otherwise expressly agreed in
writing by MGIC. XxxXxxx shall supply all services hereunder at his own risk and
XxxXxxx shall not, by virtue of this Agreement or the performance of services
hereunder, be entitled to Worker's Compensation Insurance or any other insurance
or benefits provided by MGIC as a result of this Agreement or the performance of
services hereunder. XxxXxxx shall make his/her own arrangements for insurance at
Consultant's sole cost, which insurance shall be XxxXxxx'x sole and exclusive
remedy for any damage or personal injury suffered in connection with this
Agreement. No person engaged by XxxXxxx shall be entitled to compensation or
benefits of any kind from MGIC. Neither XxxXxxx, nor anyone employed or retained
by XxxXxxx, shall be eligible to participate in or be covered by any employee
benefit plan or program sponsored by or through MGIC as a result of this
Agreement or the performance of services hereunder. In the event XxxXxxx'x
employees or subcontractors are characterized by the Internal Revenue Service or
by any other taxing authority or other government agency (whether federal, state
or local) as employees of MGIC, and MGIC shall become liable for the withholding
or payment of any tax on income earned by any person hereunder or for any other
governmental charge or assessment by reason of such characterization, then
XxxXxxx shall promptly indemnify MGIC for such amount and any ancillary
penalties and interest. Such indemnification shall extend to any and all
reasonable costs, including attorney's fees, incurred by MGIC in connection with
such a loss, liability or claim. Nothing herein is intended to preclude
XxxXxxx'x simultaneous or subsequent engagement by third parties provided only
that such services do not interfere with XxxXxxx'x obligations under this
Agreement, are consistent with XxxXxxx'x duties of confidentiality provided for
herein, and do not otherwise violate or breach XxxXxxx'x covenants and
obligations set forth herein. XxxXxxx warrants that no laws, regulations or
ordinances of the United States, or any state or other government authority or
agency, including the Fair Labor Standard Act, as amended, has been or will be
violated in the performance of services and agrees to indemnify and hold MGIC
harmless from any and all claims arising from XxxXxxx'x breach hereof. XxxXxxx
shall, at XxxXxxx'x own expense, comply with all other laws, rules and
regulations and assume all liabilities or obligations imposed by such laws,
rules and regulations with respect to XxxXxxx'x performance of services.
Additionally, XxxXxxx shall be responsible for the payment of applicable taxes
and imposts levied or based upon the income of XxxXxxx or the fees payable to
XxxXxxx by MGIC including, but not limited to, FICA and federal, state and local
income taxes, unemployment insurance taxes; and any other income and employment
taxes or levies. XxxXxxx shall indemnify and hold MGIC harmless from any loss,
liability or claim resulting from breach of any representation, warranty or
covenant herein, or arising out of any action by XxxXxxx that is inconsistent
with XxxXxxx'x status as an independent contractor hereunder.
8. TERMINATION. Either party may terminate this Agreement, without
cause, for its convenience, at any time during the course of XxxXxxx'x
performance hereunder by providing written notice to the other party. If this
Agreement is terminated for any reason, XxxXxxx shall be paid all fees earned
for services performed prior to the effective date of termination which have not
been previously paid by MGIC. In no event shall XxxXxxx be entitled to any
unabsorbed overhead or anticipatory profit of any kind.
9. ASSIGNMENT AND SUBCONTRACTING. This Agreement may be assigned by
MGIC to MGIC Investment Corporation, the parent of MGIC, or to any direct or
indirect subsidiary of MGIC Investment Corporation. This Agreement may not
otherwise be subcontracted or assigned by either party without the prior,
express, written consent of the other party hereto.
10. NOTICES. Unless otherwise specified, all notices required or
permitted to be given under this Agreement must be in writing to be effective
and must be: (i) delivered to the party (in which event the notice is effective
at the time of delivery); or (ii) mailed by regular, certified or registered
mail (in which event the notice is effective as of the second Business Day
following mailing, regardless of actual receipt, if sent by certified or
registered mail or, upon receipt, if sent by regular mail); or (iii) sent by an
express delivery service with guaranteed next Business Day delivery (in which
event the notice is effective on the first Business Day following delivery to
such carrier, regardless of actual receipt); or (iv) sent by telecopy, with a
copy sent via regular, certified or registered mail (in which event the notice
is effective on the next Business Day following telecopy transmission). Notices
must be addressed to the appropriate party, as follows:
If to MGIC:
Mortgage Guaranty Insurance Corporation
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Vice President-Human Resources
If to XxxXxxx:
Xxxxx X. XxxXxxx
[Address appears in
executed agreement]
11. EQUAL EMPLOYMENT. Unless exempt, if XxxXxxx hires any employees or
retains any independent contractors for any purpose, XxxXxxx will comply with
U.S. Department of Labor regulations regarding (a) equal employment opportunity
obligations of government contractors and subcontractors, 41 Code of Federal
Regulations ("C.F.R.") Section 60-1.4(a)(1)-(7); (b) employment by government
contractors of Vietnam-era and disabled veterans, 41 C.F.R. Section
60-250.4(a)-(m); (c) employment of the handicapped by government contractors and
subcontractors, 41 C.F.R. Section 60-741.4(a)-(f); (d) developing written
affirmative action programs, 41 C.F.R. Sections 60-1.40, 60-2.1, 60-250.5 and
60-741.5; (e) certifying no segregated facilities, 41 C.F.R. Section 60-1.8; (f)
filing annual EEO-1 reports, 41 C.F.R. Section 60-1.7; and (g) utilizing
minority-owned and female-owned business concerns, 48 C.F.R. Section 52-219.9
and 52-219.12, which are incorporated by reference herein.
12. ADVERTISING AND PROMOTIONAL ACTIVITIES. XxxXxxx shall not use, in
any advertising or promotional material or media, MGIC's name or logo or that of
any affiliate of MGIC, or otherwise identify MGIC as a client of XxxXxxx,
without MGIC's prior written consent.
13. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
14. GOVERNING LAW. This Agreement shall be governed by, construed and
interpreted under the laws of the State of Wisconsin without reference to such
State's conflict of laws principles.
15. WAIVER. Failure or delay by either party to enforce compliance with
any term or condition of this Agreement shall not constitute a waiver of such
term or condition. A waiver of any breach or default under this Agreement shall
not constitute a waiver of any subsequent breach or default.
16. AMENDMENTS. No modification or amendment of this Agreement shall be
binding unless in writing and signed by the party sought to be bound.
17. TITLE AND HEADINGS. The title and section headings of this
Agreement have been inserted for convenience of reference only, do not
constitute a part of this Agreement, and shall not be construed to limit,
expand, or otherwise modify the effect of any provision of this Agreement.
18. SEVERABILITY. If any term or provision of this Agreement, or the
application thereof, shall to any extent be invalid or unenforceable, and the
intent of the parties hereto in entering into this Agreement is not materially
frustrated or negated thereby, the remainder of this Agreement, or the
application of such term or provision to circumstances other than those to which
it is invalid or unenforceable, shall not be affected thereby, and shall be
enforced to the full extent permitted by law.
19. ENTIRE AGREEMENT. Each of the parties hereby acknowledges that it
has read this Agreement and understands and agrees to be bound by its terms and
conditions. This Agreement is the complete and exclusive statement of the
agreement between the parties hereto which supersedes all prior agreements,
offers, proposals, understandings and other communications between the parties
hereto, oral or written, regarding the subject matter hereof.
IN WITNESS WHEREOF, MGIC and XxxXxxx have executed this Agreement as of
the date first set forth above.
MORTGAGE GUARANTY INSURANCE XXXXX X. XxxXXXX
CORPORATION
By: /s/ Xxxxxxx Sinks /s/ Xxxxx X. XxxXxxx
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Xxxxxxx Sinks
Senior Vice President - Field Operations