EXHIBIT 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of July 31,
1995, by and between GREAT WESTERN FINANCIAL CORPORATION, a
Delaware corporation ("Employer"), and A. Xxxxxxx Xxxxxxx III
("Officer").
W I T N E S S E T H:
WHEREAS, Employer desires to obtain the benefit of
services by Officer, and Officer desires to render services to
Employer; and
WHEREAS, the Board of Directors of Employer (the "Board")
has determined that it is in Employer's best interest and that
of its stockholders to recognize the substantial contribution
that Officer is expected to make to the business of Employer
and its subsidiary, Great Western Bank, a Federal Savings Bank
(the "Bank") (together, the "Company") and to retain his ser-
vices in the future; and
WHEREAS, Employer and Officer desire to set forth in this
Agreement the terms and conditions of Officer's employment
with Employer;
NOW, THEREFORE, in consideration of the mutual promises
and covenants herein contained, the parties hereto agree as
follows:
1. TERM. Employer shall employ Officer, and Officer
shall serve Employer, in accordance with the terms hereof, for
a term of three (3) years ending July 30, 1998 (the "Term"),
unless such employment is earlier terminated in accordance
with the provisions hereof. Notwithstanding the foregoing, if
Officer's employment shall not have been terminated in
accordance with the provisions hereof effective on or before
the first anniversary of the effective date hereof, the
remaining Term shall be extended such that at each and every
moment of time thereafter the remaining Term shall be two (2)
years (but in no event shall the remaining Term extend beyond
Officer's sixty-fifth (65th) birthday).
2. SPECIFIC POSITION; DUTIES AND RESPONSIBILITIES.
Subject to the provisions of this Agreement, Employer shall
employ Officer, and Officer shall serve Employer, as Executive
Vice President, Retail Banking Division, of Employer and
member of the Executive Management Committee. Officer's
principal business address shall during such period be at
Employer's principal executive offices in Southern California
or in such other place as with Officer's consent such offices
are relocated. Officer's duties hereunder shall be the usual
and customary duties of the office in which he shall serve,
and shall not be inconsistent with the provisions of the
charter documents of Employer (or applicable subsidiary) or
applicable law. Officer shall have such executive power and
authority as shall reasonably be required to enable him to
discharge his duties in the office which he may hold. All
compensation paid to Officer by Employer or any of its
subsidiaries, and all benefits and perquisites received by
Officer from Employer or any of its subsidiaries, in
accordance with the provisions hereof shall be aggregated in
determining whether Officer has been paid the compensation and
received the benefits and perquisites provided for herein.
3. SERVICES AND EXCLUSIVITY OF SERVICES. During his
employment hereunder, Officer shall devote his full business
time and energy to the business, affairs and interests of
Employer and its subsidiaries, and matters related thereto,
and shall use his best efforts and abilities to promote
Employer's and its subsidiaries' interests. Officer shall
diligently endeavor to promote the business, affairs and
interests of Employer and its subsidiaries and perform servic-
es contemplated hereby in accordance with the policies
established by the Board. Officer shall serve without
additional remuneration in such senior executive capacity for
one or more (direct or indirect) subsidiaries of Employer as
the Board may from time to time request, subject to
appropriate authorization by the subsidiary or subsidiaries
involved and any limitations under applicable law. Officer's
failure to discharge an order or perform a function because
Officer reasonably and in good faith believes such would
violate a law or regulation or be dishonest shall not be
deemed a breach by him of his obligations or duties hereunder
and shall not entitle Employer to terminate Officer's employ-
ment hereunder, including without limitation pursuant to
Section 7(c) hereof.
Officer may serve as a director or in any other capacity
of any business enterprise, including an enterprise whose
activities may involve or relate to the business of the
Company, provided that such service is expressly approved by
the Board. Officer may make and manage personal business
investments of his choice and serve in any capacity with any
civic, educational or charitable organization, or any
governmental entity or trade association, without seeking or
obtaining approval by the Board, provided such activities and
service do not materially interfere or conflict with the
performance of his duties hereunder.
4. SALARY AND OTHER BENEFITS.
(a) Commencing as of the effective date of this Agree-
ment, Employer shall pay Officer an annual salary at the rate
of $400,000, which shall be payable in semi-monthly or bi-
weekly installments in conformity with Employer's policy
relating to salaried employees.
(b) Subject to the provisions of this Section 4, Officer
shall also be entitled during his employment hereunder to all
rights and benefits for which he is otherwise eligible under
any bonus plan, stock option plan, stock purchase plan,
participation or extra compensation plan, pension plan,
profit-sharing plan, life and medical insurance policy or
other plans or benefits which Employer or its subsidiaries may
provide for him or, provided he is eligible to participate
therein, for senior officers generally or for employees gener-
ally including, without limitation, (i) beginning in December
1995, participation in the annual award of stock options to
Employer's executive officers, which awards are subject to the
discretion and approval of Employer's compensation committee,
and (ii) a split dollar life insurance policy in the face
amount of $1,500,000 and otherwise on terms and conditions
substantially similar to the terms and conditions of the split
dollar life insurance policy provided Officer by PNC Bank
Corp. (collectively, "Additional Benefits").
The Board shall review Officer's salary and Additional
Benefits then being paid and provided to him not less
frequently than annually in the light of Officer's services
for the preceding period, the responsibilities which attend
his office and duties hereunder, the profitability and
progress of Employer and its subsidiaries and current salaries
and benefits then being paid to others holding similar
positions. Following such review, Employer may increase the
salary and/or Additional Benefits, but may not decrease the
salary or any of the Additional Benefits from the then
existing levels; provided, however, that Employer shall have
the right to reduce Officer's salary in conjunction with a pro
rata salary reduction applicable to all of Employer's officers
and to reduce one or more Additional Benefits in conjunction
with a reduction of such benefits applicable to all of
Employer's officers. Employer shall not single Officer out
and discriminate against Officer in its provisions of benefits
to senior officers or full-time employees of Employer for so
long as Officer remains eligible under the terms of plans from
time to time offered by Employer, but this provision shall not
require the provision of any specific benefit to Officer.
If Officer's employment is terminated hereunder, pursuant
to Section 6 hereof or pursuant to Section 7(a), 7(b) or 8
hereof, and Officer is entitled to but is no longer eligible
for Additional Benefits because of such termination, Officer
(or in the event of his death, his designated Beneficiary (as
defined in Section 7(b) hereof)) shall be entitled to and
Employer shall provide, to the extent provided in this
Agreement, benefits substantially equivalent to the Additional
Benefits to which Officer was entitled immediately prior to
such termination and shall do so for the period during which
he remains entitled to receive such Additional Benefits as
provided in this Agreement.
(c) For each calendar year during the Term (excluding the
period from the effective date of this Agreement through
December 31, 1995), Officer shall be awarded a target bonus in
an amount equal to forty percent (40%) of Officer's annual
salary, subject to the terms of the Company's Annual Incentive
Compensation Plan for Executive Officers (the "Incentive
Plan"). With respect to the period from the effective date of
this Agreement through December 31, 1995, Employer shall pay
to Officer a bonus in an amount not less than $153,500 (the
"1995 Bonus"), payable in the following manner: no later than
three (3) business days after receipt by Employer of
certification from Officer that officer has received either a
bonus in respect of services rendered in 1995 from PNC Bank
Corp. or notification from PNC Bank Corp. that no bonus will
be paid to Officer in respect of services rendered in 1995,
Employer shall pay to Officer an amount equal to (i) the 1995
Bonus, less (ii) the amount of any bonus payment received by
Officer from PNC Bank Corp.
(d) As of the effective date of this Agreement, Employer
shall grant to Officer that whole number of restricted shares
of common stock of Employer (the "Common Stock") determined by
dividing $460,500 by the fair market value per share of Common
Stock on the effective date of this Agreement (the "Restricted
Stock"). The Restricted Stock shall be issued under the terms
of the General Provisions Applicable to Restricted Stock
Awards Granted Under the Great Western Financial Corporation
1988 Stock Option and Incentive Plan, as amended to A. Xxxxxxx
Xxxxxxx III, and the related form of Restricted Stock Award
Agreement, attached hereto as Exhibits A and B, respectively,
and incorporated herein by reference.
(e) As of the effective date of this Agreement, Employer
shall grant to Officer the following awards: (i) at Officer's
written election delivered to Employer, either (A) (1) a non-
qualified stock option to purchase 26,500 shares of Common
Stock at an exercise price per share equal to the fair market
value per share of Common Stock on the effective date of this
Agreement, plus (2) a cash payment of $135,813, or (B) a non-
qualified stock option to purchase 44,048 shares of Common
Stock at an exercise price per share equal to the fair market
value per share of Common Stock on the effective date of this
Agreement; and (ii) a non-qualified stock option to purchase
85,000 shares of Common Stock at an exercise price per share
equal to the fair market value per share of Common Stock on
the effective date of this Agreement. Any stock option award-
ed pursuant to this Section 4(e) shall be awarded in accor-
dance with the terms and conditions of Employer's 1988 Stock
Option and Incentive Plan and the related form of Nonqualified
Stock Option Agreement, attached hereto as Exhibits C and D
and incorporated herein by reference.
(f) Officer shall participate in Employer's Supplemental
Executive Retirement Plan, as amended (the "SERP"), with
normal retirement benefits equal to sixty percent (60%) of
Officer's Average Monthly Compensation (as defined therein),
subject to the terms and conditions of the SERP, as amended.
(g) This Agreement shall not affect the provisions of any
other compensation, retirement or other benefit program or
plan of the Company.
5. PERQUISITES; REIMBURSEMENTS; VACATION.
(a) Commencing as of the effective date of this Agree-
ment, Officer shall be entitled to perquisites of a kind and
quality provided to other Executive Vice Presidents of
Employer.
(b) Employer shall reimburse Officer for the following
travel expenses: (i) all travel expenses between Pittsburgh
and Los Angeles incurred by Officer and his spouse at the
request of Employer for the period beginning on July 11, 1995
and ending on the effective date of this Agreement, (ii) up to
four (4) trips to Los Angeles made by Officer and his spouse
for purposes of finding a residence, (iii) up to one year's
rental housing, at a maximum cost not to exceed $7,500 per
month, (iv) all moving expenses incurred by Officer in
relocating from Pittsburgh to Los Angeles, and (v) if
Officer's employment with Employer is voluntarily terminated
during the first three (3) years of the Term, all moving ex-
penses from Los Angeles to Pittsburgh should Officer decide,
within six (6) months of such termination of employment, to
relocate to Pittsburgh.
Employer shall provide Officer with eighteen (18) round-
trip airline tickets for business class transportation between
Pittsburgh and Los Angeles, which tickets may be used without
time limit by any member of Officer's family.
(c) During his employment hereunder, Officer shall be
entitled to vacation in accordance with Employer's standard
practice for senior executives but in no event to less than
four (4) weeks paid vacation during each calendar year of
employment, prorated for any period which is less than one
calendar year. Vacation time shall accrue during each
calendar year (but at no time shall the aggregate of accrued
but unused vacation time exceed eight (8) weeks), and, upon
termination of his employment for any reason and in addition
to any other rights granted to Officer by this Agreement,
Officer shall be entitled to be paid an amount based upon his
salary at the rate applicable immediately prior to such
termination for any accrued but unused vacation time.
6. TERMINATION BY EMPLOYER WITHOUT "CAUSE"; TERMINATION
BY OFFICER. Employer shall have the right, at its election to
be made in writing and delivered to Officer within sixty (60)
days prior to the effective date thereof, to terminate
Officer's employment hereunder without "cause" (as defined in
Section 7(c) below). Officer shall have the right, at his
election to be made in writing and delivered to Employer
within sixty (60) days after such event, to terminate his
employment hereunder if a material breach of this Agreement by
Employer occurs which Employer fails to cure within fifteen
(15) days after receipt of notice of such breach. In the
event of a termination for either of the reasons enumerated in
this paragraph, Officer shall be entitled to the following:
(a) for the remaining Term, salary at the rate applicable
immediately prior to such election;
(b) concurrently with the receipt of bonuses by
Employer's other senior executives with respect to the year in
which such termination occurs, a bonus, prorated on an actual
day basis for the year in which such termination occurs if
such termination shall occur within the first six (6) months
of such year but otherwise not prorated, in an amount not less
than a percentage of Officer's salary, at the rate of salary
applicable immediately prior to such election, equal to the
percentage of the aggregate salaries of the Executive
Management Committee members during such year, other than
Officer, Employer's Chief Executive Officer, Employer's Chief
Operating Officer and any Executive Management Committee
members whose employment by Employer is terminated during such
year, received in the aggregate by such members as bonuses;
provided, however, that with respect to 1995, such amount
shall not be less than the minimum 1995 Bonus;
(c) for the remaining Term, health and welfare type Addi-
tional Benefits (including without limitation hospital,
surgical, major medical, life and disability insurance,
qualified pension (or, if prohibited under then applicable tax
law, a specially-designed non-qualified supplemental pension
to provide Officer with benefits equivalent to those to which
he would have been entitled if such prohibition did not
pertain) and non-qualified supplemental pension) to which
Officer may be entitled pursuant to Section 4 hereof as the
same shall exist immediately prior to such election (including
continued accrual of years of service under Employer's
Retirement Plan as in effect immediately prior to such
election (or, if prohibited under then applicable tax law, a
specially-designed non-qualified supplemental pension to
provide Officer with benefits equivalent to those to which he
would have been entitled if such prohibition did not pertain)
but excluding Employer matching contributions under Employer's
401(k) plan or any successor plan thereto), each such benefit
to be continued in a manner no less favorable to Officer than
the benefit to which he was entitled immediately prior to such
election unless a benefit reduction is attributable to a
reduction applicable to all of Employer's officers; and
(d) for a one-year period commencing with the effective
date of such termination, a continuation at Employer's expense
of the use of any automobile provided by Employer immediately
prior to such election to facilitate the performance of
Officer's duties and responsibilities hereunder, subject to
Officer's right at any time during such one-year period to
purchase such automobile at the higher of its depreciated book
value or its wholesale cash value.
In the event of a termination pursuant to this Section 6,
Officer shall have no duty to seek other employment; provided,
however, that fifty percent (50%) of any salary, bonus or
grant of stock received by Officer during or with respect to
the remaining Term and attributable to services rendered by
Officer to persons or entities other than Employer shall be
applied to reduce Employer's obligation to make payments
hereunder and that any benefits of the kind referred to in
subsection (c) of this Section 6 received by Officer during or
with respect to the remaining Term and attributable to
services rendered by Officer to persons or entities other than
Employer shall be applied to reduce Employer's obligation to
provide such benefits hereunder. With respect to and
notwithstanding anything to the contrary provided by the
foregoing, only fifty percent (50%) of the amount of defined
benefit pension benefits or non-qualified supplemental
retirement benefits actually received by Officer with respect
to the remaining Term from one or more other persons or
entities shall be applied to reduce Employer's obligation to
provide such benefits hereunder and such amount shall be
determined on a "benefit/years of service" or comparable
formula basis. Not less frequently than annually (by March
31st of each year), Officer shall account to Employer as to
the amount of such salary, bonus, stock and pension benefits;
if Employer has paid amounts in excess of those to which
Officer was entitled (after giving effect to the offsets
provided above), Officer shall reimburse Employer for such
excess by April 1 of such year.
7. OTHER EVENTS OF TERMINATION. Other than a termina-
tion pursuant to Section 6 or 8 hereof, Officer's employment
hereunder shall be terminated only as provided for below in
this Section 7:
(a) DISABILITY. In the event that Officer shall fail,
because of illness, injury or similar incapacity
("disability"), to render for six (6) consecutive calendar
months, or for shorter periods aggregating one hundred thirty
(130) or more business days in any twelve (12)-month period,
services contemplated by this Agreement, Officer's employment
hereunder may be terminated, by written notice of termination
from Employer to Officer; thereafter, Employer shall continue,
until Officer's death, or until Officer's sixty-fifth (65th)
birthday, whichever first occurs, but in no event for longer
than ten (10) years, to pay compensation to Officer at a rate
and in an amount (payable at the times and in the manner
theretofore applicable to Officer's salary) equal to (i) 50%
of the sum of (A) the rate of annual salary payable to him
immediately prior to such termination and (B) the average
annual bonus received by him for services rendered in the
immediately preceding three (3) full calendar years or such
lesser number of full calendar years that Officer has been
employed by Employer; provided, however, with respect to a
disability occurring during 1995 or 1996, the average annual
bonus for purposes of this Section 7(a) shall be the 1995
Bonus, minus (ii) the amount of any cash payments to which he
would have been entitled under the terms of Employer's
disability insurance plan upon the assumption that he had
elected the fifty percent (50%) "normal" benefits under
Employer's Plus Pay Plan; to afford all of the medical, dental
and life insurance benefits to which he is entitled pursuant
to Section 4 hereof at the times and in the manner otherwise
afforded hereunder; and to continue accrual of years of
service under Employer's Retirement Plan as in effect at the
time of such disability.
(b) DEATH. Officer's employment hereunder shall be
terminated upon Officer's death. One hundred percent (100%)
of Officer's salary at the rate of such salary in effect
immediately prior to Officer's death (or, if Officer's death
occurs while he is receiving payments under Section 7(a)
hereof, at the rate of such salary in effect immediately prior
to Officer's disability) shall be paid until the first
anniversary of Officer's death at the times and in the manner
otherwise payable hereunder, to such person or persons as
Officer shall have directed in writing or, in the absence of a
designation, to his estate (the "Beneficiary"). In addition
to the Beneficiary's rights hereunder to be paid Officer's
salary, hospital, surgical, major medical and dental benefits
to which members of Officer's family were entitled immediately
prior to Officer's death shall be continued to the same extent
after Officer's death until the first anniversary of Officer's
death. This Agreement in all other respects shall terminate
upon the death of Officer.
(c) FOR CAUSE. Officer's employment hereunder shall be
terminated and all of his rights to receive salary, bonus,
Additional Benefits (subject to the terms of any plans
relating thereto) and perquisites shall terminate upon the
occurrence of (i) a material breach of this Agreement by
Officer, (ii) Officer's conviction by a court of competent
jurisdiction of a felony or (iii) entry of an order duly
issued by the Office of Thrift Supervision or the Federal
Deposit Insurance Corporation removing Officer from the office
of Employer or the Bank or permanently prohibiting him from
participating in the conduct of the affairs of Employer or the
Bank. Notwithstanding the foregoing, Officer's employment
hereunder shall not be subject to termination under subsection
(c)(i) hereof without (A) reasonable notice to Officer setting
forth the reasons for Employer's intention to terminate, (B)
an opportunity for Officer to cure any such breach within
fifteen (15) days after receipt of such notice and (C)
delivery to Officer of a notice of termination stating that a
majority of the authorized number of Employer's directors has
found that Officer was guilty of the conduct set forth above
and specifying the particulars thereof in detail. If Officer
shall be suspended from office and/or temporarily prohibited
from participating in the conduct of Employer's or the Bank's
affairs by any regulatory authority having jurisdiction in the
premises, Employer's obligations shall be automatically
suspended, subject to reinstatement in full if the charges
resulting in such suspension or prohibition are finally
dismissed. Such reinstatement shall provide Officer with the
salary, other benefits and perquisites to which he would have
been entitled absent such suspension or prohibition to the
same effect and extent as though such suspension or
prohibition had not occurred, including without limitation
reinstatement in full of vesting and years of service
accruals, where applicable, for the suspension period and
accrued interest at the rate then payable on judgments on all
amounts thereupon paid to Officer and attributable to the
suspension period.
In the event of any termination or suspension by Employer
pursuant to any of the provisions of Section 7(a) or 7(c)
hereof, Employer shall immediately so notify Officer.
8. CHANGE IN CONTROL.
(a) If there should occur a change in control of Employer
(as defined below), and if thereafter Employer materially
breaches this Agreement and fails to cure such breach within
fifteen (15) days after receipt of notice thereof; or if there
would have occurred a change in control of Employer (as
defined below) if the references in Section 8(b) hereof to
"more than fifty percent (50%)" were in lieu thereof
references to "twenty-five percent (25%) or more," and if
thereafter Employer materially breaches this Agreement,
Employer's Chairman and Chief Executive Officer fails to
acquiesce in the action or omission giving rise to such breach
and Employer fails to cure such breach within fifteen (15)
days after receipt of notice thereof, then, in either such
event, Officer, without limitation on any other rights he may
have hereunder, may, within one (1) year after he first has
knowledge of such breach, elect to terminate his employment
hereunder and to treat such termination as a termination
pursuant to Section 6 hereof, subject, however, to the
following modifications to Officer's rights as set forth in
said Section 6, any one or more of which modifications Officer
may elect to waive:
(i) Employer shall not be entitled to reduce any
Additional Benefits to which Officer shall thereafter
be entitled even in connection with a reduction in
such benefits applicable to all of Employer's
officers.
(ii) All restricted shares or stock options then
unvested shall immediately vest.
(iii) Officer's pro rata entitlement to an award
under any then existing long-term incentive
performance plan shall be calculated upon the
assumption that the performance under such plan is
then "on plan."
(iv) The remaining Term shall be deemed to be three
(3) years (but in no event shall the remaining Term be
deemed to extend beyond Officer's sixty-fifth (65th)
birthday).
Notwithstanding Officer's entitlements as set forth in
this paragraph, if the value of those of such aggregate
entitlements constituting "parachute payments" under Section
28OG of the Code, after giving effect to Employer's right of
offset as provided for in the next succeeding sentence, is
less than the maximum amount Officer is entitled to receive
without incurring a liability under Section 28OG of the Code
for any reason, including that some or all of such
entitlements constitute reasonable compensation for services
rendered or to be rendered (and do not, therefore, constitute
"parachute payments"), then, in such event, Officer shall be
entitled to receive such maximum amount. In the event of a
termination pursuant to this paragraph, Officer may,
concurrently with his election to terminate his employment
hereunder, elect either (i) to impose a duty upon himself to
seek other employment or to become self employed, in which
event (A) fifty percent (50%) of any salary, bonus, grant of
stock and defined benefit pension benefits or non-qualified
supplemental retirement benefits received by Officer during or
with respect to the remaining Term and attributable to
services rendered by Officer to persons or entities other than
Employer and fifty percent (50%) of any net income realized by
Officer by reason of self employment during or with respect to
the remaining Term shall be applied to reduce Employer's
obligation to make payments hereunder and (B) any benefits of
the kind referred to in Section 6(c) hereof received by
Officer during or with respect to the remaining Term and
attributable to services rendered by Officer to persons or
entities other than Employer shall be applied to reduce
Employer's obligation to provide such benefits hereunder, or
(ii) to be free of any duty to seek other employment or to
become self employed, in which event (C) one hundred percent
(100%) of any salary, bonus, grant of stock and defined
benefit pension benefits or non-qualified supplemental
retirement benefits received by Officer during or with respect
to the remaining Term and attributable to services rendered by
Officer to persons or entities other than Employer and one
hundred percent (100%) of any net income realized by Officer
by reason of self employment during or with respect to the
remaining Term shall be applied to reduce Employer's
obligation to make payments hereunder and (D) any benefits of
the kind referred to in Section 6(c) hereof received by
Officer during or with respect to the remaining Term and
attributable to services rendered by Officer to persons or
entities other than Employer shall be applied to reduce
Employer's obligation to provide such benefits hereunder.
Any duty imposed upon Officer by this Section 8 to seek
other employment shall in no event require Officer to accept
any position with any entity other than a financial
institution nor to accept any position which would be
inconsistent with the dignity, importance and scope of his
former position as Executive Vice President of Employer and
member of the Executive Management Committee.
(b) For purposes of the foregoing provisions, a "change
in control" means, and shall be deemed to have taken place if:
(i) any person or entity (or group of affiliated persons or
entities) (including a group which is deemed a "person" by
Section 13(d)(3) of the Securities Exchange Act of 1934)
acquires in one or more transactions, whether before or after
the date of this Agreement, ownership of more than fifty
percent (50%) of the outstanding shares of stock entitled to
vote in the election of directors of Employer, and (ii) as a
result of, or in connection with, any such acquisition or any
related proxy contest, cash tender or exchange offer, merger
or other business combination, sale of assets or any
combination of the foregoing transactions, the persons who
were directors of Employer immediately before such acquisition
shall cease to constitute five-sixths of the membership of the
Board or of the board of directors of any successor to
Employer after such transaction (but not more than twelve (12)
months after such transaction). "Ownership" means ownership,
directly or indirectly, of more than fifty percent (50%) of
such outstanding voting stock of Employer other than (A) by a
person owning such shares merely of record (such as a member
of a securities exchange, a nominee or a securities depositary
system), (B) by a person as a bona fide pledgee of shares
prior to a default and determination to exercise powers as an
owner of the shares, (C) by a person who is not required to
file statements on Schedule 13D by virtue of Rule 13d-l(b) of
the Securities and Exchange Commission under the Securities
Exchange Act of 1934 or (D) by a person who owns or holds
shares as an underwriter acquired in connection with an
underwritten offering pending and for purposes of their
resale. Without limitation, the right to acquire ownership
shall not of itself constitute ownership of shares.
(c) In the event that any payment, coverage or benefit
provided under this Agreement or otherwise provided to Officer
by or on behalf of Employer would, in the opinion of counsel
for Employer, not be deemed to be deductible in whole or in
part in the calculation of the Federal income tax of Employer,
or any other person making such payment or providing such
coverage or benefit, by reason of Section 28OG of the Code,
the aggregate payments, coverages or benefits provided
hereunder shall be reduced so that no portion of such amount
which is paid to Officer is not deductible for tax purposes by
reason of Section 28OG of the Code. Employer shall hold such
portions not paid to Officer in escrow. At the end of each
calendar quarter during the term of such escrow, Employer
shall deposit into escrow an amount equal to interest accrued
during such calendar quarter on the amount held in escrow
during such calendar quarter at a rate equal to the rate then
payable on judgments in California. If it shall be determined
at any point in time, by a counsel selected by Employer and
Officer, that it is more likely than not that the payment to
Officer of any or all of such amount held in escrow would be
deductible for tax purposes, such amount shall be paid out of
escrow to Officer. In the event of a final determination by
the Internal Revenue Service or of a final non-appealable
judicial decision that any such amount held in escrow could
never be deductible for tax purposes if paid to Officer, or if
it shall be determined at any point in time, by a counsel
selected by Employer and Officer, that it is more likely than
not that the payment to Officer of any such amount held in
escrow would never be deductible for tax purposes, such amount
shall be paid out of escrow to Employer. For purposes of this
paragraph, the value of any non-cash benefit or coverage or
any deferred or contingent payment or benefit shall be
conclusively determined by the independent auditors of
Employer in accordance with the principles of Section 28OG of
the Code.
9. REIMBURSEMENT OF BUSINESS EXPENSES. During
Officer's employment hereunder, to the extent that such
expenditures are substantiated by Officer as required by the
policies of Employer, Employer shall reimburse Officer
promptly for all expenditures (including travel, enter-
tainment, parking, business meetings and the monthly costs
(including dues) of maintaining memberships at appropriate
clubs) made in accordance with rules and policies established
from time to time by the Board in pursuance and furtherance of
Employer's business and goodwill.
10. INDEMNITY. To the extent permitted by applicable
law and the By-Laws of Employer (as from time to time in
effect) and without in any way impairing or affecting any
rights to indemnification that Officer has by reason of any
agreement to which he is party as of the date hereof, Employer
shall indemnify Officer and hold him harmless for any acts or
decisions made by him in good faith while performing services
for Employer, and shall use reasonable efforts to obtain
coverage for him under liability insurance policies now in
force or hereafter obtained during his employment hereunder
covering the other officers or directors of Employer. To the
same extent, Employer shall pay all expenses, including rea-
sonable attorneys' fees and the amounts of court approved
settlements, actually incurred by Officer in connection with
the defense of any action, suit or proceeding, and in
connection with any appeal thereon, which has been and/or may
be brought against Officer by reason of
Officer's services as an officer or agent of Employer or of a
subsidiary of Employer.
11. MISCELLANEOUS.
(a) SUCCESSION. This Agreement shall inure to the
benefit of and shall be binding upon Employer, its successors
and assigns, but without the prior written consent of Officer
this Agreement may not be assigned other than in connection
with a merger or sale of substantially all the assets of the
Company or similar transaction in which the successor or
assignee assumes (whether by operation of law or express
assumption) all obligations of the Company hereunder
(including without limitation those in Section 8 hereof). The
obligations and duties of Officer hereunder shall be personal
and not assignable.
(b) NOTICES. Any notices provided for in this Agreement
shall be sent to Employer at 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Executive Vice President--Legal,
with a copy to the Chairman of the Compensation Committee of
the Board at the same address, or to such other address as
Employer may from time to time in writing designate, and to
Officer at such address as he may from time to time in writing
designate (or his business address of record in the absence of
such designation), with a copy to The AYCO Corporation, Suite
840, 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000-0000,
Attention: Xxxxxxx X. Comp. All notices shall be deemed to
have been given two (2) business days after they have been
deposited as certified mail, return receipt requested, postage
paid, or one (1) business day after they have been deposited
as overnight mail, in either event properly addressed to the
designated address of the party to receive the notice, or
shall be deemed to have been given at the time receipt is
acknowledged if given by any form of electronic communication.
(c) ENTIRE AGREEMENT. This instrument contains the
entire agreement of the parties relating to the subject matter
hereof, and it replaces and supersedes any prior agreements
between the parties relating to said subject matter. No
modifications of this Agreement shall be valid unless made in
writing and signed by the parties hereto.
(d) WAIVER. The waiver of the breach of any term or of
any condition of this Agreement shall not be deemed to con-
stitute the waiver of any other breach of the same or any
other term or condition.
(e) CALIFORNIA LAW. This Agreement shall be construed
and interpreted in accordance with the laws of California, to
the extent controllable by stipulation of the parties.
(f) ATTORNEYS' FEES IN ACTION ON CONTRACT. If any
litigation or arbitration shall occur between the Officer and
Employer, which litigation or arbitration arises out of or as
a result of this Agreement or the acts of the parties hereto
pursuant to this Agreement, or which seeks an interpretation
of this Agreement, the prevailing party in such litigation or
arbitration, in addition to any other judgment or award, shall
be entitled to receive such sums as the court or arbitrator(s)
hearing the matter shall find to be reasonable as and for the
attorneys' fees of the prevailing party.
(g) CONFIDENTIALITY AND COMPETITION. Officer shall not
divulge or otherwise disclose, directly or indirectly, any
trade secret or other confidential information concerning the
business or policies of the Company or any of its affiliates
which he may have learned as a result of his employment
hereunder or prior thereto as an employee, officer or director
of the Company or any of its affiliates, except to the extent
such use or disclosure is (i) necessary to the performance of
this Agreement and in furtherance of the Company's best
interests, (ii) required by applicable law, (iii) lawfully
obtainable from other sources or (iv) authorized by the Compa-
ny. The provisions of this subsection shall survive the
suspension or termination, for any reason, of Officer's
employment hereunder.
During the course of Officer's employment hereunder,
Officer shall not compete, directly or indirectly, with the
Company in the businesses then conducted by the Company.
(h) REMEDIES OF EMPLOYER. Officer acknowledges that the
services he is obligated to render under the provisions of
this Agreement are of a special, unique, unusual,
extraordinary and intellectual character, which gives this
Agreement peculiar value to Employer, and that the loss of
these services cannot be reasonably or adequately compensated
in damages in an action at law and it would be difficult (if
not impossible) to replace such services. By reason thereof,
if Officer violates any of the material provisions of this
Agreement, Employer, in addition to any other rights and
remedies available under this Agreement or under applicable
law, shall be entitled to seek injunctive relief, from a
tribunal of competent jurisdiction, restraining Officer from
committing or continuing any violation of this Agreement, or
from the performance of services to any other business entity,
or both.
(i) SEVERABILITY. If this Agreement shall for any reason
be or become unenforceable by either party, this Agreement
shall thereupon terminate and become unenforceable by the
other party as well. In all other respects, if any provision
of this Agreement is held invalid or unenforceable, the
remainder of this Agreement shall nevertheless remain in full
force and effect, and, if any provision is held invalid or
unenforceable with respect to particular circumstances, it
shall nevertheless remain in full force and effect in all
other circumstances.
IN WITNESS WHEREOF, the parties
have executed and delivered this Agreement as of the date
first above written.
GREAT WESTERN FINANCIAL CORPORATION
By Xxxx X. Xxxxx
Title President and Chief Operating Officer
OFFICER
A. Xxxxxxx Xxxxxxx III
