NATIONSTAR MORTGAGE TLC EMPLOYMENT AGREEMENT
Exhibit
10.5
EXECUTION COPY
NATIONSTAR MORTGAGE TLC
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of the 29 day of
January, 2008 by and between NATIONSTAR MORTGAGE LLC, a Delaware limited liability company
(the “Company”) and XXXXXX X. XXXXX, an individual presently residing at 3416 Centenary, Xxxxxx,
Xxxxx 00000 (“Executive”).
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements herein
contained, together with other good and valuable consideration the receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
1. SERVICES AND DUTIES. The Company hereby employs Executive, and Executive hereby
accepts employment by the Company in the capacity of its Executive Vice President—Servicing.
Executive will report directly to the Company’s Chief Executive Officer (the “Manager”). The
principal location of Executive’s employment shall be at the Company’s executive office located in
Lewisville Texas or such other location determined by the Fortress entity identified in the
organizational documents of FIF HE Holdings LLC (the “Managing Member”), in its sole discretion,
that is within a fifty (50) mile radius of the Company’s current location at 000 Xxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxx 00000, although Executive understands and agrees that Executive may be required
to travel from time to time for business reasons. Executive shall be a full-time employee of the
Company and shall dedicate all of Executive’s working time to the Company and shall have no other
employment and no other business ventures which are undisclosed to the Company or which conflict
with Executive’s duties under this Agreement. Executive will have such duties, responsibilities
and authority as are prescribed by the Manager from time to time, together with such additional
duties as may be assigned to Executive from time to time by the Manager. Notwithstanding the
foregoing, nothing herein shall prohibit Executive from (i) engaging in personal investment
activities for himself and his family that do not give rise to any conflict of interests with the
Company or its affiliates, (ii) subject to prior approval of the Company and the Managing Member,
acting as a director or in a similar role for an entity unrelated to the Company if such role does
not give rise to any conflict of interests with the Company or its affiliates and (iii) engaging
in charitable and civic activities, in each case provided that such activities do not interfere
with the performance of his duties hereunder.
2. TERM. Executive’s employment under the terms and conditions of this Agreement
will commence on February 4, 2008 (the “Effective Date”). The term of this Agreement shall be for
a period of two (2) years (the “Initial Term”) beginning on the Effective Date, subject to earlier
termination pursuant to Section 5 herein. The Term of this Agreement will be automatically
renewed and extended up to three (3) times, each time for a period of one year (each a “Renewal
Term”) unless either party gives the other notice that this Agreement will not be renewed at least
thirty (30) days prior to the end of the Initial Term or, in the case of the second Renewal Term,
of the first Renewal Term. Each Renewal Term will continue to be
subject to the provisions for termination set forth herein. The initial Term and each
Renewal term are hereinafter collectively referred to as the “Term.”
Notwithstanding anything to the contrary herein, in the event of any termination of this
Agreement, Executive shall nevertheless continue to be bound by the terms and conditions set forth
in Sections 6 and 7 hereof, which provisions, along with Sections 8 and 9 hereof, shall survive
any such termination of this Agreement and any termination of Executive’s employment with the
Company. Notwithstanding anything to the contrary herein, Section 3(c) of this Agreement shall
survive any termination of this Agreement and the lapsing of the Term.
For a period of one year following any termination of Executive’s employment with the
Company, Executive agrees to reasonably assist and cooperate with the Company and its affiliates
and their respective agents, officers, directors and employees with respect to the operations of
the Company (and its successors and assigns) (i) on matters relating to the tasks for which
Executive was responsible, or about which Executive had knowledge, before cessation of employment
or which may otherwise be within the knowledge of Executive and (ii) exclusively in connection
with any existing or future disputes, litigation or investigations of any nature brought by,
against, or otherwise involving the Company or its affiliates in which the Company deems
Executive’s cooperation necessary, not to exceed 24 hours per month (or such other amount of time
as agreed to by the parties). The Company will pay Executive a consulting fee of $300.00 per hour
and will also reimburse Executive for reasonable out of pocket expenses incurred in connection
therewith, in accordance with Company policy.
3. COMPENSATION.
(a) Base Salary. In consideration of Executive’s full and faithful satisfaction of
Executive’s duties under this Agreement, the Company agrees to pay to Executive a base salary at
the amount of $275,000 per annum (the “Base Salary”), payable in accordance with the Company’s
then effective payroll practices and in such installments as the Company pays its similarly
situated employees (but not less frequently than each calendar month), subject to usual and
customary deductions for withholding taxes and similar charges, and customary employee
contributions to health, welfare and retirement programs in which Executive is enrolled. The Base
Salary shall be reviewed on an annual basis in accordance with Executive’s annual performance
evaluation and adjusted at the Company’s sole discretion; provided, however, that
in no event shall the Base Salary be reduced without Executive’s approval.
(b) Bonus Compensation. In addition to the Base Salary payable pursuant to Section
3(a) above, Executive will also be eligible to receive in respect of each fiscal year of the
Company a cash bonus as follows:
(i) For the fiscal year ending on December 31, 2008, Executive will be
entitled to a minimum bonus in an amount not less than $325,000.
(ii) For the fiscal years ending after December 31, 2008, an amount
determined by the senior management of the Company and by the
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Managing Member in their sole discretion and based upon individual and
Company performance and targets determined by the senior management of the
Company and by the Managing Member at the beginning of each such fiscal
year. It is expected, but not guaranteed, that the Executive’s bonus range
will be between $250,000 and $500,000 per year, with an anticipated target
bonus of $350,000.
Such bonus will be paid as soon as practicable after the Company’s financial results for such
fiscal year have been determined, but in no event later than two (2) months after the end of such
fiscal year, and shall be payable only if Executive is employed by the Company on the last day of
the fiscal year in respect of which such bonus is awarded and has not notified the Company of his
intent to resign.
(c) Additional Bonus. Executive shall receive an Additional Bonus (as defined below)
upon the earliest to occur of (i) the date Executive’s employment is terminated by the Company
other than for Cause or by the Executive for Good Reason, and (ii) the fifth anniversary of the
Effective Date, but only if Executive is an employee of the Company in good standing as of such
fifth anniversary. If Executive’s employment with the Company terminates prior to the fifth
anniversary of the Effective Date under any circumstances other than those described in clause (i)
of the prior sentence or Executive is not an employee of the Company in good standing as of the
fifth anniversary of the Effective Date, Executive shall not receive an Additional Bonus.
“Additional Bonus” shall mean either (A) or (B) in the following sentence, whichever has the
greatest value as of the date Executive becomes entitled to an Additional Bonus (i.e.,
termination of employment other than for Cause or for Good Reasons or the fifth anniversary of the
Effective Date). For purposes of the preceding sentence (A) shall mean (x) $200,000 multiplied by
the number of Executive’s complete years of employment with the Company (such years to be
determined based on anniversaries of the Effective Date), less (y) any amounts received under the
FIF HE Holdings LLC Senior Management Compensation Plan, and (B) shall mean continued
participation in the FIF HE Holdings LLC Senior Management Compensation Plan. If Executive
receives the bonus described in clause (A) of the preceding sentence, then (I) Executive shall
cease to participate in the FIF HE Holdings LLC Senior Management Compensation Plan effective as
of the fifth anniversary of the Effective Date or the date on which Executive’s employment is
terminated by the Company other than for Cause or by Executive for Good Reason, as applicable, and
(II) such amount will be paid to Executive as soon as practicable after Executive becomes entitled
to such amount, but in no event later than two (2) months after the end of the fiscal year in
which Executive becomes entitled to such amount. For purposes of determining whether clause (A)
or clause (B) of the third sentence of this paragraph has a greater value, the value of clause (B)
will be determined in good faith by the Managing Member as of the applicable date. For purposes
of determining the value of clause (B), the Managing Member will assume that the Company is sold
as of the applicable date for a price that takes into account the present value of future cash
flows (considering appropriate discount rates and terminal values) of the Company as well as
customary pricing metrics for comparable companies such as the book value of the assets of the
Company. Managing Member will disclose to Executive the methodology, values and assumptions used
to determine the value of clause (B).
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(d) Withholding. All taxable compensation payable to Executive by the Company shall
be subject to customary withholding taxes and such other employment taxes as are required under
Federal law or the law of any state or by any governmental body to be collected with respect to
compensation paid to an employee.
4. BENEFITS AND PERQUISITES.
(a) Retirement and Welfare Benefits. During the Term, Executive shall be entitled to
all the usual benefits offered to the Company’s senior management, including vacation, sick time,
and the ability to participate in the Company’s medical, dental, life insurance, disability and
other welfare programs, and 401(k) retirement savings plan, subject to and in accordance with the
applicable limitations and requirements imposed by the terms of the documents governing such
benefits, as from time to time in effect. Nothing, however, shall require the Company to maintain
any benefit, plan or arrangement or provide any type or level of benefits to the Company’s
employees, including Executive. During the Term, Executive shall be entitled to not less than
three (3) weeks paid vacation.
(b) Reimbursement of Expenses. The Company shall reimburse Executive for any
expenses reasonably incurred by Executive for business purposes in furtherance of Executive’s
duties hereunder, including travel, meals and accommodations, upon submission by Executive of
vouchers or receipts and in compliance with such rules and policies relating thereto as the
Company may from time to time adopt. Such reimbursements shall be made promptly following
submission, but in all cases no later than December 31 of the year following the year in which the
expenses was incurred.
5. TERMINATION. Executive’s employment pursuant to this Agreement shall be
terminated on the earliest of (i) the expiration of the Term, (ii) the date on which the Manager,
the Company or the Managing Member delivers written notice that Executive is being terminated for
Disability, and (iii) the date of Executive’s death. In addition, Executive’s employment with the
Company may be terminated (w) by the Company for Cause, effective on the date on which a written
notice to such effect is delivered to Executive; (x) by the Company at any time without Cause,
effective on the date on which a written notice to such effect is delivered to Executive; (y) by
Executive for “Good Reason”, effective on the date on which a written notice to such effect is
delivered to the Company; or (z) by Executive at any time, effective on the date on which a
written notice to such effect is delivered to the Company.
(a) For Cause Termination. If Executive’s employment with the Company is terminated
by the Company for Cause, Executive shall not be entitled to any further compensation or benefits
other than Accrued Benefits. If the definition of “Cause” set forth below conflicts with such
definition in any incentive plan or equity plan or agreement of the Company or any of its
affiliates, the definition set forth herein shall control.
(b) Termination by Company without Cause or by Executive for Good Reason. If
Executive’s employment is terminated by the Company other than for Cause or is terminated by
Executive for Good Reason prior to the end of the Term hereof, then Executive shall be entitled
to, upon Executive’s providing the Company within forty-five (45) days of the date on which his
employment with the Company terminates with a signed release of claims in a
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form, adopted by the Managing Member from time to time, which shall contain customary terms
and conditions, and subject to Executive’s continued compliance with the provisions of Sections 6
and 7 hereof: (i) the Accrued Benefits, (ii) an amount equal to twelve (12) months Base Salary
payable in the same manner as provided under Paragraph 3(a), (iii) an amount equal to 50% of the
“target” bonus for the related fiscal year determined pursuant to Section 3(b), (iv) a prorated
portion of the bonus described in Section 3(b)(ii) for the year in which the termination of
employment occurs (such prorated bonus to be determined by the senior management of the Company
and by the Managing Member in their sole discretion, with such determination based upon full
months of employment and on performance through the end of the month prior to such termination)
and (v) continuation of Executive’s coverage under the Company’s medical plan until the earlier of
(A) the period of time it takes Executive to become eligible for the medical benefits program of a
new employer (subject to section 6(a) hereof) or (B) twelve (12) months from the date of such
termination. Notwithstanding the foregoing, Executive’s entitlement to the Accrued Benefits shall
not be subject to Executive’s provision of the release hereunder.
(c) Resignation, Death or Disability. If Executive’s employment with the Company
terminates due to Executive’s resignation, then Executive shall be entitled to the Accrued
Benefits. If Executive’s employment is terminated by reason of Executive’s death or Disability
prior to the end of the Term, Executive shall not be entitled to receive any further compensation
or benefits under this Agreement or otherwise other than the Accrued Benefits. During any period
that Executive fails to perform his duties hereunder as a result of disability or incapacity,
Executive shall continue to receive his Base Salary and all other benefits and all other
compensation pursuant to this Agreement unless and until his employment is terminated pursuant to
this Section 5.
(d) Payments in Lieu of Other Severance Rights. The payments provided in
subsections (a), (b) and (c) of this Section 5 shall be made in lieu of any other severance
payments under any severance agreement, plan, program or arrangement of the Company.
(e) Manner of Payment. Unless Executive breaches one of the restrictive covenants
contained in Sections 6 and 7 of this Agreement, the payments described in clause (b) of this
Section 5 shall be paid over a period of twelve (12) months commencing on the date on which the
Executive provides the Company with the release described in such clause (b). Notwithstanding
anything herein to the contrary, (1) the payment of any amounts hereunder (including benefits
continuation) shall cease on the date on which Executive breaches any of the restrictive covenants
contained in Sections 6 and 7 of this Agreement, and (2) in the event Executive’s employment
terminates pursuant to Section 5(b) above within one year following a Change in Control, the
amounts described in Section 5(b)(i), (ii) and (iii) shall be payable in a lump sum within 15 days
of such termination of employment,
(f) No Mitigation. Upon termination of his employment, Executive will be under no
obligation to seek other employment or earn other income in order to remain eligible for the
payments and benefits set forth in this Section 5. Not including the repayment of loans made to
Executive by the Company or any affiliates thereof, amounts due to Executive under this Agreement
will not be subject to offset by the Company for any claims the Company may have against
Executive, unless otherwise specifically agreed to in writing by Executive.
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(g) Section 280G. The Company shall take all reasonable action, including taking
reasonable steps to obtain applicable approval if necessary, to cause any payments under this
Agreement, to qualify for the exemption from the definition of “parachute payment” described in
Section 280G(b)(5) of the Internal Revenue Code of 1986, as amended (the “Code”), to the extent
applicable.
(h) Definitions. For purposes of this Agreement:
(i) “Accrued Benefits” means collectively the following: (i) any
earned but unpaid salary through the last day of employment, (ii) any
accrued but unpaid paid time off, (iii) any reimbursable business expenses
through the last day of employment, (iv) any vested benefits in accordance
with the terms of the Company’s employee benefit plans or programs and (v)
any benefit continuation and/or conversion rights in accordance with the
terms of the Company’s employee benefit plans or programs.
(ii) “Cause” means (i) conviction of, guilty plea concerning or
confession of any felony, (ii) any act of misappropriation or fraud
committed by Executive in connection with the Company’s or its
subsidiaries’ business, (iii) any material breach by Executive of this
Agreement (iv) any material breach of any reasonable and lawful rule or
directive of the Company, the Manager or the Managing Member, (v) the gross
or willful neglect of duties or gross misconduct by Executive, or (vi) the
habitual use of drugs or habitual, excessive use of alcohol to the extent
that any of such uses in the Company’s or the Manager’s good faith
determination materially interferes with the performance of Executive’s
duties under this Agreement.
(iii) “Change in Control” means (i) any sale or other disposition of
all or substantially all of the assets of the Company (including without
limitation by way of a merger or consolidation or through the sale of all
or substantially all of the stock or equity of its subsidiaries or sale of
all or substantially all of the assets of the Company and its subsidiaries,
taken as a whole) to another person other than an affiliate of Fortress
Investment Group LLC if, immediately after giving effect thereto, any
person (or group of persons acting in concert) other than the persons
owning a majority of the voting power of the Company prior to such sale
(together with their affiliates) will have the power to elect a majority of
the members of the board of directors (or other similar governing body) of
the purchaser or surviving corporation; (ii) any change in the ownership of
the capital stock or equity of the Company if, immediately after giving
effect thereto, the persons owning a majority of the voting power of the
company prior to such change (together with their affiliates) shall own, in
the aggregate, less than 50% of the equity interests of the Company; or
(iii) a liquidation of the Company that is a
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change in control event described in final regulations issued under
Section 409A of the Code.
(iv) “Good Reason” means any one or more of the following: (A) a
reduction in Executive’s Base Salary, (B) any relocation of Executive more
than fifty (50) miles from 000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx 00000, (C)
any material breach by the Company of this Agreement or any other material
agreement to which the Company and Executive are parties, after written
notice thereof from Executive is given in writing and such breach is not
cured within 30 days after such notice, or (D) notice by the Company that
the term of the Agreement shall not be renewed pursuant to Section 2.
(v) “Disability” means, as determined by the Company or the Managing
Member in good faith, Executive’s inability, due to disability or
incapacity, to perform all of his duties hereunder on a full-time basis (i)
for periods aggregating 90 days, whether or not continuous, in any
continuous period of 365 days or, (ii) where Executive’s absence is
adversely affecting the performance of the Company in a significant manner
for periods greater than 30 days and Executive does not resume his duties
on a full-time basis within 10 days of receipt of written notice of the
Company’s or the Managing Member’s determination under this clause (ii).
(i) Resignation as Officer or Director. Upon the termination of employment for any
reason, Executive shall resign each position (if any) that he then holds as an officer or director
of the Company and any of its subsidiaries.
6. RESTRICTIVE COVENANTS. Executive acknowledges that during the period of his
employment with the Company he shall have access to the Company’s Confidential Information (as
defined below) and will meet and develop relationships with the Company’s potential and existing
suppliers, financing sources, clients, customers and employees.
(a) Noncompetition. Executive agrees that during the period of his employment with
the Company and for the twelve (12) month period immediately following termination of such
employment for any reason, Executive shall not directly or indirectly, either as a principal,
agent, employee, employer, consultant, partner, shareholder of a closely held corporation or
shareholder in excess of five (5%) percent of a publicly traded corporation, corporate officer or
director, or in any other individual or representative capacity, engage or otherwise participate
in any manner or fashion in any business that is in competition in any manner whatsoever with the
mortgage lending business of the Company or its subsidiaries or of any other business in which the
Company or its subsidiaries is engaged at the time of Executive’s termination of employment, or
which is part of the Company’s Developing Business, within states in which the Company is engaged
in such business or Developing Business. For purposes of the foregoing, “Developing Business”
shall mean the new business concepts and services the Company has developed and is in the process
of developing during Executive’s employment with the Company. Executive further covenants and
agrees that this
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restrictive covenant is reasonable as to duration, terms and geographical area and that the
same protects the legitimate interests of the Company and its respective affiliates, imposes no
undue hardship on Executive, is not injurious to the public, and that any violation of this
restrictive covenant shall be specifically enforceable in any court with jurisdiction upon short
notice.
(b) Solicitation of Employees, Etc. Executive agrees that during the period of his
employment with the Company and for the one (1) year period immediately following the date of
termination of Executive’s employment with the Company for any reason, Executive shall not,
directly or indirectly, (i) solicit or induce any officer, director, employee, agent or consultant
of the Company or any of its successors, assigns, subsidiaries or affiliates to terminate his, her
or its employment or other relationship with the Company or its successors, assigns, subsidiaries
or affiliates, or otherwise encourage any such person or entity to leave or sever his, her or its
employment or other relationship with the Company or its successors, assigns, subsidiaries or
affiliates, for any other reason or (ii) hire any individual who left the employ of the Company or
any of its affiliates during the immediately preceding one-year period.
(c) Disparaging Comments. Executive agrees that during the period of his employment
with the Company and thereafter, Executive shall not make any disparaging or defamatory comments
regarding the Company or, after termination of his employment relationship with the Company, make
any comments concerning any aspect of the termination of their relationship. The obligations of
Executive under this subparagraph shall not apply to disclosures required by applicable law,
regulation or order of any court or governmental agency. The Company agrees that during the
period of Executive’s employment with the Company and thereafter, the Company shall not make any
disparaging or defamatory comments regarding Executive or, after termination of his employment
relationship with the Company, make any comments concerning any aspect of the termination of their
relationship. The obligations of the Company under this subparagraph shall not apply to
disclosures required by applicable law, regulation or order of any court or governmental agency.
Nothing contained in this Section 6 shall limit any common law or statutory obligation that
Executive may have to the Company or any of its affiliates. For purposes of this Section 6 and
Section 7, the “Company” refers to the Company and any incorporated or unincorporated affiliates
of the Company, including any entity which becomes Executive’s employer as a result of any
reorganization or restructuring of the Company for any reason. The Company shall be entitled, in
connection with its tax planning or other reasons, to terminate Executive’s employment (which
termination shall not be considered a termination without Cause for purposes of this Agreement or
otherwise) in connection with an invitation from another affiliate of the Company to accept
employment with such affiliate in which case the terms and conditions hereof shall apply to
Executive’s employment relationship with such entity mutatis mutandis.
7. CONFIDENTIALITY. All books of account, records, systems, correspondence,
documents, and any and all other data, in whatever form, concerning or containing any reference to
the works and business of the Company or its affiliated companies shall belong to the Company and
shall be given up to the Company whenever the Company requires Executive to do so. Executive
agrees that Executive shall not at any time during the term of Executive’s
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employment or thereafter, without the Company’s prior written consent, disclose to any person
(individual or entity) any information or any trade secrets, plans or other information or data,
in whatever form, (including, without limitation, (i) any financing strategies and practices,
pricing information and methods, training and operational procedures, advertising, marketing, and
sales information or methodologies or financial information and (ii) any Proprietary Information
(as defined below)), concerning the Company’s or any of its affiliated companies’ or customers’
practices, businesses, procedures, systems, plans or policies (collectively, “Confidential
Information”), nor shall Executive utilize any such Confidential Information in any way or
communicate with or contact any such customer other than in connection with Executive’s employment
by the Company. Executive hereby confirms that all Confidential Information constitutes the
Company’s exclusive property, and that all of the restrictions on Executive’s activities contained
in this Agreement and such other nondisclosure policies of the Company are required for the
Company’s reasonable protection. Confidential Information shall not include any information that
has otherwise been disclosed to the public not in violation of this Agreement. This
confidentiality provisions shall survive the termination of this Agreement and shall not be
limited by any other confidentiality agreements entered into with the Company or any of its
affiliates.
Executive agrees that he shall promptly disclose to the Company in writing all information
and inventions generated, conceived or first reduced to practice by him alone or in conjunction
with others, during or after working hours, while in the employ of the Company (all of which is
collectively referred to in this Agreement as “Proprietary Information”);
provided, however, that such Proprietary Information shall not include (i) any
information that has otherwise been disclosed to the public not in violation of this Agreement and
(ii) general business knowledge and work skills of Executive, even if developed or improved by
Executive while in the employ of the Company. All such Proprietary Information shall be the
exclusive property of the Company and is hereby assigned by Executive to the Company executive’s
obligation relative to the disclosure to the Company of such Proprietary Information anticipated
in this Section 7 shall continue beyond Executive’s termination of employment and Executive shall,
at the Company’s expense, give the Company all assistance it reasonably requires to perfect,
protect and use its right to the Proprietary Information.
8. ASSIGNMENT. This Agreement, and all of the terms and conditions hereof, shall
bind the Company and its successors and assigns and shall bind Executive and Executive’s heirs,
executors and administrators. No transfer or assignment of this Agreement shall release the
Company from any obligation to Executive hereunder. Neither this Agreement, nor any of the
Company’s rights or obligations hereunder, may be assigned or otherwise subject to hypothecation
by Executive. The Company may assign the rights and obligations of the Company hereunder, in
whole or in part, to any of the Company’s subsidiaries, affiliates or parent corporations, or to
any other successor or assign in connection with the sale of all or substantially all of the
Company’s assets or stock or in connection with any merger, acquisition and/or reorganization,
provided the assignee assumes the obligations of the Company hereunder.
9. GENERAL.
(a) Notices. Any notices provided hereunder must be in writing and shall be deemed
effective upon the earlier of one business day following personal delivery (including
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personal delivery by telecopy or telex), or the third business day after mailing by first
class mail to the recipient at the address indicated below;
To the Company:
Nationstar Mortgage LLC
000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: General Counsel
000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: General Counsel
With a copy to:
FIF HE Holdings LLC
c/o Fortress Investment Group, L.L.C.
0000 Xxxxxx xx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
c/o Fortress Investment Group, L.L.C.
0000 Xxxxxx xx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
To Executive:
Xxxxxx X. Xxxxx
3416 Centenary
Xxxxxx, Xxxxx 00000
3416 Centenary
Xxxxxx, Xxxxx 00000
or to such other address or to the attention of such other person as the recipient party will
have specified by prior written notice to the sending party.
(b) Severability. Any provision of this Agreement which is deemed invalid, illegal
or unenforceable in any jurisdiction shall, as to that jurisdiction and subject to this paragraph
be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting
in any way the remaining provisions hereof in such jurisdiction or rendering that or any other
provisions of this Agreement invalid, illegal, or unenforceable in any other jurisdiction. If any
covenant should be deemed invalid, illegal or unenforceable because its scope is considered
excessive, such covenant shall be modified so that the scope of the covenant is reduced only to
the minimum extent necessary to render the modified covenant valid, legal and enforceable.
(c) Entire Agreement. This document constitutes the final, complete, and exclusive
embodiment of the entire agreement and understanding between the parties related to the subject
matter hereof and supersedes and preempts any prior or contemporaneous understandings, agreements,
or representations by or between the parties, written or oral.
(d) Counterparts. This Agreement may be executed on separate counterparts, any one
of which need not contain signatures of more than one party, but all of which taken together will
constitute one and the same agreement.
(e) Amendments. No amendments or other modifications to this Agreement may be made
except by a writing signed by all parties. No amendment or waiver of this
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Agreement requires the consent of any individual, partnership, corporation or other entity
not a party to this Agreement. Nothing in this Agreement, express or implied, is intended to
confer upon any third person any rights or remedies under or by reason of this Agreement. This
Agreement is intended to comply with the provisions of Section 409A of the Code to the extent
applicable, including final regulations issued pursuant thereto, and the parties reserve the right
to amend any provision of this Agreement to the extent necessary to comply with Section 409A of
the Code.
(f) Choice of Law. All questions concerning the construction, validity and
interpretation of this Agreement will be governed by the laws of the State of Texas without giving
effect to principles of conflicts of law of such state.
(g) Survivorship. The provisions of this Agreement necessary to carry out the
intention of the parties as expressed herein shall survive the termination or expiration of this
Agreement.
(h) Waiver. The waiver by either party of the other party’s prompt and complete
performance, or breach or violation, of any provision of this Agreement shall not operate nor be
construed as a waiver of any subsequent breach or violation, and the failure by any party hereto
to exercise any right or remedy which it may possess hereunder shall not operate nor be construed
as a bar to the exercise of such right or remedy by such party upon the occurrence of any
subsequent breach or violation. No waiver shall be deemed to have occurred unless set forth in a
writing executed by or on behalf of the waiving party. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of such term or
condition for the future or as to any act other than that specifically waived.
(i) Captions. The captions of this Agreement are for convenience and reference only
and in no way define, describe, extend or limit the scope or intent of this Agreement or the
intent of any provision hereof.
(j) Construction. The parties acknowledge that this Agreement is the result of
arm’s-length negotiations between sophisticated parties each afforded representation by legal
counsel. Each and every provision of this Agreement shall be construed as though both parties
participated equally in the drafting of the same, and any rule of construction that a document
shall be construed against the drafting party shall not be applicable to this Agreement.
(k) Arbitration. Except as necessary for the Company and its subsidiaries,
affiliates, successors or assigns or Executive to specifically enforce or enjoin a breach of this
Agreement (to the extent such remedies are otherwise available), the parties agree that any and
all disputes that may arise in connection with, arising out of or relating to this Agreement, or
any dispute that relates in any way, in whole or in part, to Executive’s services on behalf of the
Company or any subsidiary, the termination of such services or any other dispute by and between
the parties or their subsidiaries, affiliates, successors or assigns, shall be submitted to
binding arbitration in Dallas, Texas according to the National Employment Dispute Resolution Rules
and procedures of the American Arbitration Association. The parties agree that the
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prevailing party in any such dispute shall be entitled to reasonable attorneys’ fees, costs,
and necessary disbursements in addition to any other relief to which he or it may be entitled.
This arbitration obligation extends to any and all claims that may arise by and between the
parties or their subsidiaries, affiliates, successors or assigns, and expressly extends to,
without limitation, claims or causes of action for wrongful termination, impairment of ability to
compete in the open labor market, breach of an express or implied contract, breach of the covenant
of good faith and fair dealing, breach of fiduciary duty, fraud, misrepresentation, defamation,
slander, infliction of emotional distress, disability, loss of future earnings, and claims under
the United States Constitution, and applicable state and federal fair employment laws, federal and
state equal employment opportunity laws, and federal and state labor statutes and regulations,
including, but not limited to, the Civil Rights Act of 1964, as amended, the Fair Labor Standards
Act, as amended, the Americans With Disabilities Act of 1990, as amended, the Rehabilitation Act
of 1973, as amended, the Employee Retirement Income Security Act of 1974, as amended, the Age
Discrimination in Employment Act of 1967, as amended, and any other state or federal law.
10. EXECUTIVE REPRESENTATION AND ACCEPTANCE. By signing this Agreement, Executive
hereby represents and warrants to the Company that (a) the execution, delivery and performance of
this Agreement by Executive does not and will not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to which Executive is
a party or by which Executive is bound, (b) Executive is not a party to or bound by any employment
agreement, noncompetition agreement or confidentiality agreement with any other person or entity
that would interfere with the execution, delivery or performance of this Agreement by Executive,
and (c) this Agreement shall be the valid and binding obligation of Executive, enforceable in
accordance with its terms. Executive agrees that he will not disclose to or use on behalf of the
Company any proprietary information of a third party without that party’s consent.
11. COMPANY REPRESENTATION AND ACCEPTANCE. By signing this Agreement, Company hereby
represents and warrants to Executive that (a) the Company has all required power and authority to
enter into, deliver, and perform its obligations under this Agreement, (b) the execution, delivery
and performance of this Agreement by the Company have been duly authorized by all necessary action
on the part of the Company and does not and will not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to which the Company
is a party or by which the Company is bound, and (c) this Agreement will be the valid and binding
obligation of Company, enforceable in accordance with its terms.
12. EFFECTIVENESS. This agreement shall become effective as of the Effective Date,
it being understood that the Executive shall have no rights hereunder and the Company shall have
no duties or obligations hereunder until this Agreement shall become effective; provided, however,
that this Agreement is a binding obligation which cannot be revoked or terminated by either party
except as provided herein.
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IN WITNESS WHEREOF AND INTENDING TO BE LEGALLY BOUND THEREOF, the parties hereto have
executed and delivered this Agreement as of the year and date first above written.
| NATIONSTAR MORTGAGE LLC | ||||||
| By: | /s/Xxxxxxx X. Xxxxxx
|
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| Xxxxxxx X. Xxxxxx | ||||||
|
|
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| Print Name | ||||||
| Title: President & CEO | ||||||
|
|
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| Dated: Jan 29, 2008 | ||||||
|
|
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| EXECUTIVE | ||||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
| Signature | ||||||
| Xxxxxx X. Xxxxx | ||||||
|
|
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| Print Name | ||||||
| Title: EVP | ||||||
|
|
||||||
| Dated: Jan. 29, 2008 | ||||||
|
|
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