CONFIDENTIAL AGREEMENT AND RELEASE
Exhibit 10.28
Xxxxx X. Xxxxx
SLM Corporation and its subsidiaries, predecessors, and affiliates (collectively “SLM”) and I
have reached the following confidential understanding and agreement. In exchange for the Special
Payments and other consideration listed below, I promise to comply fully with the terms of this
Confidential Agreement and Release (“Agreement and Release”). In exchange for my promises, SLM
agrees to provide me with the benefits listed below, to which I am not otherwise entitled.
(1) Special Payments and Benefits:
(a) Unless I have revoked this Agreement and Release pursuant to Section (8) below, SLM
will pay me severance pay in the following manner: a total amount of $1,500,000, less
withholding taxes and other deductions required by law, paid in a lump-sum payment. Such
severance payment will be made in a lump sum no earlier than the eighth calendar day after
my signature on this Agreement and Release.
(b) Unless I have revoked this Agreement and Release pursuant to Section (8) below, SLM
will pay me an additional payment of $285,000 in lieu of bonus, less withholding taxes and
other deductions required by law. Such additional payment will be made in a lump sum no
earlier than the eighth calendar day after my signature on this Agreement and Release.
(c) Rehiring: If I am rehired as an employee within the 24-month period following my
termination, I hereby agree to repay a prorated amount of Section 1(a) ($1,500,000 divided
by 24 multiplied by the number of months remaining in the 24 month period following my
termination), within 14 days after rehire, as a condition of rehire to SLM or any of its
subsidiaries or affiliates.
(d) Medical/Dental/Vision Continuation: Your current medical, dental and vision
coverage will continue through the end of the month of your termination. The first day of
the month following your Termination Date, on January 1, 2008, you may be eligible to
continue your current medical, dental and vision coverage through COBRA for up to 18 months.
If you become eligible for coverage under any other group health plan which does not
contain an exclusion or limitation with respect to preexisting conditions of you or your
beneficiaries, you may not be eligible for SLM COBRA coverage. If you are eligible and you
properly elect COBRA continuation coverage, SLM will pay the employer portion of the total
cost of your medical, dental and vision insurance premiums for the 18-month period of
January 1, 2008 through June 30, 2009.
(e) Executive Outplacement: You will be eligible to receive professional outplacement
services for up to twelve months to assist me in seeking a new position for an amount of up
to $15,000.
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(f) Matching Contributions Program: You will be eligible to participate in the
Matching Contributions Program during 2008 with up to $25,000 in matching contributions to
eligible organizations.
(g) Financial Planning: You will be eligible to receive reimbursement for up to
$10,000 in financial planning services in calendar year 2008 to be performed by a
professional of your choice.
(h) Executive Physical: You will be eligible to obtain an executive physical of up to
$5,000 in 2008 to be paid for by SLM from one of the designated medical facilities.
(j) Benefit Programs: I waive future coverage and benefits under all SLM disability
programs, but this Agreement and Release does not affect my eligibility for other Company
medical, dental, life insurance, retirement, and benefit plans. Whether I sign this
Agreement and Release or not, I understand that my rights and continued participation in
those plans will be governed by their terms, and that I generally will become ineligible for
them shortly after my termination, after which I may be able to purchase continued coverage
under certain of such plans. I understand that except for the benefits that may be due
under the pension, 401(k), and deferred compensation plans to which I may be entitled under
SLM’s standard employee benefit plans, that I will not receive any other wage, vacation, or
other similar payments from SLM or any of the entities discussed in Section (2), other than
what is listed on the attached Pay and Benefits Schedule. I understand and agree that if I
owe any amounts to SLM due to a negative PTO/vacation balance, I will pay those amounts
within one week of my termination.
(k) For SLM equity vesting purposes, SLM deems my termination a job abolishment.
(2) Release: In consideration of the Special Payments and Benefits described above, I agree
to release SLM, and all of its subsidiaries, affiliates, predecessors, successors, and all related
companies, and all of its former and current officers, employees, directors, and benefits plan
trustees of any of them (collectively “Released Parties”) from all actions, charges, claims,
demands, damages or liabilities of any kind or character whatsoever, known or unknown, which I now
have or may have had through the date I sign this Agreement and Release. For example, I am
releasing all common law contract, tort, or other claims I might have, as well as all claims I
might have under the Age Discrimination in Employment Act (ADEA), the WARN Act, Title VII of the
Civil Rights Act of 1964, Sections 1981 and 1983 of the Civil Rights Act of 1866, the Americans
with Disabilities Act (ADA), the Employee Retirement Income Security Act of 1974 (ERISA),
individual relief under the Xxxxxxxx-Xxxxx Act of 2002, Virginians with Disabilities Act, Virginia
Human Rights Act, Virginia Labor and Employment Code Section 40.1 et. seq. and any other federal,
state or local laws, to the extent permissible by private agreement and consistent with applicable
law. I further waive any right to payment of attorneys’ fees, which I may have incurred. It is
understood and agreed that by entering into this Agreement and Release, SLM does not admit any
violation of law, or any of employee’s rights, and has entered into this Agreement and Release
solely in the interest of resolving finally all claims and issues relating to employee’s employment
and separation.
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(3) Covenant Not To Xxx: I agree not to xxx the Released Parties with respect to any claims,
demands, liabilities or obligations released by this Agreement and Release. The Parties
agree, however, that nothing contained in this covenant not to xxx or elsewhere in this
Agreement and Release shall:
(a) prevent me from challenging, under the Older Workers Benefits Protection Act (29
U.S.C. § 626), the knowing and voluntary nature of my release of any age claims in this
Agreement and Release before a court, the Equal Employment Opportunity Commission (“EEOC”),
or any other federal, state, or local agency;
(b) prevent me from enforcing any future claims or rights that arise under the Age
Discrimination in Employment Act (“ADEA”) after I have signed this Agreement and Release.
(c) prohibit or restrict me from: (i) making any disclosure of information required by
law; (ii) filing a charge, testifying in, providing information to, or assisting in an
investigation or proceeding brought by any governmental or regulatory body or official; or
(iii) from testifying, participating in or otherwise assisting in a proceeding relating to
an alleged violation of any federal or state employment law or any federal law relating to
fraud or any rule or regulation of the Securities and Exchange Commission or any
self-regulatory organization.
Notwithstanding anything to the contrary in this paragraph, I hereby waive and release any
right to receive any personal relief (for example, money) as a result of any investigation or
proceeding of the U.S. Department of Labor, EEOC, or any federal, state, or local government agency
or court. Further, with my waiver and release of claims in this Agreement and Release, I
specifically assign to the Released Parties my right to any recovery arising from any such
investigation or proceeding.
(4) Additional Representations and Promises: I further acknowledge and agree that:
(a) I agree to return all SLM and Released Parties’ property in my possession or
control to them except that I may keep my cell phone and blackberry after a mirror image of
the data on such items are made for litigation purposes.
(b) I hereby represent and warrant that I have not reported any illegal or potentially
illegal conduct or activities to any supervisor, manager, department head, human resources
representative, director, officer, agent or any other representative of SLM, any member of
the legal or compliance departments, or to the Code of Business Conduct hotline and have no
knowledge of any such illegal or potentially illegal conduct or activities.
(c) If I breach any provisions of this Agreement and Release, I agree that I will pay
for all costs incurred by SLM or any entities or individuals covered by this Agreement and
Release, including reasonable attorneys’ fees, in defending against my claim and seeking to
uphold my release.
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(d) I promise to keep the terms of this Agreement and Release completely confidential
except as may be required or permitted by statute, regulation or court order.
Notwithstanding the foregoing, I may disclose such information to my immediate family
and professional representatives, so long as they are informed and agree to be bound by
this confidentiality clause. This Agreement and Release shall not be offered or received in
evidence in any action or proceeding in any court, arbitration, administrative agency or
other tribunal for any purpose whatsoever other than to carry out or enforce the provisions
of this Agreement.
(e) I further promise not to disparage SLM, its business practices, products and
services, or any other entity or person covered by this Agreement and Release.
(f) I understand that SLM in the future may change employee benefits or pay. I
understand that my job may be refilled.
(g) I have not suffered any job-related wrongs or injuries, such as any type of
discrimination, for which I might still be entitled to compensation or relief in the future.
I have properly reported all hours that I have worked and I have been paid all wages,
overtime, commissions, compensation, benefits, and other amounts that SLM or any Released
Party should have paid me in the past.
(h) I intentionally am releasing claims that I do not know I might have and that, with
hindsight, I might regret having released. I have not assigned or given away any of the
claims that I am releasing.
(i) If SLM or I successfully assert that any provision in this Agreement and Release
is void, the rest of the Agreement and Release shall remain valid and enforceable unless the
other party to this Agreement and Release elects to cancel it. If this Agreement and Release
is cancelled, I will repay the Special Payments I received for signing it, with 10 percent
annual interest.
(j) If I initially did not think any representation I am making in this Agreement and
Release was true, or if I initially was uncomfortable making it, I resolved all my concerns
before signing this Agreement and Release. I have carefully read this Agreement and Release,
I fully understand what it means, I am entering into it knowingly and voluntarily, and all
my representations in it are true. SLM would not have signed this Agreement and Release but
for my promises and representations.
(5) Arbitration of Disputes: SLM and I agree to resolve any disputes we may have with each
other through final and binding arbitration. For example, I am agreeing to arbitrate any dispute
about the validity of this Agreement and Release or any discrimination claim, which means that an
Arbitrator and not a court of law will decide issues of arbitrability and of liability with respect
to any claim I may bring; provided, however, that either party may pursue a temporary restraining
order and/or preliminary injunctive relief, with expedited discovery where necessary, in a court of
competent jurisdiction to protect common law or contractual trade secret or confidential
information rights and to enforce the post-employment restrictions in Section 6. I also agree to
resolve through final and binding arbitration any disputes I have with any other Released Party who
elects to arbitrate those disputes under this subsection. Arbitrations shall be conducted by JAMS
(also known as Judicial Arbitration & Mediation Services) in accordance with its employment dispute
resolution rules. This agreement to arbitrate does not apply to government agency proceedings, but
does apply to any lawsuit I might bring, including but not
limited to any lawsuit related to a government agency proceeding. By agreeing to this
Agreement and Release, I understand that I am waiving my right to a jury trial.
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(6) Confidentiality, Non-Competition, and Non-Solicitation: Except as required or permitted
by statute, regulation or court order, or pursuant to written consent given by SLM’s General
Counsel, I agree not to disclose to anyone else any of the information or materials which are
proprietary or trade secrets of SLM or are otherwise confidential. In addition, in consideration
of the Special Payments and Benefits described above, I hereby acknowledge that I previously signed
an Agreement Regarding Confidentiality, Intellectual Property, and Non-Solicitation, on June 1,
2003 (“June 1, 2003 Agreement”) , and that I continue to be bound by the terms of those agreements.
Notwithstanding the foregoing, in consideration of my additional affirmation that I will follow
the terms of the June 1, 2003 Agreement and this Agreement and Release, and the Special Payments
and Benefits described above, I agree as follows: I shall not, directly or indirectly, compete with
SLM or its subsidiaries or affiliates for a period of six (6) months after the date of termination
of my employment for whatever reason (“Restricted Period”). For the purposes of this Section 6,
“compete” means owning, managing, operating, financing, working, consulting, advising,
representing, or providing the same or similar services with or without compensation in any
capacity as those I provided to SLM within the last two (2) years of my employment to any business
engaged in the same business conducted by SLM at the time of my termination.
In further consideration of the Special Payments and Benefits described above in this
Agreement and Release, I agree that for twenty-four (24) months after my date of termination of my
employment for whatever reason (collectively, the “Non-Solicitation Employee Period”) that I shall
not solicit or encourage any employee with whom I communicated within the last year of my
employment to leave the employ of SLM, or hire any such employees. Further, for a period of six
(6) months following the termination of my employment with the SLM, I shall not, directly or
indirectly, contact or accept business that SLM could otherwise perform from any of SLM’s
customers or prospective customers with whom I communicated within the last two (2) years of my
employment.
I expressly agree that the markets served by SLM extend nationally are not dependent on the
geographic location of the personnel or the businesses by which they are employed and that the
restrictions set forth in this Section have been designed to be reasonable and are no greater than
are required for the protection of SLM and do not prevent me from earning a livelihood by working
in positions that do not compete with SLM. In the event that a court shall determine that any
provision of the Agreement is unenforceable, the parties shall request that the court construe this
Agreement in such a fashion as to render it enforceable and to revise time, geographic and
functional limits to those minimum limits that the court believes are reasonable to protect the
interests of SLM. I acknowledge and agree that this covenant has unique, substantial and
immeasurable value to SLM, that I have sufficient skills to provide a livelihood for you while this
covenant remains in force, and that this covenant will not interfere with my ability to work
consistent with my experience, training, and education. To enable SLM to monitor compliance with
the obligations imposed by this Agreement, I further agree to inform in writing Xxxxxx Mae’s Senior
Vice President, Administration of the identity of my subsequent employer(s) and my prospective job
title and responsibilities prior to beginning employment. I agree that this notice requirement
shall remain in effect for twenty-four (24) months following the termination of my employment.
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In the event that the Board of Directors of SLM or its successor reasonably determines that I
have violated any of the post-employment restrictions of the Agreement and Release or if a court
determines that all or a substantial part of such restrictions are held to be unenforceable, I will
return to SLM 50% of the Special Payments provided to me pursuant to Section 1(a) and Section 1(b)
above. The illegality, unenforceability, or ineffectiveness of any provision of this Section shall
not affect the legality, enforceability, or effectiveness of any other provision of this Agreement
and Release. Notwithstanding the confidentiality provisions identified in Section 4(d) of this
Agreement and Release, I may disclose my SLM restrictive covenants to prospective employers and
agree that SLM may provide a copy of this Agreement and Release to my prospective or future
employers.
(7) Review Period: I hereby acknowledge (a) that I initially received a copy of the original
draft of this Agreement and Release on or before December 7, 2007 and a revised draft on December
18, 2007; (b) that I was offered a period of 45 days to review and consider it; (c) that I
understand I could use as much of the 45 day period as I wish prior to signing; and (d) that I was
strongly encouraged to consult with an attorney in writing before signing this Agreement and
Release, and understood whether or not to do so was my decision.
(8) Revocation of Claims: I understand that I may revoke the waiver of the Age Discrimination
in Employment Act (ADEA) claims made in this Agreement and Release within seven (7) days of my
signing. My waiver and release of claims under ADEA shall not be effective or enforceable and I
will not receive 70% of the Special Payments described in Section (1) above. Revocation of claims
can be made by delivering a written notice of revocation to Xxxx Xxxxx, Senior Vice President,
Administration, SLM Corporation, 00000 Xxxxxxxx Xxx, XXX X0000, Xxxxxx, XX 00000.
(9) I acknowledge that I have read and understand all of the provisions of this Agreement and
Release. This Agreement and Release represents the entire agreement between the Parties concerning
the subject matter hereof and shall not be altered, amended, modified, or otherwise changed except
by a writing executed by both Parties. I understand and agree that this Agreement and Release, if
not timely revoked pursuant to Section (8), is final and binding when executed by me. I sign this
document freely, knowingly and voluntarily. I acknowledge that I have not relied upon any
representation or statement, written or oral, not set forth in this Agreement and Release. If any
provision of this Agreement and Release is held by a court of competent jurisdiction or by an
arbitrator to be contrary to law, the remainder of that provision and the remaining provisions of
this Agreement and Release will remain in full force and effect to the maximum extent permitted by
applicable law. This Agreement shall be construed under the laws of the Commonwealth of Virginia.
(10) In addition, in consideration of the payments and benefits described above, I further
agree to cooperate with SLM, its affiliates, and its legal counsel in any legal proceedings
currently pending or brought in the future against SLM, as may be reasonably requested by SLM,
including, but not limited to: (1) participation as a witness; (2) drafting, producing, and
reviewing documents; (3) assisting with interviews; and (4) contacting SLM. In the event I am
requested, with reasonable notice, to travel as part of this litigation cooperation, SLM agrees to
pay my reasonable out of pocket expenses.
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(11) In addition, in consideration of the payments and benefits described above and for an
additional monthly amount of $16,500, upon reasonable request, I further agree to provide
consulting services to SLM for up to five (5) calendar days per calendar month for the period
of 12 months after my termination date of December 31, 2007. During this period, I agree to
provide telephone and local, in-person consulting services to SLM. In the event I am requested,
with reasonable notice, to travel as part of these consulting services, SLM agrees to pay my
reasonable out of pocket expenses. I recognize and agree that my obligations under Section 10
concerning legal proceedings and litigation are not to be considered or deemed consulting services
under this Section. In the event that between July 1, 2008 and December 31, 2008 I decide to take
any action or otherwise provide services that would have otherwise been prohibited under Section 6
concerning non-competition or non-solicitations of customers, except for the fact that the
Restricted Period ended on June 30, 2008, I will provide two weeks notice to the SVP,
Administration of Xxxxxx Xxx of such, and Xxxxxx Mae may terminate this paragraph 11 upon written
notice and will not be obligated to pay me further under this Section. The non-solicitation of
employees is not effected by this Section 11.
Before you sign this Agreement and Release, please take it home, read through each section and
carefully consider it. SLM recommends that you discuss it with your personal attorney (any
personal attorney fees are not covered under the terms of this agreement). You have up to 45 days
to consider this Agreement and Release. You may not make any changes to the terms of this
Agreement and Release. By signing this Agreement and Release, you will be waiving any claims
whether known or unknown.
/s/ Xxxxx X. Xxxxx
|
12/19/07 | |
Xxxxx X. Xxxxx
|
Date | |
/s/ Xxxx Xxxxx
|
12/19/07 | |
Xxxx Xxxxx
|
Date | |
Senior Vice President, Administration |
||
Xxxxxx Xxx, Inc. |
||
For SLM Corporation |
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