RESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT
Exhibit 10.1
In exchange for the mutual promises and consideration set forth
below, this Restrictive Covenant and Confidentiality Agreement
(“Agreement”) is entered into by and between the
Federal Home Loan Mortgage Corporation (“Xxxxxxx Mac”
or “Company”) and Xxx Xxxxxxxx
(“Executive”), effective on the date the Executive
assigns a personal signature to page 6 of this Agreement.
I. Definitions
The following terms shall have the meanings indicated when used
in this Agreement.
A. Competitor: The following
entities, and their respective parents, successors,
subsidiaries, and affiliates are competitors: (i) Xxxxxx
Xxx (ii) all Federal Home Loan Banks (including the Office
of Finance); and (iii) such other entities to which
Executive and the Company may agree in writing from time-to-time.
B. Confidential Information:
Information or materials in written, oral, magnetic, digital,
computer, photographic, optical, electronic, or other form,
whether now existing or developed or created during the period
of Executive’s employment with Xxxxxxx Mac, that
constitutes trade secrets
and/or
proprietary or confidential information. This information
includes, but is not limited to: (i) all information marked
Proprietary or Confidential; (ii) information concerning
the components, capabilities, and attributes of Xxxxxxx
Mac’s business plans, methods, and strategies;
(iii) information relating to tactics, plans, or strategies
concerning shareholders, investors, pricing, investment,
marketing, sales, trading, funding, hedging, modeling, sales and
risk management; (iv) financial or tax information and
analyses, including but not limited to, information concerning
Xxxxxxx Mac’s capital structure and tax or financial
planning; (v) confidential information about Xxxxxxx
Mac’s customers, borrowers, employees, or others;
(vi) pricing and quoting information, policies, procedures,
and practices; (vii) confidential customer lists;
(viii) proprietary algorithms; (ix) confidential
contract terms; (x) confidential information concerning
Xxxxxxx Mac’s policies, procedures, and practices or the
way in which Xxxxxxx Mac does business; (xi) proprietary or
confidential data bases, including their structure and content;
(xii) proprietary Xxxxxxx Mac business software, including
its design, specifications and documentation;
(xiii) information about Xxxxxxx Mac products, programs,
and services which has not yet been made public;
(xiv) confidential information about Xxxxxxx Mac’s
dealings with third parties, including dealers, customers,
vendors, and regulators;
and/or
(xv) confidential information belonging to third parties to
which Executive received access in connection with
Executive’s employment with Xxxxxxx Mac. Confidential
Information does not include general skills, experience, or
knowledge acquired in connection with Executive’s
employment with Xxxxxxx Mac that otherwise are generally known
to the public or within the industry or trade in which Xxxxxxx
Mac operates.
X. Xxxxxxxxx: Cash
compensation paid pursuant to Xxxxxxx Mac’s Severance
Policy.
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X. Xxxxxxxxx Policy: Xxxxxxx
Mac
Policy 3-254.1
(Severance — Officers), or any subsequent and
superceding severance policy.
II. Non-Competition
Executive recognizes that as a result of Executive’s
employment with Xxxxxxx Mac, Executive has access to and
knowledge of critically sensitive Confidential Information, the
improper disclosure or use of which would result in grave
competitive harm to Xxxxxxx Mac. Therefore, Executive agrees
that neither during Executive’s employment with Xxxxxxx
Mac, nor for the twelve (12) months immediately following
termination of Executive’s employment for any reason, will
Executive consider offers of employment from, seek or accept
employment with, or otherwise directly or indirectly provide
professional services to any Competitor, if the Executive will
be rendering duties, responsibilities or services for the
Competitor that are of the type and nature rendered or performed
by you during the past two years of your employment with Xxxxxxx
Mac. Executive acknowledges and agrees that this covenant has
unique, substantial and immeasurable value to Xxxxxxx Mac, that
Executive has sufficient skills to provide a livelihood for
Executive while this covenant remains in force, and that this
covenant will not interfere with Executive’s ability to
work consistent with Executive’s experience, training and
education. This non-competition covenant applies regardless of
whether Executive’s employment is terminated by Executive,
by Xxxxxxx Mac, or by a joint decision.
III. Non-Solicitation and
Non-Recruitment
During Executive’s employment with Xxxxxxx Mac and for a
period of twelve (12) months after Executive’s
termination date, Executive will not solicit or recruit, attempt
to solicit or recruit or assist another in soliciting or
recruiting any Xxxxxxx Mac managerial employee (including
manager-level, Executive-level, or officer-level employee) with
whom Executive worked, or any employee whom Executive directly
or indirectly supervised at Xxxxxxx Mac, to leave the
employee’s employment with Xxxxxxx Mac for purposes of
employment or for the rendering of professional services. This
prohibition against solicitation does not apply if Xxxxxxx Mac
has notified the employee being solicited or recruited that
his/her
employment with the Company will be terminated pursuant to a
corporate reorganization or
reduction-in-force.
IV. Treatment of
Confidential Information
A. Non-Disclosure. Executive
recognizes that Xxxxxxx Mac is engaged in an extremely
competitive business and that, in the course of performing
Executive’s job duties, Executive will have access to and
gain knowledge about Confidential Information. Executive further
recognizes the importance of carefully protecting this
Confidential Information in order for Xxxxxxx Mac to compete
successfully. Therefore, Executive agrees that Executive will
neither divulge Confidential Information to any persons,
including to other Xxxxxxx Mac employees who do not have a
Xxxxxxx Mac business-related need to know, nor make use of the
Confidential Information for the Executive’s own benefit or
for the benefit of anyone else other than Xxxxxxx Mac. Executive
further agrees to take all reasonable precautions to prevent the
disclosure of Confidential Information to unauthorized persons
or entities, and to comply with all Company policies,
procedures, and instructions regarding the treatment of such
information.
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B. Return of Materials.
Executive agrees that upon termination of Executive’s
employment with Xxxxxxx Mac for any reason whatsoever, Executive
will deliver to Executive’s immediate supervisor all
tangible materials embodying Confidential Information,
including, but not limited to, any documentation, records,
listings, notes, files, data, sketches, memoranda, models,
accounts, reference materials, samples, machine-readable media,
computer disks, tapes, and equipment which in any way relate to
Confidential Information, whether developed by Executive or not.
Executive further agrees not to retain any copies of any
materials embodying Confidential Information.
C. Post-Termination
Obligations. Executive agrees that after the termination of
Executive’s employment for any reason, Executive will not
use in any way whatsoever, nor disclose any Confidential
Information learned or obtained in connection with
Executive’s employment with Xxxxxxx Mac without first
obtaining the written permission of the Executive Vice President
of Human Resources of Xxxxxxx Mac. Executive further agrees
that, in order to assure the continued confidentiality of the
Confidential Information, Xxxxxxx Mac may correspond with
Executive’s future employers to advise them generally of
Executive’s exposure to and knowledge of Confidential
Information, and Executive’s obligations and
responsibilities regarding the Confidential Information.
Executive understands and agrees that any such contact may
include a request for assurance and confirmation from such
employer(s) that Executive will not disclose Confidential
Information to such employer(s), nor will such
employer(s)
permit any use whatsoever of the Confidential Information. To
enable Xxxxxxx Mac to monitor compliance with the obligations
imposed by this Agreement, Executive further agrees to inform in
writing Xxxxxxx Mac’s Executive Vice President of Human
Resources of the identity of Executive’s subsequent
employer(s)
and Executive’s prospective job title and responsibilities
prior to beginning employment. Executive agrees that this notice
requirement shall remain in effect for twelve (12) months
following the termination of Executive’s Xxxxxxx Mac
employment.
D. Ability to Enforce Agreement
and Assist Government Investigations. Nothing in this
Agreement prohibits or otherwise restricts you from:
(1) making any disclosure of information required by law;
(2) assisting any regulatory or law enforcement agency or
legislative body to the extent you maintain a legal right to do
so notwithstanding this Agreement; (3) filing, testifying,
participating in or otherwise assisting in a proceeding relating
to the alleged violation of any federal, state, or local law,
regulation, or rule, to the extent you maintain a legal right to
do so notwithstanding this Agreement; or (4) filing,
testifying, participating in or otherwise assisting the
Securities and Exchange Commission or any other proper authority
in a proceeding relating to allegations of fraud.
V. Consideration Given to
Executive
In exchange for agreeing to be bound by the terms, conditions,
and restrictions stated in this Agreement, Xxxxxxx Mac will
provide the Executive with the following consideration, each of
which itself is adequate consideration for Executive’s
agreement to be bound by the provisions of this Agreement:
A. Employment. Executive
will be employed by Xxxxxxx Mac as Senior Vice
President — Corporate Controller & Principal
Accounting Officer.
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X. Xxxxxxxxx. Executive
acknowledges that under Xxxxxxx Mac’s Severance Policy,
Executive may be eligible to receive Severance upon termination
of employment, the duration of which is within the discretion of
Xxxxxxx Mac. In the event the Executive’s employment is
terminated and the circumstances of the termination qualify the
Executive for Severance under the Severance Policy, then the
Executive shall receive severance pay in accordance with the
Severance Policy in effect at the time of termination. The
payment of severance pursuant to the terms of the Severance
Policy and of this paragraph is contingent on Xxxxxxx Mac
receiving, prior to payment, any required approval from the
Director of the Federal Housing Finance Agency
(“FHFA”), including required approval under any
applicable statutes and regulations. The Severance payment
provided by this Paragraph V (B) is in place of, and
not in addition to, Severance to which Executive would otherwise
be entitled under any other agreement between Executive and
Xxxxxxx Mac.
VI. Reservation of Rights
Executive agrees that nothing in this Agreement constitutes a
contract or commitment by Xxxxxxx Mac to continue
Executive’s employment in any job position for any period
of time, nor does anything in this Agreement limit in any way
Xxxxxxx Mac’s right to terminate Executive’s
employment at any time for any reason.
VII. Compliance with the Code of
Conduct and Corporate Policies & Procedures
As a Xxxxxxx Mac employee, Executive will be subject to Xxxxxxx
Mac’s Code of Conduct (“Code”) and to Corporate
Policy 3-206,
Personal Securities Investments Policy (“Policy”)
that, among other things, limit the investment activities of
Xxxxxxx Mac employees. Executive agrees to fully comply with the
Code and the Policy, copies of which are enclosed for
Executive’s review.
Executive further agrees to be bound by, and comply fully with,
his/her
obligations under the Personal Securities Investments Policy.
Executive agrees to consult with Xxxxxxx Mac’s Chief
Compliance Officer as soon as practical prior to beginning
employment about any investments that Executive or a
“covered household member,” as that term is defined in
the Policy, may have that may be prohibited by the Policy.
Executive also agrees to disclose prior to beginning employment
any other matter or situation that may create a conflict of
interest as such term is defined in the Code.
In addition, prior to beginning employment, Executive agrees to
disclose to Xxxxxxx Mac’s Human Resources Division the
terms of any employment, confidentiality or stock grant
agreements to which Executive may currently be subject that may
affect Executive’s future employment or recruiting
activities so that Xxxxxxx Mac may ensure that Executive’s
employment by Xxxxxxx Mac and conduct as a Xxxxxxx Mac employee
are not inconsistent with any of their terms.
VIII. Absence of Any Conflict of
Interest
Executive represents that Executive does not have any
confidential information, trade secrets or other proprietary
information that Executive obtained as the result of
Executive’s employment
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with another employer that Executive will be using in
Executive’s position at Xxxxxxx Mac. Executive also
represents that Executive is not subject to any employment,
confidentiality or stock grant agreements, or any other
restrictions or limitations imposed by a prior employer, which
would affect Executive’s ability to perform the duties and
responsibilities for Xxxxxxx Mac in the job position offered,
and further represents that Executive has provided Xxxxxxx Mac
with copies of any such agreements or limitations so that
Xxxxxxx Mac can make an independent judgment that
Executive’s employment with Xxxxxxx Mac is not inconsistent
with any of its terms.
IX. Enforcement
A. Executive acknowledges that
Executive may be subject to discipline, up to and including
termination of employment, for Executive’s breach or threat
of breach of any provision of this Agreement.
B. Executive agrees that
irreparable injury will result to Xxxxxxx Mac’s business
interests in the event of breach or threatened breach of this
Agreement, the full extent of Xxxxxxx Mac’s damages will be
impossible to ascertain, and monetary damages will not be an
adequate remedy for Xxxxxxx Mac. Therefore, Executive agrees
that in the event of a breach or threat of breach of any
provision(s)
of this Agreement, Xxxxxxx Mac, in addition to any other relief
available, shall be entitled to temporary, preliminary, and
permanent equitable relief to restrain any such breach or threat
of breach by Executive and all persons acting for
and/or in
concert with Executive, without the necessity of posting bond or
security, which Executive expressly waives.
C. Executive agrees that each of
Executive’s obligations specified in this Agreement is a
separate and independent covenant, and that all of
Executive’s obligations set forth herein shall survive any
termination, for any reason, of Executive’s Xxxxxxx Mac
employment. To the extent that any provision of this Agreement
is determined by a court of competent jurisdiction to be
unenforceable because it is overbroad, that provision shall be
limited and enforced to the extent permitted by applicable law.
Should any provision of this Agreement be declared or determined
by any court of competent jurisdiction to be unenforceable or
invalid under applicable law, the validity of the remaining
obligations will not be affected thereby and only the
unenforceable or invalid obligation will be deemed not to be a
part of this Agreement.
D. This Agreement is governed by,
and will be construed in accordance with, the laws of the
Commonwealth of Virginia, without regard to its or any other
jurisdiction’s conflict-of-law provisions. Executive agrees
that any action related to or arising out of this Agreement
shall be brought exclusively in the United States District Court
for the Eastern District of Virginia, and Executive hereby
irrevocably consents to personal jurisdiction and venue in such
court and to service of process by United States Mail or express
courier service in any such action.
E. If any dispute(s) arise(s)
between Xxxxxxx Mac and Executive with respect to any matter
which is the subject of this Agreement, the prevailing party in
such
dispute(s)
shall be entitled to recover from the other party all of its
costs and expenses, including its reasonable attorneys’
fees.
Executive has been advised to discuss all aspects of this
Agreement with Executive’s private attorney. Executive
acknowledges that Executive has carefully read and understands
the
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terms and provisions of this Agreement and that they are
reasonable. Executive signs this Agreement voluntarily and
accepts all obligations contained in this Agreement in exchange
for the consideration to be given to Executive as outlined
above, which Executive acknowledges is adequate and
satisfactory, and which Executive further acknowledges Xxxxxxx
Mac is not otherwise obligated to provide to Executive. Neither
Xxxxxxx Mac nor its agents, representatives, directors, officers
or employees have made any representations to Executive
concerning the terms or effects of this Agreement, other than
those contained in this Agreement.
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By:
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/s/ Xxxxxx Xxxxxxxx | Date: | 4/16/10 | |||
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Xxx Xxxxxxxx
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