Exhibit 10.77
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 17th day
of May, 2001(the "Effective Date"), by and between HomeSide Lending, Inc. (the
"Company"), a Florida corporation, National Australia Bank Limited ("Parent") a
company organized under the laws of Australia and Xxxx X. Xxxxxx ("Executive").
W I T N E S S E T H:
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WHEREAS, Executive, Parent, and the Company are parties to an
employment agreement (the "Prior Agreement"), dated as of October 25, 1997, that
provides Executive with certain rights and benefits during the term of his
employment and in the event of his termination of employment with the Company;
WHEREAS, the parties hereto desire to amend and restate the Prior
Agreement in the interest of encouraging the Executive's continuing employment
with the Company; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the Company's best interests to enter into this
Agreement.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Employment. The Company hereby agrees to employ Executive and
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Executive hereby agrees to be employed by the Company on the terms and
conditions herein set forth for a period (the "Term") of two years commencing on
the Effective Date, subject to any written agreement in which the parties agree
that the Agreement be further extended for one or more additional periods or be
sooner terminated. Notwithstanding anything herein to the contrary, where this
Agreement authorizes the Company to take any action or make any determination,
delivery or transmission, the term "Company" shall be deemed to include the
Company and the Parent equally.
2. Duties. Executive is engaged by the Company in an executive
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capacity as Chief Executive Officer. A brief description of Executive's duties
and responsibilities is attached as Exhibit A. Executive, subject to the
direction and control of the Board, shall have the power and authority
commensurate with his executive status and necessary to perform his duties
hereunder. Executive shall devote his entire business time, attention and best
efforts to the business of the Company, and shall not, without the consent of
the Board, be actively engaged in any other business activity, whether or not
such business activity is pursued for gain, profit or other pecuniary advantage;
but this shall not be construed as preventing Executive from investing his
assets in such form or manner as will not require any substantial services on
the part of Executive in the operation of the affairs of the companies or other
entities in which such investments are made. Notwithstanding anything herein to
the contrary, during the Term Executive shall not be the beneficial owner of
more than 5% of all categories of stock of any company that is publicly traded
on an exchange in the U.S. or any other jurisdiction. For purposes of the
foregoing sentence, "Executive" shall include Executive and members of his
immediate family.
3. Prior Agreement. This Agreement constitutes an amendment and
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restatement of the Prior Agreement. Therefore, the parties hereto agree that,
effective as of the Effective Date, the Prior Agreement is hereby amended and
restated in its entirety and thus, except as herein provided and except as to
accrued and unpaid salary, bonuses and other benefits in favor of the Executive
(including without limitation, the "ABP" and "LTIP" in effect thereunder for
current periods), upon and following the Effective Date the Prior Agreement
shall be void and of no further effect, and shall be superseded in its entirety
by this Agreement, except as herein stated.
4. Compensation. As compensation for services hereunder rendered,
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Executive shall receive during the Term:
(a) A base salary ("Base Salary") of U.S. $520,000 per year
payable in accordance with the Company's normal payroll procedures as in effect
from time to time, and reviewed at least annually by the Parent Managing
Director.
(b) (i)Executive is eligible to participate in the Company's
annual bonus plan as in effect from time to time (the "ABP"). The award under
the ABP payable to Executive in connection with the Company's performance for
its fiscal year ending September 30, 2001 (i) shall be paid no later than
December 1, 2001, and (ii) shall be determined in accordance with the ABP as in
effect on the Effective Date, with the exact amount of such award to Executive
to be determined in accordance with the provisions of the ABP and recommended by
the Parent Managing Director, taking into consideration Executive's performance
and contributions to the Company for such period. (ii) Awards under the ABP in
respect of periods beginning after September 30, 2001 shall be based upon a plan
to be mutually agreed between the Company and Parent on or before September 30,
2001. The criteria to be considered in agreeing the plan shall include the
National Australia Bank Group's Economic Value Added Incentive Plan and such
targets and other criteria as may be agreed in good faith between Company and
Parent. Awards pursuant to such plan shall be determined in accordance with the
provisions of the plan and recommended by the Parent Managing Director, taking
into consideration Executive's performance and contributions to the Company in
respect of the award period. The timing of the payment to be made will be in
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accordance with the provisions of the ABP.
(c) Executive shall be considered for participation in any offers
made under the National Australia Bank Executive Share Option Plan No. 2 (the
"Plan") in accordance with the Plan rules as applicable from time to time.
(d) (i) On or before April 1, 2001 (the "Start Date") but in no
event later than July 1, 2001, the Company and Parent shall formally execute a
long-term incentive plan (the "LTIP") that provides for awards for the two-year
period (the "LTIP Period") commencing on the Start Date (with the last day of
such period, March 31, 2003, being the "LTIP Program Date"). New financial
targets shall be as mutually and reasonably agreed between Company and Parent.
The criteria to be considered in agreeing the LTIP shall include Economic Value
Added and such targets and other criteria as may be agreed in good faith between
Company and Parent. The award under the LTIP (the "LTIP Award") shall be payable
in accordance with the provisions of the LTIP, provided the Executive is
employed by the Company or an affiliate on the last day of the LTIP Period
(except as provided in Section 7 hereof). The Company shall make provision for
the LTIP pool (the "LTIP Pool") in an amount as determined in accordance with
the foregoing criteria of the LTIP; provided that the target LTIP Pool shall be
US $10 million.
The exact amount of Executive's LTIP Award shall be determined
in accordance with the provisions of the LTIP and recommended by the Parent
Managing Director, taking into consideration Executive's performance and
contribution to the Company. The Company shall cause the entire earned LTIP Pool
to be distributed to eligible Company executives.
(ii) During the LTIP Period if (A) Parent is the subject of a
successful takeover, or (B) Parent sells the Company, then the target LTIP Pool
shall fully vest and become available for distribution in accordance with the
provision of the LTIP.
For the purpose of this sub-clause (ii) the term "successful takeover"
means the acquisition by another party, unrelated to the Parent, of all
of the issued capital of Parent; and the term "sells" means a sale by
the Parent of the whole of the Company. The provisions of Clause 4 (d)
(ii) shall not apply at any time that Parent maintains at least 50%
ownership or control of the Company.
(iii) (A) In the event that Parent enters into any form of
change of ownership or control of the Company or other form of business
combination by which Parent's ownership or control will become less
than 50%, it is the intention of Parent that the Company not be
disadvantaged nor precluded from its capacity to realize the financial
targets or other criteria under Clause 4(d)(i).
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(B) Where sub-clause (A) above applies, the parties will work
together with the proposed owner(s) or partial owner(s) of the Company
in good faith to agree upon the disadvantages (if any) suffered by the
Company and the best way to neutralize the impact of any such
disadvantage. In the absence of agreement, the matter in dispute shall
be referred to an external arbitrator who will determine the extent of
the disadvantage, if any, quantify that disadvantage and determine the
adjustments to financial targets and other criteria necessary to
neutralize the disadvantage, based on the circumstances as presented by
the Company, Parent and proposed owner(s) or partial owner(s), in
accordance with Section 9 of this agreement. Upon determination of the
arbitrator, Parent must, in its sole discretion, either procure the
adjustments determined by the arbitrator or cause the target LTIP pool
to vest immediately to the extent of any disadvantage as determined by
the arbitrator.
5. Benefits.
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(a) Executive shall be eligible to participate in any and all
employee retirement benefit, welfare benefit (including, without limitation,
medical, dental, disability and group life insurance coverages), fringe benefit,
and other benefit plans as may be in effect from time to time for senior
executives of the Company, provided that during the Term of this Agreement the
Executive's aggregate benefits under such plans are not less favorable to
Executive than those benefits in effect on the Effective Date.
(b) Executive shall be entitled to paid vacation each year in
accordance with the policy applicable to senior executives of the Company as in
effect from time to time.
(c) Executive may incur reasonable expenses for promoting the
Company's business, including expenses for entertainment, travel and similar
items. The Company shall reimburse Executive in accordance with its
reimbursement policy as in effect from time to time.
(d) Executive shall be entitled to receive the same perquisitesin
effect on the Effective Date, including, without limitation, country club or
luncheon club dues, financial and tax planning services, an annual executive
physical and coverage under Executive's long-term disability policy.
(e) Executive shall continue to be eligible to participate in the
Company's deferred compensation plan as in effect from time to time pursuant to
which plan Executive may, at Executive's election, contribute to such plan any
amount of Executive's cash compensation up to the maximum amount allowed to be
contributed by Executive under the terms of such deferred compensation Plan;
provided that the Company shall at least once per calendar year contribute to a
"rabbi trust" (established with an independent trustee in accordance with
Revenue Procedure 92-64) an amount necessary to fully offset any liability that
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the Company may have to the Executive or his beneficiaries with respect to any
deferred compensation.
6. Termination of Employment.
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(a) Death or Disability. Executive's employment shall terminate
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automatically upon Executive's death during the Term. If the Company determines
in good faith that the Disability of Executive has occurred during the Term
(pursuant to the definition of Disability set forth below) it may give to
Executive written notice of its intention to terminate Executive's employment.
In such event, Executive's employment with the Company shall terminate effective
on the 30th day after receipt of such notice by Executive (the "Disability
Effective Date"), provided that, within the 30 days after such receipt,
Executive shall not have returned to full-time performance of Executive's
duties. For purposes of this Agreement, "Disability" shall mean the Executive's
absence from the full-time performance of his duties with the Company or the
Executive's inability to adequately perform his duties with the Company for a
total of six months in any twelve month period due to the Executive's physical
or mental illness.
(b) Cause. The Company may terminate Executive's employment during
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the Term for Cause. For purposes of this Agreement, "Cause" shall mean only:
(i) the willful failure (not resulting from Disability)
by Executive to perform substantially Executive's duties with the Company after
a demand for substantial performance is delivered to Executive by the Board;
(ii) gross negligence or willful misconduct by
Executive in the execution of Executive's professional duties which is
materially injurious to the Company;
(iii) conviction of Executive of, or a plea by
Executive of guilty or nolo contendere to, a felony;
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(iv) use by Executive of alcohol or drugs or other
controlled substances which interferes with the performance of Executive's
duties hereunder or which compromises the integrity of the Company, its
affiliates, its employees or its products; or
(v) willful breach by Executive of a material policy,
program or rule of the Company.
For purposes of clauses (i), (ii), (iv) and (v), above, "Cause"
shall not exist until after Company has given the Executive written notice (the
"Company Notice") of the applicable event, action or circumstance and such
event, action or circumstance is not remedied within 30 days after his receipt
of the Company Notice specifically delineating such claimed event, action or
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circumstance and setting forth the Company's intention to terminate the
Executive's employment if not remedied; provided, that if the specified event,
action or circumstance cannot reasonably be remedied within such 30-day period
and the Executive commences reasonable steps within such 30-day period to remedy
such event, action or circumstance and diligently continues such steps
thereafter until a remedy is effected, such event, action or circumstance shall
not constitute "Cause" provided that such event, action or circumstance is
remedied within 60 days after receipt of the Company Notice. In each case, the
Company Notice must be approved by the Board at a meeting duly called and held.
No act, or failure to act, on Executive's part shall be considered
"willful" unless done, or omitted to be done, by Executive in bad faith or
without reasonable belief that such action or omission was in, or not opposed
to, the best interests of the Company. Any act, or failure to act, based upon
advice of counsel for the Company shall be conclusively presumed to be done, or
omitted to be done, by Executive in good faith and in the best interests of the
Company.
(c) Good Reason. Executive's employment may be terminated by
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Executive for Good Reason. "Good Reason" shall exist upon the occurrence,
without Executive's express written consent, of any of the following events:
(i) the Company shall assign to Executive duties of a
substantially nonexecutive or nonmanagerial nature that are inconsistent with
Executive's duties as contemplated under this Agreement, excluding for this
purpose an isolated action not taken in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by Executive;
(ii) a material adverse change in Executive's position as an
executive officer of the Company, including, without limitation, an adverse
change in Executive's position as a result of a significant diminution in
Executive's duties or responsibilities, other than an isolated change not
occurring in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by Executive ;
(iii) the Company shall reduce the Base Salary [or ABP
opportunity] of Executive, or materially reduce his benefits and perquisites,
other than an isolated reduction not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by
Executive;
(iv) the Company shall default in performing any of its
material obligations contained in this Agreement; or
(v) the Company shall require Executive to relocate
Executive's principal office beyond a radius of fifty (50) miles from
Executive's principal office as of the Effective Time.
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For purposes of this Agreement, "Good Reason" shall not exist
until after Executive has given the Company written notice (the "Notice") of the
applicable event within 30 days of such event and such event is not remedied
within 30 days after receipt of the Notice specifically delineating such claimed
event and setting forth Executive's intention to terminate employment if not
remedied; provided, that if the specified event cannot reasonably be remedied
within such 30-day period and the Company commences reasonable steps within such
30-day period to remedy such event and diligently continues such steps
thereafter until a remedy is effected, such event shall not constitute "Good
Reason" provided that such event is remedied within 60 days after receipt of the
Notice.
(d) Notice of Termination. Any termination by the Company for
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Cause, or by Executive for Good Reason, shall be communicated by Notice of
Termination given in accordance with this Agreement. For purposes of this
Agreement, a "Notice of Termination" means a written notice which (i) indicates
the specific termination provision in this Agreement relied upon, (ii) sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive's employment under the provision so
indicated, and (iii) specifies the intended termination date (which date, in the
case of a termination for Good Reason, shall be not more than thirty days after
the giving of such notice). The failure by Executive or the Company to set forth
in the Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of Executive or the
Company, respectively, hereunder or preclude Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing Executive's
or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if
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Executive's employment is terminated by the Company for Cause, or by Executive
for Good Reason, the later of the date specified in the Notice of Termination or
the date that is one day after the last day of any applicable cure period, (ii)
if Executive's employment is terminated by the Company other than for Cause or
Disability, or Executive resigns without Good Reason, the Date of Termination
shall be the date on which the Company or Executive notified Executive or the
Company, respectively, of such termination and (iii) if Executive's employment
is terminated by reason of death or Disability, the Date of Termination shall be
the date of death of Executive or the Disability Effective Date, as the case may
be.
(f) Resignation by Executive. Upon thirty (30) days written
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notice, which notice the Company may waive in its sole discretion, Executive may
voluntarily terminate Executive's employment with the Company for any reason
without penalty or any liability to the Company for any damages, expenses or
other costs; provided, that in such event Executive waives any amounts payable
to Executive under this Agreement; provided, further, that Executive's
obligations under that certain Confidentiality and Nonsolicitation Agreement,
dated as of the date hereof, shall remain unaffected by such resignation.
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7. Obligations of the Company Upon Termination. Following any
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termination of Executive's employment hereunder, the Company shall pay Executive
his Base Salary to the extent not already paid through the Date of Termination
and any amounts owed to Executive pursuant to the terms and conditions of the
employee benefit plans and programs of the Company at the time such payments are
due. In addition, Executive shall be entitled to the following additional
payments:
(a) Death or Disability. If, during the Term, Executive's
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employment shall terminate by reason of Executive's Death or Disability, the
Company shall pay to Executive (or his designated beneficiary or estate, as the
case may be) the prorated portion based on Date of Termination of (i) any ABP
award Executive would have received for the year of termination of employment,
and (ii) any LTIP Award that would have been payable to Executive for the LTIP
Period. The amounts payable under this Section 7(a) shall be paid at the times
when such payments would have been paid to Executive had Executive's employment
not been terminated.
(b) Good Reason; Other than for Cause. If, during the Term, the
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Company shall terminate Executive's employment for any reason other than either
(i) Cause or (ii) Disability, or the Executive shall terminate his employment
for Good Reason, the Company shall (A) in the event of such termination of
employment on or before the LTIP Program Date, pay to Executive the amount of
Executive's LTIP Award, payable within 30 days following the LTIP Program Date,
(B) (i) pay to Executive an amount equal to the Base Salary as in effect
immediately preceding the Date of Termination, that the Executive would have
received for the period of 24 months following Executive's Date of Termination
(the "Continuation Period"), and (ii) pay to Executive an amount equal to 1.5
times the average of (x) Executive's target bonus under the ABP for the year in
which Executive's Date of Termination occurs and (y) the annual bonus under the
ABP for the year immediately preceding the year in which Executive's Date of
Termination occurs, and (iii) pay to Executive the pro rata portion of
Executive's ABP award for the year of termination of employment, provided that
the Company's performance, or where applicable, the Group's performance,
warrants such award, and (C) provide Executive during the Continuation Period
with continued coverage under the Company's health, life and disability
insurance plans, provided that Executive continues to contribute the employee
share of the cost applicable to such coverage and, provided such benefits are
secondary to any other coverage obtained by Executive during such coverage
period. Executive must advise the Company of any other coverage obtained during
the Continuation Period. Amounts payable to Executive pursuant to subparagraph
(B) above shall be paid in a lump sum within 30 days following Executive's Date
of Termination unless Executive elects more than 120 days before the Date of
Termination to defer their receipt pursuant to the nonqualified deferred
compensation arrangement described in Section 5(e) hereof.
(c) Cause; Other than for Good Reason. If Executive's employment
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shall be terminated by the Company for Cause or Executive terminates
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employment without Good Reason (and other than due to such Executive's Death or
Disability) during the Term, this Agreement shall terminate without further
additional obligations to Executive under this Agreement.
8. Death after Termination. In the event of the death of Executive
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during the period Executive is receiving payments pursuant to this Agreement,
Executive's designated beneficiary shall be entitled to receive the balance of
the payments in a single lump sum payment as soon as practicable following
Executive's death; or in the event of no designated beneficiary, the lump sum
shall be made to Executive's estate.
9. Arbitration. Any dispute or controversy arising under or in respect
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of this Agreement or the employment relationship between the Company and
Executive shall be settled exclusively by arbitration in Jacksonville, Florida
in accordance with the arbitration procedures set forth in the attached Annex A.
Judgment may be entered on the arbitrator's award in any court having
jurisdiction. The Company shall bear all costs of arbitration. Executive shall
be reimbursed for all costs and expenses, including reasonable attorneys' fees,
arising from such dispute or controversy provided the arbitrators determine that
Executive has substantially prevailed in his claims.
10. Litigation. To the extent any dispute is not resolved pursuant to
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Section 9 hereof, as to the terms or interpretation of this Agreement, whether
instituted by formal legal proceedings or otherwise, including any action that
the Executive takes to enforce the terms of this Agreement or to defend against
any action taken by the Company, the Executive shall be reimbursed for all costs
and expenses, including reasonable attorneys' fees, arising from such dispute,
proceedings or actions, provided that the Executive shall obtain a final
judgment by a court of competent jurisdiction in favor of the Executive. Such
reimbursement shall be paid within ten (10) days of the Executive's furnishing
to the Company written evidence, which may be in the form, among other things,
of a cancelled check or receipt, of any costs or expenses incurred by the
Executive.
11. Consent to Jurisdiction. EXECUTIVE AND THE COMPANY HEREBY
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IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED IN THE CITY OF JACKSONVILLE, FLORIDA OVER ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO OR CONCERNING THIS EMPLOYMENT AGREEMENT OR ANY
EMPLOYMENT RELATED MATTERS THAT ARE NOT OTHERWISE ARBITRATED OR RESOLVED
ACCORDING TO THE PROVISIONS OF SECTION 9 OF THIS AGREEMENT. This includes any
suit, action or proceeding to compel arbitration, to obtain a temporary
restraining order or preliminary injunction or such other temporary emergency
relief, or to enforce an arbitration award. Executive and the Company
acknowledge that the forum designated above has a reasonable relation to this
Agreement, and to Executive's relationship to the Company. Notwithstanding the
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foregoing, nothing herein shall preclude Executive or the Company from bringing
any action or proceeding in any other court for the purpose of enforcing the
provisions of Section 9 of this Agreement.
This agreement as to forum is independent of the law that may
be applied in the action under Section 19 of this Agreement, and Executive and
the Company agree to such forum even if the forum may under applicable law
choose to apply non-forum law. Executive and the Company hereby waive, to the
fullest extent permitted by applicable law, any objection which either now or
hereafter may have to personal jurisdiction or the laying of venue of any such
suit, action or proceeding in any court referred to in the preceding paragraph.
Executive undertakes not to commence any action arising out of or relating to or
concerning the Agreement in any forum other than a forum described in this
Section 11.
12. Successors. (a) This Agreement is personal to Executive and
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without the prior written consent of the Company shall not be assignable by
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, or any business
of the Company for which Executive's services are principally performed, to
assume expressly and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean the
Company as hereinbefore defined and any successor to its business and/or assets
as aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
13. Other Severance Benefits. Executive hereby agrees that in
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consideration for the payments to be received under this Agreement, Executive
waives any and all rights to any payments or benefits under any plans, programs,
policies, contracts or arrangements of Parent, the Company or their respective
affiliates that provide for severance payments or benefits upon a termination of
employment.
14. Withholding. All payments to be made to Executive hereunder will
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be subject to all applicable required withholding of any income and employment
taxes.
15. No Mitigation. Executive shall have no duty to mitigate his
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damages by seeking other employment and, should Executive actually receive
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compensation from any such other employment, the payments required hereunder
shall not be reduced or offset by any such compensation.
16. Notices. Any notice required or permitted to be given under this
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Agreement shall be in writing and shall be deemed to have been duly given when
delivered or sent by telephone facsimile transmission, personal or overnight
couriers, or registered mail with confirmation of receipt, addressed as follows:
If to Executive:
00000 Xxxxxxxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
If to Company:
0000 Xxxxxxxxxx Xxx
Xxxxxxxxxxxx, Xxxxxxx 00000
If to Parent:
24th Floor 000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 0000
Xxxxxxxxx
17. Waiver of Breach and Severability. The waiver by either party of a
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breach of any provision of this Agreement by the other party shall not operate
or be construed as a waiver of any subsequent breach by either party. In the
event any provision of this Agreement is found to be invalid or unenforceable,
it may be severed from the Agreement and the remaining provisions of the
Agreement shall continue to be binding and effective.
18. Entire Agreement; Amendment. This instrument contains the entire
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agreement of the parties and supersedes all prior agreements (including, but not
limited to, the Prior Agreement), promises, covenants, arrangements,
communications, representations and warranties between them, whether written or
oral. No provisions of this Agreement may be modified, waived or discharged
unless such modification, waiver or discharge is agreed to in writing signed by
Executive and such officer of the Company specifically designated by the Board.
19. Governing Law. This Agreement shall be construed in accordance
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with and governed by the laws of the State of Florida, without reference to
principles of conflict of laws.
20. Headings. The headings in this Agreement are for convenience only
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and shall not be used to interpret or construe its provisions.
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21. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
NATIONAL AUSTRALIA BANK
LIMITED
By:
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HOMESIDE LENDING, INC.
By:
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XXXX X. XXXXXX
-----------------------------, Executive
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ANNEX A
Any arbitration brought to enforce the provisions of this Agreement shall be
settled in accordance with the following arbitration procedures:
(i) The arbitration shall be conducted before a panel of three
arbitrators to be selected as provided in the AAA Rules. No
potential arbitrator may serve on the panel unless he or she has
agreed in writing to abide by these procedures and be bound by
their requirements.
(ii) Discovery will be permitted in connection with the arbitration if
authorized by the arbitration panel based on a determination of
reasonable need for the discovery.
(iii) The arbitrators have no power (A) to alter, amend or otherwise
affect the terms of the employment Agreement or (B) award punitive
damages (except such punitive damages as may be provided for by
statute and which may not be waived by agreement) or any damages
(except for the liquidated damages amount specified in the
employment Agreement) not measured by the prevailing party's
actual damages and the parties therefore waive their right to any
such damages (except the liquidated damages amount and such
punitive damages as may be provided for by statute and which may
not be waived by agreement).
(iv) Nothing contained herein shall prevent a party from seeking
temporary emergency relief with respect to a dispute. A party may
apply to a court, as provided for in Sections 9 and 10, for a
temporary restraining order, preliminary injunction, or such other
temporary emergency relief. Neither an application for temporary
emergency relief, nor a court's consideration or granting of such
relief shall (A) constitute a waiver of the right to pursue
arbitration under this provision, or (B) delay the appointment of
any arbitration panel or the progress of arbitration proceedings.
If any of these arbitration procedures is declared invalid or
unenforceable, such part shall be deemed modified to the extent
necessary and possible to render it valid and enforceable. In any
event, the unenforceability or invalidity of any part shall not
affect any other part of this provision, and this provision shall
continue in full force and effect, and be construed and enforced,
as if such part had not been included, or had been modified as
above provided, as the case may be.
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