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EXHIBIT 10.62
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT is made as of the 25th day of
October, 1997, by and between National Australia Bank Limited ("Parent") a
company organized under the laws of Australia, HomeSide Lending, Inc., (the
"Company"), a Florida corporation, and Xxxx X. Xxxxxxx (the "Executive").
W I T N E S S E T H
WHEREAS, upon the consummation of the transactions
contemplated by that certain Agreement and Plan of Merger (the "Merger
Agreement") dated as of the date hereof, between Parent, a Delaware corporation
to be formed and HomeSide, Inc., HomeSide, Inc. will become an indirect
wholly-owned subsidiary of Parent, and the Company will remain an indirect
wholly-owned subsidiary of HomeSide, Inc.;
WHEREAS, Executive and the Company are parties to a severance
agreement (the "Prior Agreement"), dated as of May 10, 1996, that provides
Executive with certain benefits upon the termination of Executive's employment
following a Transaction (as defined in the Prior Agreement);
WHEREAS, the parties hereto desire to provide for Executive's
employment by the Company; and
WHEREAS, Parent and the Board of Directors of the Company (the
"Board") have determined that it is in their 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. Subject to the consummation of the transactions
contemplated by the Merger Agreement, the Company hereby agrees to employ
Executive and Executive hereby agrees to be employed by the Company on the terms
and conditions herein set forth for a period of three years commencing on the
Effective Time (as defined in the Merger Agreement) unless further extended at
Parent's or Company's discretion for additional one-year periods or sooner
terminated by the parties hereto (the "Term"). This Agreement shall be void and
without effect if the transactions contemplated by the Merger Agreement are not
consummated.
2. DUTIES. Executive is engaged by the Company in an
executive capacity as Executive Vice President. A brief description of
Executive's duties and responsibilities is attached as Exhibit A. Executive,
subject to the direction and control of Parent, shall have the power and
authority commensurate with his executive status and necessary to perform his
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duties hereunder. Executive shall devote his entire employable time, attention
and best efforts to the business of the Company, and shall not, without the
consent of Parent, 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 in which such investments are made.
3. PRIOR AGREEMENT. Executive hereby waives any and all rights
to any benefits payable under the Prior Agreement, and Executive hereby agrees
and acknowledges that following the Effective Time the Prior Agreement shall be
void and of no further effect, and shall be superseded in its entirety by this
Agreement.
4. COMPENSATION. As compensation for services hereunder
rendered, Executive shall receive during the Term:
(a) A base salary ("Base Salary") of U.S.$230,000 per year
payable in equal installments in accordance with the Company's normal
payroll procedures. Executive may receive increases in his Base Salary
from time to time, as approved by Parent, consistent with Company's
past practices and U.S. mortgage banking industry practice.
(b) A guaranteed annual bonus payment of U.S.$362,500, payable
on each of the first anniversary and the second anniversary of the
Effective Time.
(c) Executive is eligible to participate in the Company's
annual bonus plan (the "ABP"). The award under the ABP payable to
Executive in connection with the Company's financial performance for
its fiscal year ending February 28, 1998 (i) shall be paid no later
than April 1, 1998, (ii) shall be determined in accordance with the ABP
adopted by the Board on October 2, 1997, and (iii) the exact amount of
such award shall be determined and recommended by the Chairman and
Chief Executive Officer and approved by Parent taking into
consideration Executive's performance and contributions to the Company
for such period. Awards under the ABP in respect of periods beginning
on or after March 1, 1998 (i) shall be based upon financial targets
under the ABP established by Parent, (ii) the exact amount of which
shall be determined and recommended by the Company's Chairman and Chief
Executive Officer and approved by Parent taking into consideration
Executive's performance and contributions to the Company in respect of
any applicable award period, and (iii) the timing of the payment of
which shall be in accordance with the customary policies of Parent.
(d) Executive shall be eligible to participate in Parent's
Executive Share Option Plan (the "Stock Plan") on the same basis as
similarly situated employees of Parent, after giving due consideration
to Executive's role within the Company. In conjunction with the next
available issue of options to participating employees under the Stock
Plan, Parent shall make, subject to the approval of its board of
directors, an
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initial grant to Executive of 30,000 options in accordance with the
terms and conditions of the Stock Plan.
(e) Executive is eligible to participate in a long-term
incentive plan (the "LTIP"). The first award (the "Anniversary Award")
to the Executive under the LTIP shall be payable in a lump sum cash
payment within 30 days following the date (the "Anniversary Date") on
which the third anniversary of the Effective Time occurs; provided that
such payment shall be made only if Executive is employed by the Company
on the Anniversary Date. Parent shall fund the LTIP with a cash pool
(the "LTIP Pool") in an amount based on the performance criteria of the
LTIP; provided, that the LTIP Pool shall not exceed US$15,000,000.
The exact amount of Executive's Anniversary Award shall be determined
and recommended by the Chairman and Chief Executive Officer of the
Company, and approved by Parent, taking into consideration Executive's
performance and contribution to the Company. Parent shall cause the
entire LTIP Pool to be distributed to eligible Company executives. In
the event that this Agreement is extended beyond the Anniversary Date,
Executive shall be able to participate in a new LTIP (the nature of
such participation and the form of such new plan to be determined in
the sole discretion of Parent).
5. BENEFITS.
(a) Executive shall be entitled 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 from time to time
as may be in effect for senior executives of the Company, provided such
plans are consistent with Parent's practices to remain competitive in
the marketplace.
(b) Executive shall be entitled to paid vacation each year in
accordance with the policy applicable to senior executives of the
Company, provided such policy is consistent with Parent's practices to
remain competitive in the marketplace.
(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 for all such
reasonable expenses upon Executive's periodic presentation of an
itemized account of such expenditures.
(d) Executive shall be entitled to receive the same
perquisites that Executive was entitled to receive immediately prior to
the Effective Time, 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.
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(e) As of the Effective Time, Executive shall be eligible to
participate in a nonqualified deferred compensation plan designated by
Parent, pursuant to which plan Executive may, at Executive's election,
contribute to such plan any amount of Executive's cash compensation
(including, without limitation, Base Salary, ABP payments, LTIP
payments and any other amounts payable under this Agreement).
6. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. Executive's employment shall
terminate 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
inability to perform Executive's duties due to physical or mental
illness.
(b) CAUSE. The Company may terminate Executive's
employment during the Term for Cause. For purposes of this Agreement,
"Cause" shall mean only:
(i) the willful and continued 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
or the board of directors of Parent which specifically
identifies the manner in which the Board or the board of
directors of Parent believes that Executive has not
substantially performed Executive's duties hereunder;
(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 NOLO CONTENDERE to, a felony;
(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 and reputation of Parent or the Company, their
affiliates, their employees or their products; or
(v) willful breach by Executive of a material
policy, program or rule of Parent or the Company.
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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
and 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 authority given pursuant to a resolution duly
adopted by the Board or 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 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;
(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
and responsibilities;
(iii) the Company shall reduce the Base Salary or
ABP opportunity of Executive, or materially reduce his
benefits and perquisites;
(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.
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 90 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
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
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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
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 ninety (90) days written
notice, Executive may voluntarily terminate Executive's employment with
the Company for any reason without penalty or any liability to Parent
or 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 Non-Competition Agreement, dated as of the
date hereof, shall remain unaffected by such resignation.
7. OBLIGATIONS OF THE COMPANY UPON TERMINATION. Following any
termination of Executive's employment hereunder, the Company shall pay Executive
his Base Salary 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
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 of (i)
the annual bonus payment payable under Section 4(b), if any, for the
year of termination of employment, (ii) any ABP award Executive would
have received for the year of termination of employment, and (iii) any
applicable LTIP award (which is, in the event of any termination of
employment on or before the Anniversary Date due to death or
Disability, the Anniversary Award). The amounts payable under this
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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 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 Anniversary
Date, pay to Executive the amount of Executive's Anniversary Award,
payable within 30 days following the Anniversary Date, (B)(i) for a
period of 18 months following Executive's Date of Termination (the
"Continuation Period"), pay to Executive an amount equal to Executive's
average monthly Base Salary for the two-year period (or portion
thereof) immediately preceding the Date of Termination (payable in
accordance with the Company's normal payroll practices), and (ii) at
the end of the Continuation Period, 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
Executives the pro rata portion of the annual bonus payment payable
under Section 4(b), if any, for the year of termination of employment,
and (iv) pay to Executive the pro rata portion of Executive's ABP award
for the year of termination of employment, provided that the Company's
financial 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 coverages; PROVIDED, HOWEVER, that the amounts under
clauses (B)(i), (B)(ii) and (C) shall be payable or provided, as the
case may be, only so long as Executive complies with Executive's
obligations under that certain Confidentiality and Non-Competition
Agreement, dated as of the date hereof.
(c) CAUSE; OTHER THAN FOR GOOD REASON. If Executive's
employment shall be terminated for Cause or Executive terminates
employment without Good Reason (and other than due to such Executive's
death) during the Term, this Agreement shall terminate without further
additional obligations to Executive under this Agreement.
(d) DEATH AFTER TERMINATION. In the event of the death of
Executive 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.
8. ARBITRATION. Any dispute or controversy arising under or
in respect of this Agreement shall be settled exclusively by
arbitration in Jacksonville, Florida, in accordance with the rules of
the American Arbitration Association then in effect. Judgment may be
entered on the arbitrator's award in any court having jurisdiction.
The Company shall bear all costs of arbitration.
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9. [INTENTIONALLY OMITTED]
10. [INTENTIONALLY OMITTED]
11. SUCCESSORS. (a) This Agreement is personal to Executive
and 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
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.
12. OTHER SEVERANCE BENEFITS. Executive hereby agrees that in
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,
contracts or arrangements of the Company or their respective affiliates that
provide for severance payments or benefits upon a termination of employment.
13. WITHHOLDING. All payments to be made to Executive
hereunder will be subject to all applicable required withholding of any income
and employment taxes.
14. NO MITIGATION. Executive shall have no duty to mitigate
his damages by seeking other employment and, should Executive actually receive
compensation from any such other employment, the payments required hereunder
shall not be reduced or offset by any such compensation.
15. NOTICES. Any notice required or permitted to be given
under this 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 or receipt, addressed
as follows:
If to Executive:
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
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If to Company:
0000 Xxxxxxxxxx Xxx
Xxxxxxxxxxxx, Xxxxxxx 3256
Attention: Corporate Secretary
16. WAIVER OF BREACH AND SEVERABILITY. The waiver by either
party of a 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.
17. ENTIRE AGREEMENT; AMENDMENT. This instrument contains the
entire agreement of the parties and supersedes all prior agreements, 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 Parent or the Company
specifically designated by Parent's board of directors.
18. GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the laws of the State of Florida.
19. HEADINGS. The headings in this Agreement are for
convenience only and shall not be used to interpret or construe its provisions.
20. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
NATIONAL AUSTRALIA BANK
LIMITED
By: /S/ R.M.C. Prowse
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R. M. C. Prowse
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HOMESIDE LENDING, INC.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
XXXX X. XXXXXXX
/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
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Exhibit A
Xxxx X. Xxxxxxx Executive VP, Loan Production
RESPONSIBILITIES:
Responsible for Residential Loan Production Sales. This includes March
2, 1998 all Correspondent and Brokered Loan production, and non
retention Consumer Direct Business. Also directs Underwriting efforts
that support loan production and Affordable Housing efforts for
HomeSide. Also serves as a member of the Management Steering Committee.
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CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
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THIS CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (this
"Agreement") is made and entered into as of the 25th day of October, 1997
between, HomeSide Lending, Inc., a Florida Corporation (the "Company") and Xxxx
X. Xxxxxxx, (the executive ").
BACKGROUND
WHEREAS, upon the consummation of the transactions contemplated by that
certain Agreement and Plan of Merger (the "Merger Agreement") dated as of the
date hereof, between National Australia Bank Ltd, a company organized under the
laws of Australia ("Acquiror"), a Delaware corporation to be formed and
HomeSide, Inc., pursuant to which (i) Acquiror will acquire, through the merger
transactions contemplated in the Merger Agreement (the "Merger") and (ii)
HomeSide, Inc. will become an indirect wholly-owned subsidiary of Acquiror, and
the Company will remain an indirect subsidiary of HomeSide, Inc.;
WHEREAS, the Company and the Executive have entered into an Employment
Agreement, date as of October 25, 1997 (the "Employment Agreement"); and
WHEREAS, in order to induce the Executive to enter into this Agreement,
the Company has agreed to pay the Executive a one-time cash payment; and
NOW THEREFORE, in consideration of the premises and the mutual
promises, representations, warranties and covenants set forth below, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. CONFIDENTIAL INFORMATION/NON-COMPETITION.
a) Executive acknowledges that Executive will have knowledge
of certain trade secrets, and other confidential and
proprietary information of the Company. Executive acknowledges
that in and as a result of his employment with the Company, he
has been and will be making use of, acquiring and/or adding to
confidential information of the Company of a special and
unique nature and value., The Executive covenants and agrees
that he shall hold in a fiduciary capacity for the benefit of
the Company all secret or confidential information, knowledge
or data relating to the Company or any of its affiliated
companies, and their respective businesses, which shall have
been
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obtained by Executive during Executive's employment by the
Company or any of its affiliated companies and which shall not
be or become public knowledge (other than by acts by Executive
or representatives of Executive in violation of this
Agreement). Executive further agrees that during and following
the termination of Executive's employment with the Company,
Executive shall not, without prior written consent of the
Company or as may otherwise be required by law or legal
process (provided the Company has been given notice of and
opportunity to challenge or limit the scope of disclosure
purportedly so required), directly or indirectly, communicate
or divulge any such confidential information, knowledge or
data to anyone other than the Company and those designated by
it or to an attorney retained by Executive to provide legal
advice with respect to this Section 1 and who has agreed to
keep such information confidential. Upon the termination of
Executive's employment with the Company, Executive shall
return all materials obtained from or belonging to the Company
which he may have in his possession or control.
(b) Executive acknowledges that the services he is to render
to the Company under the Employment Agreement are of a special
character, with a unique value to the Company, the loss of
which cannot adequately be compensated by damages or an action
at law. Further, Executive acknowledges and agrees that if
Executive were to become employed by a competing organization,
Executive's new job duties and the products, services and
technology of the competing organization would be so similar
or related to those contemplated by this Agreement that it
would be very difficult for Executive not to rely on or use
the Company's confidential information. In view of the unique
value to the Company of the services of Executive, because of
the confidential information to be obtained by, or disclosed
to Executive as hereinabove set forth, Executive covenants and
agrees that during the Non-Competition Period (as defined
below) Executive shall not, directly or indirectly, own,
manage, operate, control, be employed by, advise or in any
manner participate or engage in any mortgage origination,
mortgage lending or mortgage servicing business within the
United States that competes, directly or indirectly, with any
business in which the Company or any of its affiliates is
engaged at the time of Executive's termination or thereafter.
Ownership, for personal investment purposes only, of less than
5% of the outstanding securities of any publicly held
corporation, shall not constitute a violation hereof.
(c) During the Non-Competition Period, Executive will not,
directly or indirectly, on behalf of Executive or any other
person; (i) solicit for
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employment by other than the Company any person who is at such
time employed by the Company or its affiliates (or who was so
employed at any time during the two-year period prior to
Executive's termination of employment with the Company) or
(ii) solicit or accept business from (x) any customer of the
Company or its affiliates, if such customer had dealings with
the Company or its affiliates at any time during the two-year
period immediately preceding termination of employment with
the Company, or (y) any customer prospect of the Company or
its affiliates, if such customer prospect had been the subject
of solicitations by the Company or its affiliates at any time
during the two-year period immediately preceding Executive's
termination of employment with the Company.
(d) The Non-Competition Period shall be the period during
which Executive is employed by the Company pursuant to the
Employment Agreement plus a period equal to (i) 24 months
thereafter in the event Executive is terminated for Cause (as
defined in the Employment Agreement) or voluntarily terminates
his Employment Agreement without Good Reason (as defined in
the Employment Agreement) or (ii) in the event of any other
termination not described in clause (i) above, the shorter of
the period equal to the remaining time left in the current
Term of the Employment Agreement and the period Executive
receives payments under Section 7 of the Employment Agreement.
(e) In consideration for the Executive entering into this
Agreement with the Company and agreeing to be bound by its
terms, including without limitation the terms of this Article
I, the Company shall pay the Employee a one-time lump sum
payment of $400,000 immediately following, and conditioned
upon, consummation of the Merger.
2. INJUNCTIVE RELIEF. Executive acknowledges that a violation on Executive's
part of any of the covenants contained in Section 1 hereof would cause
immeasurable and irreparable damage to the Company, and that any remedy at law
would be inadequate. Accordingly, Executive agrees that the Company shall be
entitled (without the necessity of showing economic loss or other actual damage)
to injunctive relief in any court of competent jurisdiction for any actual or
threatened violation of any such covenant in addition to any other remedies it
may have. Executive agrees that in the event that any arbitrator or court of
competent jurisdiction shall finally hold that any provision of Section 1 hereof
is void or constitutes an unreasonable restriction against Executive, the
provisions of such Section 1 shall not be rendered void but shall apply and
remain in full force and effect for the greatest period and in the greatest area
to such extent as such arbitrator or court may determine constitutes a
reasonable restriction under the circumstances.
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3. MISCELLANEOUS.
(a) CONSUMMATION OF MERGER. This Agreement shall be of no
force and effect if the Merger is not consummated.
(b) GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with the laws of Florida.
(c) ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the
entire agreement between the Company and the Executive with
respect to the subject matter contained herein and supersedes
all prior agreements relating to the same subject matter. This
Agreement cannot be amended, changed or supplemented except in
writing signed by the parties or their duly authorized agents
or attorneys in fact.
(d) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective
heirs, executors, administrators, successors and permitted
assigns.
(e) ASSIGNMENT. This Agreement is nonassignable. except that
the Company's rights, duties and obligations under this
Agreement may be assigned and delegated to any subsidiary or
affiliate of the Company or to the acquiror of the Company in
the event it is merged, acquired, sells substantially all of
its interest in its assets or the Business or transfers its
interest in the Business to any other entity.
(f) NOTICES. All notices, requests, demands and other
communications under or in connection with this Agreement
shall be in writing, shall be sent by registered or certified
mail, return receipt requested and shall be deemed to have
been given or made when received at the following offices.
If to the Company:
HomeSide Lending, Inc.
0000 Xxxxxxxxxx Xxx
Xxxxxxxxxxxx, XX 00000
Attention: Secretary and General Counsel
Fax No.: 000-000-0000
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If to the Employee:
Xxxx X. Xxxxxxx
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
The above addresses may be changed by written notice given as
above provided.
(g) COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which will take effect as
an original and all of which will evidence one and the
same agreement.
(h) PRONOUNS. All pronouns used herein shall be deemed
to refer to the masculine, feminine or neuter gender as
the context requires.
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17
IN WITNESS WHEREOF, this Agreement has been executed by the parties as
of the date first appearing above.
THE COMPANY
HOMESIDE LENDING, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Operating Officer
EXECUTIVE
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxx
6
