1
EXHIBIT 10.58
EMPLOYMENT AGREEMENT
--------------------
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 Xxx 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
Chairman and 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 Parent, shall have the power and authority commensurate
with his executive status and
2
necessary to perform his 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. Subject to
the approval of the board of directors of Parent, Executive may serve on the
board of directors of a corporation, foundation or association (including,
without limitation, Xxxxxx Xxx) provided such entity does not compete with the
business activities of Parent or the Company and such directorship does not
interfere with the performance of Executive's duties and responsibilities
hereunder. Executive, at Parent's option, shall be required to relocate his
principal office to Australia.
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.$450,000 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.$800,000, 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 in the sole discretion of 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 in the sole
discretion of 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
3
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 initial grant to Executive of
50,000 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 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.
4
(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.
5
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; or
(iv) the Company shall default in performing any of its material
obligations contained in this Agreement.
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 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
6
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
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.
7
(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 24 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 2 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.
9. [INTENTIONALLY OMITTED]
8
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:
0000 XxxxxXxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
If to Company:
9
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
------------------------------------
R.M.C. Prowse
HOMESIDE LENDING, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx
10
XXX X. XXXXXXX
/s/ Xxx X. Xxxxxxx
-----------------------------------------
Xxx X. Xxxxxxx
11
Exhibit A
Xxx Xxxxxxx Chairman and Chief Executive Officer
RESPONSIBILITIES:
Responsible for developing and directing strategy and results for
HomeSide. This includes developing policies that facilitate operating
procedures as well as the employing and retaining of key executives.
Also serves as a member of the Management Steering Committee and
fosters and maintains corporate relationships with outside entities.
12
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
---------------------------------------------
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 Xxx 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
1
13
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
2
14
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 $1,500,000 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.
3
15
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
4
16
If to the Employee:
Xxx X. Xxxxxxx
0000 Xxxxx Xxxx Xxxxxxx
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.
5
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/ Xxx X. Xxxxxxx
---------------------------------------------
Name: Xxx X. Xxxxxxx
6
