TRANSITION SERVICES AND SEPARATION AGREEMENT
Exhibit 10.1
EXECUTION COPY
THIS TRANSITION SERVICES AND SEPARATION AGREEMENT (“Agreement”) is executed as of August 5,
2009 (“Agreement Date”), by and between Xxxxxxx X. Xxxxxxx (“Xxxxxxx”) and PHH Corporation (the
“Company”).
WHEREAS, Xxxxxxx resigned as President and Chief Executive Officer of the Company, effective
June 17, 2009; and
WHEREAS, the parties desire to (i) set forth the terms pursuant to which Xxxxxxx’ employment
will continue while the Company conducts a search for a new Chief Executive Officer, and (ii)
provide for certain payments and benefits as consideration for Xxxxxxx’ agreement to certain
restrictive covenants and his execution of a general release of claims.
NOW THEREFORE, intending to be legally bound hereby, the Company and Xxxxxxx agree as follows:
Transition Services and Last Day of Employment
Xxxxxxx’ employment with the Company and any of its subsidiaries and affiliates will terminate
on earlier of (i) the date that a new Chief Executive Officer of the Company is appointed, or (ii)
December 31, 2009 (such date of termination is referred to herein as the “Termination Date”). From
the Agreement Date through the Termination Date (the “Transition Period”), Xxxxxxx will perform
such services as reasonably requested by the Board of Directors or Acting Chief Executive Officer
of the Company to assist in the transition to a new Chief Executive Officer.
During the Transition Period, the Company will continue to pay Xxxxxxx’ annual base salary of
$564,635 as in effect as of the Agreement Date (the “Base Salary”), payable bi-weekly in accordance
with the Company’s normal payroll practices. In addition, during the Transition Period, (x)
Xxxxxxx may continue to participate in the Company’s health and welfare benefit plans and 401(k)
plan, subject to the terms of the plans, and (y) the Company shall provide the use of a Company
vehicle, financial planning services, and tax reimbursements on the foregoing perquisites, to the
extent provided to senior executives of the Company, and subject to the Company’s policies and
procedures. At the end of the Transition Period, Xxxxxxx shall return the Company-provided
vehicle.
Consideration.
In consideration of Xxxxxxx’ execution of and failure to revoke the Release Agreement
contained in Exhibit A to this Agreement (the “Release”), and his continued compliance with
the terms and conditions of this Agreement, the Company agrees to pay or provide the following
payments and benefits:
(a) Pay to Xxxxxxx severance in an amount equal to his Base Salary for the 24-month period
beginning on the Termination Date (the “Severance Period”), with payments beginning
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within 30 days after the Termination Date, provided that Xxxxxxx has signed the Release and it has become
irrevocable before the start of payment. The severance will be payable bi-weekly in accordance
with the Company’s normal payroll practices, however, the payments scheduled to be paid after the
Termination Date and before the Release becomes irrevocable will not be paid until the first
bi-weekly payroll date on or after the date that the Release becomes irrevocable.
(b) Pay to Xxxxxxx’x annual cash bonuses for calendar years 2009, 2010, and 2011 in an amount
equal to the bonus Xxxxxxx would have received based on actual performance of the Company. The
bonus will be paid to Xxxxxxx at the same time bonuses are payable to corporate employees, but no
later than March 15 after the end of the applicable performance year. The amount of cash bonus for
2011 will be pro-rated to reflect the actual number of months covered by the Severance Period in
2011.
(c) Allow Xxxxxxx to continue to vest in any outstanding options or restricted stock units
that have been awarded to Xxxxxxx under the PHH Corporation Amended and Restated 2005 Equity and
Incentive Plan (the “Equity Plan”), subject to the terms and conditions of the Equity Plan and any
award agreement, on the same basis and at the same time as such awards would have vested had
Xxxxxxx remained in the employ of the Company through the Severance Period. On the last day of the
Severance Period, all remaining outstanding unvested stock options and restricted stock units,
other than 2009 performance-based restricted stock units, will become fully vested; 2009
performance-based restricted stock units will become vested on that date to the extent that
performance goals have been satisfied or are expected to be satisfied in the reasonable discretion
of the Compensation Committee. Xx. Xxxxxxx will have the right to exercise any option that is
vested and unexercised as of the Termination Date, as well as any other option that later vests
under the terms of this Agreement, until the earlier of (1) the date on which such option would
have expired by its original terms or (2) one year after the Severance Period ends.
(d) Pay the premium for COBRA coverage, if elected by Xxxxxxx and his eligible dependents,
upon loss of coverage under the Company’s group health plan due to his termination on the
Termination Date, until the earlier of (i) the date that Xxxxxxx becomes eligible for coverage
under another group health plan, or (ii) the end of the 18 month maximum COBRA coverage period. If
Xxxxxxx does not become eligible for coverage under another group health plan by the end of the 18
month maximum COBRA coverage period, then the Company will continue to provide coverage for Xxxxxxx
and his eligible dependents for up to an additional 6 months; however, the coverage will terminate
earlier if Xxxxxxx becomes eligible for coverage under another group health plan during that time.
The Company will impute the amount of the COBRA premium during the period of COBRA coverage and the
fair market value of the continued coverage beyond the end of the COBRA period as taxable income to
Xxxxxxx.
(e) No later than 35 days after the Termination Date, the Company will pay to Xxxxxxx a lump
sum cash transition payment equal to fifty thousand dollars ($50,000.00).
None of the foregoing payments or benefits will be made or provided if the Release is not
signed and has not become irrevocable within 30 days after the Termination Date. Payment and
provision of the foregoing benefits are conditioned on Xxxxxxx’ continued compliance with the
restrictive covenants in this Agreement.
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All amounts paid and property transferred under this Agreement shall be subject to applicable
withholdings for federal, state, and local taxes.
Xxxxxxx acknowledges that: (A) the payments and benefits set forth in this Agreement
constitute full settlement of all his rights arising out of his employment with the Company except
to matters specifically preserved herein, (B) he has no entitlement under any other severance or
similar arrangement maintained by the Company, and (C) except as otherwise provided specifically in
this Agreement, the Company does not and will not have any other liability or obligation to
Xxxxxxx. Xxxxxxx further acknowledges that, in the absence of his execution of this Agreement and
the Release, benefits and payments specified in the “Consideration” section of the Agreement would
not otherwise be due to Xxxxxxx.
No Mitigation or Off-Set
Xxxxxxx is under no obligation to seek other employment and there shall be no offset against
amounts or benefits due to Xxxxxxx under this Agreement as a result of any compensation that
Xxxxxxx may earn in connection with future employment.
Covenants Not to Compete
In further consideration for the benefits and payments set forth in this Agreement, Xxxxxxx
agrees that, during the Restriction Period (as defined below), Xxxxxxx shall not compete with the
Company or any of its subsidiaries or affiliates (the “PHH Group”), as set forth below:
| 1. | Xxxxxxx agrees that he will not, directly or indirectly, as an individual on Xxxxxxx’ own account, or as an independent contractor, employee, consultant, agent, partner, member, joint venturer or otherwise, provide any service or assistance, in any capacity or function to any business engaged in any of the businesses of or services provided by or contemplated to be provided by the PHH Group or otherwise competing with the businesses of the PHH Group, as in effect on the Agreement Date or any time during which Xxxxxxx provided services to the PHH Group, including, but not limited to businesses in the fleet management, mortgage origination and/or mortgage servicing industries, or any of the following: Xxxx Xxxxxx Leasing, Inc.; Allstate Leasing, Inc.; ARI (Automotive Rentals, Inc.); Donlen Corporation; Enterprises Leasing Company; GE Commercial Finance Fleet Services; Emkay Vehicle Leasing; Lease Plan U.S.A.; Wheels, Incorporated; American Leasing; BBL; MotoLease; Merchants Leasing; Xxxxxx Leasing; ULTEA; SunTrust; Xxxxx Fargo; The CEI Group; Fleet Response; CCM; Union Leasing; Xxxxx Fargo Home Mortgage; Bank of America Mortgage; Chase Home Finance; CitiMortgage, Inc.; GMAC Residential Holdings; SunTrust Mortgage, Inc.; MetLife Bank; Quicken Loans, Inc.; CTX Mortgage; Branch Banking & Trust Co.; Pulte Mortgage; AmSouth Mortgage; Fifth Third Mortgage; U.S. Bank Home Mortgage; Citizens Mortgage Corporation; and any successor entity of any of the foregoing that is created by merger, consolidation or any other similar transaction. Notwithstanding the foregoing, nothing in this Agreement shall limit Xxxxxxx, as an individual on Xxxxxxx’ own account, or as an independent contractor, employee, consultant, agent, partner, member, joint venturer or otherwise, from providing any service or assistance |
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| to government-sponsored enterprises or quasi-governmental agencies, including, without limitation, Xxxxxx Xxx and Xxxxxxx Mac, provided that such enterprise or agency is not engaged in mortgage origination or mortgage servicing. | |||
| 2. | The Executive acknowledges that the PHH Group’s businesses are conducted nationally and agrees that the restrictions herein shall operate throughout the United States. Nothing herein shall prohibit Xxxxxxx from being a passive owner of not more than five percent (5%) of the outstanding securities of any publicly traded company that would be a competing company as described in section 1 above, so long as Xxxxxxx has no active participation in the business of such company. | ||
| 3. | Xxxxxxx agrees that he will not, directly or indirectly, as an individual on Xxxxxxx’ own account, or as an independent contractor, employee, consultant, agent, partner, member, joint venturer or otherwise, solicit, induce or encourage, or permit any person or entity to solicit, encourage, induce or attempt to induce on Xxxxxxx’ behalf during the Restriction Period: |
| (a) | any person who was employed by the PHH Group on the Termination Date, and/or any person who was employed by the PHH Group at any time during the twelve-month period immediately preceding the Termination Date, to terminate their employment with the PHH Group, or in any way interfere with the relationship between the PHH Group and any employee thereof; or | ||
| (b) | any customer, client, supplier, licensee or other person or entity that does business with the PHH Group to cease doing business with the PHH Group, or in any way interfere with the relationship between any such persons or entities and the PHH Group; and |
| 4. | Xxxxxxx agrees that he will not, directly or indirectly, as an individual on Xxxxxxx’ own account, or as an independent contractor, employee, consultant, agent, partner, member, joint venturer or otherwise, during the Restriction Period, call on, solicit or service any person or entity who was a customer, client, licensor or licensee of the PHH Group at any time during the twelve-month period immediately preceding the Termination Date for any purpose which directly or indirectly competes with the business of the PHH Group. |
Xxxxxxx agrees and acknowledges that the promises and covenants not to compete set forth above
each have a unique, very substantial and immeasurable value to the PHH Group, that the PHH Group is
engaged in a highly competitive industry, and that Xxxxxxx is receiving significant consideration
in exchange for these promises and covenants. Xxxxxxx acknowledges that the promises and covenants
set forth above are necessary for the reasonable and proper protection of the PHH Group’s legitimate business interests; and that each and every promise and
covenant is reasonable with respect to activities restricted, geographic scope and length of time.
The “Restriction Period” for purposes of these “Covenants Not to Compete” shall start on the
Agreement Date and end on the last day of the Severance Period.
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Confidential Information
Xxxxxxx acknowledges that as part of his employment with the PHH Group, he had access to
information that was not generally disclosed or made available to the public. Xxxxxxx recognizes
that in order to guard the legitimate interests of the PHH Group, it is necessary for it to protect
all confidential information. Xxxxxxx agrees to keep secret all non-public, confidential and/or
proprietary information, matters and materials of the PHH Group, and personal confidential or
otherwise proprietary information regarding the PHH Group’s employees, executives, directors or
consultants affiliated with the PHH Group, including, but not limited to, documents, materials or
information regarding, concerning or related to the PHH Group’s research and development, its
business relationships, corporate structure, financial information, financial dealings, fees,
charges, personnel, methods, trade secrets, systems, procedures, manuals, confidential reports,
clients or potential clients, financial information, business and strategic plans, proprietary
information regarding its financial or other business arrangements with the executives, sales
representatives, editors and other professionals with which it works, software programs and codes,
access codes, and other similar materials or information, as well as all other information relating
to the business of the PHH Group which is not generally known to the public or within the fleet
management and/or mortgage industries or any other industry or trade in which the PHH Group
competes (collectively, “Confidential Information”), to which Xxxxxxx has had or may have access
and shall not use or disclose such Confidential Information to any person except (a) to the extent
required by applicable law, (b) to his personal advisors, to the extent such advisors agree to be
bound by this provision, or (c) to the minimum necessary to enforce this Agreement. This obligation
is understood to be in addition to any agreements Xxxxxxx may have signed with the PHH Group or any
of its subsidiaries or affiliates concerning confidentiality and non-disclosure, non-competition,
non-solicitation, and assignment of inventions or other intellectual property developments, which
agreements will remain in full force and effect.
Non-Disparagement.
Xxxxxxx will not disparage or defame, through verbal or written statements or otherwise, the
PHH Group or any of its members, directors, officers, agents or employees or otherwise take any
action which could reasonably be expected to adversely affect the reputation, business practices,
good will, products and services of the PHH Group or the personal or professional reputation of any
of the PHH Group’s members, directors, officers, agents or employees.
The Company, in its official capacity, will not disparage or defame, through verbal or written
statements or otherwise, Xxxxxxx or otherwise take any action which could reasonably be expected to
adversely affect Xxxxxxx’ reputation.
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Enforcement of Restrictive Covenants.
Xxxxxxx agrees and acknowledges that in the event of a breach or threatened breach by Xxxxxxx
of one or more of the covenants and promises described above in “Covenants Not to Compete,”
“Confidential Information,” and “Non Disparagement,” the PHH Group will suffer irreparable harm
that is not compensable solely by damages. Xxxxxxx agrees that under such circumstances, no
further payments, rights or benefits provided under the “Consideration” section this Agreement will
be due to Xxxxxxx, Xxxxxxx must repay to the Company amounts described under “Consideration” paid
to him in cash and upon payment or exercise of equity awards that would have terminated or not
become vested without operation of the provisions in “Consideration” above, within 10 days after
demand by the Company, and the PHH Group shall be entitled, upon application to a court of
competent jurisdiction, to obtain injunctive or other relief to enforce these promises and
covenants. The Company and any other member of the PHH Group will, in addition to the remedies
provided in this Agreement, be entitled to avail itself of all such other remedies as may now or
hereafter exist at law or in equity for compensation and for the specific enforcement of the
covenants in this Agreement. Resort to any remedy provided for in this Agreement or provided for
by law will not prevent the concurrent or subsequent employment of any other appropriate remedy or
remedies or preclude the Company or PHH Group’s recovery of monetary damages and compensation.
Cooperation.
Xxxxxxx further agrees that, subject to reimbursement of his reasonable expenses, he will
cooperate fully with the Company and any of its subsidiaries and affiliates and their counsel with
respect to any matter (including any pending or future litigation, investigations, or governmental
proceedings) which relates to matters with which Xxxxxxx was involved during his employment with
the Company. Xxxxxxx will render such cooperation in a timely manner upon reasonable notice from
the Company.
Challenge.
If Xxxxxxx violates or successfully challenges the enforceability of any provisions of this
Agreement, no further payments, rights or benefits provided under the “Consideration” section this
Agreement will be due to Xxxxxxx. However, Xxxxxxx may seek clarification from the Company of his
rights and obligations under this Agreement, and, if a dispute remains after seeking clarification,
Xxxxxxx may raise a dispute regarding his rights under this Agreement pursuant to the Arbitration
provisions of this Agreement.
Arbitration.
Any dispute arising under this Agreement will be resolved by arbitration administered
exclusively in Baltimore, Maryland by JAMS, pursuant to its then-prevailing Employment Arbitration
Rules & Procedures, before an arbitrator or arbitrators whose decision shall be final, binding and
conclusive on the parties, and judgment on the award may be entered in any court having
jurisdiction. The Company shall bear any and all costs of the arbitration process, excluding any
attorneys’ fees incurred by Xxxxxxx with regard to such arbitration. Xxxxxxx and the Company
further acknowledge and agree that, due to the nature of the confidential information, trade
secrets, and intellectual property belonging to the PHH Group to which
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Xxxxxxx has been given access, and the likelihood of significant harm that the PHH Group would
suffer in the event that such information was disclosed to third parties, nothing in this paragraph
shall preclude the Company or any other member of the PHH Group from seeking injunctive relief to
prevent Xxxxxxx from violating, or threatening to violate, the terms under the “Covenants Not to
Compete,” “Confidential Information” and “Non-Disparagement” sections of this Agreement.
Miscellaneous.
No Admission of Liability. This Agreement is not to be construed as an admission of
any violation of any federal, state or local statute, ordinance or regulation or of any duty owed
by the Company or any other person to Xxxxxxx, or by Xxxxxxx or any other person to the Company.
There have been no such violations, and both the Company and Xxxxxxx specifically deny any such
violations.
Absence of Reliance. Xxxxxxx acknowledges that in agreeing to this Agreement, he has
not relied in any way upon representations or statements of the Company other than those
representations or statements set forth in this Agreement.
No Reinstatement. Xxxxxxx agrees that he will not apply for reinstatement with the
Company or any other member of the PHH Group or seek in any way to be reinstated, re-employed or
hired by the Company or any other member of the PHH Group in the future.
Section Headings. The section headings are solely for convenience of reference and
shall not in any way affect the interpretation of this Agreement.
Notice: All notices, requests, demands and other communications made or given in
connection with this Agreement shall be in writing and shall be deemed to have been duly given (a)
if hand delivered, at the same time delivered, or (b) at the time shown on the return receipt if
mailed in a certified postage prepaid envelope (return receipt requested) addressed to the
respective parties as follows:
If to PHH Corporation:
If to Xxxxxxx Xxxxxxx:
Xx. Xxxxxxx Xxxxxxx
00 Xxxx xx Xxxxx
Xxxxxxxxxxx, XX 00000
00 Xxxx xx Xxxxx
Xxxxxxxxxxx, XX 00000
or to such other address as the party to whom notice is to be given may have previously furnished
to the other party in writing in the manner set forth above.
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409A Compliance: The parties agree that the payments and benefits in (a), (b), and
(d) under “Consideration” in this Agreement will not be subject to the 6 month delay in payment
described in Section 409A of the Internal Revenue Code and the Treasury Regulations thereunder
(“Section 409A”) due to application of the exemptions in Treasury Regulation Section
1.409A-1(b)(9)(iii) (the “two times, two year rule”), Treasury Regulation Section 1.409A-1(b)(4)
(the “short-term deferral rule”), and Treasury Regulation Section 1.409A-1(b)(9)(v)(B) (medical
benefits).
For purposes of Section 409A, the right to a series of installment payments under this
Agreement shall be treated as a right to a series of separate payments. “Termination of
employment,” or words of similar import, as used in this Agreement means, for purposes of any
payments under this Agreement that are payments of deferred compensation subject to Section 409A,
Xxxxxxx’ “separation from service” as defined in Section 409A.
With respect to any reimbursement of expenses of, or any provision of in-kind benefits to,
Xxxxxxx, as specified under this Agreement, such reimbursement of expenses or provision of in-kind
benefits shall be subject to the following conditions: (1) the expenses eligible for reimbursement
or the amount of in-kind benefits provided in one taxable year shall not affect the expenses
eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year;
(2) the reimbursement of an eligible expense shall be made no later than the end of the year after
the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits
shall not be subject to liquidation or exchange for another benefit.
Legal Expenses. The Company shall reimburse Xxxxxxx for the costs of his legal fees
in connection with the negotiation and execution of this Agreement and the Release in an amount not
to exceed $10,000.
Successors and Assigns. This Agreement will inure to the benefit of and be binding
upon the Company and Xxxxxxx and their respective successors, executors, administrators and heirs.
Xxxxxxx may not make any assignment of this Agreement or any interest herein, by operation of law
or otherwise. The Company may assign this Agreement to any successor to all or substantially all
of its assets and business by means of liquidation, dissolution, merger, consolidation, transfer of
assets, or otherwise.
Severability. Whenever possible, each provision of this Agreement will be interpreted
in such manner as to be effective and valid under applicable law. However, if any provision of
this Agreement is held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability will not affect any other provision, and this Agreement will be
reformed, construed and enforced as though the invalid, illegal or unenforceable provision had
never been herein contained.
Entire Agreement; Amendments. Except as otherwise provided herein, this Agreement
contains the entire agreement and understanding of the parties hereto relating to the subject
matter hereof, and merges and supersedes all prior and contemporaneous discussions, agreements and
understandings of every nature relating to the subject matter hereof. This Agreement may not be
changed or modified, except by an agreement in writing signed by each of the parties hereto.
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Governing Law. This Agreement will be governed by, and enforced in accordance with,
the laws of the State of Maryland without regard to the application of the principles of conflicts
of laws.
Counterparts and Facsimiles. This Agreement may be executed, including execution by
facsimile signature, in multiple counterparts, each of which will be deemed an original, and all of
which together will be deemed to be one and the same instrument.
[signature page to follow]
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IN WITNESS WHEREOF, Xxxxxxx and the Company have executed this Agreement as of the date first
above written.
| /s/ Xxxxxxx X. Xxxxxxx | ||||
| Xxxxxxx X. Xxxxxxx | ||||
Date: August 4, 2009
| PHH CORPORATION |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx Acting Chief Executive Officer and President |
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Date: August 5, 2009
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Exhibit 10.1
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Exhibit A
RELEASE AGREEMENT
THIS RELEASE AGREEMENT (the “Release”) is executed as of , 2009, by
and between Xxxxxxx X. Xxxxxxx (“Xxxxxxx”) and PHH Corporation (the “Company”).
WHEREAS, the Company and Xxxxxxx entered into a Transition Services and Separation Agreement,
executed as of , 2009 (the “Agreement”) that provides for certain payments and
benefits to be paid only if Xxxxxxx has signed and not revoked a general release of claims.
NOW THEREFORE, intending to be legally bound hereby, the Company and Xxxxxxx agree as follows:
Release and Covenant Not to Xxx.
In consideration for the benefits and payments specified in the Agreement, Xxxxxxx hereby
fully and forever releases and discharges the Company and each of its subsidiaries and affiliates,
and all of their predecessors and successors, assigns, officers, directors, trustees, employees,
agents and attorneys, past and present (“Releasees”) of and from any and all claims, demands,
liens, agreements, contracts, covenants, actions, suits, causes of action, obligations,
controversies, debts, costs, expenses, damages, judgments, orders and liabilities, of whatever kind
or nature, direct or indirect, in law, equity or otherwise, whether known or unknown, arising
through the date of this Release, out of Xxxxxxx’ employment with the Company or any Releasee,
including the termination thereof. By this paragraph Xxxxxxx waives any claims which Xxxxxxx has
or may have against Releasees, or any of them. This includes all rights and obligations under any
federal, state or local laws or ordinances pertaining to employment, including but not limited to
any claims for relief or causes of action under the Age Discrimination in Employment Act, 29 U.S.C.
§621 et seq., or any other federal, state or local statute, ordinance or regulation regarding
discrimination in employment, all claims for wrongful discharge, all claims that Releasees, or any
of them, dealt unfairly with Xxxxxxx, in bad faith or in violation of any contract or agreement,
expressed or implied, that may have existed between Releasees, or any of them, and Xxxxxxx, and all
claims against Releasees, or any of them, for assault, battery, personal injury, emotional
distress, pain and suffering.
Xxxxxxx expressly represents that he has not filed a lawsuit or initiated any other
administrative proceeding against Releasees, or any of them, and that he has not assigned any claim
against the Releasees, or any of them, Xxxxxxx further promises not to initiate a lawsuit or to
bring any other claim against Releasees, or any of them, arising out of or in any way related to
Xxxxxxx’ employment by the Company or any Releasee, including the termination of that employment.
This Release will not prevent Xxxxxxx from filing a charge with the Equal Employment Opportunity
Commission (or similar state agency) or participating in any investigation conducted by the Equal
Employment Opportunity Commission (or similar state
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agency); provided, however, that any claims by Xxxxxxx for personal relief in connection with
such a charge or investigation (such as reinstatement or monetary damages) would be barred by this
Release.
The foregoing will not be deemed to release the Company from any of the following claims,
entitlements or rights of Xxxxxxx for or to:
| 1. | Claims or actions brought, in good faith, solely to enforce or clarify the promises, rights, entitlements, obligations, and benefits provided in this Release or the Agreement; | ||
| 2. | Vested benefits under retirement plans sponsored by the Company in which Xxxxxxx is a participant, based on services performed prior to the Termination Date (as defined in the Agreement); | ||
| 3. | Rights to convert coverage under an existing life insurance policy provided by the Company, subject to the conversion rights of such policy; | ||
| 4. | Coverage, if any, under any policy of liability or directors and officers liability insurance for matters subject to said policies for activities arising out of or in any way related to Xxxxxxx’ employment prior to the Termination Date (as defined in the Agreement); | ||
| 5. | Any right to indemnification or cost of defense from or by the Company pursuant to the Company’s by-laws or charter, or duly adopted resolution of the Company’s Board of Directors for activities and actions by Xxxxxxx as an agent, officer, or employee of the Company, prior to the Termination Date (as defined in the Agreement); | ||
| 6. | Earned wages and compensation, accrued vacation and accrued fringe benefits, or reimbursement for authorized expenses acquired or incurred before the Termination Date (as defined in the Agreement); and | ||
| 7. | Any counterclaims in connection with a lawsuit or administrative proceeding in which the Company, its successors, assigns or subrogees seek legal or equitable relief from Xxxxxxx provided such counterclaim (i) arises out of the transaction or occurrence that is the subject matter of the claim raised by the Company in such lawsuit or proceeding, (ii) does not require for adjudication the joinder or presence of third parties, and (iii) does not relate to or arise out of the termination of Xxxxxxx’ employment or involve any claim for compensation or benefits for services rendered to the Company. |
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Rescission Right.
Xxxxxxx expressly acknowledges and recites that (a) he has read and understands the terms of
this Release in its entirety, (b) he has entered into this Release knowingly and voluntarily,
without any duress or coercion; (c) he has been advised orally and is hereby advised in writing to
consult with an attorney with respect to this Release before signing it; (d) he was provided
twenty-one (21) calendar days after the receipt of the Release to consider its terms before signing
it; and (e) he has seven (7) calendar days from the date of signing to terminate and revoke this
Release in which case this Release will be unenforceable, null and void. Xxxxxxx may revoke this
Release during those seven (7) days by providing written notice of revocation to the Company. The
revocation must be delivered to the General Counsel of PHH Corporation, 0000 Xxxxxxxxxx Xxxx, Mail
Stop LGL, Xx. Xxxxxx, XX 00000.
[signature page to follow]
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IN WITNESS WHEREOF, Xxxxxxx and the Company have executed this Release as of the date first
above written.
| Xxxxxxx X. Xxxxxxx | ||||
Date: _______________
| PHH CORPORATION |
||||
| By: | ||||
Date: _______________
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