SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit
10.73
SEPARATION
AGREEMENT AND GENERAL RELEASE
To: | Xxxx Die | |
Date Delivered to Employee: |
April 7, 2008, as revised April 8 and May 1, 2008. |
Xxxxxxx Mac is offering you valuable consideration in
exchange for your agreement to be bound by the terms of this
Agreement and Release (“Agreement”). Please be advised
that, by signing this Agreement, you will be releasing Xxxxxxx
Mac of all legal claims you have, regardless of whether you
currently are aware of them. Therefore, Xxxxxxx Mac advises you
to consult with an attorney before you sign this document.
A. | Obligations and Restrictions Imposed Upon You By This Agreement |
By signing below, you agree to be bound legally to the following
terms:
1. Full Release: In
your individual and representative capacities, you irrevocably
and unconditionally waive, release, and forever discharge the
Federal Home Loan Mortgage Corporation (“Xxxxxxx
Mac”), its predecessors, successors and assigns, and each
of their respective directors, officers, employees, fiduciaries,
administrators, trustees, shareholders, and agents
(collectively, “the Released Parties”) from any
claims, charges, demands, sums of money, actions, rights,
promises, causes of action, obligations, and liabilities of any
kind or nature, in law or equity, whether known or unknown,
existing or contingent, apparent or concealed (collectively,
“claims”) that you have ever had or currently have
against the Released Parties. This release extends to all
claims, whether asserted by you or asserted on your behalf by
your heirs, executors, beneficiaries, administrators,
successors, assigns or trustees. Claims that you release
include, but are not limited to, all claims arising out of or in
relation to your employment with Xxxxxxx Mac, whether arising
under express or implied contract, tort, common law, or federal,
state, or local laws, ordinances, or regulations. This release
also extends to all claims on account or arising out of the
negotiation or execution of this Agreement. A non-exhaustive
list of the types of claims you release include all claims for
fraud, defamation, wrongful termination, and whistle-blower
claims, as well as claims for discrimination, harassment,
attorney’s fees and costs, and retaliation arising under
any federal, state, or local law, such as claims arising under
Title VII of the Civil Rights Act of 1964, the Civil Rights
Act of 1866, the Age Discrimination in Employment Act
(“ADEA”), as amended by the Older Workers Benefit
Protection Act of 1990, the Uniformed Services Employment and
Re-employment Rights Act of 1994; the Immigration Reform Control
Act, the Equal Pay Act of 1963, the Occupational Safety and
Health Act, the Vocational Rehabilitation Act of 1973, the
Vietnam Era Veterans’ Readjustment Assistance Act of 1974,
the Americans with Disabilities Act, the Employee Retirement
Income Security Act of 1974 (“ERISA”), the National
Labor Relations Act, 1978 Uniform Guidelines on Employee
Selection Procedures, Comprehensive Omnibus
Budget Reconciliation Act of 1986; the Xxxxxxxx-Xxxxx Act of
2002, any amendments to the foregoing laws or regulations, all
state laws and municipal ordinances, and the United States
Constitution. Notwithstanding the foregoing, this Release docs
not extend, nor purport to release, any claims that Xxxxxxx Mac
may not lawfully request that you release.
Nothing in this Paragraph A(l) or this Agreement shall
adversely affect any rights you may have to seek
and/or
receive either advancement or indemnification pursuant to the
terms and conditions set forth in Xxxxxxx Mac’s Bylaws,
including those rights set forth in Article 8 thereof, or
reimbursement under any applicable directors and officers
liability insurance policy (“D&O”). You agree
that Xxxxxxx Mac’s Bylaws, D&O policy and applicable
law govern your right to any indemnification or reimbursement.
2. Non-Participation. You
acknowledge that in the absence of this Agreement, you have the
right to encourage, counsel, assist or communicate with others
in bringing claims against the Released Parties. By signing
below, you agree to waive these rights with respect to private
parties. Therefore, except as otherwise provided in this
Agreement, you agree that you have not and will not encourage,
counsel, assist or communicate with any attorneys, their
clients, or any other persons (including current or former
Xxxxxxx Mac employees) in bringing or prosecuting any claims,
charges, or complaints against the Released Parties, unless
pursuant to a valid subpoena or court order to produce documents
or testify, or unless you have been requested by an agency of
the United States government or state or local government
(collectively “government agency”) to assist in a
government agency investigation or proceeding.
To the extent that you arc requested by any government agency to
participate or assist in a government agency investigation or
proceeding, or to the extent that any law may prohibit you from
waiving your right to bring or participate in the investigation
of a claim, you nevertheless waive any right you otherwise might
have to seek or accept any damages or relief in any proceeding.
Furthermore, to the extent that you file any claim against
Xxxxxxx Mac, or any claim is filed on your behalf against
Xxxxxxx Mac, you agree not to seek or accept any damages or
other relief as a result of such claim.
3. Compliance with Subpoenas
or Other Requests. If you receive a court
subpoena, deposition notice, request by a government agency, or
request by any private party to disclose information concerning
your employment or termination of employment with Xxxxxxx Mac,
or concerning the terms of this Agreement, you agree that you
will provide Xxxxxxx Mac with notice of such subpoena, notice,
or request within not more than twenty-four (24) hours of
your receipt. You may comply with this requirement by providing
written notice, via Certified Mail, to the Vice-President and
Deputy General Counsel, Litigation, of the Legal Division
(“DGC”). If notice by Certified Mail will not reach
the DGC before the date your compliance with the subpoena,
deposition notice, or similar request is required, then you
agree to provide a facsimile copy to the DGC before compliance
is required.
With respect to any private party, you agree that: (i) you
will not voluntarily provide any testimony or information unless
required by law or permitted by Xxxxxxx Mae; (ii) you
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will permit Xxxxxxx Mac to be represented by an attorney of
Xxxxxxx Mac’s choosing at any such testimony or with
respect to any such information to be provided; and
(iii) you will follow the instructions of the attorney
designated by Xxxxxxx Mac with respect to what testimony or
information is privileged by the attorney-client
and/or work
product privileges of Xxxxxxx Mac. The parties agree that
Xxxxxxx Mac shall be responsible for the expense of any lawyer
designated by Xxxxxxx Mac to represent Xxxxxxx Mac’s
interests.
4. Confidential
Information. During your employment with Xxxxxxx Mac,
you may have worked with or otherwise gained knowledge about
information that Xxxxxxx Xxx xxxxx trade secrets or otherwise
confidential and proprietary information belonging to Xxxxxxx
Mac. This information may include, but not be limited to:
(a) the components, capabilities or attributes of Xxxxxxx
Mac’s methods or systems; (b) tax and financial
matters, including capital structure and tax and financial
planning strategies; (c) shareholder and investor
strategies, tactics or plans; (d) pricing or investment
strategies; (c) past, current,
and/or
future business strategies, tactics or plans; (f) marketing
or sales strategies, tactics or plans; (g) compensation and
employee benefits strategies and practices, and other
confidential personnel matters; (h) trading strategies,
tactics and plans; (i) Xxxxxxx Mac’s development of
and applications for patents, trademarks, and copyrights, to the
extent such information is non-public; and (j) any other
information of a proprietary nature. By signing below, you agree
that to the extent you have knowledge about such information,
you gained your knowledge through your employment with Xxxxxxx
Mac, and agree to treat the information as strictly
confidential. You agree that you have not and will not use any
such information directly or indirectly for any purpose. You
also agree that you have not and will not disclose it to anyone
outside of Xxxxxxx Mac.
You also acknowledge that, in light of your employment with
Xxxxxxx Mac, you have been in possession of confidential
information and documents that may be privileged under the
attorney-client
and/or work
product privileges. You agree to maintain the confidences and
privileges of Xxxxxxx Mac and acknowledge that any such
confidences and privileges belong solely to Xxxxxxx Mac and can
only be waived by Xxxxxxx Mac, not you.
5. Confidentiality of
Agreement. Subject to the terms of
Paragraph D(1) below, you agree to keep the fact of this
Agreement, the negotiation of its terms and all of such terms
completely confidential except as otherwise permitted by the
terms of this Agreement or applicable law. You may disclose the
terms of this Agreement only to your attorney, accountant, tax
or financial advisor, outplacement counselor hired by Xxxxxxx
Mac, or members of your immediate family, provided that they
agree to keep the terms confidential.
6. Xxxxxxx Mac
Property. You affirm that you have returned
all property and documents belonging to Xxxxxxx Mac that are in
your possession or within your control on such date that may be
agreed to in writing by your manager and a representative of the
Human Resources Division, which in the absence of such written
agreement shall not be later than your Separation Date.
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7. Future Employment
Restriction. You agree that for twelve
(12) month immediately following your Separation Date, you
will not consider offers of employment from, seek or accept
employment with, or otherwise directly or indirectly provide
professional services (including consulting services) to Xxxxxx
Mae and/or
any Federal Home Loan Bank (including the Office of Finance).
8. Non-Solicitation of
Xxxxxxx Mac Managers. During the twelve
(12)-month period beginning with your last day of employment
with Xxxxxxx Mac, you agree that you will not directly or
indirectly recruit or solicit or assist another in recruiting or
soliciting for employment purposes or for the provision of
professional services (including consulting services) any
Xxxxxxx Mac managerial employee (including manager, director, or
officer-level
employees) with whom you worked, or any employee whom you
directly or indirectly supervised at Xxxxxxx Mac. This
prohibition against solicitation of employment docs not apply if
Xxxxxxx Mac has provided written notice to the employee being
solicited that
his/her
employment with Xxxxxxx Mac will be terminated pursuant to a
corporate reorganization or reduction in force.
9. Notice of Future
Employment. In order to allow Xxxxxxx Mac to
monitor your compliance with the post-employment restrictions
imposed by this Agreement, you agree to provide written notice
to the Executive Vice-President of the Human Resources Division
of the identity of each new employer with whom you accept
employment together with your job title and brief description of
job duties during the twelve
(12)-month
period beginning with your last day of employment with Xxxxxxx
Mac.
10. Assistance To Xxxxxxx
Mac. You agree, in response to reasonable
requests, to cooperate fully and assist Xxxxxxx Mac in any
matter in which you have been involved during the course of your
employment. Such assistance shall include providing information,
preparing documents, submitting to depositions, deposition
preparation, providing testimony and general cooperation to
assist the company in explaining its position with respect to
any matter in which you may have been involved. Xxxxxxx Mac
agrees that such assistance shall be provided at times and in a
manner so as not to interfere with or jeopardize your subsequent
employment.
In the event you incur reasonable expenses associated with
providing such assistance, including attorneys fees for
individual representation by an attorney of your choosing,
Xxxxxxx Mac shall reimburse such reasonable expenses in
accordance with company policy generally applicable to senior
executive officers of the company, and for each full or partial
hour of assistance provided Xxxxxxx Mac shall pay you a stipend
equal to your hourly rate of pay as of the date of this
Agreement, consistent with applicable law. You acknowledge that
Xxxxxxx Mac has sole discretion to determine the reasonableness
of any attorney’s fees you may incur in connection with
your assisting Xxxxxxx Mac and Xxxxxxx Mac agrees that any such
determination shall be consistent with any guidelines it has or
may establish pursuant to its Bylaws’ indemnification
process and with applicable law.
11. Non-Disparagement.
You agree not to make, or cause or attempt to cause any other
person to make any statement, whether written or oral, or convey
any information
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about Xxxxxxx Mac or any of its officers, employees or
directors, past or present, that is disparaging. Nothing herein
prevents you from using any non-Confidential information about
the scope of your job duties to obtain other employment,
participating in a proceeding relating to any violation of
federal, state or local law relating to fraud against
shareholders or any rule of the U.S. Securities and
Exchange Commission or complying with a Court order.
12. Waiver of Participation
In and Receipt of Benefits Pursuant to Xxxxxxx Mac’s
Short-Term Disability Plans. Policies and
Programs. You agree not to file any claim for
any benefit pursuant to Xxxxxxx Mac’s Short-Term Disability
Plans or Programs and you further agree to forever waive and
relinquish whatever right you may have had to receive any
benefit.
13. Execution or a Second
Agreement and Release. In the event that you
execute this Agreement prior to your Separation Date, you agree
to execute on your Separation Date a Second Agreement and
Release that is substantially similar in form and substance to
this First Agreement and Release, set forth as Attachment A
hereto. You understand and agree that the Second Agreement and
Release will provide for no additional payments, benefits or
consideration beyond any payments, benefits and consideration
you receive pursuant to the terms of this First Agreement and
Release and that such payments, benefits and consideration
constitute adequate consideration for your execution of and
adherence to the terms of the Second Agreement and Release. In
the event that you either fail to execute such Second Agreement
as of the close of business of the Separation Date or exercise
your right to revoke such Agreement prior to the expiration of
the applicable revocation period, then Xxxxxxx Mac’s
obligations under Paragraphs B(1),
B(2),
B(3) and
B(4) this
Agreement shall be null and void and you agree to return to
Xxxxxxx Mac within three (3) business days all of the cash
payments and monetary equivalents of all benefits that you
received, and you will not be eligible to receive any further
consideration, pursuant to this Agreement.
14. Continuing Obligation To
Adhere to Company Policies and Practices. As
a Xxxxxxx Mac employee prior to your Separation Date, you will
continue to be subject to the requirements of the company’s
Code of Conduct and you will be expected to continue to adhere
to and implement all company policies and procedures and
practices applicable and relevant to your job duties and
responsibilities.
15. Termination of
Employment. Your last day of employment with
Xxxxxxx Mac employment is May 9, 2008
(“Separation Date”).
B. | Benefits To Be Provided To You In Exchange for Signing This Agreement |
By signing below and thereby evidencing your acceptance of the
restrictions and obligations imposed upon you by this Agreement,
Xxxxxxx Mac will provide to you severance and other benefits as
provided in this Section B.
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1. Continued
Employment. Xxxxxxx Mac agrees to employ you
through your Separation Date. Xxxxxxx Mac has sole discretion
prior to your Separation Date to place you on administrative
leave with pay, at a salary equal to the salary you are
receiving as of the date of this Agreement.
2. Severance
Pay. You may elect to receive severance pay
over a course of time in accordance with Xxxxxxx Mac’s
regularly scheduled payroll dates, or in one lump sum payment.
Xxxxxxx Mac will deduct from your severance pay legal
deductions, which may include, but may not be limited to, tax
withholdings, deductions of amounts you owe to Xxxxxxx Mac, and
deductions to cover your share of the costs associated with the
continuation of certain benefits set forth below
(“Deductions”). Failure to make an election between
receiving severance pay over time or in one lump sum will result
in such pay your being paid to you in one lump sum payment.
You will receive your severance pay at the end of Xxxxxxx
Mac’s first regular full payroll period that commences
after the revocation period specified in the Agreement. As
explained in more detail below under “COBRA Benefits
Continuation,” your choice of how you receive severance pay
affects the cost to you of continuing certain benefits.
Please elect how to receive your severance by initializing in
the space provided beside your election.
(i). Severance Pay over Time: Your severance pay
will be paid to you in an amount equal to your annualized base
salary beginning on May 10, 2008, which is the calendar day
after your Separation Date, and ending on May 9, 2009,
minus lawful Deductions. The time during which you are receiving
severance is the “Severance Period.”
To elect to receive severance benefits over time in
accordance with this
Section (B)(2)(i),
please initial here: ____________________.
(ii). Severance in One Lump-Sum Payment: Your
severance pay will be paid to you in one lump-sum payment of
$350,000.00, minus lawful Deductions. Such payment will be made
to you no later than Xxxxxxx Mac’s regularly scheduled full
pay period following the expiration of the revocation period set
forth in
Paragraph D(2)
of the Second Agreement.
To elect to receive severance benefits in a lump sum in
accordance with this
Section (B)(2)(ii),
please initial here:
KD .
3. Cash
Payment. You will receive a lump-sum cash
payment in the amount of $776,333.00. Such payment will be made
to you no later than Xxxxxxx Mac’s regularly scheduled full
pay period following the expiration of the revocation period set
forth in
Paragraph D(2)
of the Second Agreement.
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4. May 4, 2006,
June 5, 2006, March 29, 2007 and March 7, 2008
Restricted Stock Unit (RSU) Grants and June 5, 2006 Stock
Option Grant. You acknowledge that the Chief
Executive Officer has sole discretion to determine whether
certain restricted stock unit and stock option grants are
subject to continued vesting after your Separation Date as a
result of Xxxxxxx Mac terminating your employment due to
“Special Circumstances.” Xxxxxxx Mac agrees that your
May 4, 2006, June 5, 2006, March 29, 2007 and the
Xxxxx 0, 0000 XXX grants and your June 5, 2006 Stock
Option Grant will continue to vest after your Separation Date
pursuant to the vesting schedule and other terms set forth in
the grant agreement.
You will forfeit your Xxxxx 0, 0000 Xxxxxxxxxxx XXX grant
as of your Separation Date.
5. Continuation Benefits
Pursuant to COBRA. You may be eligible to
continue your medical, dental, and vision insurance coverage and
EAP participation eligibility for the period of time beginning
on June 1, 2008 (which is the first day of the month
following your Separation Date) and ending on November 30,
2009 (which is the last day of the month that is eighteen
(18) months after the Separation Date), provided that you
elect to do so within the applicable election period provided by
the Consolidated Budget Reconciliation Act of 1985 (“COBRA
Period”).
In the event that you elect to receive severance pay over time,
you are not eligible to receive Flex dollars; nevertheless, for
that portion of the COBRA Period that overlaps with the
Severance Period Xxxxxxx Mac will pay a portion of the costs
associated with continuing your medical, dental, and vision
insurance coverage and will continue your eligibility to
participate in the Employee Assistance Program
(“EAP”). After the Severance Period ends, Xxxxxxx Mac
will no longer pay a portion of the costs for you to continue
these benefits and the cost to you during the remainder of the
COBRA Period will be 102 percent of the applicable premium
for such coverage and services.
In the event that you elect to receive severance pay in one lump
sum payment, Xxxxxxx Mac will not pay a portion of the costs
associated with your continuing these benefits during the COBRA
Period and the cost to you to continue these benefits will be
102 percent of the applicable premium for such coverage and
services.
6. Outplacement
Service. Xxxxxxx Mae will provide
outplacement services at no expense to you at the level of
services provided to Senior Vice-Presidents of Xxxxxxx Mac. You
must begin to use such outplacement services within twelve
(12) months of your Separation Date or you forfeit the use
of such services.
In the event that you violate any performance, attendance or
conduct standard set forth in Exhibit A to
Policy 3-214,
Progressive Discipline or violate Xxxxxxx Mac’s Code of
Conduct prior to your Separation Date, Xxxxxxx Mac will
terminate your employment for such reason and Xxxxxxx Mac’s
obligations pursuant to
Paragraphs B(1),
B(3) and
B(4) are
null and void.
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In the event that you engage in “Gross Misconduct”
(as such term is defined in
Policy 3-254.1,
Severance — Officers) prior to your Separation Date,
then Xxxxxxx Mac will terminate your employment for such reason
and Xxxxxxx Mac’s obligation pursuant to
Paragraph B(2)
is null and void.
C. | Interpretation and Enforcement of Agreement. |
1. Virginia Law
Applies. This Agreement will be construed, and the
rights and obligations of the parties determined, exclusively in
accordance with the substantive law of the Commonwealth of
Virginia, excluding provisions of Virginia law concerning
choice-of-law that would result in the law of any state other
than Virginia being applied.
2. Venue. Any
claims, actions or proceedings arising out of or related to this
Agreement will be brought in the United States District Court
for the Eastern District of Virginia, Alexandria Division. You
hereby submit to the personal jurisdiction of said Court and
consent to the dismissal of any action related to this Agreement
that is brought in any other forum.
3. Severability. You
agree that if a court of competent jurisdiction declares that
Paragraph A(1)
is invalid, then Xxxxxxx Mac shall be relieved of its
obligations to make any further payments, or otherwise be
obligated under,
Paragraphs B(1),
B(2),
B(3) and
B(4) of this
Agreement. All other provisions of this Agreement arc separate
and independent. Therefore, in the event a court of competent
jurisdiction declares any other provision of this Agreement to
be illegal or invalid, such declaration will not invalidate or
otherwise affect the enforceability of the remaining provisions
of this Agreement. In addition, if a court of competent
jurisdiction declares that any provision is unenforceable
because it is overbroad, including the provisions specifically
referenced in this Paragraph, then the provision will be limited
as required by applicable law, enforced as so limited, and will
not affect the enforceability of the remaining provisions of
this Agreement.
4. No Admission of
Liability. You agree that this Release does
not constitute, nor should it be construed to constitute, an
admission by any Released Party of any violation of federal,
state, or local law, regulation, or ordinance, nor as an
admission or liability under the common law or for any breach of
duty any Released Party owed or owes to you.
5. Return of Consideration In
the Event of Breach. You agree that if you
violate any provision of this Agreement, then you will promptly
return to Xxxxxxx Mac all of the consideration that you received
prior to the breach pursuant to
Paragraphs B(1),
B(2),
B(3) and
B(4),
including all cash payments and monetary equivalents of all
benefits, and that you will not be eligible to receive any
further consideration pursuant to such Paragraphs. This
paragraph does not apply ill the event that you bring any action
against Xxxxxxx Mac under or pursuant to the federal
Age Discrimination in Employment Act.
6. Additional Damages
Available for Breach. You agree that Xxxxxxx
Mac will maintain all rights and remedies available to it at law
and in equity in the event you
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breach any provision of this Agreement. These rights and
remedies may include, but not be limited to, the right to bring
a court action to recover all consideration paid to you pursuant
to this Agreement and any additional damages Xxxxxxx Mac may
suffer as a result of such a breach. You also specifically
recognize and agree that Xxxxxxx Mac will suffer irreparable
injury in the event you breach or threaten to breach
Paragraphs A(4), A(7), and A(8) of this Agreement.
Therefore, you agree that in addition to any other remedies
Xxxxxxx Mac may be entitled to receive for such breach, Xxxxxxx
Mac also will be entitled to temporary, preliminary
and/or
permanent injunctive relief to restrain any such breach or
threat of breach by you, and by any persons acting for
and/or in
concert with you. If Xxxxxxx Mac seeks injunctive relief
pursuant to this Paragraph, then you expressly waive any
requirement that Xxxxxxx Mac post bond.
7. Attorneys’
Fees. You and Xxxxxxx Mac agree that in any
action arising out of this Agreement the non-prevailing party
will pay the reasonable attorneys’ fees and court costs
incurred by the “prevailing party” in connection with
such action.
8. Construction. You
have the right and have had the opportunity to seek the
independent legal advice of an attorney of your choosing
regarding the meaning and advisability of signing this
Agreement. Therefore, the common law principles of construing
ambiguities against the drafter that otherwise may apply have no
application to this Agreement.
D. | Employee Rights |
1. Ability to Enforce
Agreement and Assist Government
Investigations. Nothing in this
Agreement (including Paragraph A(5) above) prohibits or
otherwise restricts you from: (1) instituting
any legal action for the sole purpose of enforcing this
Agreement; (2) making any disclosure of information
required by law; (3) assisting any federal regulatory or
law enforcement agency or legislative body to the extent you
maintain a legal right to do so notwithstanding this Agreement
and Release; (4) filing, testifying, participating in or
otherwise assisting in a proceeding relating to the alleged
violation of any federal, state, or local law, regulation, or
rule, to the extent you maintain a legal right to do so
notwithstanding this Agreement and Release; or (5) filing,
testifying, participating in or otherwise assisting the
Securities and Exchange Commission or any other proper authority
a proceeding relating to allegations of fraud.
2. Retention of Vested
Benefits. Nothing in this Agreement affects
your right to receive any employee benefits, including
retirement benefits or 401(k) employer contributions, to which
you have become vested pursuant to the terms and provisions of
the benefit plans and programs governing such employee benefits.
E. | No Knowledge of Fraudulent or Unlawful Conduct. |
You affirm that you have no knowledge of any fraudulent or
unlawful conduct by any Released Party. You also affirm that:
(l) you have not filed or caused to be filed on your behalf
any claim for relief against Xxxxxxx Mac or any of the other
Released Parties, and,
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to the best of your knowledge and belief, no outstanding claim
has been filed or asserted on your behalf against Xxxxxxx Mac or
any of the other Released Parties; and (2) you have no
knowledge of and have not reported any fact or circumstance or
actual or alleged error, misstatement, misleading statement,
act, omission, neglect or breach of duty that you have reason to
believe might result in a current or future claim against any
Released Party, other than as previously disclosed in the course
of your regular duties as General Auditor.
F. | OFHEO Approval. |
You acknowledge and understand that the terms of the
employment termination benefits provided in this Agreement are
contingent upon the approval of the Office of Federal Housing
Enterprise Oversight (“OFHEO”). Notwithstanding any
other provision hereof (including the terms of
Paragraph B), in the event that OFHEO fails to approve the
terms of any termination benefit provided in this Release, you
and Xxxxxxx Mac agree to renegotiate in good faith such
modifications of the termination benefit as may be necessary to
obtain the approval of OFHEO.
G. | Decision & Revocation Periods. |
1) Consideration
Period. By signing below, you acknowledge
that pursuant to the Older Workers Benefit Protection Act of
1990, you have had a minimum of twenty-one (21) calendar
days from the date you first received a copy of this Agreement
to decide whether to accept its terms. You may return a
signed agreement before twenty-one (21) days have elapsed,
but are not required to do so. Furthermore, in order to receive
the consideration provided in this Agreement, you must return a
signed agreement on or before Thursday, May 22, 2008.
2) Revocation
Period. You agree that pursuant to the
Older Workers Benefit Protection Act of 1990, this Agreement
will not become effective until seven (7) calendar days
after you sign it. Therefore, you have seven (7) calendar
days after you sign this Agreement to revoke your acceptance of
its terms. You may revoke your acceptance by providing
written notification of your intention to revoke to Xxxxxxx
Mac’s Vice-President — Business Partners, Human
Resources Division. To be effective, the above-named official
must actually receive the written notification by no
later than the close of business on the seventh calendar day
after you have signed the Agreement. Your revocation of your
acceptance of the terms of this Agreement will relieve Xxxxxxx
Mac from payment and provision of all consideration payable to
you pursuant to this Agreement.
By signing below, you acknowledge, warrant, and agree
that:
1. | You have been advised to discuss all aspects of this Agreement with your private attorney and/or other individuals of your choice who are not associated |
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with Xxxxxxx Mac to the extent that you desire (but subject to the confidentiality obligations set forth in this Agreement); |
2. | You have read this Agreement carefully and fully understand the significance of all of its provisions; | |
3. | You sign this Agreement voluntarily and accept all obligations contained in it in exchange for the consideration you will receive pursuant to this Agreement, which you acknowledge is adequate and satisfactory, and which you further acknowledge Xxxxxxx Mac is not otherwise obligated to provide to you; and | |
4. | Neither Xxxxxxx Mac, nor its agents, representatives, directors, officers or employees have made any representations to you concerning the terms or effects of this Agreement, other than those explicitly contained in this Agreement. |
I have executed this Agreement this 1 day of May 2008.
/s/ Xxxx
Die
Xxxx Die
FOR XXXXXXX MAC
BY:
/s/ Xxxxx
Xxxxxxxx
(Name, Title and Date)
VP HR Business Partners
5/1/08
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EXHIBIT A
SECOND
AGREEMENT AND RELEASE
To: | Xxxx Die | |
Date Delivered to Employee: |
April 7, 2008 |
Xxxxxxx Mac has offered you valuable consideration in
exchange for your agreement to be bound by the terms of this
Second Agreement and Release (“Second Agreement”).
Please be advised that, by signing this Second Agreement, you
will be releasing Xxxxxxx Mac of all legal claims you have,
regardless of whether you currently are aware of them.
Therefore, Xxxxxxx Mac advises you to consult with an attorney
before you sign this document.
A. | Obligations and Restrictions Imposed Upon You By This Second Agreement |
By signing below, you agree to be bound legally to the following
terms:
1. Full Release: In
your individual and representative capacities, you irrevocably
and unconditionally waive, release, and forever discharge the
Federal Home Loan Mortgage Corporation (“Xxxxxxx
Mac”), its predecessors, successors and assigns, and each
of their respective directors, officers, employees, fiduciaries,
administrators, trustees, shareholders, and agents
(collectively, “the Released Parties”) from any
claims, charges, demands, sums of money, actions, rights,
promises, causes of action, obligations, and liabilities of any
kind or nature, in law or equity, whether known or unknown,
existing or contingent, apparent or concealed (collectively,
“claims”) that you have ever had or currently have
against the Released Parties. This release extends to all
claims, whether asserted by you or asserted on your behalf by
your heirs, executors, beneficiaries, administrators,
successors, assigns or trustees. Claims that you release
include, but are not limited to, all claims arising out of or in
relation to your employment with Xxxxxxx Mac, whether arising
under express or implied contract, tort, common law, or federal,
state, or local laws, ordinances, or regulations. This release
also extends to all claims on account or arising out of the
negotiation or execution of this Second Agreement. A
non-exhaustive list of the types of claims you release include
all claims for fraud, defamation, wrongful termination, and
whistle-blower claims, as well as claims for discrimination,
harassment, attorney’s fees and costs, and retaliation
arising under any federal, state, or local law, such as claims
arising under Title VII of the Civil Rights Act of 1964, the
Civil Rights Act of 1866, the Age Discrimination in
Employment Act (“ADEA”), as amended by the Older
Workers Benefit Protection Act of 1990, the Uniformed Services
Employment and Re-employment Rights Act of 1994; the Immigration
Reform Control Act, the Equal Pay Act of 1963, the Occupational
Safety and Health Act, the Vocational Rehabilitation Act of
1973, the Vietnam Era Veterans’
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Readjustment Assistance Act of 1974, the Americans with
Disabilities Act, the Employee Retirement Income Security Act of
1974 (“ERISA”), the National Labor Relations Act, 1978
Uniform Guidelines on Employee Selection Procedures, the
Comprehensive Omnibus Budget Reconciliation Act of 1986; the
Xxxxxxxx-Xxxxx Act of 2002, any amendments to the foregoing laws
or regulations, all state laws and municipal ordinances, and the
United States Constitution. Notwithstanding the foregoing, this
Release does not extend, nor purport to release, any claims that
Xxxxxxx Mac may not lawfully request that you release.
Notwithstanding this
Paragraph A(1),
nothing in this Agreement releases, waives or otherwise affects
any rights you may have to advancement
and/or
indemnification pursuant to the terms and conditions set forth
in Xxxxxxx Mac’s Bylaws and applicable law.
B. | Benefits To Be Provided To You In Exchange for Signing This Second Agreement |
By signing below and thereby evidencing your acceptance of the
restrictions and obligations imposed upon you by this Second
Agreement, you acknowledge that Xxxxxxx Mac has agreed to
provide to you the payments and other consideration pursuant to
the terms of the Agreement and Release dated April 7, 2008,
as revised May 1, 2008 and executed by you on May 1,
2008 (“First Agreement”), this Second Agreement
provides no additional payments, benefits or consideration
beyond any payments, benefits and consideration you receive
under the terms of that First Agreement and that such payments,
benefits and such consideration constitutes adequate
consideration for your execution of and adherence to the terms
of this Second Agreement. In the event that you fail to execute
this Second Agreement on or before the period set forth in
Paragraph D, then each of your and each of Xxxxxxx
Mac’s respective obligations pursuant to the terms of each
of the First Agreement and this Second Agreement shall be null
and void and you agree to return to Xxxxxxx Mac within three
(3) business days all of the consideration that you
received, including all cash payments and monetary equivalents
of all benefits, and that you will not be eligible to receive
any further consideration, under the First Agreement.
C. | Incorporation By Reference of Terms and Conditions Set Forth in The First Agreement and Release. |
You acknowledge and agree that all of the terms and conditions
set forth in Paragraphs A(2) through A(15), B, C, D E and F
are incorporated herein by reference as terms and conditions of
this Second Agreement and Release as modified to the extent
necessary to make such provisions of such Paragraphs fully
applicable to this Second Agreement.
D. | Decisions and Revocation Period. |
1. Consideration
Period. By signing below you acknowledge that
you have had a minimum of twenty-one (21) calendar days
from the date you first received a copy of this
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Second Agreement to decide whether to accept its terms. You
may not return a signed Second Agreement before your Separation
Date (as such term is defined in the First Agreement).
Furthermore, in order to receive the consideration provided in
this Agreement, you must return a signed agreement no later than
three calendar days after your Separation Date.
2) Revocation
Period. You acknowledge that pursuant to
the Older Workers Benefit Protection Act of 1990, this Agreement
will not become effective until seven (7) calendar days
after you sign it. Therefore, you have seven (7) calendar
days after you sign this Agreement to revoke your acceptance of
its terms. You may revoke your acceptance by providing
written notification of your intention to revoke to Xxxxxxx
Mac’s Vice-President — Business Partners, Human
Resources Division. To be effective, the above-named official
must actually receive the written notification by no
later than the close of business on the seventh calendar day
after you have signed the Agreement. Your revocation of your
acceptance of the terms of this Agreement will relieve Xxxxxxx
Mac from payment and provision of all consideration payable to
you pursuant to this Agreement.
By signing below, you acknowledge, warrant, and agree
that:
a. | You have been advised to discuss all aspects of this Second Agreement with your private attorney and/or other individuals of your choice who are not associated with Xxxxxxx Mac to the extent that you desire (but subject to the confidentiality obligations set forth in this Second Agreement); | |
b. | You have read this Second Agreement carefully and fully understand the significance of all of its provisions; |
c. | You sign this Second Agreement voluntarily and accept all obligations contained in it in exchange for the consideration you will receive pursuant to the First Agreement, which you acknowledge is adequate and satisfactory, and which you further acknowledge Xxxxxxx Mac is not otherwise obligated to provide to you; and |
d. | Neither Xxxxxxx Mac, nor its agents, representatives, directors, officers or employees have made any representations to you concerning the terms or effects of this Second Agreement, other than those explicitly contained in this Second Agreement. |
I have executed this Agreement this 9th day of May 2008.
/s/ Xxxx
Die
Xxxx Die
FOR XXXXXXX MAC
BY:
/s/ Xxxxx
Xxxxxxxx
(Name, Title and Date)
VP HR Business Partners
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