EXHIBIT 10.84
EMPLOYMENT AGREEMENT
AGREEMENT by and among National Australia Bank Limited, a company
organized under the laws of Australia ("Parent"), Homeside Lending, Inc., a
Florida corporation (the "Company"), and Xxxxx X. Xxxxxx (the "Executive") dated
as of the 1st day of September, 2001.
The Company has determined that because of the unique nature of the
Executive's services to the Company it is in its best interests and those of its
shareholders to assure that the Company will have the continued dedication of
the Executive.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Effective Date. The "Effective Date" shall mean the date hereof.
2. Employment Period. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to be employed by the Company subject
to the terms and conditions of this Agreement, for the period commencing on the
Effective Date and ending on the date that is eighteen months after the
Effective Date. Upon a termination of Executive's employment with the Company,
Executive's employment may be transferred to Parent, on terms acceptable to
Parent and the Executive.
3. Terms of Employment. (a) Position and Duties. (i) During the
Employment Period (A) the Executive shall serve as the Chief Financial Officer
of the Company with such authority, duties and responsibilities as are
commensurate with such position and as may be consistent with such position,
reporting directly to the Chief Executive Officer (the "Reporting Person"), and
(B) the Executive's services shall be performed in Jacksonville, Florida.
(ii) During the Employment Period, and excluding any periods
of vacation and sick leave to which the Executive is entitled, the Executive
agrees to devote substantially all of his attention and time during normal
business hours to the business and affairs of the Company and, to the extent
necessary to discharge the responsibilities assigned to the Executive hereunder,
to use the Executive's reasonable best efforts to perform faithfully and
efficiently such responsibilities. During the Employment Period, it shall not be
a violation of this Agreement for the Executive to (A) serve on corporate
(subject to the written approval of the Reporting Person), civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (C) manage personal investments, so long
as such activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement.
(b) Compensation. (i) Base Salary. During the Employment Period, the
Executive shall receive an annual base salary ("Annual Base Salary") of no less
than $350,000. Any increase in Annual Base Salary shall not serve to limit or
reduce any other obligation to the
Executive under this Agreement. Annual Base Salary shall not be reduced after
any such increase and the term Annual Base Salary as utilized in this Agreement
shall refer to Annual Base Salary as so increased.
(ii) Annual Bonus. The Executive shall be eligible to
participate in the Company's Short-Term Bonus Plan ("Annual Bonus"), with a
target Annual Bonus (the "Target Bonus") of $250,000 for the bonus year until
August 31, 2002, and a Target Bonus of $125,000 for the bonus year from
September 1, 2002 until March 31, 2003. Actual payment may be higher or lower,
depending upon performance targets that include the stability, achievement of
planned operating performance targets and status of the sale process of the
Company.
(iii) Long-Term Incentive Awards. The Executive shall be
eligible to participate in the Company's Long-Term Incentive Plan for 2001-2003
(the "LTIP") with a target award of $350,000 (the "LTIP Award") provided that
the LTIP Award shall be payable in full upon a Sale prior to March 31, 2003,
whether or not the Executive is employed by the Company at the time of the Sale,
unless his employment was terminated by the Company for Cause or by the
Executive without Good Reason in accordance with the terms of the LTIP. "Sale"
shall mean a sale by the Parent to another party, unrelated to Parent, of a
portion or whole of the Company (other than a sale of servicing rights, loans or
other assets in the ordinary course of business), which sale reflects the
Parent's intent to exit the U.S. mortgage business.
(iv) Other Benefits. During the Employment Period, the
Executive shall be entitled to participate in all employee pension, welfare,
perquisites, fringe benefit, and other benefit plans, practices, policies and
programs generally applicable to the most senior executives of the Company.
(v) Expenses. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all expenses incurred by
the Executive in accordance with the Company's expense reimbursement policies.
(vi) Vacation. During the Employment Period, the Executive
shall be entitled to paid vacation in accordance with the plans, policies,
programs and practices of the Company as in effect with respect to the senior
executives of the Company.
(vii) Housing. For a period of six months after the Effective
Date, the Company shall reimburse the Executive, on an after-tax basis, for his
reasonable housing and commuting costs, plus miscellaneous reasonable living
expenses.
4. Termination of Employment. (a) Death or Disability. The Executive's
employment shall terminate automatically upon the Executive's death during the
Employment Period. If Parent determines in good faith that the Disability of the
Executive has occurred during the Employment Period (pursuant to the definition
of Disability set forth below), it may give to the Executive written notice in
accordance with Section 9(a) of this Agreement of its intention to terminate the
Executive's employment. In such event, the Executive's employment with Parent
shall terminate effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), provided that, within the 30 days
after such receipt, the Executive shall not have returned to full-time
performance of the Executive's duties. For
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purposes of this Agreement, "Disability" shall mean the absence of the Executive
from the Executive's duties with the Company on a full-time basis for 90
consecutive days or 180 days in any twelve month period as a result of
incapacity due to mental or physical illness which is determined to be total and
permanent by a physician selected by the Company or its insurers and acceptable
to the Executive or the Executive's legal representative.
(b) Cause. The Company may terminate the Executive's employment during
the Employment Period for Cause. For purposes of this Agreement, "Cause" shall
mean:
(i) the willful and continued failure of the Executive to
perform substantially the Executive's duties with the Company or one of its
affiliates (other than any such failure resulting from incapacity due to
Disability), after a written demand for substantial performance is delivered to
the Executive by the Reporting Person or his designee, which specifically
identifies the manner in which the Reporting Person believes that the Executive
has not substantially performed the Executive's duties, or
(ii) the willful engaging by the Executive in illegal conduct,
gross misconduct, gross negligence which is materially and demonstrably
injurious to the Company or its affiliates, or
(iii) conviction of a felony or guilty or nolo contendere plea
by the Executive with respect thereto; or
(iv) use by the Executive of alcohol or drugs or other
controlled substances which interferes with the performance of Executive's
duties hereunder or which compromises the integrity of the Company, its
affiliates, its employees or its products; or
(v) willful breach by the Executive of a material policy,
program or rule of the Company.
For purposes of this provision, no act or failure to act on the part of
the Executive shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of Parent or the
Company. Any act, or failure to act, based upon express authority given by the
Reporting Person with respect to such act or omission or based upon the advice
of counsel for the Company shall be conclusively presumed to be done, or omitted
to be done, by the Executive in good faith and in the best interests of the
Company. The Company may place Executive on paid leave (a) while investigating
whether Executive has engaged in conduct violative of subparagraphs (ii), (iv)
or (v) above or (b) during the pendency of any proceeding that could result in a
conviction or plea as described in subparagraph (iii) above.
(c) Good Reason. The Executive's employment may be terminated by the
Executive for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean, in the absence of a written consent of the Executive, and provided that
the Executive notifies the Company in writing of such event within 30 days of
its occurrence and that Company does not take reasonable steps to cure such
event within 30 days, or start to cure such event if it cannot reasonably be
cured within 30 days:
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(i) the assignment to the Executive of any duties materially
inconsistent in any respect with the Executive's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 3(a) of this Agreement, or any other
action by the Company which results in a material diminution in such position,
authority, duties or responsibilities, excluding for this purpose any action not
taken in bad faith and which is remedied by the Company promptly after receipt
of notice thereof given by the Executive; or
(ii) any failure by the Company to comply with any of the
provisions of Section 3(b) of this Agreement, other than failure not occurring
in bad faith and which is remedied by the Company promptly after receipt of
notice thereof given by the Executive; or
(iii) The Company's requiring the Executive to be based at any
office or location more than 50 miles from that provided in Section 3(a)(i)(B)
hereof, provided that reasonable travel required in connection with Executive's
reporting relationships and responsibilities to the Company shall not be deemed
a breach hereof; or
(iv) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by this Agreement;
or
(v) any failure by the Company to comply with and satisfy
Section 8(b) of this Agreement.
The following events shall not constitute "Good Reason" : (1) the
expiration or non-renewal of the Term or (2) placing the Executive on paid leave
for the purposes described in paragraph 4(b) above.
(d) Notice of Termination. Any termination by the Company or by the
Executive shall be communicated by Notice of Termination to the other party
hereto given in accordance with Section 9(b) of 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)
to the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated and (iii) if the Date of Termination
(as defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than thirty days after the
giving of such notice). The failure by the 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 the Executive or
the Company, respectively, hereunder or preclude the Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing the
Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means if the Executive's
employment is terminated by the Company other than for Death or Disability, or
by the Executive, the date of receipt of the Notice of Termination or any later
date specified therein within 30 days of such notice, and if the Executive's
employment is terminated by reason of Death or Disability, the Date of
Termination shall be the date of death of the Executive or the Disability
Effective Date, as the case may be.
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5. Obligations of the Company upon Termination. (a) Good Reason; Other
Than for Cause. If, during the Employment Period, the Company shall terminate
the Executive's employment other than for Cause or the Executive shall terminate
employment for Good Reason:
(i) except as specified below, the Company shall pay to the
Executive in a lump sum in cash within 30 days after the Date of Termination the
aggregate of the following amounts:
A. the sum of (1) the unpaid portion of Executive's Annual
Base Salary earned through the Date of Termination, and (2) the product
of (x) the Target Bonus of the relevant bonus year and (y) a fraction,
the numerator of which is the number of days elapsed from the first day
of the relevant bonus year, and the denominator of which is 365, in
each case to the extent not theretofore paid (the sum of the amounts
described in clauses (1) and (2), shall be hereinafter referred to as
the "Accrued Obligations"); and
B. the amount equal to the product of (x) the number of months
and fractions thereof, if any, remaining from the Date of Termination
until the date that is eighteen months after the Effective Date and (y)
the sum of (I) the Executive's Annual Base Salary and (II) the Target
Bonus of the relevant bonus year, divided by 12; and
C. The LTIP Award, as calculated in the same manner and paid
at the same time pursuant to the terms of the LTIP as if the Executive
were still an employee of the Company, if not previously paid due to
Sale; and
(ii) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is eligible to
receive under any plan, program, policy or practice or contract or agreement of
the Company and its affiliates (such amounts and benefits, the "Other Benefits")
in accordance with the terms and normal procedures of each such plan, program,
policy or practice.
(b) Cause; Other than for Good Reason. If the Executive's employment
shall be terminated for Cause or the Executive terminates his employment without
Good Reason during the Employment Period, this Agreement shall terminate without
further obligations to the Executive other than the obligation to pay or provide
to the Executive the unpaid portion of his Annual Base Salary through the Date
of Termination, and the timely payment or provision of the Other Benefits, in
each case to the extent theretofore unpaid.
(c) Death. If the Executive's employment is terminated by reason of the
Executive's death during the Employment Period, this Agreement shall terminate
without further obligations to the Executive's legal representatives under this
Agreement, other than for payment of Accrued Obligations, and the timely payment
or provision of the Other Benefits. Accrued Obligations shall be paid to the
Executive's estate or beneficiary, as applicable, in a lump sum in cash within
30 days of the Date of Termination.
(d) Disability. If the Executive's employment is terminated by reason
of the Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Executive, other than for payment
of Accrued Obligations, and the
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timely payment or provision of Other Benefits. Accrued Obligations shall be paid
to the Executive in a lump sum in cash within 30 days of the Date of
Termination. With respect to the provision of Other Benefits, the term Other
Benefits as utilized in this Section 5(d) shall include, and the Executive shall
be entitled after the Disability Effective Date to receive, disability and other
benefits as in effect at any time thereafter generally with respect to senior
executives of the Company.
6. Non-exclusivity of Rights. Except as specifically provided, nothing
in this Agreement shall prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice provided by the Company,
or any of its affiliates and for which the Executive may qualify, nor, subject
to Section 9(f), shall anything herein limit or otherwise affect such rights as
the Executive may have under any contract or agreement with the Company, or its
affiliates. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan, policy, practice or program of or
any contract or agreement with the Company or its affiliates at or subsequent to
the Date of Termination shall be payable in accordance with such plan, policy,
practice or program or contract or agreement except as explicitly modified by
this Agreement. As used in this Agreement, the terms "affiliated companies" and
"affiliates" shall include any company controlled by, controlling or under
common control with the Company.
7. Full Settlement. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and, such amounts
shall not be reduced whether or not the Executive obtains other employment.
Parent or the Company agree to pay, to the full extent permitted by law, all
legal fees and expenses which the Executive may reasonably incur as a result of
any contest by Parent, the Company, the Executive or others of the validity or
enforceability of, or liability under, any provision of this Agreement or any
guarantee of performance thereof (including as a result of any contest by the
Executive about the amount of any payment pursuant to this Agreement), plus in
each case interest on any delayed payment at the applicable Federal rate
provided for in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as
amended (the "Code"), if the Executive prevails on a majority of the claims made
by him, and disputed by Parent or the Company under the terms of this Agreement.
8. Successors. (a) This Agreement is personal to the Executive and
without the prior written consent of Parent or the Company shall not be
assignable by the Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by
the Executive's legal representatives. This Agreement shall inure to the benefit
of and be binding upon Parent and the Company and their respective successors
and assigns.
(b) Parent and the Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of its business and/or assets to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that Parent and
the Company would be required to perform it if no such
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succession had taken place. As used in this Agreement, "Parent" and "Company"
shall mean Parent and the Company as hereinbefore defined and any successor to
their business and/or assets as aforesaid which assumes and agrees to perform
this Agreement by operation of law, or otherwise.
9. Miscellaneous. (a) This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
At the most recent address on file for the Executive at the Company;
If to the Parent:
The Managing Director/CEO
National Australia Bank
000 Xxxxxx Xxxxxx
Xxxxxxxxx
XXX
0000
Xxxxxxxxx
If to the Company:
HomeSide Lending Inc
0000 Xxxxxxxxxx Xxx
Xxxxxxxxxxxx
Xxxxxxx
00000
Attention: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
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(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state, or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Executive's or Parent or the Company's failure to insist upon
strict compliance with any provision of this Agreement or the failure to assert
any right the Executive or Parent or the Company may have hereunder, including,
without limitation, the right of the Executive to terminate employment for Good
Reason pursuant to Section 4 of this Agreement, shall not be deemed to be a
waiver of such provision or right or any other provision or right of this
Agreement, subject to article 4(c).
(f) 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 Company specifically designated by the
Reporting Person.
(g) 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, policies, contracts or
arrangements of the Parent, the Company or their respective affiliates that
provide for severance payments or benefits upon a termination of employment.
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IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization from their boards of
Directors, Parent or the Company has caused these presents to be executed in its
name and on its behalf, all as of the day and year first above written.
XXXXX X. XXXXXX
NATIONAL AUSTRALIA BANK LIMITED
By_______________________________________
HOMESIDE LENDING, INC.
By_______________________________________
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