October 11, 2008 Stewart M. Landefeld Executive Vice President Washington Mutual, Inc. 1301 Second Avenue Seattle, WA, 98101 Dear Mr. Landefeld:
Exhibit 10.1
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000 Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000 Phone: 000.000.0000 Fax: 000.000.0000 xxx.xxxxxxxxxxxxxxxx.xxx |
October 11, 2008
Xxxxxxx X. Xxxxxxxxx
Executive Vice President
Washington Mutual, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX, 00000
Executive Vice President
Washington Mutual, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX, 00000
Dear Xx. Xxxxxxxxx:
This letter confirms and sets forth the terms and conditions of the engagement between
Xxxxxxx & Marsal North America, LLC (“A&M”) and Washington Mutual, Inc. and subsidiaries
(collectively the “Company”), including the scope of the services to be performed and the
basis of compensation for those services. Upon execution of this letter by each of the
parties below and receipt of the retainer described below, this letter will constitute an
agreement between the Company and A&M.
| 1. | Description of Services |
| a. | Officers. In connection with this engagement, A&M shall make available to the Company: |
| (i) | Xxxxxxx Xxxxxxxx to serve as the Chief Restructuring Officer (the “CRO”); and | ||
| (ii) | Upon the mutual agreement of A&M and the Board of Directors of the Company (the “Board”), such additional personnel as are necessary to assist in the performance of the duties set forth in clause 1.b below (the “Additional Personnel”). Such Additional Personnel shall be designated by the Company as executive officers. |
| b. | Duties. |
| (i) | The CRO together with any Additional Personnel shall perform a financial review of the Company, including but not limited to a review and assessment of financial |
| information that has been, and that will be, provided by the Company to its creditors, including without limitation its short and long-term projected cash flows; | |||
| (iii) | The CRO and Additional Personnel shall assist in developing for the Board’s review possible restructuring plans or strategic alternatives for maximizing the enterprise value of the Company’s various business lines; | ||
| (iv) | The CRO shall serve as the principal contact with the Company’s creditors with respect to the Company’s financial and operational matters; and | ||
| (v) | The CRO and Additional Personnel shall perform such other services as requested or directed by the Board and agreed to by such officer. |
| c. | Reporting. The CRO shall report to the Board and Additional Personnel will report to the CRO until a successor CEO or other executive officer function as CEO or other title with direct board responsibility for the Chapter 11 is appointed. Upon the appointment of a CEO or other board officer, the CRO shall report to the CEO or other board officer and the Board. | ||
| d. | Employment by A&M. The CRO and Additional Personnel will continue to be employed by A&M and while rendering services to the Company will continue to work with other personnel at A&M in connection with other unrelated matters, which will not unduly interfere with services pursuant to this engagement. With respect to the Company, however, the CRO and Additional Personnel shall operate under the direction of the Board and A&M shall have no liability to the Company for any acts or omissions of such officers. | ||
| e. | Projections; Reliance; Limitation of Duties. You understand that the services to be rendered by the CRO and Additional Personnel may include the preparation of projections and other forward-looking statements, and that numerous factors can affect the actual results of the Company’s operations, which may materially and adversely differ from those projections and other forward-looking statements. In addition, the CRO and Additional Personnel will be relying on information provided by other members of the Company’s management in the preparation of those projections and other forward-looking statements. Neither the CRO, Additional Personnel nor A&M makes any representation or guarantee that an appropriate restructuring proposal or strategic alternative can be formulated for the Company, that any |
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| restructuring proposal or strategic alternative presented to the Board will be more successful than all other possible restructuring proposals or strategic alternatives, that restructuring is the best course of action for the Company or, if formulated, that any proposed restructuring plan or strategic alternative will be accepted by any of the Company’s creditors, shareholders and other constituents. Further, neither the CRO, Additional Personnel nor A&M assumes responsibility for the selection of any restructuring proposal or strategic alternative that any such officer assists in formulating and presenting to the Board, and the CRO and Additional Personnel shall be responsible for implementation only of the proposal or alternative approved by the Board and only to the extent and in the manner authorized and directed by the Board. |
| f. | Additional Responsibilities. Upon the mutual agreement of the Company and A&M, A&M may provide such additional personnel as the Company may request to assist in performing the services described above and such other services as may be agreed to, on such terms and conditions and for such compensation as the Company and A&M shall agree. | ||
| g. | In connection with the services to be provided hereunder, from time to time A&M may utilize the services of employees of its affiliates. Such affiliates are wholly owned by A&M’s parent company and employees. |
| 2. | Compensation |
| a. | A&M will be paid by the Company for the services of the CRO and any Additional Personnel at the following hourly billing rates. The hourly billing rate for the CRO is $695. The current hourly billing rates for other A&M personnel, based on the position held by such A&M personnel in A&M, are: |
i. Managing Director |
$ | 550 - $750 | ||
ii. Directors |
$ | 450 - $550 | ||
iii. Associates |
$ | 300 - $450 | ||
iv. Analysts |
$ | 175 - $300 |
| Such rates shall be subject to adjustment annually at such time as A&M adjusts its rates generally. |
| b. | In addition, A&M will be reimbursed by the Company for the reasonable out-of-pocket expenses of the CRO and any Additional Personnel, and if applicable, other A&M personnel, incurred in |
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| connection with this assignment, such as travel, lodging, duplications, computer research, messenger and telephone charges. In addition, A&M shall be reimbursed by the Company for the reasonable fees and expenses of its counsel incurred in connection with the preparation, negotiation, and approval of this Agreement. All fees and expenses due to A&M will be billed on a monthly basis or, at A&M’s discretion, more frequently. | |||
| c. | The Company shall promptly remit to A&M a retainer in the amount of $250,000, which shall be credited against any amounts due at the termination of this engagement and returned upon the satisfaction of all obligations hereunder. |
| 3. | Term | ||
| The engagement will commence as of the date hereof and may be terminated by either party without cause by giving 30 days’ written notice to the other party during which notice period A&M will cooperate with the Company to facilitate an orderly transfer of duties to Company personnel. A&M normally does not withdraw from an engagement unless the Company misrepresents or fails to disclose material facts, fails to pay fees or expenses, or makes it unethical or unreasonably difficult for A&M to continue to represent the Company, or unless other just cause exists. In the event of any such termination, any fees and expenses due to A&M shall be remitted promptly (including fees and expenses that accrued prior to but were invoiced subsequent to such termination). The Company may immediately terminate A&M’s services hereunder at any time for Cause by giving written notice to A&M. Upon any such termination, the Company shall be relieved of all of its payment obligations under this Agreement, except for the payment of fees and expenses through the effective date of termination (including fees and expenses that accrued prior to but were invoiced subsequent to such termination) and its obligations under paragraphs 7 and 8. For purposes of this Agreement, “Cause” shall mean if (i) the CRO or any of the Additional Personnel is convicted of, admits guilt in a written document filed with a court of competent jurisdiction to, or enters a plea of nolo contendere to, an allegation of fraud, embezzlement, misappropriation or any felony; (ii) the CRO or any of the Additional Personnel willfully disobeys a lawful direction of the Board, CEO or responsible executive; or (iii) a material breach of any of A&M’s or the CRO’s or any of the Additional Personnel’s material obligations under this Agreement which is not cured within 30 days of the Company’s written notice thereof to A&M describing in reasonable detail the nature of the alleged breach. For purposes of this Agreement, termination for “Good Reason” shall mean either its resignation caused by a breach by the Company of any of its |
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| material obligations under this Agreement that is not cured within 30 days of A&M having given written notice of such breach to the Company describing in reasonable detail the nature of the alleged breach. | |||
| 4. | No Audit, Duty to Update. | ||
| It is understood that the CRO, any Additional Personnel and A&M are not being requested to perform an audit, review or compilation, or any other type of financial statement reporting engagement that is subject to the rules of the AICPA, SEC or other state or national professional or regulatory body. They are entitled to rely on the accuracy and validity of the data disclosed to them or supplied to them by employees and representatives of the Company. The CRO, any Additional Personnel and A&M are under no obligation to update data submitted to them or review any other areas unless specifically requested by the Board to do so. | |||
| 5. | No Third Party Beneficiary. | ||
| The Company acknowledges that all advice (written or oral) given by A&M to the Company in connection with this engagement is intended solely for the benefit and use of the Company (limited to its Board and management) in considering the matters to which this engagement relates. The Company agrees that no such advice shall be used for any other purpose or reproduced, disseminated (other than to its advisers and accountants), quoted or referred to at any time in any manner or for any purpose other than accomplishing the tasks referred to herein without A&M’s prior approval (which shall not be unreasonably withheld), except as required by law. | |||
| 6. | Conflicts. | ||
| A&M is not currently aware of any relationship that would create a conflict of interest with the Company. Because A&M is a consulting firm that serves clients on an international basis in numerous cases, both in and out of court, it is possible that A&M may have rendered or will render services to or have business associations with other entities or people which had or have or may have relationships with the Company, including creditors of the Company. In the event you accept the terms of this engagement, A&M will not represent, and A&M has not represented, the interests of any such entities or people in connection with this matter. Each of the Companies acknowledges and agrees that the services being provided hereunder are being provided on behalf of each of them and each of them hereby waives any and all conflicts of interest that may arise on |
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| account of the services being provided on behalf of any other Company. Each Company represents that it has taken all corporate action necessary and is authorized to waive such potential conflicts of interest. | |||
| 7. | Confidentiality / Non-Solicitation. | ||
| The CRO, Additional Personnel, A&M and its affiliates’ employees and agents shall keep as confidential all non-public information received from the Company in conjunction with this engagement, except (i) as requested by the Company or its legal counsel; (ii) as required by legal proceedings (provided that the Company be given sufficient notice and an opportunity to intervene on its own behalf) or (iii) as reasonably required in the performance of this engagement. All obligations as to non-disclosure shall cease as to any part of such information to the extent that such information is or becomes public other than as a result of a breach of this provision. Except as specifically provided for in this letter, the Company on behalf of itself and its subsidiaries and affiliates and any person which may acquire all or substantially all of its assets agrees that, until two (2) years subsequent to the termination of this engagement, it will not solicit, recruit, hire or otherwise engage any employee of A&M who worked on this engagement while employed by A&M (“Solicited Person”). Should the Company or any of its subsidiaries or any person who acquires all or substantially all of its assets extend an offer of employment to or otherwise engage any Solicited Person and should such offer be accepted, A&M shall be entitled to a fee from the party extending such offer equal to the Solicited Person’s hourly client billing rate at the time of the offer multiplied by 4,000 hours for a Managing Director, 3,000 hours for a Senior Director and 2,000 hours for any other A&M employee. The fee shall be payable at the time of the Solicited Person’s acceptance of employment or engagement. | |||
| 8. | Indemnification. | ||
| The Company shall indemnify the CRO and all Additional Personnel to the same extent as the most favorable indemnification it extends to its officers or directors, whether under the Company’s bylaws, its certificate of incorporation, by contract or otherwise, and no reduction or termination in any of the benefits provided under any such indemnities shall affect the benefits provided to the CRO or Additional Personnel. The CRO and each Additional Personnel shall be covered as an officer under the Company’s existing director and officer liability insurance policy to the extent allowed under such policy. As a condition of A&M accepting this engagement, a Certificate of Insurance evidencing such coverage shall be furnished to A&M prior to the effective date of this Agreement. To the |
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| extent practicable, the Company shall give thirty (30) days’ prior written notice to A&M of cancellation, non-renewal, or material change in coverage, scope, or amount of such director and officer liability policy. The Company shall also maintain such insurance coverage for the CRO, CFO, Treasurer and each Additional Personnel for a period of not less than two years following the date of the termination of such officer’s services hereunder. The provisions of this section 8 are in the nature of contractual obligations and no change in applicable law or the Company’s charter, bylaws or other organizational documents or policies shall affect the CRO’s or any Additional Personnel’s rights hereunder. The attached indemnity provisions are incorporated herein and the termination of this agreement or the engagement shall not affect those provisions, which shall survive termination. | |||
| 9. | Miscellaneous. | ||
| This Agreement shall (together with the attached indemnity provisions) be: (a) governed and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflict of laws thereof; (b) incorporates the entire understanding of the parties with respect to the subject matter thereof; and (c) may not be amended or modified except in writing executed by each of the signatories hereto. The Company and A&M agree to waive trial by jury in any action, proceeding or counterclaim brought by or on behalf of the parties hereto with respect to any matter relating to or arising out of the performance or non-performance of the Company or A&M hereunder. The Company and A&M agree that the Bankruptcy Court having jurisdiction over the Company’s Chapter 11 case (or any case into which it may be converted) shall have exclusive jurisdiction over any and all matters arising under or in connection with their obligations hereunder. Notwithstanding anything herein to the contrary, A&M may reference or list the Company’s name and/or a general description of the services in A&M’s marketing materials, including, without limitation, on A&M’s website upon the termination of the engagement for any reason other than Cause. |
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| If the foregoing is acceptable to you, kindly sign the enclosed copy to acknowledge your agreement with its terms. |
| Very truly yours, Xxxxxxx & Marsal North America, LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Xxxxxxx X. Xxxxxxxx | ||||
| Managing Director | ||||
| Accepted and Agreed: | ||||||
| Washington Mutual, Inc. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx
|
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| Executive Vice President | ||||||
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This indemnity is made part of an agreement, dated October 6, 2008 (which together with any
renewals, modifications or extensions thereof, is herein referred to as the “Agreement”) by and
between Xxxxxxx & Marsal North America, LLC (“A&M”) and Washington Mutual, Inc (the “Company”), for
services to be rendered to the Company by A&M.
A. The Company agrees to indemnify and hold harmless each of A&M, its affiliates and
their respective shareholders, members, managers, employees, agents, representatives and
subcontractors (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) against
any and all losses, claims, damages, liabilities, penalties, obligations and expenses, including
the
costs for counsel or others (including employees of A&M, based on their then current hourly
billing rates) in investigating, preparing or defending any action or claim, whether or not in
connection with litigation in which any Indemnified Party is a party, or enforcing the Agreement
(including these indemnity provisions), as and when incurred, caused by, relating to, based upon
or arising out of (directly or indirectly) the Indemnified Parties’ acceptance of or the
performance
or nonperformance of their obligations under the Agreement; provided, however, such indemnity
shall not apply to any such loss, claim, damage, liability or expense to the extent it is found in
a
final judgment by a court of competent jurisdiction (not subject to further appeal) to have
resulted primarily and directly from such Indemnified Party’s gross negligence or willful
misconduct. The Company also agrees that no Indemnified Party shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to the Company for or in connection
with the engagement of A&M, except to the extent that any such liability for losses, claims,
damages, liabilities or expenses are found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) to have resulted primarily and directly from such
Indemnified Party’s gross negligence or willful misconduct. The Company further agrees that it
will not, without the prior consent of an Indemnified Party, settle or compromise or consent to
the entry of any judgment in any pending or threatened claim, action, suit or proceeding in
respect of which such Indemnified Party seeks indemnification hereunder unless such settlement,
compromise or consent includes an unconditional release of such Indemnified Party from all
liabilities arising out of such claim, action, suit or proceeding.
B. These indemnification provisions shall be in addition to any liability which the Company
may otherwise have to the Indemnified Parties. In the event that, at any time whether before or
after termination of the engagement or the Agreement, as a result of or in connection with the
Agreement or A&M’s and its personnel’s role under the Agreement, A&M or any Indemnified
Party is required to produce any of its personnel (including former employees) for examination,
deposition or other written, recorded or oral presentation, or A&M or any of its personnel
(including former employees) or any other Indemnified Party is required to produce or otherwise
review, compile, submit, duplicate, search for, organize or report on any material within such
Indemnified Party’s possession or control pursuant to a subpoena or other legal (including
administrative) process, the Company will reimburse the Indemnified Party for its out of pocket
expenses, including the reasonable fees and expenses of its counsel, and will compensate the
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Indemnified Party for the time expended by its personnel based on such personnel’s then current
hourly rate.
C. If any action, proceeding or investigation is commenced to which any Indemnified Party
proposes to demand indemnification hereunder, such Indemnified Party will notify the Company
with reasonable promptness; provided, however, that any failure by such Indemnified Party to
notify the Company will not relieve the Company from its obligations hereunder, except to the
extent that such failure shall have actually prejudiced the defense of such action. The Company
shall promptly pay expenses reasonably incurred by any Indemnified Party in defending,
participating in, or settling any action, proceeding or investigation in which such Indemnified
Party is a party or is threatened to be made a party or otherwise is participating in by reason of
the engagement under the Agreement, upon submission of invoices therefor, whether in advance
of the final disposition of such action, proceeding, or investigation or otherwise. Each
Indemnified Party hereby undertakes, and the Company hereby accepts its undertaking, to repay
any and all such amounts so advanced if it shall ultimately be determined that such Indemnified
Party is not entitled to be indemnified therefor. If any such action, proceeding or investigation
in
which an Indemnified Party is a party is also against the Company, the Company may, in lieu of
advancing the expenses of separate counsel for such Indemnified Party, provide such
Indemnified Party with legal representation by the same counsel who represents the Company,
provided such counsel is reasonably satisfactory to such Indemnified Party, at no cost to such
Indemnified Party; provided, however, that if such counsel or counsel to the Indemnified Party
shall determine that due to the existence of actual or potential conflicts of interest between such
Indemnified Party and the Company such counsel is unable to represent both the Indemnified
Party and the Company, then the Indemnified Party shall be entitled to use separate counsel of its
own choice, and the Company shall promptly advance its reasonable expenses of such separate
counsel upon submission of invoices therefor. Nothing herein shall prevent an Indemnified Party
from using separate counsel of its own choice at its own expense. The Company will be liable
for any settlement of any claim against an Indemnified Party made with the Company’s written
consent, which consent shall not be unreasonably withheld.
D. In order to provide for just and equitable contribution if a claim for indemnification
pursuant to these indemnification provisions is made but it is found in a final judgment by a
court of competent jurisdiction (not subject to further appeal) that such indemnification may not
be enforced in such case, even though the express provisions hereof provide for indemnification,
then the relative fault of the Company, on the one hand, and the Indemnified Parties, on the other
hand, in connection with the statements, acts or omissions which resulted in the losses, claims,
damages, liabilities and costs giving rise to the indemnification claim and other relevant
equitable considerations shall be considered; and further provided that in no event will the
Indemnified Parties’ aggregate contribution for all losses, claims, damages, liabilities and
expenses with respect to which contribution is available hereunder exceed the amount of fees
actually received by the Indemnified Parties pursuant to the Agreement. No person found liable
for a fraudulent misrepresentation shall be entitled to contribution hereunder from any person
who is not also found liable for such fraudulent misrepresentation.
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E. In the event the Company and A&M seek judicial approval for the assumption of the
Agreement or authorization to enter into a new engagement agreement pursuant to either of
which A&M would continue to be engaged by the Company, the Company shall promptly pay
expenses reasonably incurred by the Indemnified Parties, including attorneys’ fees and expenses,
in connection with any motion, action or claim made either in support of or in opposition to any
such retention or authorization, whether in advance of or following any judicial disposition of
such motion, action or claim, promptly upon submission of invoices therefor and regardless of
whether such retention or authorization is approved by any court. The Company will also
promptly pay the Indemnified Parties for any expenses reasonably incurred by them, including
attorneys’ fees and expenses, in seeking payment of all amounts owed it under the Agreement (or
any new engagement agreement) whether through submission of a fee application or in any other
manner, without offset, recoupment or counterclaim, whether as a secured claim, an
administrative expense claim, an unsecured claim, a prepetition claim or a postpetition claim.
F. Neither termination of the Agreement nor termination of A&M’s engagement nor the
filing of a petition under Chapter 7 or 11 of the United States Bankruptcy Code (nor the
conversion of an existing case to one under a different chapter) shall affect these
indemnification
provisions, which shall hereafter remain operative and in full force and effect.
G. The rights provided herein shall not be deemed exclusive of any other rights to which the
Indemnified Parties may be entitled under the certificate of incorporation or bylaws of the
Company, any other agreements, any vote of stockholders or disinterested directors of the
Company, any applicable law or otherwise.
| WASHINGTON MUTUAL, INC. | XXXXXXX & MARSAL NORTH AMERICA, LLC | |||||||
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||
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