FIRST RESTATED EMPLOYMENT AGREEMENT
THIS FIRST RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made and entered
into as of September 11, 2000 by and between Countrywide Credit Industries,
Inc., a Delaware corporation ("Employer"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("Officer"). W I
T N E S S E T H:
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WHEREAS, Officer currently holds the office of Senior Managing Director of
Employer, and Senior Managing Director of Countrywide Home Loans, Inc. ("Home
Loans"), a wholly-owned subsidiary of Employer; and
WHEREAS, Employer desires to obtain the benefit of continued services
of Officer and Officer desires to continue to render services to Employer and
its subsidiaries, including Home Loans; and
WHEREAS, the Board of Directors of Employer (the "Board") has
determined that it is in Employer's best interest and that of its stockholders
to recognize the substantial contribution that Officer has made and is expected
to continue to make to Employer's business and to retain his services in the
future; and
WHEREAS, Employer and Officer set forth the terms and conditions of
Officer's employment with Employer under an employment agreement entered into as
of July 1, 2000; and
WHEREAS, Employer and Officer desire to set forth the continued terms
and conditions of Officer's employment with Employer under this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
1. Term. Employer agrees to employ Officer and Officer agrees to serve
Employer, in accordance with the terms hereof, for a term beginning on the
Effective Date (as defined in Section 8(c) hereof) and ending on February 28,
2003, unless earlier terminated in accordance with the provisions hereof.
2. Specific Position; Duties and Responsibilities. Employer and Officer
hereby agree that, subject to the provisions of this Agreement, Employer will
employ Officer and Officer will serve Employer as Senior Managing Director of
Employer and of Home Loans. Except as set forth in Section 5(d)(ii) hereof,
Employer agrees that Officer's duties hereunder shall be the usual and customary
duties of such offices or such other duties as may be designated from time to
time by the Chairman of the Board, President and Chief Executive Officer (the
"CEO") or the Executive Managing Director and Chief Operating Officer (the
"COO") of Employer consistent with his status as an executive officer of
Employer; and such duties shall be consistent with the provisions of the charter
documents of Employer or applicable law. Officer shall have such executive power
and authority as shall reasonably be required to enable him to discharge his
duties in the offices that he may hold. All compensation paid to Officer by
Employer or any of its subsidiaries shall be aggregated in determining whether
Officer has received the benefits provided for herein.
3. Scope of This Agreement and Outside Affiliations. During the term of
this Agreement, Officer shall devote his full business time and energy, except
as expressly provided below, to the business, affairs and interests of Employer
and its subsidiaries, and matters related thereto, and shall use his best
efforts and abilities to promote its interests. Officer agrees that he will
diligently endeavor to promote the business, affairs and interests of Employer
and its subsidiaries and perform services contemplated hereby, in accordance
with the policies established by the Board, which policies shall be consistent
with this Agreement. Officer agrees to serve without additional remuneration as
an officer of one or more (direct or indirect) subsidiaries of Employer as the
CEO or COO may from time to time request, subject to appropriate authorization
by the subsidiary or subsidiaries involved and any limitation under applicable
law. Officer's failure to discharge an order or perform a function because
Officer reasonably and in good faith believes such would violate a law or
regulation or be dishonest shall not be deemed a breach by him of his
obligations or duties pursuant to any of the provisions of this Agreement,
including without limitation pursuant to Section 5(c) hereof.
During the course of Officer's employment as a full-time officer
hereunder, Officer shall not, without the consent of the CEO or COO, compete,
directly or indirectly, with Employer in the businesses then conducted by
Employer or any of its subsidiaries.
Officer may serve as a director or in any other capacity of any
business enterprise, including an enterprise whose activities may involve or
relate to the business of Employer, provided that such service is expressly
approved by the CEO or COO. Officer may make and manage personal business
investments of his choice and serve in any capacity with any civic, educational
or charitable organization, or any governmental entity or trade association,
without seeking or obtaining approval by the CEO or COO, provided such
activities and services do not materially interfere or conflict with the
performance of his duties hereunder.
4. Compensation and Benefits.
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(a)_______________Base Salary. Employer shall pay to Officer a
base salary after the Effective Date at the annual rate of $425,250 (the "Annual
Rate"). In respect of the Fiscal Years ending in 2002 and 2003, the Annual Rate
shall be increased by no less than 5% and no more than 10% each year. Any such
increase shall be effective not later than June I of the fiscal year in which
the increase is granted.
(b)_______________Incentive Compensation. Employer shall pay
to Officer for each of the Fiscal Years ending during the term of this Agreement
an incentive compensation award in an amount determined pursuant to the terms
and conditions of the Countrywide Credit Industries, Inc. Bonus Plan for Officer
that is set out in Appendix B attached hereto (the "Bonus Plan"). Employer shall
pay the incentive compensation award described in this Section 4(b) for each
Fiscal Year or portion thereof, as applicable, to Officer as early after the end
of such Fiscal Year as practicable but in no event later than 90 days after the
end of such Fiscal Year. With regard to the incentive compensation award payable
with respect to the last Fiscal Year during the term of this Agreement, such
award shall be payable in accordance herewith notwithstanding the expiration of
the term of this Agreement.
(c)_______________Stock Options. Employer shall grant to
Officer stock options in respect of each of the Fiscal Years ending during the
term of this Agreement for such number of shares of Employer's common stock as
the Compensation Committee in its sole discretion determines, taking into
account Officer's and Employer's performance in each of such Fiscal Years and
the competitive practices then prevailing regarding the granting of stock
options; provided, however, that the number of shares in respect of each annual
stock option grant shall be no less than 20,000 and no greater than 80,000. The
numbers in the preceding sentence shall be adjusted proportionately in the event
Employer (A) declares a stock dividend on its common stock, (B) subdivides its
outstanding common stock, (C) combines the outstanding shares of its capital
stock into a smaller number of common stock, or (D) issues any shares of its
capital stock in a reclassification of the common stock (including any such
reclassification in connection with a consolidation or merger in which Employer
is the continuing or surviving corporation). The stock options described in this
Section 4(c) in respect of a Fiscal Year shall be granted at the same time as
Employer grants stock options to its other senior executives in respect of such
Fiscal Year (but in no event later than June 30 following the end of such Fiscal
Year).
All stock options granted in accordance with this Section 4(c): (i)
shall be granted pursuant to the Countrywide Credit Industries, Inc. 2000 Stock
Option Plan, as amended (the "2000 Plan"), or such other stock option plan or
plans as may be or come into effect during the term of this Agreement, (ii)
shall have a per share exercise price equal to the fair market value (as defined
in the 2000 Plan or such other plan or plans) of the common stock at the time of
grant, (iii) shall become exercisable in three equal installments on each of the
first three anniversaries of the date of grant and (iv) shall be subject to such
other terms and conditions as may be determined by the Compensation Committee
and set forth in the agreement evidencing the award. In the event of a merger,
consolidation or reorganization in which Employer is not the surviving
corporation or in which it survives as a subsidiary of another corporation or
entity (a "Transaction"), and the shares of equity securities of the surviving
corporation or entity or parent thereof are publicly traded on a recognized
stock exchange or over the counter market, the stock options to be granted
pursuant to this Section 4(c) after the date of the Transaction shall be granted
in accordance herewith with respect to securities of the surviving corporation
or entity or parent thereof, as applicable, with the number of shares subject to
options to be granted to equal the product of (x) the amount of shares subject
to the options set forth in this Section 4(c) and (y) a fraction the numerator
of which is the per share fair market value of the Employer's securities and the
denominator of which is the per share fair market value of the publicly-traded
common or ordinary equity securities of the surviving corporation or entity or
parent thereof, in each case as of the date of consummation of the Transaction,
and to give effect to the intent of the parties as set forth in this Section
4(c). The stock options granted pursuant to this Section shall consist of
incentive stock options to the extent permitted by law or regulation. From and
after the Termination Date, the Officer shall no longer be entitled to receive
additional options under this Section 4(c) other than those which were due for
previously completed fiscal years.
(d)_______________Additional Benefits. Officer shall also be
entitled to all rights and benefits for which he is otherwise eligible under any
bonus plan, stock purchase plan, participation or extra compensation plan,
executive compensation plan, pension plan, profit-sharing plan, life and medical
insurance policy, executive medical examination program, executive long-term
disability policy, financial planning services program or other plans or
benefits, which Employer or its subsidiaries may provide for him, or provided he
is eligible to participate therein, for senior officers generally or for
employees generally, during the term of this Agreement (collectively,
"Additional Benefits"). This Agreement shall not affect the provision of any
other compensation, retirement or other benefit program or plan of Employer.
(e)_______________Continuation of Benefits. If Officer's
employment is terminated hereunder pursuant to Section 5(a), 5(b) or 5(d),
Employer shall continue for the period specified in Section 5(a), 5(b) or 5(d)
hereof to provide benefits that are no less favorable in the aggregate than
those Additional Benefits (other than qualified pension or profit sharing plan
benefits and option, equity or stock appreciation or other incentive plan
benefits as distinguished from health, disability and welfare type benefits)
which are being provided to the Officer and his dependents and beneficiaries
immediately prior to Officer's Termination Date, but only to the extent that
Officer is not entitled to comparable benefits from other employment. For a
period of two years after the Termination Date, Employer shall provide the
Officer outplacement services at its cost.
(f)_______________Deferral of Amounts Payable Hereunder. In
the event Officer should desire to defer receipt of any cash payments to which
he would otherwise be entitled hereunder, he may present such a written request
to CEO, COO or their designee which, in its sole discretion, may enter into a
separate deferred compensation agreement with Officer.
5. Termination. The compensation and benefits provided for herein and the
employment of Officer ----------- by Employer shall be terminated prior to the
expiration of the term of this Agreement only as provided for below
in this Section 5:
(a)_______________Disability. In the event that Officer shall
fail, because of illness, injury or similar incapacity ("Disability"), to render
for four (4) consecutive calendar months, or for shorter periods aggregating
eighty (80) or more business days in any twelve (12) month period, services
contemplated by this Agreement, Officer's full-time employment hereunder may be
terminated, by written Notice of Termination from Employer to Officer; and
thereafter, Employer shall continue, from the Termination Date until Officer's
death or the fifth anniversary of such notice, whichever first occurs (the
"Disability Payment Period"), (i) to pay compensation to Officer, in the same
manner as in effect immediately prior to the Termination Date, in an amount
equal to (1) fifty percent (50%) of the then existing base salary payable
immediately prior to the termination, minus (2) the amount of any cash payments
to him under the terms of Employer's disability insurance or other disability
benefit plans or Employer's tax-qualified Defined Benefit Pension Plan, and any
compensation he may receive pursuant to any other employment, and (ii) to
provide during the Disability Payment Period the benefits specified in Section
4(e) hereof.
The determination of Disability shall be made only after 30
days notice to Officer and only if Officer has not returned to performance of
his duties during such 30-day period. In order to determine Disability, both
Employer and Officer shall have the right to provide medical evidence to support
their respective positions, with the ultimate decision regarding Disability to
be made by a majority of Employer's disinterested directors.
(b)_______________Death. In the event that Officer shall die
during the term of this Agreement, Employer shall pay Officer's base salary for
a period of twelve (12) months following the date of Officer's death and in the
manner otherwise payable hereunder, to such person or persons as Officer shall
have directed in writing or, in the absence of a designation, to his estate (the
"Beneficiary"). Employer shall also provide during the twelve-month period
following the date of the Officer's death the benefits specified in Section 4(e)
hereof. If Officer's death occurs while he is receiving payments for Disability
under Section 5(a)(i) above, such payments shall cease and the Beneficiary shall
be entitled to the payments and benefits under this Subsection (b), which shall
continue for a period of twelve months thereafter at the full rate of
compensation in effect immediately prior to the Disability. This Agreement in
all other respects will terminate upon the death of Officer; provided, however,
that the termination of the Agreement shall not affect Officer's entitlement to
all other benefits in which he has become vested or which are otherwise payable
in respect of periods ending prior to its termination.
(c)_______________Cause. Employer may terminate Officer's
employment under this Agreement for "Cause." A termination for Cause is a
termination by reason of (i) a material breach of this Agreement by Officer
(other than as a result of incapacity due to physical or mental illness) which
is committed in bad faith or without reasonable belief that such breach is in
the best interests of Employer and which is not remedied within a reasonable
period of time after receipt of written notice from Employer specifying such
breach, or (ii) Officer's conviction by a court of competent jurisdiction of a
felony, or (iii) entry of an order duly issued by any federal or state
regulatory agency having jurisdiction in the matter removing Officer from office
of Employer or its subsidiaries or permanently prohibiting him from
participating in the conduct of the affairs of Employer or any of its
subsidiaries. If Officer shall be convicted of a felony or shall be removed from
office and/or temporarily prohibited from participating in the conduct of
Employer's or any of its subsidiaries' affairs by any federal or state
regulatory authority having jurisdiction in the matter, Employer's obligations
under Sections 4(a), 4(b) and 4(c) hereof shall be automatically suspended;
provided, however, that if the charges resulting in such removal or prohibition
are finally dismissed or if a final judgment on the merits of such charges is
issued in favor of Officer, or if the conviction is overturned on appeal, then
Officer shall be reinstated in full with back pay for the removal period plus
accrued interest at the rate then payable on judgments. During the period that
Employer's obligations under Sections 4(a), 4(b) and 4(c) hereof are suspended,
Officer shall continue to be entitled to receive Additional Benefits under
Section 4(d) until the conviction of the felony or removal from office has
become final and non-appealable. When the conviction of the felony or removal
from office has become final and non-appealable, all of Employer's obligations
hereunder shall terminate; provided, however, that the termination of Officer's
employment pursuant to this Section 5(c) shall not affect Officer's entitlement
to all benefits in which he has become vested or which are otherwise payable in
respect of periods ending prior to his termination of employment.
(d)_______________Severance. (i) Except as provided in Section
5(d)(ii), if during the term of this Agreement Officer's employment shall be
terminated by Employer other than for Cause, then (A) until February 28, 2003 or
the second anniversary of the Termination Date, whichever is later (the
"Severance Period"), Employer shall (1) continue to pay Officer his annual base
salary, at the Annual Rate in effect on the Termination Date, and (2) provide
the benefits specified in Section 4(e) hereof, (B) Employer shall pay Officer,
within ten (10) days after the end of each Fiscal Year ending during the
Severance Period, an amount equal to the greater of (x) the average of the
aggregate bonus and/or incentive award, if any, paid or payable to the Officer
for each of the two (2) Fiscal Years preceding the Fiscal Year in which the
Officer's termination of employment occurs (or such fewer number of Fiscal Years
for which the Officer was eligible to receive a bonus and/or incentive award)
and (y) the bonus and/or incentive award paid for the Fiscal Year immediately
preceding the date of the Change in Control (the "Bonus Rate"); provided,
however, that in the event the Severance Period ends on a date prior to the end
of a Fiscal Year, Employer shall also pay Officer an amount equal to the product
of (1) the Bonus Rate and (2) the fraction obtained by dividing (x) the number
of days elapsed since the end of the immediately preceding Fiscal Year through
the end of the Severance Period by (y) 365, and (C) all stock options held by
Officer on the Termination Date shall become immediately and fully exercisable,
(ii)_____Change in Control. If after a "Change in Control" (as defined in
Appendix A -----------------
to this Agreement) and during the term of this Agreement Officer's employment
shall be terminated by Employer other than for Cause or by Officer for Good
Reason, then (A) Employer shall pay Officer in a single payment as soon as
practicable after the Termination Date, as severance pay and in lieu of any
further salary and incentive compensation for periods subsequent to the
Termination Date, an amount in cash equal to three times the sum of (1)
Officer's annual base salary at the Termination Date and (2) the total amount of
incentive compensation paid or payable to Officer in respect of the Fiscal Year
immediately preceding the Fiscal Year in which Officer's Termination Date
occurs, (B) Employer shall continue to provide for three years from the
Termination Date the benefits specified in Section 4(e) hereof, provided that
the coverage and benefits provided during this period shall be no less favorable
to Officer and his dependents than the most favorable of such coverages and
benefits provided Officer and his dependents during the 90-day period
immediately preceding the Change in Control or as of any date following the
Change in Control but preceding the date of Officer's termination and (C) all
stock options held by Officer on the Termination Date shall become immediately
and fully exercisable. For purposes of this Agreement, "Good Reason" shall be
deemed to occur if Employer (w) breaches this Agreement in any material respect,
(x) requires that Officer be based anywhere more than fifty (50) miles from the
office where Officer is located as of the date hereof, or (y) takes any other
action which results in a material adverse change in Officer's duties and
responsibilities other than (i) an action not taken in bad faith and which is
remedied by Employer promptly after receipt of notice by Officer; (ii) a change
in reporting relationships; or (iii) changes due solely to the fact that the
Employer ceases to be a public company and becomes a subsidiary of another
publicly-traded corporation.
(iii)____Effect of Section 280G of the Internal
Revenue Code.
(A)______________Except as provided in subsection (B), in the event it shall be
determined that any payment or distribution of any type, including accelerated
vesting, to or for the benefit of the Officer, by the Employer, any
"affiliate" (as defined in Rule 405 of the Securities Act of 1933, as amended)
of the Employer, any "person" (as the term "person" is used for purposes of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) who
acquires ownership or effective control of the Employer or ownership of a
substantial portion of the Employer's assets (within the meaning of Section 280G
of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder) or any "affiliate" of such "person", whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise (the "Payments"), is or will be subject to the excise tax imposed
by Section 4999 of the Code or any interest or penalties with respect to such
excise tax (such excise tax, together with any such interest and penalties, are
collectively referred to as the "Excise Tax"), then the Officer shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Officer of all taxes (including any interest or
penalties imposed with respect to such taxes), including any income tax,
employment tax or Excise Tax imposed upon the Gross-Up Payment, the Officer
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.
(B)______________Notwithstanding subsection (A) or any other provision of this
Agreement to the contrary, in the event that the Payments (excluding the
payment provided for in subsection (A)) exceed by less than 10% or $100,000, the
maximum amount of Payments which if made or provided to the Officer would not be
subject to an Excise Tax, the Officer will not be entitled to a Gross-Up Payment
and the Payments shall be reduced (but not below zero) to the extent necessary
so that no Payment to be made or benefit to be provided to the Officer shall be
subject to the Excise Tax; it being the intent of the parties that the Payments
shall be reduced only if the economic detriment to the Officer (on a pre-tax
basis) is less than the greater of $100,000 or 10% of the Payments. Unless the
Officer shall have given prior written notice specifying a different order to
the Employer to effectuate the foregoing, the Employer shall reduce or eliminate
the Payments, by first reducing or eliminating the portion of the Payments which
are not payable in cash and then by reducing or eliminating cash payments, in
each case in reverse order beginning with payments or benefits which are to be
paid the farthest in time from the "Determination" (as defined below). Any
notice given by the Officer pursuant to the preceding sentence shall take
precedence over the provisions of any other plan, arrangement or agreement
governing the Officer's rights and entitlements to any benefits or compensation.
(C)______________The determination of whether the Payments shall be reduced
pursuant to this Agreement and the amount of such reduction, all mathematical
determinations, and all determinations as to whether any of the Payments are
"parachute payments" (within the meaning of Section 280G of the Code), that are
required to be made under this Section, including determinations as to whether a
Gross-Up Payment is required, the amount of such Gross-Up Payment and amounts
relevant to the last sentence of this subsection (C), shall be made by an
independent accounting firm selected by the Officer from among the five (5)
largest accounting firms in the United States or any nationally recognized
financial planning and benefits consulting company (the "Accounting Firm"),
which shall provide its determination (the "Determination"), together with
detailed supporting calculations regarding the amount of any Gross-Up Payment
and any other relevant matter, both to the Employer and the Officer by no later
than ten (10) days following the Termination Date, if applicable, or such
earlier time as is requested by the Employer or the Officer (if the Officer
reasonably believes that any of the Payments may be subject to the Excise Tax).
If the Accounting Firm determines that no Excise Tax is payable by the Officer,
it shall furnish the Officer and the Employer with an opinion reasonably
acceptable to the Officer and the Employer that no Excise Tax is payable
(including the reasons therefor) and that the Officer has substantial authority
not to report any Excise Tax on his federal income tax return. If a Gross-Up
Payment is determined to be payable, it shall be paid (including through
withholding of taxes) to the Officer no later than the due date for payment of
the Excise Tax. Any determination by the Accounting Firm shall be binding upon
the Employer and the Officer, absent manifest error. As a result of uncertainty
in the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments not made by the Employer should have been made ("Underpayment"), or
that Gross-Up Payments will have been made by the Employer which should not have
been made ("Overpayment"). In either such event, the Accounting Firm shall
determine the amount of the Underpayment or Overpayment that has occurred. In
the case of an Underpayment, the amount of such Underpayment (together with any
interest and penalties payable by the Officer as a result of such Underpayment)
shall be promptly paid by the Employer to or for the benefit of the Officer. In
the case of an Overpayment, the Officer shall, at the direction and expense of
the Employer, take such steps as are reasonably necessary (including the filing
of returns and claims for refund), follow reasonable instructions from, and
procedures established by, the Employer, and otherwise reasonably cooperate with
the Employer to correct such Overpayment, provided, however, that (i) the
Officer shall not in any event be obligated to return to the Employer an amount
greater than the net after-tax portion of the Overpayment that he has retained
or has recovered as a refund from the applicable taxing authorities and (ii) if
a Gross-Up Payment is determined to be payable, this provision shall be
interpreted in a manner consistent with an intent to make the Officer whole, on
an after-tax basis, from the application of the Excise Tax, it being understood
that the correction of an Overpayment may result in the Officer repaying to the
Employer an amount which is less than the Overpayment. The cost of all such
determinations made pursuant to this Section shall be paid by the Employer.
(e)_______________Resignation. Except as provided in Section
5(d)(ii) hereof, if during the term of this Agreement, Officer shall resign
voluntarily, all of his rights to payment or benefits hereunder shall
immediately terminate; provided, however, that the termination of Officer's
employment pursuant to this Section 5(e) shall not affect Officer's entitlement
to all benefits in which he has become vested or which are otherwise payable in
respect of periods ending prior to his termination of employment.
(f)_______________Notice of Termination. Any purported
termination by Employer or by Officer shall be communicated by a written Notice
of termination (the "Notice of Termination") to the other party hereto which
indicates the specific termination provision in this Agreement, if any, relied
upon and which sets forth in reasonable detail the facts and circumstances, if
any, claimed to provide a basis for termination of Officer's employment under
the provision so indicated. For purposes of this Agreement, no such purported
termination shall be effective without such Notice of Termination. The
"Termination Date" shall mean the date specified in the Notice of Termination,
which shall be no less than 30 or more than 60 days from the date of the Notice
of Termination. Notwithstanding any other provision of this Agreement, in the
event of any termination of Officer's employment hereunder for any reason,
Employer shall pay Officer his full base salary through the Termination Date,
plus any Additional Benefits which have been earned or become payable, but which
have not yet been paid as of such Termination Date.
(g)_______________Disputes. In the event of a dispute
concerning the validity of a purported termination which is maintained in good
faith, the Termination Date shall mean the date the dispute is finally resolved
and Employer will continue to provide Officer with the compensation and benefits
provided for under this Agreement, until the dispute is finally resolved without
any obligation by Officer to repay any of such amounts to Employer,
notwithstanding the final outcome of the dispute. Payments required to be made
by this Section 5(g) are in addition to all other amounts due under Section 5 of
this Agreement and shall not be offset against or reduce any other amounts due
under Section 5 of this Agreement. Officer shall be required to render services
to Employer during the period following his Termination Date but before the
dispute concerning the termination is finally determined unless Employer fails
to provide Officer with a reasonable opportunity to perform his duties under
this Agreement during such period.
6. Reimbursement of Business Expenses. During the term of this
Agreement, Employer shall reimburse Officer promptly for all expenditures
(including travel, entertainment, parking, business meetings, and the monthly
costs (including dues) of maintaining memberships at appropriate clubs) to the
extent that such expenditures meet the requirements of the Code for
deductibility by Employer for federal income tax purposes or are otherwise in
compliance with the rules and policies of Employer and are substantiated by
Officer as required by the Internal Revenue Service and rules and policies of
Employer.
7. Indemnity. To the extent permitted by applicable law, the
Certificate of Incorporation and the By-Laws of Employer (as from time to time
in effect) and any indemnity agreements entered into from time to time between
Employer and Officer, Employer shall indemnify Officer and hold him harmless for
any acts or decisions made by him in good faith while performing services for
Employer, and shall use reasonable efforts to obtain coverage for him under
liability insurance policies now in force or hereafter obtained during the term
of this Agreement covering the other officers or directors of Employer.
8. Miscellaneous.
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(a)_______________Succession. This Agreement shall inure to
the benefit of and shall be binding upon Employer, its successors and assigns,
but without the prior written consent of Officer, this Agreement may not be
assigned other than in connection with a merger or sale of substantially all the
assets of Employer or similar transaction. Employer shall not agree to any such
transaction unless the successor to or assignee of the Company's business and/or
assets in such transaction expressly assumes all obligations of the Employer
hereunder. The obligations and duties of Officer hereby shall be personal and
not assignable.
(b)_______________Notice. Any notices provided for in this
Agreement shall be sent to Employer at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: General Counsel/Secretary, with a copy to the CEO at the same
address, or to such other address as Employer may from time to time in writing
designate, and to Officer at his home address as reflected in Employer's records
or at such other address as he may from time to time in writing designate. All
notices shall be deemed to have been given two (2) business days after they have
been deposited as certified mail, return receipt requested, postage paid and
properly addressed to the designated address of the party to receive the
notices.
(c)_______________Effective Date. This Agreement is effective
as of July 1, 2000.
(d)_______________Entire Agreement. This instrument contains
the entire agreement of the parties relating to the subject matter hereof, and
it replaces and supersedes any prior agreements between the parties relating to
said subject matter. No modifications or amendments of this Agreement shall be
valid unless made in writing and signed by the parties hereto.
(e)_______________Waiver. The waiver of the breach of any term
or of any condition of this Agreement shall not be deemed to constitute the
waiver of any other breach of the same or any other term or condition.
(f)_______________California Law. This Agreement shall be
construed and interpreted in accordance with the laws of the State of
California.
(g)_______________Attorneys' Fees in Action on Contract. If
any litigation shall occur between Officer and Employer, which litigation arises
out of or as a result of this Agreement or the acts of the parties hereto
pursuant to this Agreement, or which seeks an interpretation of this Agreement,
the prevailing party in such litigation, in addition to any other judgment or
award, shall be entitled to receive such sums as the court hearing the matter
shall find to be reasonable as and for the attorneys' fees of the prevailing
party.
(h)_______________Confidentiality. Officer agrees that he will
not divulge or otherwise disclose, directly or indirectly, any trade secret or
other confidential information concerning the business or policies of Employer
or any of its subsidiaries which he may have learned as a result of his
employment during the term of this Agreement or prior thereto as an employee,
officer or director of or consultant to Employer or any of its subsidiaries,
except to the extent such use or disclosure is (i) necessary or appropriate to
the performance of this Agreement and in furtherance of Employer's best
interests, (ii) required by applicable law, (iii) lawfully obtainable from other
sources, or (iv) authorized by Employer. The provisions of this subsection shall
survive the expiration. suspension or termination, for any reason, of this
Agreement.
(i)_______________Remedies of Employer. Officer acknowledges
that the services he is obligated to render under the provisions of this
Agreement are of a special, unique, unusual, extraordinary and intellectual
character, which gives this Agreement peculiar value to Employer. The loss of
these services cannot be reasonably or adequately compensated in damages in an
action at law and it would be difficult (if not impossible) to replace these
services. By reason thereof, Officer agrees and consents that if he violates any
of the material provisions of this Agreement, Employer, in addition to any other
rights and remedies available under this Agreement or under applicable law,
shall be entitled during the remainder of the term to seek injunctive relief,
from a tribunal of competent jurisdiction, restraining Officer from committing
or continuing any violation of this Agreement, or from the performance of
services to any other business entity, or both.
(j)_______________Severability. If any provision of this
Agreement is held invalid or unenforceable, the remainder of this Agreement
shall nevertheless remain in full force and effect, and if any provision is held
invalid or unenforceable with respect to particular circumstances, it shall
nevertheless remain in full force and effect in all other circumstances.
(k)_______________No Obligation to Mitigate. Officer shall not
be required to mitigate the amount of any payment provided for in this Agreement
by seeking other employment or otherwise and, except as provided in Section
5(a)(i)(2) hereof, no payment hereunder shall be offset or reduced by the amount
of any compensation or benefits provided to Officer in any subsequent
employment.
(l)_______________Arbitration. The parties acknowledge that
they have previously entered into a Mutual Agreement to Arbitrate Claims (the
"Arbitration Agreement"). The parties hereby incorporate herein by reference the
terms of the Arbitration Agreement. Any dispute arising regarding this Agreement
and/or any other matter covered by the Arbitration Agreement shall be subject to
binding arbitration pursuant to the terms of the Arbitration Agreement, except
as expressly provided herein.
(m) Pooling Transactions. Notwithstanding anything contained
in this Agreement to the contrary, in the event of a Change in Control of the
Employer in a transaction which is intended to be treated as a "pooling of
interests" under generally accepted accounting principles (a "Pooling
Transaction"), the Board shall take such actions, if any, as are specifically
recommended by an independent accounting firm retained by the Employer to the
extent reasonably necessary in order to assure that the Pooling Transaction will
qualify as such, including but not limited to (a) deferring the vesting,
exercise, payment, settlement or lapsing of restrictions with respect to any
option or award, (b) providing that the payment or settlement in respect of any
option or award be made in the form of cash, shares of common stock or
securities of a successor or acquirer of the Employer, or a combination of the
foregoing, and (c) providing for the extension of the term of any option or
award to the extent necessary to accommodate the foregoing, but not beyond the
maximum term permitted for any option or award and (d) amending, deleting or
making inapplicable to the Officer any provision in this Agreement or other
arrangement pursuant to which he receives compensation, payments or benefits.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
COUNTRYWIDE CREDIT INDUSTRIES,
INC.
By: --------------------------------------------------------
Title: -----------------------------------------------------
OFFICER:
------------------------------------ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, in his individual capacity
342966.01
- 3 - 342966.8 - 1 - 342966.8
APPENDIX A
To Employment Agreement
A "Change in Control" shall mean the occurrence during the
term of the Agreement, of any one of the following events:
(1) An acquisition (other than directly from Employer) of
any common stock or other "Voting Securities" (as
hereinafter defined) of Employer by any "Person" (as
the term person is used for purposes of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), immediately after
which such Person has "Beneficial Ownership" (within
the meaning of Rule 13d-3 promulgated under the
Exchange Act) of twenty-five percent (25%) or more of
the then outstanding shares of Employer's common
stock or the combined voting power of Employer's then
outstanding Voting Securities; provided, however, in
determining whether a Change in Control has occurred,
Voting Securities which are acquired in a
"Non-Control Acquisition" (as hereinafter defined)
shall not constitute an acquisition which would cause
a Change in Control. For purposes of this Agreement,
(1) "Voting Securities" shall mean Employer's
outstanding voting securities entitled to vote
generally in the election of directors and (2) a
"Non-Control Acquisition" shall mean an acquisition
by (i) an employee benefit plan (or a trust forming a
part thereof) maintained by (A) Employer or (B) any
corporation or other Person of which a majority of
its voting power or its voting equity securities or
equity interest is owned, directly or indirectly, by
Employer (for purposes of this definition, a
"Subsidiary"), (ii) Employer or any of its
Subsidiaries, or (iii) any Person in connection with
a "Non-Control Transaction" (as hereinafter defined);
(2) The individuals who, as of the date of the Agreement
are members of the Board (the "Incumbent Board"),
cease for any reason to constitute at least
two-thirds of the members of the Board; provided,
however, that if the election, or nomination for
election by Employer's common stockholders, of any
new director was approved by a vote of at least
two-thirds of the Incumbent Board, such new director
shall, for purposes of this Agreement, be considered
as a member of the Incumbent Board; provided further,
however, that no individual shall be considered a
member of the Incumbent Board if such individual
initially assumed office as a result of either an
actual or threatened "Election Contest" (as described
in Rule 14a-11 promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the
Board (a "Proxy Contest") including by reason of any
agreement intended to avoid or settle any Election
Contest or Proxy Contest; or
(3) The consummation of:
(a) A merger, consolidation or reorganization
involving Employer, unless such merger,
consolidation or reorganization is a
"Non-Control Transaction." A "Non-Control
Transaction" shall mean a merger,
consolidation or reorganization of Employer
where:
(i) the stockholders of Employer, immediately before such merger, consolidation
or reorganization, own directly or indirectly immediately following such merger,
consolidation or reorganization, at least seventy percent (70%) of the combined
voting power of the outstanding voting securities of the corporation resulting
from such merger, consolidation or reorganization (the "Surviving Corporation")
in substantially the same proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or reorganization;
(ii) the individuals who were members of the Incumbent Board immediately prior
to the execution of the agreement providing for such merger, consolidation or
reorganization constitute at least two-thirds of the members of the board of
directors of the Surviving Corporation, or in the event that, immediately
following the consummation of such transaction, a corporation beneficially owns,
directly or indirectly, a majority of the Voting Securities of the Surviving
Corporation, the board of directors of such corporation; and
(iii) no Person other than (i) Employer, (ii) any Subsidiary, (iii) any employee
benefit plan (or any trust forming a part thereof) maintained by Employer, the
Surviving Corporation, or any Subsidiary, or (iv) any Person who, immediately
prior to such merger, consolidation or reorganization had Beneficial Ownership
of twenty- five percent (25%) or more of the then outstanding Voting Securities
or common stock of Employer, has Beneficial Ownership of twenty-five percent
(25%) or more of the combined voting power of the Surviving Corporation's then
outstanding Voting Securities or its common stock;
(b) A complete liquidation or dissolution of Employer; or
(c) The sale or other disposition of all or substantially all of the assets of
Employer to any Person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not
be deemed to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the then outstanding
common stock or Voting Securities as a result of the acquisition of common stock
or Voting Securities by Employer which, by reducing the number of shares of
common stock or Voting Securities then outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Persons; provided, however,
that if a Change in Control would occur (but for the operation of this sentence)
as a result of the acquisition of common stock or Voting Securities by Employer,
and after such share acquisition by Employer, the Subject Person becomes the
Beneficial Owner of any additional common stock or voting Securities which
increases the percentage of the then outstanding common stock or Voting
Securities Beneficially Owned by the Subject Person, then a Change in Control
shall occur.
- 18 - 343009.6 343009.6
APPENDIX B
INCENTIVE COMPENSATION PLAN
The Bonus Plan for Employee is set forth in a written memorandum from
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to Employee dated October 2, 2000.