Exhibit
10.1
RELEASE AND RESTRICTIVE
COVENANTS AGREEMENT
THIS RELEASE
AND RESTRICTIVE COVENANTS AGREEMENT (“Release” or
“Agreement”) is executed on the date specified below by
Neil Cashen (“Cashen”) and PHH Corporation (the
“Company”).
WHEREAS,
Cashen’s employment as a senior-level executive of the
Company has terminated, effective September 20, 2006;
and
WHEREAS, the
Company has agreed to pay Cashen certain amounts and to provide him
with certain rights and benefits as consideration for the execution
of this Release.
NOW THEREFORE,
intending to be legally bound hereby, the Company and Cashen agree
as follows:
Last
Day of Employment
Cashen’s
employment with the Company and any of its subsidiaries and
affiliates will terminate on September 20, 2006 (the
“Termination Date”), at which date Cashen hereby
resigns and relinquishes all offices, titles and authority as an
officer of the Company or any of its subsidiaries or
affiliates.
Consideration.
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In
consideration of Cashen’s execution of, failure to revoke and
continued compliance with the terms and conditions of the Release,
the Company agrees to (a) pay to Cashen a lump sum payment equal to
$1,864,800.00, (b) transfer to Cashen title of a 2006 Cadillac
Escalade, VIN# 3GYFK66N86G134294 (the “Vehicle”);
provided after the Vehicle has been transferred to Cashen, Cashen
shall be solely responsible for any taxes, registration, insurance,
maintenance and fuel for the Vehicle, (c) transfer to Cashen title
to an IBM Thinkpad computer (I.D. 6782) and its monitor, power cord
and printer and (d) allow Cashen to continue to vest in and, to the
extent applicable, exercise, any outstanding options or restricted
stock units that have been awarded to Cashen under the 2005 PHH
Corporation Equity and Incentive Plan (the “Equity
Plan”), subject to the terms and conditions of the Equity
Plan and any award agreement, on the same basis and at the same
time as such awards would have vested and been exercisable had
Cashen remained in the employ of the Company through October 11,
2009. The payment described in clause (a) shall be paid, the
Vehicle described in clause (b) and the computer and printer
described in clause (c) shall be transferred, to Cashen no later
than ten (10) business days after the Effective Date of the
Release, provided that the transfer of the computer referred to in
clause (c) shall not occur unless Cashen returns such computer to
the Company before the beginning of
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such
10-business day period to allow the Company to erase or delete all
software, data and information from such computer. The Effective
Date of this Release shall be the tenth calendar day after the date
Cashen signs the Release; provided he has not earlier revoked this
Release. All amounts paid and property transferred under this
Release shall be subject to applicable withholdings for federal
state and local taxes.
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Cashen
acknowledges that: (a) the payments and benefits set forth in this
Release constitute full settlement of all his rights arising out of
his employment with the Company except to matters specifically
preserved herein, (b) he has no entitlement under any other
severance or similar arrangement maintained by the Company, and (c)
except as otherwise provided specifically in this Release, the
Company does not and will not have any other liability or
obligation to Cashen. Cashen further acknowledges that, in the
absence of his execution of this Release, benefits and payments
specified in the “Consideration” section of the Release
would not otherwise be due to Cashen.
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Release
and Covenant Not to Sue.
In
consideration for the benefits and payments specified in the
Release, Cashen hereby fully and forever releases and discharges
the Company and each of its subsidiaries and affiliates, and all of
their predecessors and successors, assigns, officers, directors,
trustees, employees, agents and attorneys, past and present
(“Releasees”) of and from any and all claims, demands,
liens, agreements, contracts, covenants, actions, suits, causes of
action, obligations, controversies, debts, costs, expenses,
damages, judgments, orders and liabilities, of whatever kind or
nature, direct or indirect, in law, equity or otherwise, whether
known or unknown, arising through the date of this Release, out of
Cashen’s employment with the Company or any Releasee,
including the termination thereof. By this paragraph Cashen waives
any claims which Cashen has or may have against Releasees, or any
of them. This includes all rights and obligations under any
federal, state or local laws or ordinances pertaining to
employment, including but not limited to any claims for relief or
causes of action under the Age Discrimination in Employment Act, 29
U.S.C. §621 et seq., or any other federal, state or local
statute, ordinance or regulation regarding discrimination in
employment, all claims for wrongful discharge, all claims that
Releasees, or any of them, dealt unfairly with Cashen, in bad faith
or in violation of any contract or agreement, expressed or implied,
that may have existed between Releasees, or any of them, and
Cashen, and all claims against Releasees, or any of them, for
assault, battery, personal injury, emotional distress, pain and
suffering.
Cashen
expressly represents that he has not filed a lawsuit or initiated
any other administrative proceeding against Releasees, or any of
them, and that he has not assigned any claim against the Releasees,
or any of them, Cashen further promises not to initiate a lawsuit
or to bring any other claim against Releasees, or any of them,
arising out of or in any way related to Cashen’s employment
by the Company or any Releasee, including the termination of that
employment. This Release will not prevent Cashen from filing
a
charge with the
Equal Employment Opportunity Commission (or similar state agency)
or participating in any investigation conducted by the Equal
Employment Opportunity Commission (or similar state agency);
provided, however, that any claims by Cashen for personal relief in
connection with such a charge or investigation (such as
reinstatement or monetary damages) would be barred by this
Release.
The foregoing
will not be deemed to release the Company from any of the following
claims, entitlements or rights of Cashen for or to:
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Claims or
actions brought, in good faith, solely to enforce or clarify the
promises, rights, entitlements, obligations, and benefits provided
in this Release, including but not limited to those provided under
the “Consideration” section of this
Agreement;
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Vested benefits
under retirement plans sponsored by the Company in which Cashen is
a participant, based on services performed prior to the Termination
Date;
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Rights to
continue health care coverage pursuant to the Consolidated Omnibus
Reconciliation Act of 1985, at his own expense, under the
Company’s group health plan upon a qualifying event, e.g.,
termination of employment;
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Rights to
convert coverage under an existing life insurance policy provided
by the Company, subject to the conversion rights of such
policy;
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Coverage, if
any, under any policy of liability or directors and officers
liability insurance for matters subject to said policies for
activities arising out of or in any way related to Cashen’s
employment prior to the Termination Date;
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Any right to
indemnification or cost of defense from or by the Company pursuant
to the Company’s by-laws or charter, or duly adopted
resolution of the Company’s Board of Directors for activities
and actions by Cashen as an agent, officer, or employee of the
Company, prior to the Termination Date;
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Earned wages
and compensation, accrued vacation and accrued fringe benefits, or
reimbursement for authorized expenses acquired or incurred before
the Termination Date, including any bonus which may become due to
Cashen under the Company’s 2005 Management Incentive Plan.
Such bonus will be paid to Cashen if and when the bonus is paid to
the Company’s executive officers, at a level consistent with
Cashen’s former duties as Chief Financial Officer of the
Company and subject to the terms of the 2005 Management Incentive
Plan; and
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Any
counterclaims in connection with a lawsuit or administrative
proceeding in which the Company, its successors, assigns or
subrogees seek legal or equitable relief from Cashen provided such
counterclaim (i) arises out of the transaction or occurrence that
is the subject matter of the claim raised by the Company in such
lawsuit or proceeding, (ii) does not require for adjudication the
joinder or presence of third parties, and (iii) does not relate to
or arise out of the termination of Cashen’s employment or
involve any claim for compensation or benefits for services
rendered to the Company.
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Covenants Not to Unfairly
Compete
In further consideration for the benefits and
payments set forth in this Release, Cashen agrees that, during the
Restriction Period (as defined below), Cashen shall not unfairly
compete with the Company or any of its subsidiaries or affiliates
(the “PHH Group”), as set forth below:
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Cashen agrees
that as part of his promise not to unfairly compete with the PHH
Group, Cashen, directly or indirectly, as an individual on
Cashen’s own account, or as an independent contractor,
employee, consultant, agent, partner, member, joint venturer or
otherwise, shall not provide any service or assistance, in any
capacity or function similar to the capacity or function in which
Cashen provided services or assistance to the PHH Group to:
*CONFIDENTIAL and any successor entity of an entity listed in this
section 1 of “Covenants Not to Unfairly Compete” that
is
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