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Exhibit 10.73
SEPARATION AGREEMENT AND GENERAL
RELEASE
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To:
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Kirk Die
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Date Delivered
to Employee:
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April 7, 2008, as revised April
8 and May 1, 2008.
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Freddie Mac is offering you
valuable consideration in exchange for your agreement to be bound
by the terms of this Agreement and Release
(“Agreement”). Please be advised that, by signing this
Agreement, you will be releasing Freddie Mac of all legal claims
you have, regardless of whether you currently are aware of them.
Therefore, Freddie Mac advises you to consult with an attorney
before you sign this document.
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A.
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Obligations and Restrictions Imposed
Upon You By This Agreement
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By signing below, you agree to be
bound legally to the following terms:
1.
Full Release : In your individual and representative
capacities, you irrevocably and unconditionally waive, release, and
forever discharge the Federal Home Loan Mortgage Corporation
(“Freddie Mac”), its predecessors, successors and
assigns, and each of their respective directors, officers,
employees, fiduciaries, administrators, trustees, shareholders, and
agents (collectively, “the Released Parties”) from any
claims, charges, demands, sums of money, actions, rights, promises,
causes of action, obligations, and liabilities of any kind or
nature, in law or equity, whether known or unknown, existing or
contingent, apparent or concealed (collectively,
“claims”) that you have ever had or currently have
against the Released Parties. This release extends to all claims,
whether asserted by you or asserted on your behalf by your heirs,
executors, beneficiaries, administrators, successors, assigns or
trustees. Claims that you release include, but are not limited to,
all claims arising out of or in relation to your employment with
Freddie Mac, whether arising under express or implied contract,
tort, common law, or federal, state, or local laws, ordinances, or
regulations. This release also extends to all claims on account or
arising out of the negotiation or execution of this Agreement. A
non-exhaustive list of the types of claims you release include all
claims for fraud, defamation, wrongful termination, and
whistle-blower claims, as well as claims for discrimination,
harassment, attorney’s fees and costs, and retaliation
arising under any federal, state, or local law, such as claims
arising under Title VII of the Civil Rights Act of 1964, the
Civil Rights Act of 1866, the Age Discrimination in Employment
Act (“ADEA”), as amended by the Older Workers Benefit
Protection Act of 1990, the Uniformed Services Employment and
Re-employment Rights Act of 1994; the Immigration Reform Control
Act, the Equal Pay Act of 1963, the Occupational Safety and Health
Act, the Vocational Rehabilitation Act of 1973, the Vietnam Era
Veterans’ Readjustment Assistance Act of 1974, the Americans
with Disabilities Act, the Employee Retirement Income Security Act
of 1974 (“ERISA”), the National Labor Relations Act,
1978 Uniform Guidelines on Employee Selection Procedures,
Comprehensive Omnibus
Budget Reconciliation Act of 1986;
the Sarbanes-Oxley Act of 2002, any amendments to the foregoing
laws or regulations, all state laws and municipal ordinances, and
the United States Constitution. Notwithstanding the foregoing, this
Release docs not extend, nor purport to release, any claims that
Freddie Mac may not lawfully request that you release.
Nothing in this Paragraph A(l)
or this Agreement shall adversely affect any rights you may have to
seek and/or receive either advancement or indemnification pursuant
to the terms and conditions set forth in Freddie Mac’s
Bylaws, including those rights set forth in Article 8 thereof,
or reimbursement under any applicable directors and officers
liability insurance policy (“D&O”). You agree that
Freddie Mac’s Bylaws, D&O policy and applicable law
govern your right to any indemnification or
reimbursement.
2.
Non-Participation . You acknowledge that
in the absence of this Agreement, you have the right to encourage,
counsel, assist or communicate with others in bringing claims
against the Released Parties. By signing below, you agree to waive
these rights with respect to private parties. Therefore, except as
otherwise provided in this Agreement, you agree that you have not
and will not encourage, counsel, assist or communicate with any
attorneys, their clients, or any other persons (including current
or former Freddie Mac employees) in bringing or prosecuting any
claims, charges, or complaints against the Released Parties, unless
pursuant to a valid subpoena or court order to produce documents or
testify, or unless you have been requested by an agency of the
United States government or state or local government (collectively
“government agency”) to assist in a government agency
investigation or proceeding.
To the extent that you arc
requested by any government agency to participate or assist in a
government agency investigation or proceeding, or to the extent
that any law may prohibit you from waiving your right to bring or
participate in the investigation of a claim, you nevertheless waive
any right you otherwise might have to seek or accept any damages or
relief in any proceeding. Furthermore, to the extent that you file
any claim against Freddie Mac, or any claim is filed on your behalf
against Freddie Mac, you agree not to seek or accept any damages or
other relief as a result of such claim.
3.
Compliance with Subpoenas or Other Requests
. If you receive a court subpoena, deposition notice,
request by a government agency, or request by any private party to
disclose information concerning your employment or termination of
employment with Freddie Mac, or concerning the terms of this
Agreement, you agree that you will provide Freddie Mac with notice
of such subpoena, notice, or request within not more than
twenty-four (24) hours of your receipt. You may comply with
this requirement by providing written notice, via Certified Mail,
to the Vice-President and Deputy General Counsel, Litigation, of
the Legal Division (“DGC”). If notice by Certified Mail
will not reach the DGC before the date your compliance with the
subpoena, deposition notice, or similar request is required, then
you agree to provide a facsimile copy to the DGC before compliance
is required.
With respect to any private party,
you agree that: (i) you will not voluntarily provide any
testimony or information unless required by law or permitted by
Freddie Mae; (ii) you
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will permit Freddie Mac to be
represented by an attorney of Freddie Mac’s choosing at any
such testimony or with respect to any such information to be
provided; and (iii) you will follow the instructions of the
attorney designated by Freddie Mac with respect to what testimony
or information is privileged by the attorney-client and/or work
product privileges of Freddie Mac. The parties agree that Freddie
Mac shall be responsible for the expense of any lawyer designated
by Freddie Mac to represent Freddie Mac’s
interests.
4.
Confidential Information . During your employment
with Freddie Mac, you may have worked with or otherwise gained
knowledge about information that Freddie Mac deems trade secrets or
otherwise confidential and proprietary information belonging to
Freddie Mac. This information may include, but not be limited to:
(a) the components, capabilities or attributes of Freddie
Mac’s methods or systems; (b) tax and financial matters,
including capital structure and tax and financial planning
strategies; (c) shareholder and investor strategies, tactics
or plans; (d) pricing or investment strategies; (c) past,
current, and/or future business strategies, tactics or plans;
(f) marketing or sales strategies, tactics or plans;
(g) compensation and employee benefits strategies and
practices, and other confidential personnel matters;
(h) trading strategies, tactics and plans; (i) Freddie
Mac’s development of and applications for patents,
trademarks, and copyrights, to the extent such information is
non-public; and (j) any other information of a proprietary
nature. By signing below, you agree that to the extent you have
knowledge about such information, you gained your knowledge through
your employment with Freddie Mac, and agree to treat the
information as strictly confidential. You agree that you have not
and will not use any such information directly or indirectly for
any purpose. You also agree that you have not and will not disclose
it to anyone outside of Freddie Mac.
You also acknowledge that, in light
of your employment with Freddie Mac, you have been in possession of
confidential information and documents that may be privileged under
the attorney-client and/or work product privileges. You agree to
maintain the confidences and privileges of Freddie Mac and
acknowledge that any such confidences and privileges belong solely
to Freddie Mac and can only be waived by Freddie Mac, not
you.
5.
Confidentiality of Agreement . Subject to
the terms of Paragraph D(1) below, you agree to keep the fact
of this Agreement, the negotiation of its terms and all of such
terms completely confidential except as otherwise permitted by the
terms of this Agreement or applicable law. You may disclose the
terms of this Agreement only to your attorney, accountant, tax or
financial advisor, outplacement counselor hired by Freddie Mac, or
members of your immediate family, provided that they agree to keep
the terms confidential.
6.
Freddie Mac Property . You affirm that you
have returned all property and documents belonging to Freddie Mac
that are in your possession or within your control on such date
that may be agreed to in writing by your manager and a
representative of the Human Resources Division, which in the
absence of such written agreement shall not be later than your
Separation Date.
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7.
Future Employment Restriction . You agree
that for twelve (12) month immediately following your
Separation Date, you will not consider offers of employment from,
seek or accept employment with, or otherwise directly or indirectly
provide professional services (including consulting services) to
Fannie Mae and/or any Federal Home Loan Bank (including the Office
of Finance).
8.
Non-Solicitation of Freddie Mac Managers
. During the twelve (12)-month period beginning with
your last day of employment with Freddie Mac, you agree that you
will not directly or indirectly recruit or solicit or assist
another in recruiting or soliciting for employment purposes or for
the provision of professional services (including consulting
services) any Freddie Mac managerial employee (including manager,
director, or officer-level employees) with whom you worked, or any
employee whom you directly or indirectly supervised at Freddie Mac.
This prohibition against solicitation of employment docs not apply
if Freddie Mac has provided written notice to the employee being
solicited that his/her employment with Freddie Mac will be
terminated pursuant to a corporate reorganization or reduction in
force.
9.
Notice of Future Employment . In order to
allow Freddie Mac to monitor your compliance with the
post-employment restrictions imposed by this Agreement, you agree
to provide written notice to the Executive Vice-President of the
Human Resources Division of the identity of each new employer with
whom you accept employment together with your job title and brief
description of job duties during the twelve (12)-month period
beginning with your last day of employment with Freddie
Mac.
10.
Assistance To Freddie Mac . You agree, in
response to reasonable requests, to cooperate fully and assist
Freddie Mac in any matter in which you have been involved during
the course of your employment. Such assistance shall include
providing information, preparing documents, submitting to
depositions, deposition preparation, providing testimony and
general cooperation to assist the company in explaining its
position with respect to any matter in which you may have been
involved. Freddie Mac agrees that such assistance shall be provided
at times and in a manner so as not to interfere with or jeopardize
your subsequent employment.
In the event you incur reasonable
expenses associated with providing such assistance, including
attorneys fees for individual representation by an attorney of your
choosing, Freddie Mac shall reimburse such reasonable
expenses in accordance with company policy generally applicable to
senior executive officers of the company, and for each full or
partial hour of assistance provided Freddie Mac shall pay you a
stipend equal to your hourly rate of pay as of the date of this
Agreement, consistent with applicable law. You acknowledge that
Freddie Mac has sole discretion to determine the reasonableness of
any attorney’s fees you may incur in connection with your
assisting Freddie Mac and Freddie Mac agrees that any such
determination shall be consistent with any guidelines it has or may
establish pursuant to its Bylaws’ indemnification process and
with applicable law.
11.
Non-Disparagement . You agree not to make, or cause
or attempt to cause any other person to make any statement, whether
written or oral, or convey any information
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about Freddie Mac or any of its
officers, employees or directors, past or present, that is
disparaging. Nothing herein prevents you from using any
non-Confidential information about the scope of your job duties to
obtain other employment, participating in a proceeding relating to
any violation of federal, state or local law relating to fraud
against shareholders or any rule of the U.S. Securities and
Exchange Commission or complying with a Court order.
12.
Waiver of Participation In and Receipt of Benefits Pursuant
to Freddie Mac’s Short-Term Disability Plans. Policies and
Programs . You agree not to file any claim for
any benefit pursuant to Freddie Mac’s Short-Term Disability
Plans or Programs and you further agree to forever waive and
relinquish whatever right you may have had to receive any
benefit.
13.
Execution or a Second Agreement and Release
. In the event that you execute this Agreement prior to
your Separation Date, you agree to execute on your Separation Date
a Second Agreement and Release that is substantially similar in
form and substance to this First Agreement and Release, set forth
as Attachment A hereto. You understand and agree that the
Second Agreement and Release will provide for no additional
payments, benefits or consideration beyond any payments, benefits
and consideration you receive pursuant to the terms of this First
Agreement and Release and that such payments, benefits and
consideration constitute adequate consideration for your execution
of and adherence to the terms of the Second Agreement and Release.
In the event that you either fail to execute such Second Agreement
as of the close of business of the Separation Date or exercise your
right to revoke such Agreement prior to the expiration of the
applicable revocation period, then Freddie Mac’s obligations
under Paragraphs B(1), B(2), B(3) and B(4) this Agreement
shall be null and void and you agree to return to Freddie Mac
within three (3) business days all of the cash payments and
monetary equivalents of all benefits that you received, and you
will not be eligible to receive any further consideration, pursuant
to this Agreement.
14.
Continuing Obligation To Adhere to Company Policies and
Practices . As a Freddie Mac employee prior to
your Separation Date, you will continue to be subject to the
requirements of the company’s Code of Conduct and you will be
expected to continue to adhere to and implement all company
policies and procedures and practices applicable and relevant to
your job duties and responsibilities.
15.
Termination of Employment . Your last day
of employment with Freddie Mac employment is May 9,
2008 (“Separation Date”).
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B.
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Benefits To Be Provided To You In
Exchange for Signing This Agreement
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By signing below and thereby
evidencing your acceptance of the restrictions and obligations
imposed upon you by this Agreement, Freddie Mac will provide to you
severance and other benefits as provided in this
Section B.
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1.
Continued Employment . Freddie Mac agrees
to employ you through your Separation Date. Freddie Mac has sole
discretion prior to your Separation Date to place you on
administrative leave with pay, at a salary equal to the salary you
are receiving as of the date of this Agreement.
2.
Severance Pay . You may elect to receive
severance pay over a course of time in accordance with Freddie
Mac’s regularly scheduled payroll dates, or in one lump sum
payment. Freddie Mac will deduct from your severance pay legal
deductions, which may include, but may not be limited to, tax
withholdings, deductions of amounts you owe to Freddie Mac,
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