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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 8, 2005
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Federal National Mortgage Association |
(Exact name of registrant as specified in its charter) |
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Fannie Mae
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Federally chartered corporation |
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000-50231 |
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52-0883107 |
(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(IRS Employer
Identification Number) |
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3900 Wisconsin Avenue, NW |
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Washington, DC |
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20016 |
(Address of principal executive offices)
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(Zip Code) |
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Registrants telephone number, including area code: 202-752-7000
(Former Name or Former Address, if Changed Since Last Report): ________________
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
Compensation arrangements with newly appointed executives
On November 8, 2005, the Board of Directors of Fannie Mae (formally, the Federal National Mortgage
Association) appointed Robert T. Blakely as its Executive Vice President and Chief Financial
Officer. A description of Mr. Blakelys compensation arrangements, which will become effective
upon his joining the company, is provided in Item 5.02 below, and is incorporated herein by
reference.
As discussed below, on November 8, 2005 the Board also appointed Robert J. Levin as Fannie Maes
Executive Vice President and Chief Business Officer and Michael J. Williams as Executive Vice
President and Chief Operating Officer. In connection with their new appointments, Fannie Maes
Board of Directors increased Mr. Levins annual base salary from $675,000 to $750,000 and Mr.
Williams from $516,724 to $650,000. At the same time, the Board approved an increase in Mr.
Levins annual cash bonus target award from 160% to 220% of base salary, and an increase in Mr.
Williams bonus target award from 160% to 190% of his base salary. Under the terms of Fannie Maes
annual incentive plan, the amount of any final bonus may be less than, equal to, or greater than
the individuals target amount, depending on both corporate and individual performance. In
connection with its capital restoration plan, Fannie Mae also committed to seek prior approval from
the Office of Federal Housing Enterprise Oversight (OFHEO) for all payment of bonuses or other
non-salary compensation awards for executive officers.
Compensation arrangements with newly elected director
As discussed below, on November 8, 2005, the Board of Directors of Fannie Mae elected Bridget A.
Macaskill to join Fannie Maes Board of Directors, effective December 1, 2005. In accordance with
Fannie Maes non-management director compensation practices, Ms. Macaskill will be paid a retainer
at a rate of $35,000 per year, plus $1,500 for attendance at each Board or Board committee meeting.
Upon the start of her Board service, Ms. Macaskill will receive a total of 1,062 shares of
restricted stock. Under the terms of the grants, Ms. Macaskills shares of restricted stock are
scheduled to vest on the day before future annual meetings at the rate of: 412 shares before the
2006 annual meeting; and 650 shares before the 2007 annual meeting. These shares cannot be sold or
otherwise transferred until they vest, and vesting is contingent on Ms. Macaskills service on
Fannie Maes Board at the time of vesting, subject to accelerated vesting upon departure from the
Board due to death, total disability, or not being renominated after age 70. As a holder of
restricted stock, Ms. Macaskill will have all of the rights and privileges of a shareholder as to
the restricted stock, other than the ability to sell or otherwise transfer it, including the right
to receive dividends declared with respect to the stock and the right to provide instructions on
how to vote the stock.
Under the terms of Fannie Maes Stock Compensation Plan of 2003, directors receive an annual grant
of stock options to purchase 4,000 shares of common stock on the date of the companys annual
shareholders meeting. Any director who joins the Board after the annual meeting automatically
receives a stock option award for a prorated amount of shares. Because Fannie Mae is in the process
of restating its financial statements, the company does not anticipate holding an annual
shareholders meeting in 2005 and, accordingly, no automatic stock option grants have been made this
year. In connection with Ms. Macaskills election to the Board, the Board determined that if, in
the future, stock option grants are made to other members of the Board with respect to 2005, Ms.
Macaskill will receive a prorated grant of options to purchase 2,000 shares of Fannie Mae common
stock at that time. Under the terms of the Stock Compensation Plan of 2003, the exercise price of
each option granted would be the fair market value on the award date.
In accordance with Fannie Maes customary practice, Fannie Mae plans to enter into an
indemnification agreement with Ms. Macaskill, the form of which has been filed as Exhibit 10.7 to
Fannie Maes Form 10 filed with the Securities and Exchange Commission on March 31, 2003. Ms.
Macaskill will also be eligible to participate in the Fannie Mae Directors Charitable Award
Program, pursuant to which Fannie Mae makes donations upon the death of a director to up to five
charitable organizations or educational institutions of the directors choice. Under the program,
Fannie Mae donates $100,000 for every year of service by a director, up to a maximum of $1,000,000.
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Compensation arrangements with Daniel H. Mudd
As previously disclosed, in June 2005 the Board of Directors requested the Compensation Committee
to propose for approval by the Board a new employment agreement and compensation arrangements for
Daniel H. Mudd in connection with his appointment as President and Chief Executive Officer. On
November 15, 2005, the independent members of the Board approved a new employment agreement with
Mr. Mudd. A copy of the employment agreement, dated November 15, 2005, between Fannie Mae and Mr.
Mudd is filed as Exhibit 10.1 to this Form 8-K and is incorporated herein by reference.
The Compensation Committee engaged its independent compensation consultant to assist the Committee
in developing and considering the terms of Mr. Mudds employment agreement. The Committees
compensation consultant does not perform any services for Fannie Mae at the direction of
management. The Committee also engaged outside counsel to negotiate and provide legal advice with
respect to the terms of the agreement. In its considerations, the Committee and the independent
members of the Board:
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Reviewed Fannie Maes obligations under the Charter Act, which provides that the
company shall pay its executive officers compensation that the Board determines to be
reasonable and comparable with compensation for employment in other similar businesses
(including other publicly held financial institutions or major financial services
corporations) involving similar duties and responsibilities. |
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Took into account emerging trends in executive-compensation best practices. |
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Developed a proposed contract structure based on advice from the Boards independent
compensation consultant and outside counsel. |
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Considered differences between the proposed terms of Mr. Mudds employment agreement
and the terms of his prior agreement. |
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Compared Mr. Mudds proposed total compensation (base salary, annual cash bonus, and
long-term incentives) with the total compensation paid to the chief executive officers of
companies in Fannie Maes standard comparison group, which is comprised of banks,
insurance companies and other diversified financial services companies. |
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Noted that total compensation to be provided to Mr. Mudd under his new employment agreement was
positioned at the lowest one-third (approximately the 30th percentile) of the
companies in this comparison group. |
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Reviewed comprehensive analyses of proposed termination benefits under various
scenarios at various times during the term of the agreement. |
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Compared proposed provisions relating to pension benefits and termination with those
provided by the standard comparison group of companies to their chief executive officers. |
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Received an opinion from the compensation consultant that Mr. Mudds compensation
package is consistent with the legal standards set forth in the Fannie Mae Charter Act and
the Federal Housing Enterprises Financial Safety and Soundness Act of 1992. |
The information reviewed by the Compensation Committee and the Board described above was presented
to OFHEO in connection with its required approval of the agreements termination benefits and the
grant of restricted stock to Mr. Mudd discussed below. Any changes to such termination benefits
would require the approval of OFHEO.
The employment agreement with Mr. Mudd replaces his existing employment agreement, effective as of
June 1, 2005, and provides for his employment through December 31, 2009. Under the new employment
agreement, Mr. Mudds annual base salary was increased from its previous level of $850,000 to
$950,000. This base salary is subject to periodic review and possible increases, but not
decreases, by the Board. Compensation arrangements for Mr. Mudd are determined annually by the
Board of Directors (excluding Mr. Mudd and any other non-independent members of the Board) upon the
recommendation of the Compensation Committee of the Board of Directors. The Board also approved an
increase in Mr. Mudds annual cash bonus target award from 235% to 275% of base salary. Mr. Mudds
new 2005 annual base salary and bonus target will apply from June 1, 2005 to the end of the year.
The amount of any cash bonus Mr. Mudd receives may be less than, equal to, or greater than his
target amount, depending on corporate and individual performance, and subject to prior approval
from OFHEO while the company is subject to its capital restoration plan.
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Mr. Mudd is entitled to participate in the companys Executive Pension Plan, but at age 47 and with
his current number of years of service, he is not currently entitled to a retirement benefit under
that plan. The Executive Pension Plan supplements the benefits payable to key officers under the
Fannie Mae Retirement Plan. Payments are reduced by any amounts payable under the Fannie Mae
Retirement Plan, any amounts payable under the Civil Service retirement system attributable to
Fannie Maes contributions for service with it and, in certain circumstances, any amounts
attributable to employer contributions payable under a prior employers tax-qualified plan.
Participants are granted pension benefits of a percentage of the average total compensation for the
three consecutive years of the participants last ten years of employment when total compensation
was the highest. Total compensation generally is a participants average annual base salary,
including deferred compensation, plus the participants other taxable compensation, with the
exception of gain from the exercise of stock options, paid by Fannie Mae for the relevant year, up
to 50% of annual base salary for that year. To be fully vested in the plan, a participant must
have 10 years of service as a participant in the plan, with partial vesting usually beginning after
five years. A participant who retires at or after age 55 but before age 60 generally receives a
benefit reduced by 2% for each year in which the participant receives benefits prior to age 60.
The benefit payment typically is a monthly amount equal to 1/12th of the participants annual
retirement benefit payable during the lives of the participant and the participants surviving
spouse. If a participant dies before receiving benefits under the Executive Pension Plan, generally
his or her surviving spouse will be entitled to a death benefit that begins when the spouse reaches
age 55, based on the participants pension benefit at the date of death. A participant who is
married at the time of retirement will receive benefits in the form of a joint and 100% survivor
annuity. Normally, the amount of benefit payments is not actuarially reduced to reflect the joint
life expectancy of the participant and the participants spouse.
Mr. Mudds employment agreement provides that his pension goal will be at least 50% of the average
total compensation for the three consecutive years of his last ten years of employment when total
compensation was the highest, and his current pension goal is 50%. Mr. Mudds total compensation
for a given year includes other taxable compensation up to 100%, not 50%, of his annual base salary
for that year. If Mr. Mudd retires before age 60, his pension goal will be reduced by 3%, rather
than the 2% reduction generally applicable to participants in the plan, for each year in which he
receives benefits prior to age 60. In addition, his benefit payments will be in the form of a
joint and 100% survivor annuity, actuarially reduced to reflect the joint life expectancy of Mr.
Mudd and his spouse.
During the employment term, Mr. Mudd also will be eligible to be considered for awards under the
companys stock option, restricted stock, annual incentive and performance share programs, and to
receive life insurance benefits, all in accordance with the companys compensation philosophy and
life insurance policies and programs that are in effect from time to time. Under its capital
restoration plan, Fannie Mae must obtain the approval of OFHEO prior to providing Mr. Mudd with any
non-salary compensation awards. Mr. Mudd also will be eligible to receive certain fringe benefits
in accordance with the companys policies, including legal expenses incurred in negotiating his
employment agreement and reimbursement for a complete annual physical examination. He is also
eligible to participate generally in company benefit programs that are from time to time in effect
and in which other senior officers of the company generally are entitled to participate. Mr.
Mudds bonus and other incentive-based or equity-based compensation will be subject to
reimbursement to the company if required by Section 304 of the Sarbanes-Oxley Act of 2002 or
provisions of the companys compensation plans and arrangements, notwithstanding any provisions of
the agreement to the contrary.
Mr. Mudds employment agreement provides for certain benefits upon the termination of his
employment with the company. As described in more detail below, these benefits vary depending on
the reason for his termination.
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Termination without Cause, for Good Reason or upon expiration of the agreement. |
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Mr. Mudds employment agreement provides that if Mr. Mudd is terminated by the company without
Cause, or if Mr. Mudd terminates his employment for any of the specified Good Reason events
described below, or if Mr. Mudds employment is terminated due to the expiration of the
agreement term on December 31, 2009, he would be entitled to receive his accrued but unpaid
base salary, base salary for the period through the second anniversary of the termination of
his employment (subject to offset for income from other employment or self-employment, other
than board service), all amounts payable (but unpaid) under the companys annual incentive plan
with respect to any year ended on or prior to the date of termination of his employment, a
prorated annual incentive plan payment for the year of termination, all amounts payable (but
unpaid) under any performance share award with respect to a performance cycle that had ended as
of the date of termination of his employment, a prorated performance share program payment for
any performance cycle as to which at least 18 months had elapsed as of the date of termination,
full vesting of any unvested restricted stock and stock options, and, only in the cases of
termination by the company without Cause and termination by Mr. Mudd for a Good Reason,
medical and dental coverage for Mr. Mudd and his spouse and coverage for his dependents (so
long as they remain his dependents or, if later, until they reach the age of 21), at no cost to
Mr. Mudd, until the earlier of the second anniversary of the termination of his employment and
the date on which Mr. Mudd obtains comparable coverage through another employer. |
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Termination due to serious illness or disability |
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With the exception of the continued medical and dental coverage, the same benefits described
above would be payable in the event Mr. Mudds employment were to terminate by reason of
serious illness or disability, subject to an offset against salary continuation for any
employer-provided disability benefits. |
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Termination due to acceptance of senior position in U.S. federal government |
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If Mr. Mudd terminates his employment by reason of his acceptance of an appointment to a senior
position in the U.S. federal government, he will receive his accrued but unpaid base salary,
all amounts payable (but unpaid) under the companys annual incentive plan with respect to any
year ended on or prior to the date of termination of his employment, a prorated annual
incentive plan payment for the year of termination, all amounts payable (but unpaid) under any
performance share award with respect to a performance cycle that had ended as of the date of
termination of his employment, a prorated performance share program payment for any performance
cycle as to which at least 18 months had elapsed as of the date of termination, and full
vesting of any unvested restricted stock. |
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Termination due to death |
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In the event of Mr. Mudds death during the employment term, his estate or beneficiary, as
applicable, would be entitled to his accrued but unpaid base salary, all amounts payable (but
unpaid) under the annual incentive plan for any year ended on or prior to his death, a prorated
annual incentive plan payment for the year of death, all amounts payable (but unpaid) under any
performance share award with respect to a performance cycle that had ended on or prior to the
date of death, a prorated performance share program payment for any performance cycle as to
which at least 18 months had elapsed prior to the date of death, and full vesting of any
unvested restricted stock and stock options. |
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Termination due to retirement |
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In the event Mr. Mudd retires at or after age 65, or at an earlier age in certain situations,
he would be entitled to receive his accrued but unpaid base salary, all amounts payable (but
unpaid) under any performance share award with respect to a performance cycle that had ended as
of the date of his retirement, a prorated performance share program payment for any performance
cycle as to which at least 18 months had elapsed as of the date of his retirement, full vesting
of any unvested stock options and, in the case of retirement at or after age 65, full vesting
of any unvested restricted stock and, in the case of retirement at an earlier age, the Board
may, in its discretion, fully vest any unvested restricted stock. |
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Voluntary termination and termination for Cause |
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If Mr. Mudd were to be terminated for Cause or if Mr. Mudd were to terminate his employment
voluntarily other than for Good Reason as defined in his agreement or in order to accept an
appointment to a senior position in the U.S. federal government, he would be entitled only to
accrued but unpaid base salary plus such vested benefits or awards, if any, which have vested
prior to such date; provided, however, that if he is terminated for Cause, he would not be
entitled to any amounts payable (but unpaid) of any bonus or under any performance share award
with respect to a performance cycle if the reason for such termination for Cause is
substantially related to the earning of such bonus or to the performance over the performance
cycle upon which the payment was based. |
Mr. Mudds employment agreement defines Good Reason as any of the following circumstances that
remains uncured after 30 days notice: (a) a material reduction of his authority or a material
change in his functions, duties or responsibilities that in any material way would cause his
position to become less important, (b) a reduction in his base salary, (c) a requirement that he
report to anyone other than the Chairman of the Board of Directors, (d) a requirement that he
relocate his office outside of the Washington, D.C. area, or (e) a breach by Fannie Mae of any
material obligation it has under the agreement. Under the agreement, Fannie Mae would have Cause
if Mr. Mudd (A) materially harmed Fannie Mae by, in connection with his service under his
employment agreement, engaging in dishonest or fraudulent actions or willful misconduct, or
performing his duties in a grossly negligent manner, or (B) were convicted of, or pleaded nolo
contendere with respect to, a felony. The agreement further provides that no act or failure to act
will be considered willful unless it is done, or omitted to be done, in bad faith or without
reasonable belief that the action or omission was in the best interests of Fannie Mae.
The employment agreement is intended to comply with Section 409A of the Internal Revenue Code of
1986, as amended. If necessary to avoid the imposition of penalties and additional taxes under
Section 409A, the timing of severance payments will be subject to a six-month deferral and any
amount payable under Fannie Maes annual incentive plan or any performance share award will be paid
to Mr. Mudd not later than the expiration of two and one-half months from the end of the first year
in which the amount is no longer subject to a substantial risk of forfeiture.
Mr. Mudds employment agreement with the company also obligates him not to compete with the company
in the United States, solicit any officer or employee of the company or its affiliates to terminate
his or her relationship with the company or to engage in prohibited competition, or to assist
others to engage in activities in which Mr. Mudd would be prohibited from engaging, in each case
for two years following termination. Mr. Mudds employment agreement provides the company with the
right to seek and obtain injunctive relief from a court of competent jurisdiction to restrain Mr.
Mudd from any actual or threatened breach of the obligations described in the preceding sentence.
Disputes arising under the employment agreement are to be resolved through arbitration, with the
company bearing Mr. Mudds legal expenses unless he does not prevail. As required by Mr. Mudds
employment agreement and by federal law, the provisions of the agreement relating to benefits upon
termination of employment have been reviewed and approved by the Director of OFHEO.
With OFHEOs approval, on November 15, 2005, the independent members of Fannie Maes Board awarded
Mr. Mudd a grant of shares of restricted stock with a fair market value of $1.5 million, subject to
vesting in three equal annual installments beginning in March 2006. These shares cannot be sold or
otherwise transferred until vested, and vesting is contingent on Mr. Mudds continued employment
with Fannie Mae, subject to accelerated vesting due to death, disability, retirement or, under
certain circumstances, negotiated separation. As a holder of restricted stock, Mr. Mudd will have
the rights and privileges of a shareholder as to the restricted common stock, other than the
ability to sell or otherwise transfer it, including the right to receive any dividends declared
with respect to the stock and the right to provide instructions on how to vote the stock.
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Item 5.02. Departure of Directors or Principal Officers; Election of Directors; Appointment of
Principal Officers.
Election of Bridgett A. Macaskill
On November 8, 2005, the Board of Directors of Fannie Mae elected Bridget A. Macaskill to join the
Board effective December 1, 2005. The Board also appointed Ms. Macaskill to the Boards Risk
Policy and Capital and Compensation committees effective when she joins the Board. Since 2001, Ms.
Macaskill has been providing consulting services to the financial services industry, and started
her own consulting firm, BAM Consulting LLC, in 2003. She previously served as Chairman and Chief
Executive Officer of OppenheimerFunds, Inc., where she worked from 1983 to 2001. Ms. Macaskill
serves on the board of trustees of the College Retirement Equities Fund (CREF) and the boards of
directors of Prudential plc and J. Sainsbury plc.
Appointment of Robert T. Blakely as Chief Financial Officer
On November 8, 2005, the Board appointed Robert T. Blakely Executive Vice President and Chief
Financial Officer. Mr. Blakely is expected to join Fannie Mae in that role in January 2006.
Robert Levin, the companys interim Chief Financial Officer, will continue in that role until Mr.
Blakely joins the company. As Chief Financial Officer, Mr. Blakely will be Fannie Maes principal
financial officer. Mr. Blakely, 63, has been Executive Vice President, Chief Financial Officer,
and Chief Accounting Officer of MCI, Inc. since April 2005, and Executive Vice President and Chief
Financial Officer of MCI from April 2003 to April 2005. Mr. Blakely has been President of
Performance Enhancement Group, Inc., a private equity firm formed to invest in the high performance
automotive components business, since July 2002. Mr. Blakely was Executive Vice President and Chief
Financial Officer of Lyondell Chemical Company from November 1999 to June 2002; Executive Vice
President of Tenneco, Inc. from 1996 to November 1999 and Chief Financial Officer from 1981 to
November 1999. Mr. Blakely also was a Member of the Financial Accounting Standards Advisory Council
from 1999 to November 2003. Mr. Blakely serves on the board of directors of Natural Resources
Partners L.P. and Westlake Chemicals Corporation.
Except as described in this report, compensation arrangements for Mr. Blakely will be determined
annually by the Compensation Committee of Fannie Maes Board of Directors, subject to approval by
the Board. Under the terms of his employment arrangement with Fannie Mae, Mr. Blakely will receive
a base salary of $650,000 per year and, upon joining the company, a grant of 10,000 restricted
stock units, subject to vesting in equal annual installments over three years. A restricted stock
unit represents the right to receive a share of stock from the company upon vesting. The shares
issuable upon vesting cannot be sold or otherwise transferred until vested, and vesting is
contingent on the recipients continued employment with Fannie Mae, subject to accelerated vesting
due to death, disability, retirement or, under certain circumstances, negotiated separation. As a
holder of restricted stock units, Mr. Blakely will not have the rights and privileges of a
shareholder prior to vesting but will receive additional compensation equal to the amount of any
dividends paid with respect to the stock issuable upon vesting of the units. Pursuant to Fannie
Maes customary practice, Fannie Mae plans to enter into an indemnification agreement with Mr.
Blakely, the form of which has been filed as Exhibit 10.7 to Fannie Maes Form 10 filed with the
Securities and Exchange Commission on March 31, 2003
Mr. Blakely also will be eligible to participate in Fannie Maes annual incentive plan, to receive
variable long-term incentive awards, and to participate in Fannie Maes Executive Pension Plan and
other compensation and benefits programs that are available to Fannie Mae executive vice presidents
generally. Under the annual incentive plan, Mr. Blakelys bonus target award for 2006 has been set
at 190% of his base salary. The amount Mr. Blakely will receive may be less than, equal to, or
greater than his target amount, depending on both corporate and individual performance, except that
in order to recruit Mr. Blakely Fannie Mae guaranteed that his 2006 bonus would be at least 75% of
the target. Pursuant to Fannie Maes capital restoration plan, payment of Mr. Blakelys bonus and
non-salary compensation awards will be subject to prior approval from OFHEO.
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Under the terms of his employment arrangement, Mr. Blakelys pension goal under Fannie Maes
Executive Pension Plan is 40% of average total compensation for the three consecutive years of his
last ten years of employment when total compensation is the highest. More information regarding the
terms of Fannie Maes Executive Pension Plan appears above in the description of Mr. Mudds
employment agreement.
Appointment of Robert J. Levin as Chief Business Officer
On November 8, 2005, the Board appointed Robert J. Levin Executive Vice President and Chief
Business Officer effective immediately. In his new role, Mr. Levin will have lead responsibility
for overseeing and integrating the companys Single-Family business, Portfolio business, and
Housing and Community Development business. Mr. Levin, 50, has been the companys interim Chief
Financial Officer since December 2004 and will continue in that role until Mr. Blakely joins the
company. Prior to his position as interim Chief Financial Officer, Mr. Levin was the Executive
Vice President of Housing and Community Development from June 1998 to December 2004. From June
1990 to June 1998, he was Executive Vice President Marketing. Mr. Levin joined Fannie Mae in
1981.
Except as described in this report, compensation arrangements for Mr. Levin are determined annually
by the Compensation Committee of Fannie Maes Board of Directors, subject to approval by the Board.
A description of changes to Mr. Levins compensation arrangements as a result of his new
appointment is provided in Item 1.01 of this Form 8-K and is incorporated herein by reference.
Information regarding Mr. Levins employment agreement and compensation arrangements is contained
in a Form 8-K Fannie Mae filed on December 27, 2004 under the heading Employment Agreements with
Messrs. Mudd and Levin and in a Form 8-K Fannie Mae filed on March 11, 2005 under the subheading
Long-Term Incentive Awards for Senior Officers. These portions of these Forms 8-K are
incorporated herein by reference. Mr. Levins pension goal under Fannie Maes Executive Pension
Plan remains at its current level of 40% of average total compensation for the three consecutive
years of his last ten years of employment when total compensation is the highest. More information
regarding the terms of Fannie Maes Executive Pension Plan appears above in the description of Mr.
Mudds employment agreement.
Pursuant to the provisions of Fannie Maes bylaws and indemnification agreements, directors and
officers have a right to indemnification for fees and expenses reasonably incurred in connection
with any investigation, claim, action, suit or proceeding, to the fullest extent permitted by
applicable law, by reason of the fact that such person is or was serving as a director or officer
of Fannie Mae. Since January 1, 2005, Fannie Mae has paid $100,824 on behalf of Mr. Levin for
legal fees incurred in connection with the investigation by OFHEO and related investigations and
shareholder litigation. Fannie Mae also maintains insurance for the benefit of directors and
officers which may cover some of these expenses. Bills with respect to the foregoing matters
submitted to the company are reviewed and processed for payment of expenses.
Mr. Levins sister is employed as a non-officer employee in Fannie Maes Enterprise Systems
Operations division. Mr. Levins sister was paid approximately $85,000 in 2004, and approximately
$91,000 since January 1, 2005 in salary and cash bonus. She also receives benefits under the
companys compensation and benefit plans that are generally available to Fannie Mae employees,
including Fannie Maes employee stock purchase plan and employee stock ownership plan. The
Enterprise Systems Operations division does not report, nor has it ever reported, to Mr. Levin.
Appointment of Daniel H. Mudd, President and Chief Executive Officer
On June 1, 2005, Fannie Mae announced the appointment of Daniel H. Mudd as President and Chief
Executive Officer. In a Form 8-K filed on June 7, 2005, Fannie Mae disclosed that the Board of
Directors requested the Compensation Committee to propose a new employment agreement and
compensation arrangements for Mr. Mudd in connection with his appointment as President and Chief
Executive Officer for approval by the Board. Fannie Mae entered into a new employment agreement
with Mr. Mudd on November 15, 2005. A description of the agreement is provided in Item 1.01 of this
Form 8-K.
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In 2004, Fannie Mae paid $114,166, and since January 1, 2005, Fannie Mae has paid $397,994, on
behalf of Mr. Mudd for legal fees incurred in connection with shareholder litigation and
investigations.
Appointment of Michael J. Williams as Chief Operating Officer
On November 8, 2005, the Board appointed Michael J. Williams Executive Vice President and Chief
Operating Officer effective immediately. As Chief Operating Officer, Mr. Williams will have
overall responsibility for operations management including the creation and implementation of
systems, processes, and procedures to help manage Fannie Mae. He will direct the administrative
functions in the areas of technology systems, business operations, and human resources. Mr.
Williams, 48, has been Fannie Maes Executive Vice President for Regulatory Agreements and
Restatement since February 2005. He has been responsible for managing Fannie Maes overall effort
to restate and reaudit its financial statements since January 2005 and for fulfilling all Fannie
Mae obligations under Fannie Maes agreements with OFHEO since October 2004. Mr. Williams also
served as President Fannie Mae eBusiness from July 2000 to February 2005 and as Senior Vice
President e-commerce from July 1999 to July 2000. He was Senior Vice President Customer
Applications and Technology Integration from November 1993 to July 1999. Mr. Williams joined Fannie
Mae in 1991.
Except as described in this report, compensation arrangements for Mr. Williams are determined
annually by the Compensation Committee of Fannie Maes Board of Directors, subject to approval by
the Board. A description of changes to Mr. Williamss compensation arrangements as a result of his
new appointment is provided in Item 1.01 of this Form 8-K and is incorporated herein by reference.
Information regarding Mr. Williamss compensation arrangements is contained in a Form 8-K Fannie
Mae filed on March 11, 2005 under the subheading Long-Term Incentive Awards for Senior Officers
and is incorporated herein by reference. Mr. Williams pension goal under Fannie Maes Executive
Pension Plan remains at its current level of 40% of average total compensation for the three
consecutive years of his last ten years of employment when total compensation is the highest. More
information regarding the terms of Fannie Maes Executive Pension Plan appears above in the
description of Mr. Mudds employment agreement.
Item 9.01. Financial Statements and Exhibits.
(c) Exhibits. The exhibit index filed herewith is incorporated herein by reference.
-9-
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
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FEDERAL NATIONAL MORTGAGE ASSOCIATION
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By: |
/s/ Ann M. Kappler
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Ann M. Kappler |
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Executive Vice President and General Counsel |
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Date: November 15, 2005
-10-
EXHIBIT INDEX
The following exhibits are submitted herewith:
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Exhibit Number |
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Description of Exhibit |
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10.1
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Employment Agreement, dated November 15, 2005, between Fannie Mae and Daniel
H. Mudd. |
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99.1
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November 10, 2005 news release regarding appointment of chief financial
officer and other key executive and board changes. (Incorporated by reference to
exhibit 99.3 to Fannie Maes Form 8-K, filed November 10, 2005). |
-11-
exv10w1
Exhibit 10.1
EXECUTION COPY
EMPLOYMENT AGREEMENT
between
FANNIE MAE
and
DANIEL H. MUDD
TABLE OF CONTENTS
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Page |
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ARTICLE 1 |
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DEFINITIONS |
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1 |
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Section 1.1. |
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Agreement Term |
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1 |
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Section 1.2. |
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Annual Incentive Plan |
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1 |
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Section 1.3. |
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Base Salary |
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1 |
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Section 1.4. |
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Board |
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2 |
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Section 1.5. |
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Board of Directors |
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2 |
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Section 1.6. |
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Cause |
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2 |
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Section 1.7. |
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Compete |
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2 |
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Section 1.8. |
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Corporation |
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2 |
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Section 1.9. |
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Director |
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2 |
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Section 1.10. |
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Early Retirement |
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2 |
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Section 1.11. |
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Effective Date |
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2 |
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Section 1.12. |
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Employee |
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2 |
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Section 1.13. |
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Employment |
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2 |
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Section 1.14. |
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Executive Pension Plan |
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3 |
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Section 1.15. |
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Existing Agreement |
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3 |
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Section 1.16. |
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Expiration Date |
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3 |
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Section 1.17. |
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Failure to Extend |
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3 |
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Section 1.18. |
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Good Reason |
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3 |
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Section 1.19. |
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OFHEO |
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4 |
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Section 1.20. |
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Option |
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4 |
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Section 1.21. |
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Performance Cycle |
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4 |
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Section 1.22. |
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Performance Share Award |
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4 |
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Section 1.23. |
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Qualifying Termination |
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4 |
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Section 1.24. |
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Restricted Stock |
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4 |
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Section 1.25. |
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Retirement |
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4 |
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Section 1.26. |
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Section 409A |
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4 |
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Section 1.27. |
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Serious Illness or Disability |
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4 |
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Section 1.28. |
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Stock Compensation Plan |
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5 |
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Section 1.29. |
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Surviving Spouse |
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5 |
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Section 1.30. |
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Termination of Employment |
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5 |
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ARTICLE 2 |
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PERIOD OF EMPLOYMENT AND DUTIES |
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5 |
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Section 2.1. |
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Period of Employment |
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5 |
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Section 2.2. |
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Duties |
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5 |
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ARTICLE 3 |
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COMPENSATION AND BENEFITS |
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6 |
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Section 3.1. |
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Base Salary |
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6 |
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Section 3.2. |
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Benefits. |
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6 |
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Section 3.3. |
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Reimbursement |
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9 |
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Page |
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ARTICLE 4 |
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TERMINATION OF EMPLOYMENT |
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Section 4.1. |
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Termination of Employment By the Corporation. |
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Section 4.2. |
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Termination of Employment By Employee. |
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Section 4.3. |
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Other Termination of Employment |
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12 |
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Section 4.4. |
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Resignation as Member of the Board of Directors |
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12 |
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ARTICLE 5 |
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COMPENSATION AND BENEFITS FOLLOWING TERMINATION OF EMPLOYMENT |
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12 |
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Section 5.1. |
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Voluntary Termination Pursuant to Section 4.2(b) |
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12 |
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Section 5.2. |
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Termination for Cause |
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12 |
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Section 5.3. |
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Qualifying Termination (Other Than by Reason Of Death) |
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13 |
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Section 5.4. |
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Termination of Employment By Reason of Death |
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Section 5.5. |
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Termination of Employment By Reason of Retirement or Early Retirement |
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ARTICLE 6 |
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MISCELLANEOUS |
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20 |
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Section 6.1. |
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Noncompetition. |
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20 |
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Section 6.2. |
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Payment of Certain Expenses |
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21 |
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Section 6.3. |
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Assignment by Employee |
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21 |
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Section 6.4. |
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No Funding Required |
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21 |
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Section 6.5. |
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Disclosure of Information to the Corporation |
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22 |
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Section 6.6. |
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Nondisclosure of Confidential Information |
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22 |
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Section 6.7. |
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Waiver |
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22 |
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Section 6.8. |
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Notice |
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22 |
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Section 6.9. |
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Applicable Law |
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23 |
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Section 6.10. |
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Taxes |
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23 |
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Section 6.11. |
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Benefit |
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23 |
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Section 6.12. |
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Entire Agreement |
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24 |
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Section 6.13. |
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Arbitration |
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24 |
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Section 6.14. |
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Severability |
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24 |
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Section 6.15. |
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Code Section 409A |
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25 |
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Section 6.16. |
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Regulatory Approval. |
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25 |
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-ii-
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this Agreement) is between FANNIE MAE (the Corporation) and
DANIEL H. MUDD (Employee).
WHEREAS, the Board of Directors of the Corporation has appointed Employee its President and
Chief Executive Officer, effective June 1, 2005;
WHEREAS, the Corporation and Employee desire to replace, with effect from June 1, 2005, the
existing employment agreement between them (the Existing Agreement), with a revised agreement
reflecting Employees new responsibilities and agreed compensation arrangements; and
WHEREAS, until this Agreement is executed by the Corporation and Employee, and the regulatory
approval provided for in Section 6.16 occurs, the Existing Agreement shall remain in full force and
effect.
NOW, THEREFORE, the Corporation and Employee agree as follows:
ARTICLE 1
DEFINITIONS
The following terms shall have the meanings set forth below:
Section 1.1. Agreement Term means the period of time beginning on the Effective Date and
ending on the Expiration Date.
Section 1.2. Annual Incentive Plan means the Corporations Annual Incentive Plan as from
time to time amended and in effect, or any successor plan.
Section 1.3. Base Salary means the dollar amount of Employees annual base compensation as
determined by the Board.
Section 1.4. Board means the Board of Directors of the Corporation, acting without the
participation of the Employee.
Section 1.5. Board of Directors means the Board of Directors of the Corporation.
Section 1.6. Cause is defined in Section 4.1(b).
Section 1.7. Compete means directly or indirectly to manage, operate, control, participate
in the ownership, management, operation or control of, be connected as an officer, employee,
partner, director, consultant or otherwise with, or have any financial interest in, any firm or
business if as of the date of Employees Termination of Employment (or during the two-year
non-compete period as set forth in Section 6.1(a)) a substantial part of the business of such firm
or business is in the same field as a substantial part of the business of the Corporation
(provided, that Employee shall not be deemed directly or indirectly to Compete solely by virtue of
Employees employment in a general management position by a diversified financial services firm).
Employee shall not be deemed to Compete solely by reason of ownership, for personal investment
purposes only, of less than 2% of the voting interests of any business.
Section 1.8. Corporation means Fannie Mae.
Section 1.9. Director means the Director of OFHEO or any successor.
Section 1.10. Early Retirement is defined in the Stock Compensation Plan.
Section 1.11. Effective Date means June 1, 2005, subject, however, to the provisions of
Section 6.16 (Regulatory Approval).
Section 1.12. Employee means Daniel H. Mudd.
Section 1.13. Employment means Employees employment by the Corporation under this
Agreement.
- 2 -
Section 1.14. Executive Pension Plan means the Corporations Executive Pension Plan as from
time to time amended and in effect, or any successor plan.
Section 1.15. Existing Agreement is defined in the preamble to this Agreement.
Section 1.16. Expiration Date means December 31, 2009.
Section 1.17. Failure to Extend means notification by the Corporation that it does not
desire to extend the Agreement Term (or the term of any successor agreement) or that it desires to
do so only on terms in the aggregate that are materially less favorable to Employee than those
applicable to Employee at the time of said notice. The Corporation shall give Employee notice with
respect to extension or non-extension of the Agreement Term (or the term of any successor
agreement) not less than six months before the expiration of the Agreement Term or the term of any
successor agreement, as the case may be, and any failure to provide such timely notice shall also
be deemed a Failure to
Extend. If the Corporation notifies Employee that it desires to extend the Agreement Term (or the
term of any successor agreement) on terms that are in the aggregate substantially similar to or
more favorable than those applicable to Employee at the time of said notice, but subject, however,
to regulatory approval, any nonextension shall not be deemed to be a Failure to Extend.
Section 1.18. Good Reason means (a) a material reduction by the Corporation of Employees
authority or a material change in Employees functions, duties or responsibilities that in any
material way would cause Employees position to become less important, (b) a reduction in
Employees Base Salary, (c) a requirement that Employee report to anyone other than the Chairman of
the Board of Directors, (d) a requirement by the Corporation that Employee relocate his office
outside of the Washington, D.C. area, or (e) a breach by the Corporation of any material obligation
of the Corporation under this Agreement, unless, in the case of each of
- 3 -
the preceding clauses (a)
through (e), within 30 days of the written notice given by Employee pursuant to Section 4.2(a)(i),
the Corporation cures or otherwise eliminates the basis for Employees assertion that Good Reason
exists.
Section 1.19. OFHEO means the Office of Federal Housing Enterprise Oversight or any
successor office or agency as the Corporations primary regulator.
Section 1.20. Option is defined in the Stock Compensation Plan.
Section 1.21. Performance Cycle means a performance cycle as such term is defined in
Section 5.1 of the Stock Compensation Plan.
Section 1.22. Performance Share Award is defined in the Stock Compensation Plan.
Section 1.23. Qualifying Termination means Termination of Employment (i) by the Corporation
without Cause, (ii) by Employee for Good Reason, (iii) upon expiration of the Agreement Term (or
the term of any successor agreement) if there has been a Failure to Extend, (iv) by reason of
Employees acceptance of an appointment to a senior position in the U.S. Federal Government, (v) by
reason of Serious Illness or Disability or (vi) by reason of Employees death.
Section 1.24. Restricted Stock is defined in the Stock Compensation Plan.
Section 1.25. Retirement is defined in the Stock Compensation Plan.
Section 1.26. Section 409A means Section 409A of the Internal Revenue Code of 1986, as
amended.
Section 1.27. Serious Illness or Disability means a serious physical or mental illness or
disability which, in the reasonable determination of the Board, prevents Employee from performing
his duties under this Agreement for a period of at least six months in any twelve-month period.
- 4 -
Section 1.28. Stock Compensation Plan means either or both, as the context requires, of the
Corporations Stock Compensation Plan of 1993 and the Corporations Stock Compensation Plan of
2003, in each case as from time to time amended and in effect, or any successor plan.
Section 1.29. Surviving Spouse
is defined in the Executive Pension Plan.
Section 1.30. Termination of Employment means the cessation of Employment for any reason.
ARTICLE 2
PERIOD OF EMPLOYMENT AND DUTIES
Section 2.1. Period of Employment. The Corporation shall employ Employee, and
Employee shall serve, as President and Chief Executive Officer of the Corporation, upon the terms
and conditions of this Agreement, for the period from the Effective Date through the Expiration
Date; provided that there may be an earlier Termination of Employment as contemplated by Section 4.
Section 2.2. Duties. Employee shall serve the Corporation under this Agreement as
President and Chief Executive Officer of the Corporation. Employee shall devote his full business
time and attention to the Corporation and shall faithfully and diligently perform such duties for
the Corporation as may be delegated to him from time to time by the Chairman of the Board of
Directors, provided that such duties are reasonable and customary for a corporate president and
chief executive officer. Employee shall be subject to the Corporations standards of conduct and
similar policies and procedures applicable generally to the Corporations executive officers.
Employee may (a) serve on corporate, civic or charitable boards or committees or (b) manage
personal investments, so long as such activities do not materially interfere with the performance
of his responsibilities under this Agreement and so long as such
- 5 -
activities comply with the
aforementioned standards, policies and procedures of the Corporation. During his Employment,
Employee shall be nominated for election to the Corporations Board of
Directors and shall be identified as a nominee recommended for election by the Board, at each
annual meeting of the stockholders of the Corporation.
ARTICLE 3
COMPENSATION AND BENEFITS
Section 3.1. Base Salary. During Employees Employment, the Corporation shall pay to
Employee Base Salary of not less than $950,000 (which is his base salary at June 1, 2005). The
Board shall from time to time review Employees Base Salary and may increase (but in no event
decrease) such Base Salary by such amounts as it deems proper.
Section 3.2. Benefits.
(a) Executive Pension Plan. The parties acknowledge that the Corporation has
previously designated Employee as a participant in the Executive Pension Plan. Employees Pension
Goal under the Executive Pension Plan shall at all times be equal to at least 50% of his
High-Three Total Compensation (revising the limitation on other taxable compensation for that
purpose to 100% of Employees base salary for each year) as those terms are defined in the
Executive Pension Plan; provided, however that, in the event Employee elects to commence receiving
benefits under the Executive Pension Plan prior to the date on which he attains age 60, Employees
Pension Goal shall be reduced by 3% for each year (3/12% for each month) by which the date of
commencement precedes the date on which he attains age 60. The Corporation may amend the Executive
Pension Plan from time to time; provided, however, that no such amendment shall decrease Employees
Pension Goal or the vested benefits to which Employee or his Surviving Spouse, if any, would have
been entitled under such Plan, as modified in this
- 6 -
Agreement, as in effect on the date of execution
of this Agreement or, if benefits are improved, as of the date of such improvement; provided
further, however, that if Employee receives his
benefit payments under the Executive Pension Plan in the form of a joint and 100% survivor
annuity, the amount of such benefit payments shall be actuarially reduced to reflect Employees and
his Surviving Spouses joint life expectancy. Employee acknowledges and agrees to be bound by the
provisions set forth in this Section 3.2(a) notwithstanding any provisions in the Executive Pension
Plan to the contrary.
(b) Options. Employee shall be considered for grants of Options consistent with the
compensation philosophy of the Corporation determined from time to time by the Compensation
Committee of the Board of Directors.
(c) Annual Incentive Plan. Employee shall be considered for a potential award under
the Annual Incentive Plan for each year during Employment consistent with the compensation
philosophy of the Corporation determined from time to time by the Compensation Committee of the
Board of Directors.
(d) Performance Share Awards. Employee shall be considered for grants of Performance
Share Awards consistent with the compensation philosophy of the Corporation determined from time to
time by the Compensation Committee of the Board of Directors.
(e) Restricted Stock. Employee shall be considered for grants of Restricted Stock
consistent with the compensation philosophy of the Corporation determined from time to time by the
Compensation Committee of the Board of Directors.
(f) Life Insurance and Death Benefits. Employee shall receive life insurance benefits
consistent with the Corporations life insurance policies and programs as from time to time in
effect.
- 7 -
(g) Legal Expenses. The Corporation shall pay or reimburse the legal expenses
incurred by Employee in connection with the negotiation of this Agreement and any subsequent
negotiation, amendment or discussion of this Agreement among any of the Director, the
Corporation, the Board and the Employee and any of their respective advisors.
(h) Annual Physical. The Corporation shall pay or reimburse Employee for actual
expenses incurred by Employee for a complete annual physical examination at a medical facility of
his choice.
(i) General Rights Under Benefit Plans.
(i) Employee shall at all times during Employment be entitled to participate in all
long- or short-term bonus, stock option, restricted stock, and other executive compensation
plans, and in all perquisite programs and disability, retirement, stock purchase, thrift and
savings, health, medical, life insurance, expense reimbursement and similar plans of the
Corporation which are from time to time in effect and in which other senior officers of the
Corporation generally are entitled to participate. Except as otherwise provided in this
Agreement, Employees participation in such plans and programs shall be in accordance with
the provisions of such plans and programs applicable from time to time, it being the intent
of the parties hereto that, except as otherwise expressly provided herein, nothing in this
Agreement shall be deemed to decrease the rights and benefits of Employee under any such
plans and programs as may be in effect from time to time. Employees rights as a
participant under any compensation, benefit or fringe benefit plan or arrangement of the
Corporation that is from time to time in effect and in which other senior officers of the
Corporation generally are entitled to participate shall be subject to this Agreement and
modified to the extent
- 8 -
expressly provided herein, but except as so modified shall be
determined under the applicable provisions of such plans and programs, including, without
limitation, the
provisions thereof applicable to retirement; provided, that all such plans and programs
and this Agreement shall be construed and administered to avoid any duplication of benefits
under any such plan or program and this Agreement.
(ii) Except as specifically set forth in this Agreement, or as specifically permitted
by the terms of any such plan or program, no right or benefit under any such plan or program
shall become vested or exercisable after Termination of Employment.
Section 3.3. Reimbursement. Employee acknowledges that certain of his bonus or other
incentive-based or equity-based compensation may be subject to a requirement that they be
reimbursed to the Corporation in the event that Section 304 of the Sarbanes-Oxley Act of 2002
applies to that compensation, and Employee agrees to comply with the requirements of that section.
Employee also acknowledges that the Corporations plans and arrangements for compensation and
incentive awards may contain similar provisions, or other provisions related to reimbursement of
compensation or awards, or cancellation of rights, in similar circumstances, and Employee
understands that his participation in such plans and arrangements will be subject to such
provisions, any provisions of this Agreement to the contrary notwithstanding.
ARTICLE 4
TERMINATION OF EMPLOYMENT
Section 4.1. Termination of Employment By the Corporation.
(a) Without Cause. The Corporation shall have the right to terminate Employees
Employment without Cause at any time for any reason in the Corporations sole discretion by giving
at least 90 days prior written notice to Employee; provided, however, that the
- 9 -
Corporation shall
have the option to designate any date as the last date on which Employee shall be authorized to
occupy his office.
(b) For Cause. Notwithstanding any other provision hereunder, the Corporation may
terminate Employees employment for Cause, which shall mean that Employee has (A) materially
harmed the Corporation by, in connection with his service under this Agreement, engaging in
dishonest or fraudulent actions or willful misconduct, or performing his duties in a grossly
negligent manner, or (B) been convicted of, or pleaded nolo contendere with respect to, a felony.
The Corporation by written notice may terminate Employees employment for Cause at any time
following the occurrence of an event described in (B). Employee shall not be deemed to have been
terminated for Cause following the occurrence of an event described in (A) unless the Corporation
shall have provided (i) reasonable notice to Employee setting forth the Corporations intention to
terminate for Cause, (ii) where remedial action is feasible, a reasonable opportunity for such
action, (iii) an opportunity for Employee, together with his counsel, to be heard before the Board
and (iv) Employee with a notice of termination stating that Employee was guilty of the conduct set
forth in this Section 4.1(b)(A) and specifying the particulars thereof in detail. No act or
failure to act will be considered willful unless it is done, or omitted to be done, by Employee
in bad faith or without reasonable belief that his action or omission was in the best interests of
the Corporation.
(c) By Reason of Serious Illness or Disability. In the event of Employees Serious
Illness or Disability during Employment, the Corporation may terminate Employees Employment by
giving Employee at least 60 days advance written notice specifying the date of termination. If,
on or before the date of termination specified in such notice, Employee recovers
- 10 -
and is again able
to perform his duties hereunder, such notice shall be void, and Employees Employment shall not be
terminated thereby.
Section 4.2. Termination of Employment By Employee.
(a) For Good Reason, etc. (i) Employee shall have the right to terminate his
Employment for Good Reason by giving not less than 30 days prior written notice to the
Corporation, which notice must be given within six calendar months after the event giving rise to
the Good Reason and must specify in reasonable detail the circumstances constituting Good Reason;
provided, however, that if, on or before the date of termination specified in such notice, the
Corporation shall have cured or otherwise eliminated the asserted basis for the Good Reason claim,
such notice shall be void, and Employees Employment shall not be terminated thereby.
(ii) Employee shall also have the right to terminate his Employment at any time by
written notice to the Corporation in the circumstances described in Section 1.23(iv).
(b) Other Than For Good Reason. Employee shall have the right to terminate his
Employment at any time for any reason other than as described in Section 4.2(a) above in his sole
discretion by giving not less than 90 days prior written notice to the Corporation, which notice
may not be given after the Corporation has provided a written notice of termination to Employee
under Section 4.1(b). In no event shall the Termination of Employment by the Corporation without
Cause, by Employee as described in Section 4.2(a) or by reason of a Failure to Extend be deemed to
be a Termination of Employment by Employee pursuant to this Section 4.2(b).
(c) Upon receipt of any notice from Employee pursuant to Section 4.2(a) or (b), the
Corporation shall have the option, exercisable by giving Employee written notice within 30 days
- 11 -
of
such receipt, (i) to designate any date (not earlier than 30 days after the date of Employees
notice) as the date on which Employees Employment shall cease and (ii) to designate any date
as the last date on which Employee shall be authorized to occupy his office. The effective
date of the Termination of Employment hereunder shall be the date so designated by the Corporation
if earlier than the date specified by Employee.
Section 4.3. Other Termination of Employment. Employees Employment shall also
terminate on Employees death.
Section 4.4. Resignation as Member of the Board of Directors. A Termination of
Employment shall constitute, unless otherwise requested by the Board, Employees resignation as a
member of the Corporations Board of Directors and as a member of the Board of Directors of the
Fannie Mae Foundation, effective on the date of the Termination of Employment.
ARTICLE 5
COMPENSATION AND BENEFITS FOLLOWING TERMINATION OF EMPLOYMENT
Section 5.1. Voluntary Termination Pursuant to Section 4.2(b). If the Termination of
Employment is a voluntary termination pursuant to Section 4.2(b), Employee shall be entitled to
payment of all accrued but unpaid Base Salary amounts and any benefits or awards (whether of
options, stock or other property) which have vested prior to such date.
Section 5.2. Termination for Cause. In the event of a Termination of Employment for
Cause, Employee shall not be entitled to any payments or benefits except as follows: Employee
shall be entitled to payment of all accrued but unpaid Base Salary amounts and any benefits or
awards (whether of options, stock or other property) which have vested prior to such date;
provided, however, that Employee shall not be entitled to any amounts payable (but unpaid) of any
bonus, or under any Performance Share Award with respect to a Performance Cycle, whether
- 12 -
or not
completed as of the date of such Termination of Employment, if the reason for such Termination of
Employment for Cause is substantially related to the earning of such bonus or to
the performance over the Performance Cycle upon which the payment was based. The Corporation
shall have no further obligations to Employee.
Section 5.3. Qualifying Termination (Other Than by Reason Of Death). If there is a
Qualifying Termination (other than by reason of Employees death), Employee shall be entitled to
prompt payment of all accrued but unpaid Base Salary amounts and all amounts payable (but unpaid)
under the Annual Incentive Plan with respect to any year ended on or prior to the Qualifying
Termination, plus the following:
(a) Continuation of Base Salary. Unless such Qualifying Termination shall have been
by reason of a Qualifying Termination described in Section 1.23(iv):
(i) Subject to Section 6.15, the Corporation shall pay to Employee in cash, on the
normal payroll schedule applicable to his Base Salary, cash compensation at an annual rate
equal to his Base Salary as in effect at the time of the Qualifying Termination. Such cash
compensation shall continue to be paid until the second anniversary of the date of the
Qualifying Termination.
(ii) Notwithstanding (i) above, if Employee obtains other employment (including
self-employment, but excluding service on boards of directors) following his Termination of
Employment hereunder, any income received by Employee from such employment shall reduce, on
a dollar-for-dollar basis (but not below zero), the Corporations obligation to pay cash
compensation to Employee pursuant to this Section 5.3(a). If the Corporation has already
paid any cash compensation under Section 5.3(a)(i) to which an offset would otherwise have
applied, Employee shall promptly
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reimburse the Corporation the amount of such compensation.
In the event of a Qualifying Termination by reason of Serious Illness or Disability, if
Employee becomes entitled to and receives
disability benefits under any disability payment plan, including disability insurance,
the amount of cash compensation payable by the Corporation to Employee pursuant to Section
5.3(a) shall be paid at a rate equal to the excess of (A) the rate at which such cash
compensation would otherwise be paid pursuant to Section 5.3(a)(i) over (B) the disability
benefits for which Employee is eligible under such plan or insurance to the extent those
benefits are attributable to premium payments made by the Corporation.
(b) Annual Incentive Plan. Except as hereinafter provided, the Corporation shall pay
to Employee at the time of payment of awards to other participants in the Annual Incentive Plan for
the year in which the Qualifying Termination occurs (even if Employee is not employed by the
Corporation on the last day of such year) a prorated amount equal to (i) the award that would have
been payable to Employee for such year had he remained in Employment, based on actual results for
such year, multiplied by (ii) a fraction, the numerator of which is the number of days of
Employment during such year and the denominator of which is 365. In the case of a Qualifying
Termination described in Section 1.23(iv), the Corporation shall promptly pay to Employee the
prorated Annual Incentive Plan payment described in this Section 5.3(b). In the case of any other
Qualifying Termination subject to this Section 5.3, the Corporation in its discretion may promptly
pay to Employee any portion or all of such prorated Annual Incentive Plan payment. In any case
where payment under this Section 5.3(b) is promptly made to Employee, the amount determined under
clause (i) above shall be the award that the Board determines Employee would have received for the
year in which the Qualifying Termination
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occurs based on the Boards determination of the
likelihood of the Corporations achievement of targets for such year. Employee acknowledges and
agrees that any payments made pursuant to this Section 5.3(b) are subject to Section 6.15.
(c) Performance Share Awards. Notwithstanding any provision of the Stock Compensation
Plan to the contrary, in the case of any Qualifying Termination, the Corporation shall deliver to
Employee all amounts payable (but unpaid) under any Performance Share Award with respect to a
Performance Cycle that had ended as of the date of the Termination of Employment plus, with respect
to each Performance Share Award then held by Employee as to which at least 18 months of the related
Performance Cycle has elapsed as of the date of the Termination of Employment, after the end of
such Performance Cycle, the product of (i) the award that would have been payable to Employee for
such Performance Cycle had he remained in Employment, based on actual results for such Performance
Cycle, and (ii) a fraction, the numerator of which is the number of days of Employment in such
Performance Cycle and the denominator of which is the total number of days in such Performance
Cycle. In the case of a Qualifying Termination described in Section 1.23(iv), the Corporation shall
promptly pay to Employee all prorated Performance Share Award payments described in this Section
5.3(c). In the case of any other Qualifying Termination, the Corporation in its discretion may
promptly pay to Employee any portion or all of any such payments. In any case where payment under
this Section 5.3(c) is promptly made to Employee, the amount determined under clause (i) above
shall be the award that the Board determines Employee would have received for the Performance Cycle
in which the Qualifying Termination occurs based on the Boards determination of the likelihood of
the Corporations achievement of targets for such Performance Cycle. Employee
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acknowledges and
agrees that any payments made pursuant to this Section 5.3(c) are subject to Section 6.15.
(d) Restricted Stock. All shares of Restricted Stock awarded to Employee, to the
extent not already vested, shall become immediately vested.
(e) Options. Notwithstanding any provision of the Stock Compensation Plan to the
contrary, in the case of a Qualifying Termination by reason of a termination by the Corporation
without Cause, by the Employee for Good Reason, due to Failure to Extend or by reason of Serious
Illness or Disability, all Options held by Employee, to the extent not already vested, shall become
immediately vested and, solely with respect to those Options granted to Employee on or after the
date hereof, shall remain exercisable through the earlier of the remainder of the original exercise
period and the third anniversary of the date of such Qualifying Termination.
(f) Medical and Dental Coverage. Subject to Section 6.15, in the case of a Qualifying
Termination by reason of a termination by the Corporation without Cause or by Employee for Good
Reason, to the extent permitted under the Corporations medical and dental plans the Corporation
shall continue the medical and dental coverage elected by Employee for Employee and Employees
spouse and dependents (but in the case of employees dependents only for so long as they remain
dependents or until age 21 if later), without premium payments by Employee, until the earlier of
the second anniversary of the date of such Qualifying Termination and the date the Employee obtains
comparable coverage through another employer. If, for any reason, it is not possible for Employee,
Employees spouse or the other eligible dependents of Employee to participate in medical and dental
coverage pursuant to the immediately preceding sentence, the Corporation shall make arrangements to
provide comparable coverage.
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Section 5.4. Termination of Employment By Reason of Death. If there is a Termination
of Employment by reason of Employees death, then in addition to the payment to Employees estate
of Employees accrued but unpaid Base Salary:
(a) Annual Incentive Plan. Subject to Section 6.15, the Corporation shall pay to
Employees designated beneficiary or, if none, to Employees estate, as soon as is practicable
after the date of Employees death, all amounts payable (but unpaid) under the Annual
Incentive Plan with respect to any year ended on or prior to death plus, for the year of death, a
prorated amount equal to (i) the award that the Board determines Employee (had he lived) would have
received for the year in which his death occurs based on the Boards determination of the
likelihood of the Corporations achievement of targets for such year, multiplied by (ii) a
fraction, the numerator of which is the number of
days of Employment during such year prior to his
death and the denominator of which is 365.
(b) Performance Share Awards. Subject to Section 6.15, the Corporation shall pay to
Employees designated beneficiary or, if none, to Employees estate, as soon as is practicable
after the date of Employees death, all amounts payable (but unpaid) under any Performance Share
Award with respect to a Performance Cycle that had ended on or prior to the date of death, plus
with respect to each Performance Share Award held by Employee as of the date of death for each
Performance Cycle as to which at least 18 months of the related Performance Cycle had elapsed prior
to the date of death, the product of (i) the award that the Board determines Employee (had he
lived) would have received for such Performance Cycle had he remained in Employment based on the
Boards determination of the likelihood of the Corporations achievement of targets for such
Performance Cycle, multiplied by (ii) a fraction, the numerator
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of which is the number of days in
the Performance Cycle that had elapsed prior to Employees death and the denominator of which is
the total number of days in the Performance Cycle.
(c) Restricted Stock. All shares of Restricted Stock awarded to Employee, to the
extent not already vested, shall become immediately vested.
(d) Options. Notwithstanding any provision of the Stock Compensation Plan to the
contrary, all Options held by Employee, to the extent not already vested, shall become
immediately vested and, solely with respect to those Options granted to Employee on or after
the date hereof, shall remain exercisable by Employees designated beneficiary or, if none,
Employees estate through the earlier of the remainder of the original exercise period and the
third anniversary of the date of Employees death.
Section 5.5. Termination of Employment By Reason of Retirement or Early Retirement.
If there is a Termination of Employment by reason of Employees Retirement or Early Retirement,
then in addition to the payment to Employee of Employees accrued but unpaid Base Salary:
(a) Performance Share Awards. Notwithstanding any provision of the Stock Compensation
Plan to the contrary, the Corporation shall pay to Employee all amounts payable (but unpaid) under
any Performance Share Award with respect to a Performance Cycle that had ended as of the date of
Retirement or Early Retirement, as the case may be, plus with respect to each Performance Share
Award then held by Employee as to which at least 18 months of the related Performance Cycle had
elapsed as of the date of Retirement or Early Retirement, as the case may be, the product of (i)
the award that would have been payable to Employee for such Performance Cycle had he remained in
Employment, based on actual results for such Performance Cycle, and (ii) a fraction, the numerator
of which is the number of days of
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Employment in such Performance Cycle and the denominator of which
is the total number of days in such Performance Cycle. Alternatively, the Corporation in its
discretion may promptly pay to Employee any portion or all of any such payments. In any case where
payment under this Section 5.5(a) is promptly made to Employee, the amount determined under clause
(i) above shall be the award that the Board determines Employee would have received for the
Performance Cycle in which the Retirement or Early Retirement, as the case may be, occurs based on
the Boards determination of the likelihood of the Corporations achievement of targets for such
Performance Cycle. Employee acknowledges and agrees that any payments made pursuant to this
Section 5.5(a) are subject to Section 6.15.
(b) Restricted Stock. In the event there is a Termination of Employment by reason of
Employees Retirement, all shares of Restricted Stock awarded to Employee, to the extent not
already vested, shall become immediately vested. Notwithstanding any provision of the Stock
Compensation Plan to the contrary, in the event there is a Termination of Employment by reason of
Employees Early Retirement, the Corporation in its discretion may accelerate the vesting of shares
of Restricted Stock awarded to Employee, to the extent not already vested.
(c) Options. Notwithstanding any provision of the Stock Compensation Plan to the
contrary, all Options held by Employee, to the extent not already vested, shall become immediately
vested and, solely with respect to those Options granted to Employee on or after the date hereof,
shall remain exercisable through the earlier of the remainder of the original exercise period and
the third anniversary of the date of such Retirement or Early Retirement, as the case may be.
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ARTICLE 6
MISCELLANEOUS
Section 6.1. Noncompetition.
(a) Following Termination of Employment for any reason, during the period from the date of the
Termination of Employment to the second anniversary of the date of the Termination of Employment,
Employee shall not, directly or indirectly, (i) Compete in the United States, (ii) solicit any
officer or employee of the Corporation or any of its affiliates to engage in any conduct prohibited
hereby for Employee or to terminate any existing relationship with the Corporation or
such affiliate or (iii) assist any other person to engage in any activity in any manner
prohibited hereby to Employee. In any case where Employee is contemplating an activity described
in Section 6.1(a)(i) above, the Board, upon the request of Employee for a waiver, shall determine
in good faith whether Employees engaging in the proposed activity would prejudice the interests of
the Corporation and shall not unreasonably withhold its consent to such request for a waiver if it
determines that the proposed activity would not prejudice the interests of the Corporation.
(b) The need to protect the Corporation against Employees competition, as well as the nature
and scope of such protection, has been carefully considered by the parties hereto in light of the
uniqueness of Employees talent and his importance to the Corporation. Accordingly, Employee
agrees that, in addition to any other relief to which the Corporation may be entitled, the
Corporation shall be entitled to seek and obtain injunctive relief (without the requirement of a
bond) from a court of competent jurisdiction for the purpose of restraining Employee from any
actual or threatened breach of the covenant contained in Section 6.1(a).
(c) If for any reason a final decision of any court determines that the restrictions under
this Section 6.1 are not reasonable or that the consideration therefore is inadequate, such
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restrictions shall be interpreted, modified or rewritten by such court to include as much of the
duration, scope and geographic area identified in this Section 6.1 as will render such restrictions
valid and enforceable.
Section 6.2. Payment of Certain Expenses. As promptly as permitted by law the
Corporation shall pay or advance to Employee all legal fees and expenses that Employee may
reasonably incur as a result of any contest or arbitration requested by the Corporation, Employee
or others of the validity or enforceability of, or liability under, any provision of this Agreement
(including any contest initiated by Employee concerning the amount of any payment due
pursuant to this Agreement), plus in each case interest at the applicable federal rate
provided for in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended, on any
payment of legal fees and expenses that is delayed by more than 10 days following delivery by
Employee to the Corporation of a proper request for payment. If as to any such contest or
arbitration Employee does not prevail, and only in such case, within 10 days following written
demand from the Corporation Employee shall repay any advance made by the Corporation pursuant to
the immediately preceding sentence with respect to such contest or arbitration, with interest at
the applicable federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code of
1986, as amended, from the date of the Corporations payment.
Section 6.3. Assignment by Employee. Except as otherwise expressly provided herein or
in the Corporations benefit plans, the obligations, rights and benefits of Employee hereunder are
personal to him, and no such obligation, right or benefit shall be subject to voluntary or
involuntary alienation, assignment, delegation or transfer.
Section 6.4. No Funding Required. Nothing in this Agreement shall be construed as
requiring the Corporation to establish a trust or otherwise to fund any payments to be made under
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this Agreement, but the Corporation in its discretion may establish such nonqualified trusts or
other arrangements as it determines to be appropriate to assist it in meeting its obligations under
this Agreement.
Section 6.5. Disclosure of Information to the Corporation. In the event Section 5.3
becomes applicable, Employee or, in the event of Employees incapacity or death, his personal
representative shall make available to the Corporation on a confidential basis such records,
documents and other information reasonably necessary to enable the Corporation to verify the amount
of income available to offset the payments otherwise due Employee.
Section 6.6. Nondisclosure of Confidential Information. Employee acknowledges that he
is bound by the terms of an Agreement on Ideas, Inventions and Confidential Information dated March
22, 2001. Nothing in this Agreement shall be construed as limiting Employees obligations under
the aforesaid Agreement on Ideas, Inventions and Confidential Information or any successor thereto,
which shall be treated for all purposes also as obligations of Employee under this Agreement. This
Agreement in no way limits the ability of Employee to provide information covered by this Agreement
to a government entity in order to assist the government entity in the fulfillment of its duties.
Section 6.7. Waiver. The failure of either party hereto to insist upon strict
compliance by the other party with any term, covenant or condition of this Agreement shall not be
deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment or
failure to insist upon strict compliance of any right or power hereunder at any one time or more
times be deemed a waiver or relinquishment of such right or power at any other time or times.
Section 6.8. Notice. Any notice required or desired to be given pursuant to this
Agreement shall be sufficient if transmitted in writing by hand delivery or sent by prepaid
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courier
or by registered or certified mail, postage prepaid, (i) if notice is to the Corporation, to the
Corporations address hereinafter set forth, or (ii) if notice is to Employee, to Employees
address in the metropolitan District of Columbia area contained in the records of the Corporation,
or, in either such case, to such other address of a party as such party may designate in writing
and transmit to the other party in such manner. Any such notice shall be deemed given, if
transmitted by hand delivery, when delivered, if sent by courier service, one business day after
deposit with a prepaid courier service or, if sent by registered or certified mail, three business
days after deposit in the United States mail.
Section 6.9. Applicable Law. This Agreement shall be governed by the laws of the
District of Columbia without regard to any otherwise applicable conflict of laws principles.
Section 6.10. Taxes. The Corporation shall deduct from all amounts payable under this
Agreement all federal, state, local and other taxes required by law to be withheld with respect to
such amounts.
Section 6.11. Benefit. Except as otherwise expressly provided herein, this Agreement
shall inure to the benefit of and be binding upon the Corporation, its successors and assigns, and
upon Employee, his spouse, heirs, executors and administrators. The Corporation shall require any
successor (whether direct or indirect, by purchase, merger, reorganization, consolidation,
acquisition of property or stock, liquidation or otherwise) to all or substantially all of its
assets, by agreement in form and substance reasonably satisfactory to Employee, expressly to assume
and agree to perform this Agreement in the same manner and to the same extent that the Corporation
would be required to perform this Agreement if no such succession had taken place. Regardless of
whether such an agreement is executed, this Agreement shall be binding upon any
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successor of the
Corporation, and such successor shall be deemed the Corporation for purposes of this Agreement.
Section 6.12. Entire Agreement. This Agreement contains the entire understanding and
agreement between the parties relating to the terms of Employees Employment by the Corporation
and, except as otherwise provided in Section 6.16, supersedes and voids all prior written or oral
agreements or waivers between them, other than the Agreement on Ideas, Inventions and Confidential
Information dated March 22, 2001 and the Indemnification Agreement dated as of May 24, 2004 between
the Corporation and Employee. This Agreement
cannot be amended, modified or supplemented in any respect except by an agreement in writing
signed by both parties hereto.
Section 6.13. Arbitration. Any controversy or claim arising out of or relating to
this Agreement or the breach of this Agreement shall be settled by arbitration in the District of
Columbia in accordance with the laws of the District of Columbia. The arbitration shall be
conducted in accordance with the applicable rules of the American Arbitration Association. The
costs and expenses of the arbitrator(s) shall be borne by the Corporation. Except as otherwise
provided in Section 6.2, each party shall pay his or its own legal costs and other expenses (other
than the costs and expenses of the arbitrator(s)) relating to an arbitration. The award of the
arbitrator(s) shall be binding upon the parties. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction.
Section 6.14. Severability. Except as otherwise provided in Section 6.16, it is the
intent and understanding of each party hereto that, if any term, restriction, covenant or promise
herein is found to be invalid or otherwise unenforceable, then such term, restriction, covenant or
promise shall not thereby be invalid or unenforceable but shall be deemed modified to the extent
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necessary to make it enforceable and, if it cannot be so modified, shall be deemed amended to
delete therefrom such provision or portion found to be invalid or unenforceable, such modification
or amendment in any event to apply only with respect to the operation of this Agreement in the
particular jurisdiction in which such finding is made.
Section 6.15. Code Section 409A. In light of the uncertainty surrounding the proper
application of Section 409A, the parties hereto agree to cooperate to make necessary amendments to
this Agreement (including, without limitation, to the timing of any severance payments payable
pursuant to Article 5) to avoid imposition of penalties and additional taxes
under Section 409A. It is intended that the provisions of this Agreement comply with Section
409A, and all provisions of this Agreement shall be construed and interpreted in a manner
consistent with Section 409A. In particular, if necessary to avoid imposition of penalties and
additional taxes under Section 409A, (a) the timing of severance payments shall be subject to a
six-month deferral in a manner consistent with Section 409A(a)(2)(B)(i) and (b) any amounts payable
under the Annual Incentive Plan or any Performance Share Award shall be paid to Employee not later
than the expiration of two and one-half months from the end of the first taxable year in which the
amount is no longer subject to a substantial risk of forfeiture.
Section 6.16. Regulatory Approval.
The parties hereto acknowledge and agree that pursuant to Section 309(d) of the Federal
National Mortgage Association Charter Act, as amended by the Federal Housing Enterprises Financial
Safety and Soundness Act of 1992 (as so amended, the Act), 12 U.S.C. 1723a(d), no provision of
this Agreement relating to Employees benefits upon termination of employment shall be effective
unless and until such provision has been reviewed and approved by the Director. If, following
OFHEOs review and approval of such provisions, any benefit plans of
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the Corporation affecting
final termination benefits under this Agreement are altered, such alteration will require OFHEOs
review and approval at the time of termination of employment with the Corporation and prior to the
payment of any such benefits. Upon determining that Employees Employment is terminating or has
terminated, the Corporation shall timely seek OFHEOs review and approval of any alteration
referred to in the immediately preceding sentence.
The parties therefore agree as follows:
(a) The Corporation shall promptly hereafter submit this Agreement to the Director for his
review and approval of those terms hereof relating to benefits upon termination of employment and
shall seek diligently to obtain such approval;
(b) This Agreement shall take effect as of the Effective Date if the Directors approval of
terms hereof relating to benefits upon termination of employment is given by January 1, 2006.
[remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the Corporation has caused this Agreement to be executed by its duly
authorized representative, and Employee has executed this Agreement.
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Witness: |
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FANNIE MAE |
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3900 Wisconsin Avenue, N.W. |
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Washington, D.C. 20016 |
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/s/ Judith C. Dunn |
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By: |
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/s/ Joe K. Pickett |
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Chairman of the Compensation Committee of
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Date:
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Date: |
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11-15-05 |
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11-15-05 |
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Witness: |
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/s/ Beverly Fitzgerald |
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/s/ Daniel H. Mudd |
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DANIEL H. MUDD |
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Date:
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11-15-05 |
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