EXHIBIT 10.14
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
as of the 30th day of January, 2004, by and between Mortgage Guaranty Insurance
Corporation, a Wisconsin corporation, with its principal place of business
located at 250 East Kilbourn Avenue, Milwaukee, Wisconsin 53202 ("MGIC"), and
James S. MacLeod, an individual residing at [address appears in executed
agreement] ("MacLeod").
WITNESSETH:
WHEREAS, MacLeod currently is employed by MGIC as its Executive Vice
President - Field Operations; and
WHEREAS, MacLeod previously has submitted to MGIC his resignation as an
officer and employee of MGIC, to become effective upon his retirement on January
30, 2004; and
WHEREAS, following MacLeod's retirement, MGIC desires to retain, from
time to time, the consulting services of MacLeod, subject to the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, MacLeod and MGIC
hereby agree as follows:
1. CONFIRMATION OF RETIREMENT AND RESIGNATION. MacLeod shall retire and
resign all of his officer and employee positions with MGIC and all of MGIC's
parent, subsidiary, and affiliated corporations, effective as of the close of
MGIC's business on Friday, January 30, 2004 (the "Retirement Date").
2. CONSULTING ASSIGNMENTS. Following the Retirement Date, MacLeod will
provide consulting services to MGIC and its affiliates on a project basis. The
nature of each project shall be specified by either the Chief Executive Officer
or the Executive Vice President - Field Operations of MGIC, and shall be subject
to acceptance by MacLeod. Each such project shall be commensurate with MacLeod's
prior officer position and status with MGIC. Nothing contained herein shall be
deemed to confer upon MacLeod any right to perform services for MGIC or receive
fees from MGIC for any particular period of time, it being understood and agreed
that either party may terminate the consulting relationship at anytime pursuant
to Section 7 below.
3. COMPENSATION. MGIC shall pay MacLeod fees ("Consulting Fees") in the
amount of Two Hundred Dollars ($200.00) per hour for services performed by
MacLeod hereunder. In addition to the Consulting Fees, MGIC shall pay, or
reimburse MacLeod, for reasonable travel and living expenses, if any, incurred
by MacLeod in performing the Services, including transportation, hotel
accommodations and meal expenses, subject to MGIC's established expense
reimbursement guidelines and policies. MacLeod shall be responsible for all
other costs and expenses incurred by MacLeod in performing services hereunder.
MacLeod shall prepare invoices on a bi-weekly basis itemizing the number of
hours worked and the
reimbursable expenses incurred during the previous two week period pursuant to
this Agreement. MGIC shall pay the Consulting Fees earned by MacLeod, and pay or
reimburse MacLeod for the reimbursable expenses, reflected on such invoices
within five (5) business days after MGIC's receipt of such invoices.
4. CONFIDENTIALITY. MacLeod hereby acknowledges and agrees that MGIC is
engaged in a service business involving Confidential Information, that such
Confidential Information is used by MGIC in its business to obtain a competitive
advantage over Competitors, and that the success of MGIC's business is in large
part due to MGIC's exclusive retention of said Confidential Information. MacLeod
further acknowledges that the protection of such Confidential Information
against unauthorized disclosure and use is of critical importance to MGIC in
maintaining its competitive position. Accordingly, MacLeod agrees that the
following terms and conditions shall apply to all Confidential Information:
A. For purposes of this Agreement, the term "Confidential
Information" shall include, without limitation, all data,
reports, specifications, know how, programs, plans,
strategies, marketing research, documents, procedures, forms,
customer information, systems, software, Work Product (as
defined in Section 5 hereof), and other materials and
information concerning MGIC or its activities which MacLeod
may be provided, may come in contact with, or may develop
during the course of this relationship, that are not generally
available to the public.
B. All Confidential Information will be used by MacLeod only for
the purpose of providing consulting services to MGIC.
C. MacLeod will not reproduce or duplicate any Confidential
Information without the written consent of MGIC.
D. Except as otherwise required by any law, court order or
subpoena, MacLeod will not disclose, make any independent use
of, publish, furnish, sell, assign or transfer any
Confidential Information to any third party, or authorize
anyone else to disclose, publish, furnish, sell, assign or
transfer any Confidential to any person or entity, without the
prior written approval or instruction of an authorized officer
of MGIC.
E. The terms, conditions and provisions of this Section 3 shall
survive the expiration and termination of this Agreement.
5. RETURN OF DOCUMENTS AND RECORDS. MacLeod hereby acknowledges and
agrees that all written or electronically stored materials received by MacLeod
from MGIC during the course of this Agreement are, and will remain at all times,
the sole property of MGIC. Promptly upon the expiration or termination of this
Agreement for any reason, or at any other time upon request by MGIC, MacLeod
will promptly deliver to MGIC all documents and records in the possession or
under the control of MacLeod which pertain to MGIC, any of its activities, or
any of MacLeod's services provided hereunder.
6. WORK PRODUCT. The work product of MacLeod shall include, without
limitation, all tangible products, reports, plans, programs, procedures,
recommendations, forms, information recorded by any medium, documents, written
materials, inventions, software, data, and any and all
other work product, or any portion thereof, prepared, generated or provided by
MacLeod in connection with MacLeod's performance under this Agreement ("Work
Product"). All Work Product shall be deemed "Work Made for Hire" and shall be
the sole property of MGIC. MacLeod hereby assigns all rights, title and interest
to MGIC in any and all Work Product, and all drafts thereof, including, without
limitation, all worldwide copyright, trademark, trade secret and other
proprietary rights in such Work Product. MacLeod further agrees to execute any
documentation reasonably required by MGIC in the future to reflect MGIC's rights
in and to such Work Product.
7. INDEPENDENT CONTRACTOR. In the performance of services hereunder,
MacLeod shall be an independent contractor and not an employee or agent of MGIC.
MacLeod shall have no authority to enter agreements on behalf of MGIC or
otherwise bind MGIC to any third party. MacLeod shall have no authority to act
in any way as a representative of MGIC, unless otherwise expressly agreed in
writing by MGIC. MacLeod shall supply all services hereunder at his own risk and
MacLeod shall not, by virtue of this Agreement or the performance of services
hereunder, be entitled to Worker's Compensation Insurance or any other insurance
or benefits provided by MGIC as a result of this Agreement or the performance of
services hereunder. MacLeod shall make his/her own arrangements for insurance at
Consultant's sole cost, which insurance shall be MacLeod's sole and exclusive
remedy for any damage or personal injury suffered in connection with this
Agreement. No person engaged by MacLeod shall be entitled to compensation or
benefits of any kind from MGIC. Neither MacLeod, nor anyone employed or retained
by MacLeod, shall be eligible to participate in or be covered by any employee
benefit plan or program sponsored by or through MGIC as a result of this
Agreement or the performance of services hereunder. In the event MacLeod's
employees or subcontractors are characterized by the Internal Revenue Service or
by any other taxing authority or other government agency (whether federal, state
or local) as employees of MGIC, and MGIC shall become liable for the withholding
or payment of any tax on income earned by any person hereunder or for any other
governmental charge or assessment by reason of such characterization, then
MacLeod shall promptly indemnify MGIC for such amount and any ancillary
penalties and interest. Such indemnification shall extend to any and all
reasonable costs, including attorney's fees, incurred by MGIC in connection with
such a loss, liability or claim. Nothing herein is intended to preclude
MacLeod's simultaneous or subsequent engagement by third parties provided only
that such services do not interfere with MacLeod's obligations under this
Agreement, are consistent with MacLeod's duties of confidentiality provided for
herein, and do not otherwise violate or breach MacLeod's covenants and
obligations set forth herein. MacLeod warrants that no laws, regulations or
ordinances of the United States, or any state or other government authority or
agency, including the Fair Labor Standard Act, as amended, has been or will be
violated in the performance of services and agrees to indemnify and hold MGIC
harmless from any and all claims arising from MacLeod's breach hereof. MacLeod
shall, at MacLeod's own expense, comply with all other laws, rules and
regulations and assume all liabilities or obligations imposed by such laws,
rules and regulations with respect to MacLeod's performance of services.
Additionally, MacLeod shall be responsible for the payment of applicable taxes
and imposts levied or based upon the income of MacLeod or the fees payable to
MacLeod by MGIC including, but not limited to, FICA and federal, state and local
income taxes, unemployment insurance taxes; and any other income and employment
taxes or levies. MacLeod shall indemnify and hold MGIC harmless from any loss,
liability or claim resulting from breach of any representation, warranty or
covenant herein, or arising out of any action by MacLeod that is inconsistent
with MacLeod's status as an independent contractor hereunder.
8. TERMINATION. Either party may terminate this Agreement, without
cause, for its convenience, at any time during the course of MacLeod's
performance hereunder by providing written notice to the other party. If this
Agreement is terminated for any reason, MacLeod shall be paid all fees earned
for services performed prior to the effective date of termination which have not
been previously paid by MGIC. In no event shall MacLeod be entitled to any
unabsorbed overhead or anticipatory profit of any kind.
9. ASSIGNMENT AND SUBCONTRACTING. This Agreement may be assigned by
MGIC to MGIC Investment Corporation, the parent of MGIC, or to any direct or
indirect subsidiary of MGIC Investment Corporation. This Agreement may not
otherwise be subcontracted or assigned by either party without the prior,
express, written consent of the other party hereto.
10. NOTICES. Unless otherwise specified, all notices required or
permitted to be given under this Agreement must be in writing to be effective
and must be: (i) delivered to the party (in which event the notice is effective
at the time of delivery); or (ii) mailed by regular, certified or registered
mail (in which event the notice is effective as of the second Business Day
following mailing, regardless of actual receipt, if sent by certified or
registered mail or, upon receipt, if sent by regular mail); or (iii) sent by an
express delivery service with guaranteed next Business Day delivery (in which
event the notice is effective on the first Business Day following delivery to
such carrier, regardless of actual receipt); or (iv) sent by telecopy, with a
copy sent via regular, certified or registered mail (in which event the notice
is effective on the next Business Day following telecopy transmission). Notices
must be addressed to the appropriate party, as follows:
If to MGIC:
Mortgage Guaranty Insurance Corporation
250 East Kilbourn Avenue
Milwaukee, WI 53202
Attention: Vice President-Human Resources
If to MacLeod:
James S. MacLeod
[Address appears in
executed agreement]
11. EQUAL EMPLOYMENT. Unless exempt, if MacLeod hires any employees or
retains any independent contractors for any purpose, MacLeod will comply with
U.S. Department of Labor regulations regarding (a) equal employment opportunity
obligations of government contractors and subcontractors, 41 Code of Federal
Regulations ("C.F.R.") Section 60-1.4(a)(1)-(7); (b) employment by government
contractors of Vietnam-era and disabled veterans, 41 C.F.R. Section
60-250.4(a)-(m); (c) employment of the handicapped by government contractors and
subcontractors, 41 C.F.R. Section 60-741.4(a)-(f); (d) developing written
affirmative action programs, 41 C.F.R. Sections 60-1.40, 60-2.1, 60-250.5 and
60-741.5; (e) certifying no segregated facilities, 41 C.F.R. Section 60-1.8; (f)
filing annual EEO-1 reports, 41 C.F.R. Section 60-1.7; and (g) utilizing
minority-owned and female-owned business concerns, 48 C.F.R. Section 52-219.9
and 52-219.12, which are incorporated by reference herein.
12. ADVERTISING AND PROMOTIONAL ACTIVITIES. MacLeod shall not use, in
any advertising or promotional material or media, MGIC's name or logo or that of
any affiliate of MGIC, or otherwise identify MGIC as a client of MacLeod,
without MGIC's prior written consent.
13. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
14. GOVERNING LAW. This Agreement shall be governed by, construed and
interpreted under the laws of the State of Wisconsin without reference to such
State's conflict of laws principles.
15. WAIVER. Failure or delay by either party to enforce compliance with
any term or condition of this Agreement shall not constitute a waiver of such
term or condition. A waiver of any breach or default under this Agreement shall
not constitute a waiver of any subsequent breach or default.
16. AMENDMENTS. No modification or amendment of this Agreement shall be
binding unless in writing and signed by the party sought to be bound.
17. TITLE AND HEADINGS. The title and section headings of this
Agreement have been inserted for convenience of reference only, do not
constitute a part of this Agreement, and shall not be construed to limit,
expand, or otherwise modify the effect of any provision of this Agreement.
18. SEVERABILITY. If any term or provision of this Agreement, or the
application thereof, shall to any extent be invalid or unenforceable, and the
intent of the parties hereto in entering into this Agreement is not materially
frustrated or negated thereby, the remainder of this Agreement, or the
application of such term or provision to circumstances other than those to which
it is invalid or unenforceable, shall not be affected thereby, and shall be
enforced to the full extent permitted by law.
19. ENTIRE AGREEMENT. Each of the parties hereby acknowledges that it
has read this Agreement and understands and agrees to be bound by its terms and
conditions. This Agreement is the complete and exclusive statement of the
agreement between the parties hereto which supersedes all prior agreements,
offers, proposals, understandings and other communications between the parties
hereto, oral or written, regarding the subject matter hereof.
IN WITNESS WHEREOF, MGIC and MacLeod have executed this Agreement as of
the date first set forth above.
MORTGAGE GUARANTY INSURANCE JAMES S. MacLEOD
CORPORATION
By: /s/ Patrick Sinks /s/ James S. MacLeod
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Patrick Sinks
Senior Vice President - Field Operations