exv10w53







 




    Exhibit
    10.53



 




    RESTRICTIVE
    COVENANT AND CONFIDENTIALITY AGREEMENT



 



    In exchange for the mutual promises and consideration set forth
    below, this Restrictive Covenant and Confidentiality Agreement
    (“Agreement”) is entered into by and between the
    Federal Home Loan Mortgage Corporation (“Freddie Mac”
    or “Company”) and Joseph E. Smialowski
    (“Executive”), effective as of this 3rd day of
    November, 2004.



 




    I.  Definitions



 



    The following terms shall have the meanings indicated when used
    in this Agreement.



 



    A.  Competitor: The following entities, and
    their respective parents, successors, subsidiaries, and
    affiliates are competitors: (i) Fannie Mae (ii) all
    Federal Home Loan Banks (including the Office of Finance); and
    (iii) such other entities to which Executive and the
    Company may agree in writing from time-to-time.



 



    B.  Confidential Information: Information or
    materials in written, oral, magnetic, digital, computer,
    photographic, optical, electronic, or other form, whether now
    existing or developed or created during the period of
    Executive’s employment with Freddie Mac, that constitutes
    trade secrets
    and/or
    proprietary or confidential information. This information
    includes, but is not limited to: (i) all information marked
    Proprietary or Confidential; (ii) information concerning
    the components, capabilities, and attributes of Freddie
    Mac’s business plans, methods, and strategies;
    (iii) information relating to tactics, plans, or strategies
    concerning shareholders, investors, pricing, investment,
    marketing, sales, trading, funding, hedging, modeling, sales and
    risk management; (iv) financial or tax information and
    analyses, including but not limited to, information concerning
    Freddie Mac’s capital structure and tax or financial
    planning; (v) confidential information about Freddie
    Mac’s customers, borrowers, employees, or others;
    (vi) pricing and quoting information, policies, procedures,
    and practices; (vii) confidential customer lists;
    (viii) proprietary algorithms; (ix) confidential
    contract terms; (x) confidential information concerning
    Freddie Mac’s policies, procedures, and practices or the
    way in which Freddie Mac does business; (xi) proprietary or
    confidential data bases, including their structure and content;
    (xii) proprietary Freddie Mac business software, including
    its design, specifications and documentation;
    (xiii) information about Freddie Mac products, programs,
    and services which has not yet been made public;
    (xiv) confidential information about Freddie Mac’s
    dealings with third parties, including dealers, customers,
    vendors, and regulators;
    and/or
    (xv) confidential information belonging to third parties to
    which Executive received access in connection with
    Executive’s employment with Freddie Mac. Confidential
    Information does not include general skills, experience, or
    knowledge acquired in connection with Executive’s
    employment with Freddie Mac that otherwise are generally known
    to the public or within the industry or trade in which Freddie
    Mac operates.



 



    C.  Severance: Cash compensation paid pursuant
    to Freddie Mac’s Severance Policy.



 



    D.  Severance Policy: Freddie Mac
    Policy 3-254.1
    (Severance — Officers), or any subsequent and
    superceding severance policy.













 






    2




     





     





     



 




    II.  Non-Competition



 



    Executive recognizes that as a result of Executive’s
    employment with Freddie Mac, Executive has access to and
    knowledge of critically sensitive Confidential Information, the
    improper disclosure or use of which would result in grave
    competitive harm to Freddie Mac. Therefore, Executive agrees
    that neither during Executive’s employment with Freddie
    Mac, nor for the twelve (12) months immediately following
    termination of Executive’s employment for any reason, will
    Executive consider offers of employment from, seek or accept
    employment with, or otherwise directly or indirectly provide
    professional services to any Competitor. Executive acknowledges
    and agrees that this covenant has unique, substantial and
    immeasurable value to Freddie Mac, that Executive has sufficient
    skills to provide a livelihood for Executive while this covenant
    remains in force, and that this covenant will not interfere with
    Executive’s ability to work consistent with
    Executive’s experience, training and education. This
    non-competition covenant applies regardless of whether
    Executive’s employment is terminated by Executive, by
    Freddie Mac, or by a joint decision.



 




    III.  Non-Solicitation
    and Non-Recruitment



 



    During Executive’s employment with Freddie Mac and for a
    period of twelve (12) months after Executive’s
    termination date, Executive will not solicit or recruit, attempt
    to solicit or recruit or assist another in soliciting or
    recruiting any Freddie Mac managerial employee (including
    manager-level, Executive-level, or officer-level employee) with
    whom Executive worked, or any employee whom Executive directly
    or indirectly supervised at Freddie Mac, to leave the
    employee’s employment with Freddie Mac for purposes of
    employment or for the rendering of professional services. This
    prohibition against solicitation does not apply if Freddie Mac
    has notified the employee being solicited or recruited that
    his/her
    employment with the Company will be terminated pursuant to a
    corporate reorganization or
    reduction-in-force.



 




    IV.  Treatment
    of Confidential Information



 



    A.  Non-Disclosure. Executive recognizes that
    Freddie Mac is engaged in an extremely competitive business and
    that, in the course of performing Executive’s job duties,
    Executive will have access to and gain knowledge about
    Confidential Information. Executive further recognizes the
    importance of carefully protecting this Confidential Information
    in order for Freddie Mac to compete successfully. Therefore,
    Executive agrees that Executive will neither divulge
    Confidential Information to any persons, including to other
    Freddie Mac employees who do not have a Freddie Mac
    business-related need to know, nor make use of the Confidential
    Information for the Executive’s own benefit or for the
    benefit of anyone else other than Freddie Mac. Executive further
    agrees to take all reasonable precautions to prevent the
    disclosure of Confidential Information to unauthorized persons
    or entities, and to comply with all Company policies,
    procedures, and instructions regarding the treatment of such
    information.



 



    B.  Return of Materials. Executive agrees that
    upon termination of Executive’s employment with Freddie Mac
    for any reason whatsoever, Executive will deliver to
    Executive’s immediate supervisor all tangible materials
    embodying Confidential Information, including, but not limited
    to, any documentation, records, listings, notes, files, data,
    sketches, memoranda, models, accounts, reference materials,
    samples, machine-readable media, computer disks, tapes, and









 






    equipment which in any way relate to Confidential Information,
    whether developed by Executive or not. Executive further agrees
    not to retain any copies of any materials embodying Confidential
    Information.



 



    C.  Post-Termination Obligations. Executive
    agrees that after the termination of Executive’s employment
    for any reason, Executive will not use in any way whatsoever,
    nor disclose any Confidential Information learned or obtained in
    connection with Executive’s employment with Freddie Mac
    without first obtaining the written permission of the Executive
    Vice President of Human Resources of Freddie Mac. Executive
    further agrees that, in order to assure the continued
    confidentiality of the Confidential Information, Freddie Mac may
    correspond with Executive’s future employers to advise them
    generally of Executive’s exposure to and knowledge of
    Confidential Information, and Executive’s obligations and
    responsibilities regarding the Confidential Information.
    Executive understands and agrees that any such contact may
    include a request for assurance and confirmation from such
    employer(s) that Executive will not disclose Confidential
    Information to such employer(s), nor will such employer(s)
    permit any use whatsoever of the Confidential Information. To
    enable Freddie Mac to monitor compliance with the obligations
    imposed by this Agreement, Executive further agrees to inform in
    writing Freddie Mac’s Executive Vice President of Human
    Resources of the identity of Executive’s subsequent
    employer(s) and Executive’s prospective job title and
    responsibilities prior to beginning employment. Executive agrees
    that this notice requirement shall remain in effect for twelve
    (12) months following the termination of Executive’s
    Freddie Mac employment.



 



    D.  Ability to Enforce Agreement and Assist
    Government Investigations. Nothing in this Agreement
    prohibits or otherwise restricts you from: (1) making any
    disclosure of information required by law; (2) assisting
    any regulatory or law enforcement agency or legislative body to
    the extent you maintain a legal right to do so notwithstanding
    this Agreement; (3) filing, testifying, participating in or
    otherwise assisting in a proceeding relating to the alleged
    violation of any federal, state, or local law, regulation, or
    rule, to the extent you maintain a legal right to do so
    notwithstanding this Agreement; or (4) filing, testifying,
    participating in or otherwise assisting the Securities and
    Exchange Commission or any other proper authority in a
    proceeding relating to allegations of fraud.



 




    V.  Consideration
    Given to Executive



 



    In exchange for agreeing to be bound by the terms, conditions,
    and restrictions stated in this Agreement, Freddie Mac will
    provide the Executive with the following consideration, each of
    which itself is adequate consideration for Executive’s
    agreement to be bound by the provisions of this Agreement:



 



    A.  Employment. Executive will be employed by
    Freddie Mac as Executive Vice President, Technology and
    Operations.



 



    B.  Severance. Executive acknowledges that
    under Freddie Mac’s Severance Policy, Executive may be
    eligible to receive Severance upon termination of employment,
    the duration of which is within the discretion of Freddie Mac.
    In the event the Executive’s employment is terminated and
    the circumstances of the termination qualify the Executive for
    Severance under the Severance Policy, then the Executive shall
    receive Severance for twelve (12) months following
    termination. If at the time this Agreement is entered into,
    Executive occupies a













 






    position that is an “executive officer” of Freddie
    Mac, as determined by the Office of Federal Housing Enterprise
    Oversight (“OFHEO”) under section 1303(7) of the
    Federal Housing Enterprises Financial Safety and Soundness Act
    of 1992 and under OFHEO’s executive compensation regulation
    (66 Federal Register 47550 (2001)), then Executive
    acknowledges that receipt of the twelve (12) months
    severance under this paragraph is contingent upon any legally
    required approval from the Director of OFHEO. If such approval
    is not received, then Executive will not be eligible for
    Severance. The Severance guarantee provided by this
    Paragraph V(B) is in place of, and not in addition to,
    Severance to which Executive would otherwise be entitled under
    any other agreement between Executive and Freddie Mac.



 




    VI.  Reservation
    of Rights



 



    Executive agrees that nothing in this Agreement constitutes a
    contract or commitment by Freddie Mac to continue
    Executive’s employment in any job position for any period
    of time, nor does anything in this Agreement limit in any way
    Freddie Mac’s right to terminate Executive’s
    employment at any time for any reason.



 




    VII.  Compliance
    with the Code of Conduct and Corporate Policies &
    Procedures



 



    As a Freddie Mac employee, Executive will be subject to Freddie
    Mac’s Code of Conduct (“Code”) and to Corporate
    Policy 1-906,
    Investment Limitations Policy (“Policy”) that, among
    other things, limit the investment activities of Freddie Mac
    employees. Executive agrees to fully comply with the Code and
    the Policy, copies of which are enclosed for Executive’s
    review.



 



    Executive further agrees to be bound by, and comply fully with,
    his/her
    obligations under the Investment Limitations Policy. Executive
    agrees to consult with Freddie Mac’s Chief Compliance
    Officer as soon as practical prior to beginning employment about
    any investments that Executive or a “covered household
    member,” as that term is defined in the Policy, may have
    that may be prohibited by the Policy. Executive also agrees to
    disclose prior to beginning employment any other matter or
    situation that may create a conflict of interest as such term is
    defined in the Code.



 



    In addition, prior to beginning employment, Executive agrees to
    disclose to Freddie Mac’s Human Resources Division the
    terms of any employment, confidentiality or stock grant
    agreements to which Executive may currently be subject that may
    affect Executive’s future employment or recruiting
    activities so that Freddie Mac may ensure that Executive’s
    employment by Freddie Mac and conduct as a Freddie Mac employee
    are not inconsistent with any of their terms.



 




    VIII.  Absence
    of Any Conflict of Interest



 



    Executive represents that Executive does not have any
    confidential information, trade secrets or other proprietary
    information that Executive obtained as the result of
    Executive’s employment with another employer that Executive
    will be using in Executive’s position at Freddie Mac.
    Executive also represents that Executive is not subject to any
    employment, confidentiality or stock grant agreements, or any
    other restrictions or limitations imposed by a prior employer,
    which would affect Executive’s ability to perform the
    duties and responsibilities for Freddie Mac













 






    in the job position offered, and further represents that
    Executive has provided Freddie Mac with copies of any such
    agreements or limitations so that Freddie Mac can make an
    independent judgment that Executive’s employment with
    Freddie Mac is not inconsistent with any of its terms.



 




    IX.  Enforcement



 



    A.  Executive acknowledges that Executive may be
    subject to discipline, up to and including termination of
    employment, for Executive’s breach or threat of breach of
    any provision of this Agreement.



 



    B.  Executive agrees that irreparable injury will
    result to Freddie Mac’s business interests in the event of
    breach or threatened breach of this Agreement, the full extent
    of Freddie Mac’s damages will be impossible to ascertain,
    and monetary damages will not be an adequate remedy for Freddie
    Mac. Therefore, Executive agrees that in the event of a breach
    or threat of breach of any provision(s) of this Agreement,
    Freddie Mac, in addition to any other relief available, shall be
    entitled to temporary, preliminary, and permanent equitable
    relief to restrain any such breach or threat of breach by
    Executive and all persons acting for
    and/or in
    concert with Executive, without the necessity of posting bond or
    security, which Executive expressly waives.



 



    C.  Executive agrees that each of Executive’s
    obligations specified in this Agreement is a separate and
    independent covenant, and that all of Executive’s
    obligations set forth herein shall survive any termination, for
    any reason, of Executive’s Freddie Mac employment. To the
    extent that any provision of this Agreement is determined by a
    court of competent jurisdiction to be unenforceable because it
    is overbroad, that provision shall be limited and enforced to
    the extent permitted by applicable law. Should any provision of
    this Agreement be declared or determined by any court of
    competent jurisdiction to be unenforceable or invalid under
    applicable law, the validity of the remaining obligations will
    not be affected thereby and only the unenforceable or invalid
    obligation will be deemed not to be a part of this Agreement.



 



    D.  This Agreement is governed by, and will be
    construed in accordance with, the laws of the Commonwealth of
    Virginia, without regard to its or any other jurisdiction’s
    conflict-of-law provisions. Executive agrees that any action
    related to or arising out of this Agreement shall be brought
    exclusively in the United States District Court for the Eastern
    District of Virginia, and Executive hereby irrevocably consents
    to personal jurisdiction and venue in such court and to service
    of process by United States Mail or express courier service in
    any such action.



 



    E.  If any dispute(s) arise(s) between Freddie Mac and
    Executive with respect to any matter which is the subject of
    this Agreement, the prevailing party in such dispute(s) shall be
    entitled to recover from the other party all of its costs and
    expenses, including its reasonable attorneys’ fees.



 



    Executive has been advised to discuss all aspects of this
    Agreement with Executive’s private attorney. Executive
    acknowledges that Executive has carefully read and understands
    the terms and provisions of this Agreement and that they are
    reasonable. Executive signs this Agreement voluntarily and
    accepts all obligations contained in this Agreement in exchange
    for the consideration to be given to Executive as outlined
    above, which Executive acknowledges is adequate and
    satisfactory, and which Executive further acknowledges













 






    Freddie Mac is not otherwise obligated to provide to
    Executive. Neither Freddie Mac nor its agents, representatives,
    directors, officers or employees have made any representations
    to Executive concerning the terms or effects of this Agreement,
    other than those contained in this Agreement.



 


	 	 	 
	

    By: /s/  Joseph
    A. Smialowski


    
Joseph
    A. Smialowski



	
 
	

    Date: November 3, 2004

    





	
 
	
 
	
 

	

    By: /s/  Michael
    W. Hager


    
Freddie
    Mac

    



	
 
	

    Date: November 5, 2004