Exhibit 10.9
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement (the "First Amendment"), made
and entered into as of the 24th day of July, 2003, is by and among (i) Xxxxx X.
Xxxxxx (the "Executive") and (ii) CRIIMI MAE Inc., a Maryland corporation (the
"Company").
RECITALS
WHEREAS, the Company and the Executive entered into an Employment Agreement
(the "Agreement"), dated as of July 25, 2001;
WHEREAS, the Agreement currently terminates on July 25, 2003;
WHEREAS, the parties have not reached an agreement with respect to
continued employment other than as set forth in this First Amendment;
WHEREAS, on July 25, 2003, the Executive would have been entitled to all
the rights and benefits provided under Section 6.5, to be paid or provided in
accordance with the terms thereof, including, without limitation, severance
compensation equal to his Base Salary then in effect for eighteen (18) months
and a payment equal to the greater of (i) the Reorganization Payments or (ii)
all Earned Bonuses;
WHEREAS, the parties wish to afford a time period to reach an agreement
with respect to continued employment and pursuant to this First Amendment the
Executive shall become entitled to the rights and benefits provided under
Section 6.5, to be paid or provided in accordance with the terms thereof, on
August 25, 2003 rather than on July 25, 2003, as set forth in Section 1(b)
below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. Amendatory Provisions.
(a) Section 2 of the Agreement is hereby amended by deleting the phrase
"until the second anniversary thereof" from the first sentence of such section
and inserting in lieu thereof "through August 25, 2003".
(b) Section 6.5 of the Agreement is hereby amended by deleting the phrase
"second anniversary of the commencement of" from the first sentence of such
section and inserting in lieu thereof "on August 25, 2003".
2. Existing Agreement.
(a) Except as expressly amended hereby, all of the terms, covenants and
conditions of the Agreement (i) are ratified and confirmed; (ii) shall remain
unamended and not waived; and (iii) shall continue in full force and effect.
(b) With the exception of changing the date on which the Executive becomes
entitled to the subject rights and benefits, execution of this First Amendment
shall not affect the Executive's entitlement to the rights and benefits set
forth in the Employment Agreement, including, without limitation, Section 6.5
(including its subsections). To avoid ambiguity, the parties hereto acknowledge
and agree that if the Executive is not an employee of the Company on August 26,
2003, the Executive shall be entitled to receive severance compensation equal to
his Base Salary then in effect for eighteen (18) months after August 25, 2003,
payable semi-monthly, together with a payment within ninety (90) days after
August 25, 2003 equal to the greater of (i) the Reorganization Payments or (ii)
all Earned Bonuses. Nothing in this First Amendment, including the preceding
sentence, is intended to exclude any other rights and benefits set forth in the
Employment Agreement to which the Executive is entitled.
3. Governing Law. This First Amendment shall be governed by the internal
laws of the State of Maryland without giving effect to the principles of
conflict of laws thereof.
4. Counterparts. This First Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which, taken
together, shall constitute one and the same instrument.
5. Severability. The provisions of this First Amendment and the Agreement
are severable, and if any one or more provisions may be determined to be illegal
or otherwise unenforceable, in whole or in part, the remaining provisions and
any partially unenforceable provision to the extent enforceable nevertheless
shall be binding and enforceable.
[Remainder of page intentionally blank; signature pages follow.]
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IN WITNESS WHEREOF, the Company has caused this First Amendment to be
executed by its duly authorized officer and the Executive has executed this
First Amendment as of the date and year first above written.
CRIIMI MAE INC.,
a Maryland corporation
/s/Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Chairman of the Board, Chief Executive
Officer and President
Signatures Continue on the Following Page
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EXECUTIVE
/s/Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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