EXECUTIVE EMPLOYMENT AGREEMENT
This
Executive Employment Agreement (the “Agreement”)
by and
between Xxxxxx Xxxxxxxxxx (“Executive”) and
NorthStar Realty Finance Corp. (the “Company”),
is
dated as of March 22, 2006.
WHEREAS,
Executive and the Company desire to memorialize the terms and conditions related
to Executive’s employment by the Company.
NOW
THEREFORE, in consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Agreements
Between the Parties.
This
Agreement is intended to memorialize all of the terms and conditions of
Executive’s employment by the Company.
2. Employment.
(a) Term.
The
Company shall employ Executive, and Executive agrees to be employed with the
Company, upon the terms and conditions set forth in this Agreement, for the
period beginning on a date mutually agreed between the Company and Executive
which is not later than April 17, 2006 (the “Effective
Date”)
and
ending on
the
third anniversary of the Effective Date
(the
“Employment
Period”);
provided,
however,
that
commencing on the third anniversary of the Effective Date and on each subsequent
anniversary of the Effective Date (each such anniversary, a “Renewal
Date”),
the
Employment Period shall automatically be extended for one additional year
unless, not later than 90 days prior to such Renewal Date, the Company or
Executive shall have given written notice not to extend the Employment Period;
provided,
further,
however,
that the Employment Period shall be subject to earlier termination as provided
in Section 5(b) hereof (the “Term”).
(b) Base
Salary.
Executive’s initial base salary shall be $250,000 per annum (pro-rated for
partial calendar years), payable in equal bi-monthly installments (as in effect
from time to time, the “Base
Salary”).
In
subsequent years of the Term, the Base Salary shall be subject to annual review
and may be increased, but not decreased (including following any such increase),
from time to time by the compensation committee of the Company’s board of
directors (the “Compensation
Committee”),
taking into account such factors as the Compensation Committee deems
appropriate, including but not limited to the salaries of executive officers
having similar titles and performing similar functions at comparable
companies.
(c) Annual
Cash Bonus.
For
fiscal years during Executive’s employment with the Company, Executive shall
participate in an annual cash incentive compensation plan as adopted and
approved by the board of directors of the Company (the “Board”)
from
time to time, with applicable corporate and individual performance targets
and
maximum award amounts determined by the Board or the Compensation Committee
in
consultation with the Company’s management (the “Annual
Cash Bonus”).
The
initial target amount of the Annual Cash Bonus shall be 240% of Executive’s Base
Salary, and the Annual Cash Bonus shall be no less than that amount if the
applicable targets are attained. The actual Annual Cash Bonus may be greater
than the target amount or, if the applicable targets are not attained, less
than
the target amount, in each case as determined by the Board, in its discretion,
subject to approval of the Compensation Committee; provided
that,
notwithstanding the foregoing, Executive shall be entitled to a minimum Annual
Cash Bonus of $600,000 for the 2006 calendar year payable in February 2007,
subject, except as set forth in Section 6(b), to Executive being employed by
the
Company at the time the Company makes 2006 annual bonus payments to employees.
Any Annual Cash Bonus payable to Executive will be paid at the time the Company
normally pays such bonuses to its senior executives and, except as set forth
in
Section 6(b), shall be subject to Executive being employed by the Company at
the
time the Company makes annual bonus payments to employees, but in no event
later
than 2-1/2 months following the end of the applicable fiscal year, and will
be
subject to the terms and conditions of the applicable annual cash incentive
compensation plan (to the extent not inconsistent with this
Agreement).
(d) Signing
Consideration Equity Awards.
In
consideration of Executive leaving Executive’s current employment and forfeiting
certain rights and benefits, Executive shall receive $500,000 of additional
consideration in the form of (i) a cash payment of $250,000 payable on or before
January 15, 2007, provided that prior to January 1, 2007 Executive has not
been
terminated “for cause,” as defined in paragraph 4(c) hereof, or has not
voluntarily terminated his employment other than for “good reason,” as defined
in paragraph 4(d) hereof, and (ii) a grant, effective as of the commencement
date of Executive’s employment of $250,000 in equity awards, approximately 50%
of which will be in the form of restricted LTIP Units under the NorthStar Realty
Finance Corp. 2004 Omnibus Stock Incentive Plan (the “Stock
Plan”)
and
approximately 50% of which will be in the form, at the Company’s election, of an
allocation of shares or LTIP Units (or the cash equivalent value) under the
terms and subject to the conditions provided in the NorthStar Realty Finance
Corp. 2004 Long-Term Incentive Bonus Plan (the “Bonus
Plan”).
In
addition to the signing consideration referenced above, Executive shall receive
an additional $1,000,000 in equity awards, approximately 50% of which will
be in
the form, at the Company's election, of an allocation of shares or LTIP Units
(or the cash equivalent value) under the terms and subject to the conditions
provided in the Bonus Plan. The specific terms of the vesting and other terms
associated with the restricted LTIP Units will be governed by an LTIP Unit
Vesting Agreement, dated the date hereof. The number of restricted LTIP Units
issued to Executive under the Stock Plan will be determined based on the average
closing price of the Company’s shares over the 20 trading days prior to the date
of commencement of Executive’s employment. From the date of the grant of
restricted LTIP Units under the Stock Plan referenced above and for the duration
of the vesting period, Executive will receive dividend distributions on the
same
basis as other shareholders of the Company. In addition to the equity awards
provided to Executive above, Executive shall receive an allocation of 10% of
the
amount awarded under the Company’s 2006 Outperformance Plan (the “OPP
Plan”)
subject to the vesting requirements of the OPP Plan.
(e) Long
Term Incentive Compensation.
During
Executive’s employment with the Company, Executive shall be eligible to receive
long term equity incentive compensation awards (which may consist of restricted
stock, stock options, stock appreciation rights or other types of equity or
cash
bonus awards, as determined by the Board in its discretion) pursuant to the
Company’s equity incentive compensation plans and programs in effect from time
to time including, without limitation, the Stock Plan, the Bonus Plan and the
OPP Plan. Other awards shall be granted in the discretion of the Board and
shall
include such terms and conditions (including performance objectives) as the
Board deems appropriate.
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(f) Vacation.
Executive shall be eligible for up to four weeks of annual vacation to be
accrued and payable in accordance with the Company’s policy with respect to
senior executives.
(g) Other
Benefits.
In
addition, Executive will be eligible to participate in all fringe benefit plans
and retirement plans of the Company, as are generally available to the other
senior management employees of the Company, such as health insurance plans,
disability insurance plans, life insurance plans, expense reimbursement and
the
Company’s 401(k) retirement plan.
3. Duties
of Executive.
(a) Duties
of Position.
During
the Employment Period, Executive shall serve as Executive Vice President, Chief
Financial Officer & Treasurer of the Company. Executive’s duties shall
include, without limitation, primary responsibility for the Company’s financial
functions, including all accounting, financial reporting, treasury, budgeting,
forecasting and planning, including responsibility for the Company’s earnings
model; oversight responsibility of real estate investment trust compliance,
Investment Company Act compliance, investor relations, research, risk
management, information technology systems and functions, benefits and payroll;
and involvement in all equity and debt financings, together with such other
reasonable assignments as may be assigned to him from time to time by the Board.
Executive shall perform such duties and responsibilities, consistent with the
preceding sentence and with Executive’s title, training and experience, as are
from time to time reasonably assigned to Executive by the Board or the Company’s
Chief Executive Officer. Executive
agrees to devote substantially all of Executive’s business time, attention and
energies to the performance of the duties assigned to Executive hereunder,
and
to perform such duties faithfully, diligently and to the best of Executive’s
abilities and subject to such laws, rules, regulations and policies from time
to
time applicable to the Company’s employees. The Company may assign all or a
portion of its rights and obligations under this agreement to any of its
affiliates or enter into an agreement with any of its affiliates that provides
that Executive will perform services on behalf of such affiliate and Executive
agrees to provide such services, as directed by the Company.
(b) Confidential
Information.
Executive shall hold in confidence for the benefit of the Company all of the
information (other than information concerning
corporate opportunities)
and
business secrets in respect of the Company and all of its affiliates, including,
but not limited to, all information and data relating to or concerned with
the
business, finances, pending transactions and other affairs of the Company and
all of its affiliates, and Executive shall not at any time before or after
Executive’s employment by
the
Company
is
terminated
for any
reason, or Executive resigns for any reason, willfully use or disclose or
divulge any such information or data to any other Person (as defined below)
except (i) with the prior written consent of the Company, (ii) to the
extent necessary to comply with applicable law or the valid order of a court
of
competent jurisdiction, in which event Executive shall notify the Company as
promptly as reasonably practicable (and, if possible, prior to making such
disclosure) and (iii) in the performance of Executive’s duties hereunder. With
respect to information concerning corporate opportunities of the Company and
all
of its affiliates that are developed, initiated or become known to Executive
during his employment with the Company, Executive shall hold in confidence
for
the benefit of the Company all of such information in respect of the Company
and
all of its affiliates, including, but not limited to, all information and data
relating to or concerned with such opportunities of the Company and all of
its
affiliates, and Executive shall not at any time before or within one year after
Executive’s employment by the Company is terminated for any reason, or Executive
resigns for any reason, willfully use or disclose or divulge any information
relating to any such corporate opportunities to or for the benefit of the
Executive or any other Person (as defined below) except (i) with the prior
written consent of the Company, (ii) to the extent necessary to comply with
applicable law or the valid order of a court of competent jurisdiction, in
which
event Executive shall notify the Company as promptly as reasonably practicable
(and, if possible, prior to making such disclosure) and (iii) in the performance
of Executive’s duties hereunder. The foregoing provisions of this Section 3(b)
shall not apply to any information or data which has been previously disclosed
to the public or is otherwise in the public domain in each case other than
as a
result of the breach by Executive of his obligations under this Section 3(b).
For purposes of this Agreement, “Person”
means
an individual, corporation, partnership, limited liability company, joint
venture, association, trust, unincorporated organization, other entity or
“group” (as defined in the Securities Exchange Act of 1934).
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4. Termination
of Employment.
Executive’s
employment hereunder may be terminated in accordance with this Section 4.
(a) Death.
Executive’s employment hereunder shall terminate upon his death.
(b) Disability.
If, as
a result of Executive’s incapacity due to physical or mental illness, Executive
shall have been absent from the full-time performance of his duties hereunder
for the entire period of six consecutive months, and within 30 days after
written Notice of Termination (as defined in Section 8) is given shall not
have
returned to the performance of his duties hereunder on a full-time basis, the
Company may terminate Executive’s employment hereunder for “Disability.”
(c) Cause.
The
Company may terminate Executive’s employment hereunder for Cause. For purposes
of this Agreement, the Company shall have “Cause”
to
terminate Executive’s employment hereunder upon the occurrence of any of the
following events:
(i) the
conviction of Executive for the commission of a felony;
(ii) continuing
willful failure for 10 business days to substantially perform his duties
hereunder (other than such failure resulting from Executive’s incapacity due to
physical or mental illness or subsequent to the issuance of a Notice of
Termination by Executive for Good Reason) after demand for substantial
performance is delivered by the Company in writing that specifically identifies
the manner in which the Company believes Executive has not substantially
performed his duties; or
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(iii) misconduct
by Executive (including, but not limited to, breach by Executive of the
provisions of Section 7) that is demonstrably and materially injurious to the
Company or its subsidiaries, whether monetarily or otherwise.
(d) Good
Reason.
Executive may terminate his employment hereunder for “Good
Reason”
within
30 days after Executive’s actual knowledge of the occurrence, without his
written consent, of one of the following events that has not been cured within
10 business days after written notice thereof has been given by Executive to
the
Company:
(i) the
assignment to Executive of duties materially inconsistent with his status as
the
Executive Vice President, Chief Financial Officer & Treasurer of the Company
or the Executive is directed to directly report to other than the Board or
the
Company’s Chief Executive Officer;
(ii) a
reduction by the Company in Executive’s Base Salary or a failure by the Company
to pay any Base Salary or contractually committed cash bonus payment amounts
when due;
(iii) following
the Change of Control (as defined below) of the Company, the requirement by
the
Company that the principal place of performance of Executive’s services be at a
location more than fifty (50) miles miles from the greater New York City
metropolitan area;
(iv) any
purported termination of Executive’s employment which is not effected pursuant
to a Notice of Termination satisfying the requirements of Section
5(a);
(v) a
material failure by the Company to comply with any other material provision
of
this Agreement.
(e) Change
of Control.
For the
purposes of Section 4(d) above, a “Change of Control” of the Company shall be
deemed to have occurred if an event set forth in any one of the following
paragraphs (i)-(iii) shall have occurred:
(i) any
Person is or becomes Beneficial Owner (as defined below), directly or
indirectly, of securities of the Company representing thirty-five percent (35%)
or more of the combined voting power of the then outstanding securities of
the
Company, excluding (A) any Person who becomes such a Beneficial Owner in
connection with a transaction described in clause (x) of paragraph (ii) below,
(B) any Person who becomes such a Beneficial Owner through the issuance of
such
securities with respect to purchases made directly from the Company, and (C)
NorthStar Capital Investment Corp. (“NCIC”)
and
its controlled affiliates; or
5
(ii) the
consummation of a merger or consolidation of the Company with any other
corporation or the issuance of voting securities of the Company in connection
with a merger or consolidation of the Company (or any direct or indirect
subsidiary of the Company) pursuant to applicable stock exchange requirements,
other than (x) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity or any parent
thereof) fifty percent (50%) or more of the combined voting power of the
securities of the Company or such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation, or (y) a merger
or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no Person, other than NCIC together with its
controlled affiliates, is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing thirty-five percent (35%)
or more of the combined voting power of the then outstanding securities of
the
Company; or
(iii) the
stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the assets of the Company.
For
purposes of this Agreement, “Beneficial Owner” shall have the meaning set forth
in Rule 13d-3 under the Exchange Act.
(f) The
Company may terminate Executive’s employment at any time for any reason,
including without Cause.
(g) Executive
may resign and terminate his employment without Good Reason upon sixty (60)
days
advance written notice to the Company.
5. Termination
Procedure.
(a) Notice
of Termination.
Any
termination of Executive’s employment by the Company or by Executive (other than
termination pursuant to Section 6(a) hereof) shall be communicated by written
Notice of Termination to the other party hereto in accordance with Section
12.
For purposes of this Agreement, a “Notice
of Termination”
shall
mean a notice that shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive’s
employment under the provision so indicated.
(b) Effect
of Date of Termination.
“Date
of Termination”
of
this
Agreement shall mean (i) if the Term of this Agreement expires without renewal
as of the third anniversary of the Effective Date or any subsequent Renewal
Date, the date of such expiration (ii) if Executive’s employment is terminated
pursuant to Section 4(a) above, the date of Executive’s death (iii) if the
Executive’s employment is terminated pursuant to Section 4(b) above, 30 days
after delivery to the Executive of Notice of Termination (provided that
Executive shall not have returned to the performance of his duties on a
full-time basis during such 30 day period), (iv) if Executive’s employment
is terminated pursuant to Sections 4(c) and 4(f) above, the date specified
in
the Notice of Termination, and (v) if Executive’s employment is terminated
pursuant to Section 4(d) above, the date on which a Notice of Termination is
given or any later date (within 30 days) set forth in such Notice of
Termination. Upon the Date of Termination, the Term of this Agreement shall
expire and the Company shall have no further obligation to the Executive except
to the extent the Executive is otherwise entitled to any unpaid salary or
benefits hereunder and insurance coverage in accordance with applicable law;
provided that the provisions set forth in clause (i) of the first sentence
of
Section 2(d), Sections 3(b), 6(b), 6(c), 7, and 14 hereof and this Section
5(b)
shall remain in full force and effect after the termination of the Executive’s
employment, notwithstanding the expiration of the Term of or termination of
this
Agreement.
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6. Obligations
of the Company Upon Termination of Employment.
(a) Expiration
of Term, By the Company for Cause or by Executive without Good
Reason.
If
Executive’s employment shall be terminated:
(i) due
to
and upon expiration of the Term of this Agreement the Company shall pay
Executive his full salary through the Date of Termination at the rate in effect
at the time Notice of Termination is given, and an amount equal to the product
of (x) all bonuses and awards that would have been earned by Executive upon
completion of each award cycle that began during the Term but had not been
completed as of the Date of Termination, calculated as though the full
achievement of all goals and targets relating thereto had been achieved in
full
and (y) a fraction, the numerator of which shall be the number of days from
the
beginning of the applicable bonus or award cycle to and including the Date
of
Termination and the denominator of which shall be the number of days in such
cycle; or
(ii) if
Executive’s employment shall be terminated by the Company for Cause or by
Executive without Good Reason, then the Company shall pay Executive his Base
Salary (at the rate in effect at the time Notice of Termination is given)
through the Date of Termination, and the Company shall have no additional
obligations to Executive under this Agreement.
(b) For
any other reason.
If
Executive’s employment shall be terminated for any reason other than those
provided in Section 6(a) above, then:
(i) the
Company shall pay Executive his full salary through the Date
of
Termination at the rate in effect at the time Notice of Termination is given
and, no later than 30 days following the Date of Termination, an amount equal
to
the product of (x) all bonuses and awards,
including without limitation any Annual Cash Bonus,
that
would have been earned by Executive upon completion of each award cycle that
began during the Term but had not been completed as of the Date of Termination,
calculated as though the full achievement of all goals and targets relating
thereto had been achieved in full and (y) a fraction, the numerator of which
shall be the number of days from the beginning of the applicable bonus or award
cycle to and including the Date of Termination and the denominator of which
shall be the number of days in such cycle;
7
(ii) if
the
Date of Termination is on or before January 1, 2007, then, except as otherwise
provided in the first sentence of Section 2(d) of this Agreement, one third
(1/3) of all outstanding awards issued under the Stock Plan and held by
Executive shall become fully vested, nonforfeitable, payable (if applicable)
and
exercisable (if applicable) on the Date of Termination, notwithstanding any
contrary provision in the Stock Plan or any award agreement;
(iii) in
lieu
of paying any further compensation to Executive for periods subsequent to the
Date of Termination, the Company shall pay to the Executive severance payments
in the form of continuation of Executive’s Base Salary in effect as of the Date
of Termination for a period of two years following such Date of Termination
(the
“Severance
Payment Period”);
provided that, if necessary to avoid the application of Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”),
to
the payments under this clause (iv), Executive shall not receive any installment
of such payments until the first regular payroll date of the Company which
occurs more than six months following the Date of Termination and, on such
date,
the Company shall pay Executive an amount equal to the sum of all payments
under
this clause (iv) that would have been paid in respect of the period preceding
such date but for the delay imposed on account Section 409A of the Code, plus
simple interest on each such delayed payments at five percent (5%) per annum;
and
(iv) the
Company shall provide continued health and life insurance benefits for Executive
and his spouse and dependents, if any, for the Severance Payment Period, on
the
same basis as such benefits are provided from time to time to actively employed
senior executives of the Company; provided, that the Company’s obligation to
provide such health and life insurance benefits shall cease with respect to
any
such benefit at the time Executive becomes eligible for such benefit from
another employer.
(c) Excise
Taxes.
(i) If
any of
the payments or benefits received or to be received by Executive, whether
pursuant to the terms of this Agreement or any other plan, arrangement or
agreement with the Company are deemed by the Auditor (as defined below), the
Company’s tax counsel (“Tax
Counsel”)
or the
Internal Revenue Services to constitute an excess parachute payment under
Section 280(G) of the Code (all such payments and benefits, excluding the
Gross-Up Payment (which is defined below), being hereinafter referred to as
the
“Total
Payments”),
the
Company shall pay to Executive an additional amount (the “Gross-Up
Payment”)
such
that the net amount retained by Executive, after deduction of any total excise
tax, together with all applicable interest and penalties (collectively, the
“Excise
Tax”)
Tax on
the Total Payments and any federal, state and local income and employment taxes
and Excise Tax upon the Gross-Up Payment, shall be equal to the Total
Payments.
8
(ii) For
purposes of determining whether any of the Total Payments will be subject to
the
Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments
shall be treated as “parachute payments” (within the meaning of section
280G(b)(2) of the Code) unless, in the opinion of Tax Counsel reasonably
acceptable to Executive and selected by the accounting firm which was,
immediately prior to the change in control, the Company’s independent auditor
(the “Auditor”),
such
payments or benefits (in whole or in part) do not constitute parachute payments,
including by reason of section 280G(b)(4)(A) of the Code, (ii) all “excess
parachute payments” within the meaning of section 280G(b)(l) of the Code shall
be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel,
such excess parachute payments (in whole or in part) represent reasonable
compensation for services actually rendered (within the meaning of section
280G(b)(4)(B) of the Code) in excess of the base amount allocable to such
reasonable compensation, or are otherwise not subject to the Excise Tax, and
(iii) the value of any noncash benefits or any deferred payment or benefit
shall
be determined by the Auditor in accordance with the principles of sections
280G(d)(3) and (4) of the Code. For purposes of determining the amount of the
Gross-Up Payment, Executive shall be deemed to pay federal income tax at the
highest marginal rate of federal income taxation in the calendar year in which
the Gross-Up Payment is to be made and state and local income taxes at the
highest marginal rate of taxation in the state and locality of Executive’s
residence on the Date of Termination (or if there is no Date of Termination,
then the date on which the Gross-Up Payment is calculated for purposes of this
Section 6(b)), net of the maximum reduction in federal income taxes which could
be obtained from deduction of such state and local taxes. If there has not
been
a Date of Termination with respect to Executive, the Company shall cause the
Gross-Up Payment to be calculated within 30 days of a written request to that
effect from Executive.
(iii) Executive
and the Company shall each reasonably cooperate with the other in connection
with any administrative or judicial proceedings concerning the existence or
amount of liability for Excise Tax with respect to the Total
Payments.
(iv) The
payments provided in this Section 6(c) shall be made not later than the fifth
day following the Date of Termination (or if there is no Date of Termination,
then the fifth day following date on which the Gross-Up Payment is calculated
for purposes of Section 6(c)), provided,
however,
that if
the amounts of such payments cannot be finally determined on or before such
day,
the Company shall pay to Executive on such day an estimate, as determined in
good faith by the Company, in accordance with Section 6(b), of the minimum
amount of such payments to which Executive is clearly entitled and shall pay
the
remainder of such payments (together with interest on the unpaid remainder)
at
120% of the rate provided in section 1274(b)(2)(B) of the Code) as soon as
the
amount thereof can be determined but in no event later than the thirtieth (30th)
day after the occurrence of a Date of Termination. At the time that payments
are
made under this Agreement, the Company shall provide Executive with a written
statement setting forth the manner in which such payments were calculated and
the basis for such calculations including, without limitation, any opinions
or
other advice the Company has received from Tax Counsel, the Auditor or other
advisors or consultants (and any such opinions or advice which are in writing
shall be attached to the statement).
9
7. Non-Solicitation
and Business Relationships.
Executive
agrees that during Executive’s employment by the Company and for one year
following the Executive’s
Date of Termination (the
“Non-Solicitation
Period”), Executive shall not, directly or indirectly, (i) solicit, induce, or
attempt to solicit or induce any officer, director, employee,
consultant,
agent
or
joint
venture partner of
the
Company or any of its affiliates to terminate his, her or its employment or
other relationship with the Company or any of its affiliates for the purpose
of
associating with any competitor of any the Company or any of its affiliates,
or
otherwise encourage any such person to leave or sever his, her or its employment
or other relationship with the Company or any of its affiliates for any other
reason,
or
authorize the taking of such actions by any other person or entity, or assist
or
participate with any such person or entity in taking such action.
8. Confidentiality.
Each
party to this Agreement shall keep strictly confidential the terms of this
Agreement, provided, that (i) either party to this Agreement may disclose the
terms of this Agreement with the prior written consent of the other party,
(ii)
either party to this Agreement may disclose the terms of this Agreement to
the
extent necessary to comply with law or legal process, in which event the
disclosing party shall notify the other party to this Agreement as promptly
as
practicable (and, if possible, prior to making such disclosure), (iii) either
party to this Agreement may disclose the terms of this Agreement to outside
counsel, underwriters and accountants and (iv) the Company may disclose the
terms of this Agreement in public filings with the Securities and Exchange
Commission or other regulatory agencies, without notice to Executive, to the
extent that it believes such disclosure to be prudent, necessary or required
by
applicable law in connection with the operation of the business of the Company
and shall have the right to file a copy of this Agreement with such regulating
agencies, it being understood that if this Agreement is so disclosed or filed,
Executive shall thereafter be released from his obligation in respect of this
Section 8.
9. No
Waiver.
No
failure or delay on the part of the Company or Executive in exercising any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or remedy preclude
any
other or further exercise thereof or the exercise of any other right, power
or
remedy. The remedies provided for herein are cumulative and are not exclusive
of
any remedies that may be available to the Company or Executive at law or in
equity. No waiver of or consent to any departure by either the Company or
Executive from any provision of this Agreement shall be effective unless signed
in writing by the party entitled to the benefit thereof. No amendment,
modification or termination of any provision of this Agreement shall be
effective unless signed in writing by all parties hereto. Any waiver of any
provision of this Agreement, and any consent to any departure from the terms
of
any provision of this Agreement, shall be effective only in the specific
instance and for the specific purpose for which made or given.
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10. Severability
of Provisions.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction. Moreover, if any one or more of the provisions
contained in this Agreement shall be held to be excessively broad as to
duration, activity or subject, such provision shall be construed by limiting
and
reducing it so as to be enforceable to the maximum extent allowed by applicable
law.
11. Non-Assignability.
The
rights and obligations of Executive under this Agreement are personal to
Executive and may not be assigned or delegated to any other Person; provided,
however, that nothing in this Agreement shall preclude Executive from
designating any of his beneficiaries to receive any benefits payable hereunder
upon his death, or his executors, administrators or other legal representatives
from assigning any rights hereunder to the person or persons entitled thereto.
The Company may assign its rights and obligations under this Agreement, without
the consent of the Executive, to any successor, whether by merger, asset or
stock sale or otherwise, to all or substantially all of the business of the
Company.
12. Notices.
Any
notice given hereunder shall be in writing and shall be deemed to have been
given when delivered by messenger or courier service (against appropriate
receipt), or mailed by registered or certified mail (return receipt requested),
addressed as follows:
|
If
to the Company:
|
NorthStar Realty Finance
Corp.
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
General Counsel
|
|
If
to Executive:
|
Xxxxxx Xxxxxxxxxx
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
With
a copy to:
Paul,
Weiss, Rifikind, Xxxxxxx & Xxxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxxx X. Xxxxx, Esq.
|
or
at
such other address as shall be indicated to the parties hereto in writing.
Notice of change of address shall be effective only upon receipt.
13. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York applicable to contracts made and to be entirely
performed within such State.
11
14. Dispute
Resolution:
(a) Subject
to the provisions of Section 14(b), any dispute, controversy or claim arising
between the parties relating to this Agreement, or otherwise relating in any
way
to Executive’s employment by or interest in the Company or any of its affiliate
(whether such dispute arises under any federal, state or local statute or
regulation, or at common law), shall be resolved by final and binding
arbitration before a single arbitrator, selected by the American Arbitration
Association in accordance with its rules pertaining at the time the dispute
arises. In such arbitration proceedings, arbitrator
shall have the discretion, to be exercised in accordance with applicable law,
to
allocate among the
parties the arbitrator’s fees, tribunal and other administrative costs. If
Executive prevails on at least one material issue in dispute, the Company shall
reimburse Executive for the reasonable fees and costs of his counsel (and the
arbitrator shall be requested to rule on whether Executive has so prevailed).
The award of the arbitrator may be confirmed before and entered as a judgment
of
any court having jurisdiction over the parties.
(b) The
provisions of Section 14(a) shall not apply with respect to any application
made
by the Company for injunctive relief under this Agreement.
15. No
Mitigation or Offset.
In the
event of any termination of Executive’s employment hereunder, Executive shall be
under no obligation to seek other employment or otherwise mitigate the
obligations of the Company under this Agreement, and there shall be no offset
against any amounts due under this Agreement on account of any remuneration
attributable to any subsequent employment that Executive may
obtain.
16. Headings.
The
paragraph headings used or contained in this Agreement are for convenience
of
reference only and shall not affect the construction of this
Agreement.
17. Entire
Agreement.
This
Agreement and any agreements executed contemporaneously herewith constitute
the
entire agreement between the parties with respect to the matters set forth
herein, and there are no promises or undertakings with respect thereto relative
to the subject matter hereof not expressly set forth or referred to herein
or
therein.
18. Execution
in Counterparts.
This
Agreement may be executed in any number of counterparts and by different parties
hereto on separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
12
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement.
|
/s/
Xxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxxxx |
||
| NORTHSTAR REALTY FINANCE CORP. | ||
| |
|
|
| By: | /s/ Xxxxxxx X. XxXxxxxx | |
|
Xxxxxxx X. XxXxxxxx |
||
|
Executive
Vice President & General
Counsel
|
||
13
