Trimaran Advisors, L.L.C. letterhead]
Execution Version
[Trimaran Advisors, L.L.C. letterhead]
February 29, 2012
Xxxx X. Xxxxxx
c/o Trimaran Fund Management, LLC
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Floor
New York, NY 10019
Dear Xx. Xxxxxx:
This letter (the “Agreement”) will confirm our offer to you of employment with Trimaran Advisors, L.L.C. (the “Company”), under the terms and conditions that follow.
(a) You will be employed by the Company as a Portfolio Manager of the collateral of Trimaran CLO IV Ltd. (“CLO IV”), Trimaran CLO V Ltd., Trimaran CLO VI Ltd. and Trimaran CLO VII Ltd. (collectively, along with CLO IV, the “CLOs”) reporting to the Chief Executive Officer (the “CEO”) of Kohlberg Capital Corporation (“KCAP”). Promptly following the date hereof, KCAP will (unless you by notice to KCAP elect otherwise) propose to its Nominating and Corporate Governance Committee (the “Nominating Committee”) your nomination to its Board of Directors of (the “KCAP Board”). Subject to the approval of such nomination by the Nominating Committee, you shall be appointed to the KCAP Board. At the first stockholder meeting after the date hereof at which you shall stand for reelection to the KCAP Board, KCAP will (unless you by notice to KCAP on or prior to the date that is 30 days prior to the date that the KCAP proxy statement for such stockholder meeting is mailed to stockholders elect otherwise) propose to its Nominating Committee your renomination to the KCAP Board, and subject to the approval of such nomination by the Nominating Committee, you shall be nominated for election by the KCAP stockholders at such stockholder meeting.
(b) As a Portfolio Manager, you shall be responsible for the management of the collateral of the CLOs. You agree to perform the duties of your position. Anything in this Agreement to the contrary notwithstanding, the Company and KCAP agree that you shall have no responsibilities or duties (including fiduciary duties) as an employee of the Company (or agent of KCAP) other than those responsibilities and duties expressly set forth in this Section 1(b) or in Section 3 and that your obligations in this Agreement (other than in Section 3) are conditioned on the Company’s providing or causing to be provided such resources as you may reasonably request and such personnel as are reasonably necessary in connection with the management of the CLOs’ assets and those other assets managed by KCAP and its subsidiaries and such personnel’s reasonable performance of their duties and otherwise complying with your (or your delegate’s) reasonable instructions.
(c) The term of this Agreement (the “Term”) shall be for one year following the date hereof and shall automatically renew on each anniversary of such date unless either party delivers a written notice of nonrenewal to the other party not later than ninety (90) days prior to any such anniversary; provided that the Company may not deliver such notice prior to the earlier of (i) December 1, 2017 or (ii) the date on which Trimaran CLO IV Ltd. is dissolved.
(d) The parties agree that you may perform your duties hereunder at such location as you shall determine.
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(c) The provisions in this Section 3 will not prohibit any (i) retention of copies of records or disclosure (1) required by any applicable Legal Requirement (as defined in the Purchase and Sale Agreement dated as of the date hereof between KCAP, Commodore Holdings, L.L.C, you, Xxx X. Xxxxx, HBK Caravelle, L.L.C. and Xxxxxxxx Fund Management, L.L.C. (the “Purchase Agreement”)) or Governmental Authority (as defined in the Purchase Agreement) so long as reasonable prior notice is given to the Company of such disclosure and a reasonable opportunity is afforded to the Company to contest the same or (2) made or used in connection with the enforcement of any right or remedy relating to this Agreement or the Purchase Agreement or (ii) use of (1) information delivered pursuant to Section 8.05 of the Purchase Agreement or (2) “track record” information for periods ending prior to January 1, 2011.
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(d) In signing this Agreement, you give the Company assurance that you have carefully read and considered all the terms and conditions of this Agreement, including the restraints imposed on you under this Section 3. You further agree that, were you to breach any of the covenants contained in this Section 3, the damage to the Company and its Affiliates would be irreparable. You therefore agree that the Company, in addition to any other remedies available to it, shall be entitled to seek preliminary and permanent injunctive relief against any breach or threatened breach by you of any of those covenants, without having to post bond, together with an award of its reasonable attorney’s fees incurred in enforcing its rights hereunder. It is also agreed that each of the Company’s Affiliates shall have the right to enforce all of your obligations to that Affiliate under this Agreement, including without limitation pursuant to this Section 3. Finally, no claimed breach of this Agreement or other violation of law attributed to the Company shall operate to excuse you from the performance of your obligations under this Section 3.
(a) The Company may terminate your employment for Cause by providing written notice to you specifying in reasonable detail the condition giving rise to Cause no later than the 30th day following the occurrence of that condition, providing you 30 days to remedy the condition and so specifying in the notice and by terminating your employment within 30 days following the expiration of the remedy period if you fail to remedy the condition. The following, as determined by the Company in its reasonable judgment, shall constitute Cause: (i) your material negligence in the performance of your material duties and responsibilities hereunder to the Company, which could reasonably result in material injury to the Company or any of its Affiliates, taken as a whole or (ii) your material breach of any material provision of this Agreement or of Section 6.02 or 6.04 of the Purchase Agreement, including, without limitation, a breach of your obligations under Section 3 of this Agreement.
(b) The Company may terminate your employment at any time other than for Cause upon 90 days’ notice to you. The Company may elect to waive such notice period or any portion thereof; but in that event, the Company shall pay you your base salary for that portion of the notice period so waived.
(c) You may terminate this Agreement for Good Reason by providing written notice to the Company specifying in reasonable detail the condition giving rise to Good Reason no later than the 30th day following the occurrence of that condition, providing the Company 30 days to remedy the condition and so specifying in the notice and by terminating your employment within 30 days following the expiration of the remedy period if the Company fails to remedy the condition. The following, as determined by you, in your reasonable judgment, shall constitute Good Reason: (i) a material breach by the Company or KCAP of any material provision of this Agreement or (ii) the failure of the Nominating Committee to nominate you as a director of KCAP at the meeting of KCAP shareholders described in Section 1(a).
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(d) This Agreement shall automatically terminate in the event of your death during employment. In the event you become disabled during employment and, as a result, are unable to continue to perform substantially all of your duties and responsibilities under this Agreement, either with or without reasonable accommodation, the Company will continue to pay you your base salary and to provide you benefits in accordance with Section 2(c) above for up to twelve (12) weeks of disability during any period of three hundred and sixty-five (365) consecutive calendar days. If you are unable to return to work after twelve (12) weeks of disability, the Company may terminate your employment, upon notice to you. If any question shall arise as to whether you are disabled to the extent that you are unable to perform substantially all of your duties and responsibilities for the Company and its Affiliates, you shall, at the Company’s request, submit to a medical examination by a physician selected by the Company to whom you or your guardian, if any, has no reasonable objection to determine whether you are so disabled, and such determination shall for purposes of this Agreement be conclusive of the issue. If such a question arises and you fail to submit to the requested medical examination, the Company’s determination of the issue shall be binding on you.
5. Other Matters Related to Termination.
(a) In the event of termination of your employment with the Company, howsoever occurring, the Company shall pay you as soon as practicable following the effective date of such termination (the “Separation Date”) (i) your final base salary through the Separation Date or through the end of any period of notice waived; and (ii) reimbursement for business expenses incurred by you but not yet paid to you as of the Separation Date; provided you submit all expenses and supporting documentation required within 60 days of the Separation Date, and provided further that such expenses are reimbursable under Company policies as then in effect.
(b) Following the termination of your employment by the Company without Cause or by you for Good Reason, the Company shall pay you the base salary that you would have received hereunder, but for such termination, from the Separation Date through the end of the then-current Term (including any extension thereof, if you or the Company delivers notice of such termination within ninety (90) days prior to the expiration of the Term) (such payment, the “Severance Payment”). Your right to receive and retain the Severance Payment is conditioned, however, on your continued compliance with your surviving obligations under this Agreement. Any Separation Payment to which you become entitled shall be paid in a lump sum on the sixtieth (60th) day following the Separation Date.
(c) The provisions of this Agreement shall survive any termination of employment if so provided in this Agreement or if necessary or desirable to accomplish the purposes of other surviving provisions, including without limitation your obligations under Section 3(a) and (b) of this Agreement and the KCAP’s and the Company’s obligations in Section 2(d).
6. Definitions. For purposes of this Agreement, the following definitions apply:
(a) “Affiliates” means all persons and entities directly or indirectly controlling, controlled by or under common control with the Company, where control may be by management authority, equity interest or otherwise.
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(b) “Confidential Information” means any and all information of the Company and its Affiliates that is not generally available to the public. Confidential Information also includes any information received by the Company or any of its Affiliates from any Person with any understanding, express or implied, that it will not be disclosed. Confidential Information does not include information that enters the public domain, other than through your breach of your obligations under this Agreement.
(c) “Person” means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a trust or any other entity or organization, other than the Company or any of its Affiliates.
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If to KCAP or the Company, to:
Kohlberg Capital Corporation
or
Trimaran Advisors LLC
c/o Kohlberg Capital Corporation
000 Xxxxxxx Xxxxxx - 0xx Floor
New York, NY 10017
Telephone number: (000) 000-0000
Facsimile number: (000) 000-0000
Attention: Xxxx Xxxxxxx, Chief Executive Officer
with a copy (which shall not constitute notice) to:
Ropes & Gray LLP
Prudential Tower
000 Xxxxxxxx Xxxxxx
Boston, MA 02199
Telephone number: (000) 000-0000
Facsimile number: (000) 000-0000
Attention: Xxxxx Xxxxxx
If to you, to:
Xxxx X. Xxxxxx
c/o Trimaran Fund Management, LLC
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Floor
New York, NY 10019
Telephone number: 000-000-0000
Facsimile number: 000-000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
New York, NY 10019
Telephone number: (000) 000-0000
Facsimile number: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxx
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Each of the parties to this Agreement may specify a different address or addresses or facsimile number or facsimile numbers by giving notice in accordance with this Section 13 to each of the other parties hereto.
If the foregoing is acceptable to you, please sign this letter in the space provided below. At the time you sign and return it, this letter will take effect as a binding agreement between you and the Company on the basis set forth above. The enclosed copy is for your records.
[Signature Page Follows]
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Sincerely yours, | ||
/s/ Xxxx Xxxxxxx | ||
Xxxx Xxxxxxx, President | ||
Accepted and Agreed: | ||
/s/ Xxxx X. Xxxxxx | ||
Xxxx X. Xxxxxx | ||
Date: February 29, 2012 | ||
Accepted and Agreed (as to the last three | ||
sentences of Section 1(a) and Section 2(d)) | ||
KOHLBERG CAPITAL CORPORATION | ||
By: | /s/ Xxxx Xxxxxxx | |
Name: Xxxx Xxxxxxx | ||
Title: President |
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Schedule 2(a)
Year Commencing: | Annual Salary | |||
February 29, 2012 | $ | 50,000 | ||
March 1, 2013 | $ | 75,000 | ||
March 1, 2014 | $ | 125,000 | ||
March 1, 2015 and thereafter | $ | 200,000 |
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