SEPARATION AND CONSULTING AGREEMENT (“Agreement”)
(“Agreement”)
THIS SEPARATION AND CONSULTING
AGREEMENT (the “Agreement”) is
entered into as of the first date on the signature page hereto, by and between
Xxxx X. Xxxxx (“Executive”) and
Capital Trust, Inc., its direct and indirect subsidiaries and affiliates
(collectively, the “Company, and with
Executive, the “Parties”).
Recitals
WHEREAS, Executive has been employed by
the Company as its Chief Executive Officer on an at will basis, as a result of
his prior employment agreement with the Company, dated as of February 24, 2004
(the “Prior
Agreement”) having expired as of December 31, 2008 (the “Expiration Date”);
and
WHEREAS, the Parties have decided to
terminate Executive’s employment relationship with the Company, and the Parties
desire to resolve, fully and finally, all outstanding matters between
them.
NOW THEREFORE, in consideration of the
mutual covenants and agreement set forth hereinafter, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
Agreement
1. Resignation of Employment,
Offices, and Authorities. Executive hereby resigns his
employment with the Company and from all offices and administrative positions he
holds with the Company, including the offices set forth on Exhibit A to this
Agreement, effective as of December 1, 2009 (the “Effective
Date”).
Executive shall sign the letter attached as Exhibit A to this
Agreement confirming such resignations on the same date he signs this
Agreement. He will continue to receive his base salary through the
Effective Date and reimbursement for all duly incurred business expenses in
accordance with the Company’s policies, in each case payable in accordance with
normal payroll practices, but in any event no later than the payroll date next
succeeding the Effective Date. He further agrees and acknowledges
that as of the Effective Date, he will no longer have any authority to make or
enter into any agreements, commitments, or representations on behalf of the
Company, and he will no longer have any signing or other authority on the
Company’s accounts, trusts, books, or records.
2. Consulting
Relationship. In further exchange for the benefits provided to
Executive under this Agreement, he agrees to provide consulting services (the
“Consulting
Services”) to the Company for the one-year period commencing on December
1, 2009 (“Consulting
Period”), in accordance with this Section 2. Executive
understands and agrees that this Section 2 does not constitute a hiring or
employment agreement and that during the Consulting Period, except as otherwise
provided for in this Agreement, he will not be eligible for, and he hereby
waives any claim to, wages, compensation, or any benefits provided to employees
of the Company.
(a) Consulting
Services. Executive shall render the Consulting Services upon
reasonable notice at such time(s) and place(s) as may reasonably be requested by
the Company’s Board of Directors (the “Board”) or its
designee; it being
understood that such Consulting Services (i) may be provided
telephonically or through computer access unless the Executive’s physical
presence on the Company’s premises is requested by the Board or its designee
from time to time, and Executive’s physical presence is required as a matter of
business necessity and (ii) shall be scheduled and modified in form and content
so as not to interfere with any conflicting commitments or new employment
opportunities or obligations that may be applicable to the Executive during the
Consulting Period. The obligation of Executive to provide Consulting
Services hereunder shall not preclude Executive from undertaking fulltime
employment during the Consulting Period, nor prevent Executive from engaging in
any other business activities. It is the intention of the Parties
that as of the Effective Date, Executive shall have had a “separation from
service” as provided for under Section 409A (as defined below) and that the
post-termination Consulting Services to be provided by the Executive hereunder
shall not in any manner be construed as establishing any relationship between
the Executive and the Company to the contrary.
(b) Nature of Consulting
Services. The Parties agree that the Consulting Services to be
provided by the Executive hereunder are anticipated primarily to involve matters
related to Executive’s responsibilities during his employment with the Company
and are intended to assist in the transition of Executive’s duties and
responsibilities to his successor.
(c) Expenses. The
Company agrees to reimburse Executive for reasonable and necessary out-of-pocket
business expenses incurred by him in connection with the performance of the
Consulting Services hereunder, and that each such reimbursement shall be
requested and made within one year after being incurred (and shall not affect
other reimbursements due hereunder).
3. Separation and Consulting
Benefits. In exchange for Executive’s execution of this
Agreement and the promises made herein (and without being under any other
obligation to do so), the Company shall:
(a) Pay
to Executive a monthly consulting fee of $83,333.33, payable during the
Consulting Period, with the first monthly payment to be paid in December
2009. Executive agrees to be solely responsible for any federal,
state, or local employment, payroll, income, or other withholdings or taxes due
or owing in connection with the consulting fee and the Company shall not
withhold any such or other amounts from the fee.
(b) Subject
to the approval of the Company’s lenders, which the Company will use its best
efforts to obtain, pay Executive, on such date as bonuses generally are
distributed to Company employees but no later than March 15, 2010, $600,000 in
respect of a bonus for 2009, subject to applicable taxes and
withholding.
(c) Pay
for continued group health insurance coverage for Executive and his dependents,
pursuant to Section 4980B of the Internal Revenue Code (“COBRA”), if eligible,
during the Consulting Period or until such earlier date on which Executive and
his dependents become eligible for comparable coverage from another
employer. Executive agrees to notify the Company as soon as
practicable following his acceptance of full-time employment with another
employer.
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(d) Provide
for the continued vesting during the Consulting Period of (i) any time based
Restricted Shares issued previously to Executive, whether under the Prior
Agreement or otherwise and (ii) a pro rata share of any performance based
Restricted Shares issued previously to Executive, whether under the Prior
Agreement or otherwise, to the extent that any periods prior to the expiration
of the Consulting Period constitute a portion of the performance cycle for such
stock.
(e) Provide
that all vested Company options granted to the Executive remain exercisable
through the end of the Consulting Period, provided that no option shall be
exercisable after the expiration of its current term.
Except as modified in this Agreement,
Executive’s rights under the Company’s Second Amended and Restated 1997
Long-Term Incentive Stock Plan, Amended and Restated 1997 Non-Employee Director
Stock Plan, Amended and Restated 2004 Long-Term Incentive Plan, 2007 Long-Term
Incentive Plan, or any other Company benefit or incentive plans (including with
respect to deferred stock) will remain as stated under the terms and conditions
of those plans.
The Company’s obligations to pay
Executive the amounts and benefits provided for herein shall continue regardless
of whether Executive subsequently commences full-time employment with another
employer (for this purpose, “employment” and “employer” to include any activity
for remuneration, including, without limitation, whether as an employee,
consultant, independent contractor, investor, partner or
principal). The Company agrees that if it breaches its payment
obligations in Sections 3(a) and (b), above, and Executive prevails in any
litigation to enforce his rights under those provisions, the Company will
reimburse Executive for reasonable attorneys’ fees he incurs to enforce such
rights; provided,
however, that Executive agrees to make good faith efforts to resolve
amicably any dispute regarding his rights under this Section 3 prior to
commencing any such litigation.
4. Executive’s Release of
Claims. In exchange for the benefits provided to Executive
under this Agreement, he irrevocably and unconditionally forever releases and
discharges the Company and its successors and assigns, and each of their current
and former employees, officers, directors, owners, shareholders,
representatives, administrators, fiduciaries, agents, insurers, and employee
benefit programs (and the trustees, administrators, fiduciaries and insurers of
any such programs) (collectively, the “Released Parties”)
from all actual or potential, known or unknown claims that he presently may
have, including but not limited to any arising out of his employment with, and
separation from, the Company. The claims that he is releasing
include, for example and without limitation, claims under any federal, state or
local common law, statute, regulation or law of any type, including claims of
employment discrimination or for breach of contract; any claims arising under or
otherwise related to any other written or oral agreement between him and the
Company (including but not limited to the Prior Agreement; and claims for any
other or further compensation, payments or benefits of any kind from any
Released Party. Executive has not filed or caused to be filed any
lawsuit, complaint, charge, grievance or any other proceeding against the
Company with any court, agency or other tribunal and to the extent permissible
by law, he promises never to do so based on any claims released in this
section.
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5. Company’s Release of
Claims. In exchange for the benefits provided to it under this
Agreement, the Company irrevocably and unconditionally forever releases and
discharges Executive, his heirs and assigns from all actual or potential, known
or unknown claims that the Company presently may have against
Executive. The claims that the Company is releasing include, for
example and without limitation, claims under any federal, state or local common
law, statute, regulation or law of any type, including claims of breach of
contract and any claims arising under or otherwise related to any other written
or oral agreement between Executive and the Company (including but not limited
to the Prior Agreement); provided, however,
that this Company release is not intended to and shall not release or waive
claims based on fraud, embezzlement, or theft. The Company has not
filed or caused to be filed any lawsuit, complaint, charge, grievance or any
other proceeding against Executive with any court, agency or other tribunal and
to the extent permissible by law, it promises never to do so based on any claims
released in this section.
6. Indemnification and
Conversion Rights. The general release set forth in Section 4,
above, is not intended to, and will not operate to, waive or limit Executive’s
rights to (i) indemnification as a former officer of the Company under any
liability insurance policy maintained by the Company; under any charter,
certificate of incorporation, by-law or resolution of the Company; or as
otherwise required by law; or any rights Executive may have to obtain
contribution as permitted by law, (ii) to convert his coverage under the
Company’s group life insurance policy to individual coverage, at his own
expense; (iii) to roll over his 401(k) assets under the terms of the Company’s
401(k) plan, (iv) any other vested benefits under any health and welfare plans
or other employee benefit plans or programs sponsored by the Company (including
by way of example and without limitation, Executive’s right to pursue a claim
for benefits under the Company’s group health plan with respect to a claim
arising prior to the date of this Agreement), (v) any claim or cause of action
to enforce Executive’s rights under this Agreement, or (vi) rights as a
shareholder of the Company. Without limiting the foregoing, the
Company agrees to continue to cover Executive under its directors and officers’
insurance policy for six years after the Effective Date to the same extent as
coverage is provided to other former and current directors and officers of the
Company.
7. No Further
Benefits. Executive understands and agrees that the
consideration provided to him under the terms of this Agreement is in addition
to anything of value to which he is otherwise entitled. Executive
represents, warrants, and acknowledges that the Company owes him no wages,
compensation, or payments or form of remuneration of any kind or nature,
including any salary, bonus or incentive compensation, other than as
specifically provided for in this Agreement or in a subsequent written agreement
between him and the Company, or as otherwise vested under the terms of any
Company benefit plan.
8. Expenses. The
Company will reimburse Executive for any expenses duly incurred by him prior to
the Effective Date in accordance with the Company’s reimbursement
policies
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9. Confidentiality and Other
Obligations. Executive (i) reaffirms his obligations after the
Effective Date under Section 6(b) of the Prior Agreement not to disclose
“Confidential Information” (as defined in Section 6(a) of the Prior Agreement);
(ii) reaffirms the Company’s rights under Sections 6(f) and 6(g) of the Prior
Agreement (regarding intellectual property and enforcement);
and (iii) agrees for purposes of this Agreement to abide by the
provisions of Section 6(c)(2) (regarding non-solicitation of Company executives
and other personnel) of the Prior Agreement during the Consulting
Period. For the avoidance of doubt, the Company agrees that Executive
is no longer bound by Sections 6(c)(1) or 6(d) of the Prior
Agreement.
10. Covenant Not to
Disparage. Except as required by subpoena, court order, or
other legal process (in which case Executive agrees to notify the Company of
such subpoena, court order, or other legal process as early as reasonably
possible), Executive agrees not to criticize, denigrate, or otherwise disparage
the Company or any of its directors or executive officers. The
Company agrees that the Board and its executive officers will not criticize,
denigrate, or otherwise disparage the Executive.
11. Return of Company
Property. On or before the Effective Date, Executive will
return to the Company all files, documents, records, and copies of the foregoing
(whether in hard or electronic form), Company-provided computer and telephone
equipment, PDAs, pagers, credit cards, keys, building passes, security passes,
access or identification cards, and any other property of the Company in his
possession or control. The Company shall cooperate with the Executive
and permit the Executive to remove or direct the removal of his personal papers,
art, furniture and other personal possessions and effects from his
office.
12. Cooperation. Executive
agrees that he will be reasonably available, during the Consulting Period and
for an additional four years thereafter, to assist and cooperate with the
Company in connection with the defense or prosecution of any claim that may be
made against or by the Company, or in connection with any ongoing or future
investigation or dispute or claim of any kind involving the Company, including
any proceeding before any arbitral, administrative, judicial, legislative, or
other body or agency, including testifying in any proceeding to the extent such
claims, investigations or proceedings are related to services performed or
required to be performed by him, knowledge possessed by him, or any act or
omission by him; it
being understood in all cases that such cooperation and assistance shall
take into account and accommodate the Executive’s then applicable business
and/or employment commitments. Executive further agrees to perform
all acts and execute and deliver any documents that may be reasonably necessary
to carry out the provisions of this Section 12. The Company agrees to
reimburse Executive for any reasonable and necessary out-of-pocket expenses he
may incur in complying with this Section 12 at the request of the Company,
provided that such expenses are not incurred without the Company’s prior written
approval.
13. Registration Rights and
Related Assistance/Release of Deferred Stock..
(a) During
the Term and for so long thereafter as Executive or his affiliates or estate
directly or indirectly own class A common stock, stock options or equity-based
awards issued by the Company, and for so long as the Company’s common stock is
publicly traded, (a) the Company shall file with the Securities and Exchange
Commission and thereafter maintain the effectiveness of one or more registration
statements on Form S-8 (or any successor form) registering under the Securities
Act of 1933, as amended), the offer and sale of shares by the Company to
Executive pursuant to stock options or other equity-based awards granted to him
under this Agreement, Company compensation plans or otherwise and (c) to the
extent that Executive (or Executive’s affiliates or estate) determine to engage
in an exempt sale of any common stock or other securities of the Company, the
Company shall take all commercially reasonable steps to cooperate with and
assist Executive (or his estate) in connection with such sale
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(b) All vested shares of
common stock previously deferred by the Executive shall be released as a result
of the termination of his employment, to the extent required by the terms
of any applicable deferral plans. To the extent that any such plan
would require forfeiture of otherwise releasable deferred stock upon Executive’s
resignation, Executive’s separation from the Company will not be considered a
resignation for such purposes.
14. Public
Statement. The Company and Executive agree on the content of a
public statement concerning his departure from the Company, in the form set
forth as Exhibit
B.
15. Legal
Fees. The Company will pay Executive’s reasonable legal fees
incurred in the preparation and negotiation of this Agreement, up to a maximum
of $15,000.
16. No Admission of
Guilt. This Agreement is not an admission of guilt or
wrongdoing by either Executive or the Company.
17. Entire
Agreement. This Agreement constitutes the entire agreement
between Executive and the Company with respect to the subject matter
hereof. Executive affirms that, in entering into this Agreement, he
is not relying upon any oral or written promise or statement made by anyone at
any time on behalf of the Company except as expressly set forth
herein. Except to the extent certain provisions are incorporated be
reference here, the Prior Agreement is hereby declared null and void and of no
further effect.
18. Notice.
(a) To the
Company. Executive agrees to send all communications to the
Company in writing, by certified or overnight mail, addressed as follows (or in
any other manner the Company notifies him to use):
|
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Capital
Trust, Inc.
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Attention: Xxxxxx
Xxxx
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000
Xxxx Xxxxxx, 00xx Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Copy
to:
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Xxxxxx
X. Xxxxxxx, Esq.
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Xxxxxxx
X. Xxxxxxx, Esq.
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Paul,
Hastings, Xxxxxxxx & Xxxxxx LLP
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00
Xxxx 00xx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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(b) To
Executive. The Company agrees to send all communications to
him in writing, by certified or overnight mail, addressed as follows (or in any
other manner Executive notifies the Company to use):
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Xx.
Xxxx X. Xxxxx
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00
Xxxx 00xx
Xxxxxx
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Xxxxxxxxx
0X
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Xxx
Xxxx, Xxx Xxxx 00000
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Copy
to:
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Xxxxxxx
X. Album, Esq.
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Proskauer
Rose LLP
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0000
Xxxxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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19. Modifications. No
provisions of this Agreement may be modified, waived, amended or discharged
except by a written document signed by him and a duly authorized Company
officer.
20. Successors. This
Agreement binds Executive’s heirs, administrators, representatives, executors,
successors, and assigns, and will inure to the benefit of the Company and the
Released Parties and their respective heirs, administrators, representatives,
executors, successors, and assigns. In the event of Executive’s death
prior to the completion of the Consulting Period, or prior to the payment date
provided for in Section (3)(b) hereof, such payments shall continue to be paid
to the Executive’s estate as and when due.
21. Validity and Waiver;
Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect. A waiver of any conditions or provisions of this Agreement in
a given instance shall not be deemed a waiver of such conditions or provisions
at any other time. If any of the provisions, terms or clauses of this
Agreement are declared illegal, unenforceable or ineffective in a legal forum,
those provisions, terms and clauses shall be deemed severable, such that all
other provisions, terms and clauses of this Agreement shall remain valid and
binding upon both parties.
22. Choice of Law and
Venue. The validity, interpretation, construction, and
performance of this Agreement shall be governed by the internal laws of the
State of New York (excluding any that mandate the use of another jurisdiction’s
laws).
23. Interpretation. This
Agreement shall be construed as a whole according to its fair meaning, and shall
not be construed strictly for or against Executive or the
Company. Unless the context indicates otherwise, the singular or
plural number shall be deemed to include the other. Section headings
are intended solely for convenience of reference only and shall not be a part of
this Agreement for any other purpose.
24. Tax
Withholding. Any compensation or benefits payable under this
Agreement shall be subject to applicable federal, state and local withholding
taxes and allowances, where appropriate. Executive agrees and
acknowledges that (i) he shall bear sole responsibility for payment of
any federal, state, or local income or other taxes or related
penalties associated with his current or future receipt of any amounts
pursuant to this Agreement, and (ii) the Company shall have no obligation to
mitigate or hold Executive harmless from any such tax
liabilities.
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25. Authority to
Sign. Each party represents that the individual signing this
Agreement on its behalf has the authority to do so and to so legally bind the
party. The Company represents that the execution, delivery and
performance of this Agreement by the Company has been fully and validly
authorized by all necessary corporate action.
26. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together shall constitute the same
instrument.
27. 409A
Compliance. This Agreement is intended to comply with the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended
(“Section
409A”). To the extent that any provision in this Agreement is ambiguous
as to its compliance with Section 409A, the provision will be read in such a
manner so that all payments under this Agreement will comply with Section
409A.
[AGREEMENT
CONTINUES ON NEXT PAGE]
-8-
28. Review of
Agreement. Executive has carefully read this Agreement, fully
understand what it means, and is entering into it voluntarily.
| Dated: November 19, 2009 |
CAPITAL
TRUST, INC.
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/s/ Xxxxxxx X. Xxxxxx | ||
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By:
Title:
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Xxxxxxx
X. Xxxxxx
Chief
Operating Officer
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| Dated: November 19, 2009 |
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/s/ XXXX X. XXXXX | |
| XXXX X. XXXXX |
-9-
EXHIBIT
A
November
19, 2009
Board of
Directors
Capital
Trust, Inc.
000 Xxxx
Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
To the
Members of the Board of Directors:
I hereby
resign, effective December 1, 2009, from the offices of president and chief
executive officer and director of Capital Trust, Inc. and from any and all other
offices I hold with Capital Trust, Inc., its direct and indirect subsidiaries
and affiliates, including without limitation the offices of director,
officer, manager, member and/or trustee of the following:
Capital
Trust RE CDO 2004-1 Corp.
Capital
Trust RE CDO 2004-1 Ltd.
Capital
Trust RE CDO 2005-1 Ltd.
Capital
Trust RE CDO Depositor
Crossing
HH, LLC
CT Asia
Fund Manager, LLC
CT Bracor
Holding LLC
CT BSI
Funding Corp.
CT CDO
III Corp.
CT CDO
III Ltd.
CT CDO
III, LLC
CT CDO IV
Corp.
CT CDO IV
Ltd.
CT CDO
IV, LLC
CT High
Grade Mezzanine Manager, LLC
CT High
Grade Partners II Manager, LLC
CT High
Grade Partners II MM, LLC
CT
Investment Management Co., LLC
CT Large
Loan Manager, LLC
CT LF
Funding Corp.
CT LH
Finance Sub, LLC
CT OPI
GP, LLC
CT OPI
Investor, LLC
CT OPI
Manager, LLC
CT
Preferred Trust I
CT
Preferred Trust II
CT Public
Preferred Trust I
CT Public
Preferred Trust II
CT Public
Preferred Trust III
CT RE CDO
2004-1 Sub, LLC
CT RE CDO
2005-1 Corp.
CT RE CDO
2005-1 Sub, LLC
CT
Rosarito LLC
CT
Rosarito Retail LLC
CTAMPI
MS, Ltd.
CT-F2-GP,
LLC
CT-F2-LP,
LLC
CTIMCO
China RO, LLC
CTIMCO
China RO, Ltd.
CTIMCO
CTX Manager, LLC
CTIMCO
Employee Sub, LLC
CTIMCO
Operating Subsidiary, LLC
CTX CDO I
Manager, LLC
CTX
Co-Invest Sub, LLC
CTX Fund
GP, LLC
PRN
Capital, LLC
VCG
Montreal Management, Inc.
VIC,
Inc.
Xxxxxx
Capital Group, LP
CT
Manager, LLC
CT XLC
Holding, LLC
Very
truly yours,
/s/ Xxxx X.
Xxxxx
Xxxx X.
Xxxxx
EXHIBIT
B
Press
Release
Capital Trust, Inc. (NYSE: CT)
announced today that Xxxx X. Xxxxx, co-founder and CEO, is retiring after 21
years of service to the Company and its predecessor. The Company also
announced that Xxxxxxx X. Xxxxxx, Chief Operating Officer since 1998, has been
appointed Chief Executive Officer and a Director. Xxxxxxxx X. Xxxxxx,
Chief Financial Officer, and Xxxxxx X. Xxxxxxx, Chief Credit Officer, will
continue in their current roles.
“We are all saddened by John’s decision
to retire, but thank him for his many years of strong leadership and wish him
the best in his next endeavors,” said Xxx Xxxx, co-founder and Chairman of the
Board. “Capital Trust has a very deep and talented management
bench. I have great confidence in Xxxxx, and look forward to
continuing to work with him and the CT team through these challenging
times.”
Xx. Xxxxx’x resignation as CEO,
President and member of the Board is effective as of December 1, 2009, but he
will continue to serve as a consultant to the Company for the next twelve
months. Xx. Xxxxxx’x appointments as Chief Executive Officer and
Director are also effective as of December 1, 2009.
