AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.35
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
I,
Xxxxxxx X. Xxxxxx, agree to the terms and conditions of employment with Capital
Trust, Inc. (the “Company”) set forth
in this Employment Agreement (this “Agreement”) dated as
of December 28, 2005 (“Original Effective Date”), and
amended and restated as of January 1, 2009 (“Effective Date”).
(a) Term. My employment
under this restated Agreement shall commence effective as of the Effective Date
and shall end on December 31, 2009 (as extended, if at all pursuant to Section
1(b) hereof, “Expiration Date”) or
such earlier date on which my employment is terminated under Section 5 of
this Agreement (the period from the Effective Date through the Expiration Date,
or such earlier termination as provided for herein being referred to herein as
the “Term”). If
the Company continues to employ me beyond the Expiration Date without entering
into a written agreement extending the term of this Agreement, except as
provided in a new written employment agreement between the Company and me, I
shall continue to receive the base salary in effect as of the Expiration Date
for as long as I remain employed by the Company, but all other obligations and
rights under this Agreement shall prospectively lapse as of the Expiration Date,
except my right to payment of compensation accrued or earned prior to the
Expiration Date or any other rights which by their terms extend beyond the
Expiration Date, including the Company’s ongoing indemnification obligation
under Section 4, any post-termination payment provisions under
Section 5(a), my confidentiality and other obligations under
Section 6, and our mutual arbitration obligations under Section 8, and
I thereafter shall be an at-will employee of the Company.
3. Place of
Performance. I shall be based in New York City, except for
required travel on the Company’s business.
(i) Intentionally
left blank.
(ii) For
each calendar year of the Term commencing with January 1, 2009, I shall receive
pursuant to Section 10(b) of the Company’s 2007 Long Term Incentive Plan (the
“LTIP”), a
Performance Compensation Award grant that provides for an annual cash bonus
opportunity for that calendar year ranging from 100% of my base salary at
threshold performance to 200% of my base salary at maximum performance (with a
target of 150% of my base salary at target performance) achieved in respect of
Annual Performance Measures (as defined below) established for the calendar year
as the Performance Period. Before March 31 of each such calendar
year, the Performance Measures containing threshold, target and maximum
performance criteria shall be set by the Compensation Committee of the Board
(the “Compensation
Committee”), but only after consultation with me in advance and only when
the performance measures are substantially uncertain to be satisfied (the “Annual Performance
Measures”). Any cash bonus earned pursuant to such Performance
Compensation Award shall be paid as promptly as practicable following the end of
each calendar year during the Term, but not later than the March 15th
immediately following the end of the calendar year to which the bonus
relates..
(iii) I
shall be eligible for such other bonuses and other incentive compensation under
bonus and incentive stock plans (including plans that provide for performance
compensation tied to carried interest and incentive investment management fees
from funds under management) generally available to other senior Company
executives as the Compensation Committee determines in its sole
discretion. The Company shall pay such bonuses or incentive
compensation as promptly as practicable following the end of each calendar year
during the Term, but not later than the March 15th immediately following such
calendar year to which the bonus relates.
(i) As
of the Original Effective Date, pursuant to the 2004 Long Term Incentive Plan,
the Company granted to me 90,000 Restricted Shares of Class A common stock of
the Company (the “Initial
Grant”).
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(ii) If
the Company exercises its option to extend the Expiration Date to December 31,
2009 under Section 1(b), above, the Company shall grant to me on or about
January 1, 2009, pursuant to the LTIP, an additional 30,000 Restricted Shares of
Class A common stock of the Company (the “Additional
Grant”). The Additional Grant shall (unless my employment has
terminated or as otherwise provided for herein) vest as
follows: (I) 50% of the shares shall vest on December 31, 2009,
and (II) 50% of the shares shall be structured as a “Performance
Compensation Award” pursuant to Section 10(b) of the LTIP, and shall vest on
December 31, 2009, subject to satisfaction of the Grant Performance Hurdle,
measured for the one-year period commencing on January 1, 2009 and ending on
December 31, 2009. For the purpose of calculating whether the Grant
Performance Hurdle has been achieved, the starting and ending share price shall
be determined based on the average closing price of the Class A common stock of
the Company for the ten trading day periods which end on 1/1/09 and 12/31/09.
All dividends that are earned and accrue with respect to all vested and unvested
Restricted Shares issued pursuant to the Additional Grant shall be paid to me
upon issuance.
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DISCHARGE
FOR
CAUSE
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Payment
or provision when due of (1) any unpaid base salary, expense
reimbursements, and vacation days accrued prior to termination of
employment, and (2) other unpaid vested amounts or benefits under
Company compensation, incentive, and benefit plans (including, without
limitation vested interests I may have with respect to Fund II and Fund
III or any previous grant of equity). In addition, I may
continue to exercise my vested options for up to the earlier of (a) the
expiration date of such options or (b) the date 90 days following my
termination.
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DISABILITY
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Same
as for “Discharge for Cause” EXCEPT that (I) I shall be entitled to
receive a lump sum payment equal to six months of my base
salary, less any payments I receive under any state-mandated or other
disability insurance policy for six months , (II) I shall be entitled
to receive a pro-rated bonus determined for the year in which my
disability became effective hereunder, and calculated at “target,” which
shall be paid as promptly as practicable following my Separation from
Service, but not later than the March 15th immediately following the
calendar year of my Separation from Service. (III) the
Company shall pay the COBRA premiums associated with continuing medical
insurance coverage for my benefit and the benefit of my spouse and
dependent children for one year following my disability effective date,
and (IV) I will continue to vest for one year following my disability
effective date in all awards previously granted to me, and in determining
the Grant Performance Hurdle for any remaining performance vesting period,
I will be credited with the shareholder return for the full year preceding
the year of my disability effective date. In addition, I may
continue to exercise my options that vested on or before my Separation
from Service for up to one year following my Separation from Service, or
if later, up until the expiration date of such
options.
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FOR
CAUSE
OR
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Same
as for “Discharge for Cause” EXCEPT that, in exchange for my execution of
a release in accordance with this section, (1) I shall be entitled to
receive a lump-sum payment equal to the greater of (x) the sum of my base
salary and cash bonus payable through December 31, 2009 (with
the cash bonus based on target and assuming the satisfaction of all Annual
Performance Measures or (y) 1.5 times the sum of (I) my base salary then
payable and (II) the highest annual bonus paid to me during the Term,
(2) all restricted stock grants made prior thereto and the Initial
Grant shall immediately vest in full, (3) the Performance
Compensation Award described in Section 4(d), above, shall immediately
vest in full, (4) I may continue to exercise my options that vested on or
before my Separation from Service for up to one year following my
discharge or, if later, up until the expiration date of such options, and
(5) the Company shall pay the COBRA premiums associated with
continuing medical insurance coverage for my benefit and the benefit of my
spouse and dependent children for 18 months following my date of discharge
or such earlier time I shall obtain comparable coverage through another
employer.
All
payments made pursuant to this provision shall be made as promptly as
practicable following my Separation from Service, but not later than the
March 15th immediately following the year of my Separation from
Service.
In
addition, if the Company exercises its option to extend the Expiration
Date to December 31, 2010 under Section 1(b), above, and I am discharged
other than for Cause or Disability between January 1, 2010 and December
31, 2010, the Additional Grant shall immediately vest in
full.
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RESIGNATION
WITHOUT GOOD REASON
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Same
as for “Discharge for Cause.”
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RESIGNATION
WITH GOOD REASON
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Same
as for “Discharge Other Than for Cause or
Disability.”
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DEATH
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Same
as for “Discharge for Cause” EXCEPT that (1) my legal representative
shall be entitled to receive any death benefits payable under the life
insurance maintained on my behalf by the Company as well as any earned but
as of yet unpaid bonus amounts from the year preceding the date of my
death, (2) any equity and performance compensation awards I have
shall continue to vest for one year following the date of my death, and in
determining the Grant Performance Hurdle for any remaining performance
vesting period, my estate will be credited with the shareholder return for
the full year preceding the year of my death, (3) the Company shall
pay the COBRA premiums associated with continuing medical insurance
coverage for the benefit of my spouse and dependent children for one year
following my date of death, and (4) my options that vested on or before my
death may continue to be exercised for up to one year following my death,
or if later, up until the expiration date of such
options.
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If I am on military leave,
sick leave, or other bona fide leave of absence, the
employment relationship between the Company and I shall be treated as continuing
intact, provided that the period of such leave does not exceed six months, or if
longer, so long as I retain a right to reemployment with the Company under an
applicable statute or by contract. If the period of a military leave, sick
leave, or other bona fide leave of absence exceeds 6 months and the I do not retain a
right to reemployment under an applicable statute or by contract, the employment
relationship shall be considered to be terminated for purposes of this Agreement
as of the first day immediately following the end of such 6-month period. In
applying the provisions of this paragraph, a leave of absence shall be
considered a bona fide leave of absence only if there is a reasonable
expectation that I will return to perform services for the Company.
Notwithstanding the foregoing, where a leave of absence is due to any medically
determinable physical or mental impairment that can be expected to result in
death or can be expected to last for a continuous period of not less than 6
months, where such impairment causes me to be unable to perform the duties of my
position of employment or any substantially similar position of employment, a
29-month period of absence may be substituted for such 6-month
period.
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(iii) Relocation. The
Company requires me, without my consent, to be based at any office or location
outside of a 40-mile radius of midtown Manhattan, New York, New
York.
(1) a
merger or acquisition in which 50% or more of the Company’s voting stock
outstanding after the merger or acquisition is held by holders different from
those who held the Company’s voting stock immediately prior to such merger or
acquisition;
(2) the
sale, transfer or other disposition of all or substantially all of the assets of
the Company in liquidation or dissolution of the Company;
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(3) a
transfer of all or substantially all of the Company’s assets pursuant to a
partnership or joint venture agreement or similar arrangement where the
Company’s resulting interest is or becomes less than 50%;
(4) on
or after the Effective Date, a change in ownership of the Company through an
action or series of transactions, such that any person is or becomes the
beneficial owner, directly or indirectly, of 50% or more of the Company’s voting
stock; or
(5) a
change occurs in the composition of the Board during any one-year period such
that the individuals who, as of the beginning of such two-year period,
constitute the Board (such Board shall be hereinafter referred to as the
“Incumbent Board”) cease for any reason to constitute at least a majority of the
Board; provided, however, that for purposes of this definition, any individual
who becomes a member of the Board subsequent to the beginning of the two-year
period, whose election, or nomination for election by the Company’s
stockholders, was approved by a vote of at least a majority of those individuals
who are members of the Board and who were also members of the Incumbent Board
(or deemed to be such pursuant to this proviso) shall be considered as though
such individual were a member of the Incumbent Board; and provided further,
however, that any such individual whose initial assumption of office occurs as a
result of or in connection with a solicitation subject to Rule 14a-12(c) of
Regulation 14A promulgated under the Exchange Act of 1934, as amended, or other
actual or threatened solicitation of proxies or consents by or on behalf of an
entity other than the Board shall not be so considered as a member of the
Incumbent Board.
However, an event that is or would
constitute Good Reason shall cease to be Good Reason if: (1) I do not give
the Company written notice of my intent to terminate my employment within
45 days after the event occurs; (2) the Company reverses the action or
cures the default that constitutes Good Reason within 30 days after I notify it
in writing that Good Reason exists before I terminate employment; or (3) I was a
primary instigator of the Good Reason event and the circumstances make it
inappropriate for me to receive Good Reason resignation benefits under this
Agreement.
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The “Restricted Period”
shall mean the period of my employment with the Company and:
(i) Eighteen
(18) months after my termination for Cause under Section 5(b), resignation
without Good Reason under Section 5(e), or resignation with Good Reason
under Section 5(e)(vi); and
(ii) Six
(6) months after my resignation with Good Reason under Section 5(e)(i) through
(v).
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(a) To the Company. I
will send all communications to the Company in writing, by mail, hand delivery
or facsimile, addressed as follows (or in any other manner the Company notifies
me to use):
Capital Trust, Inc.
Attention:
Xx. Xxxx X. Xxxxx
000 Xxxx
Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Tel.:
(000) 000-0000
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With
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 00000-0000
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With
copy to:
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Xxxxxxx
Xxxxxxxxx, Esq.
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00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxx 00000-0000
Tel:
(000) 000-0000
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11. Interpretation; Exclusive
Forum. The validity, interpretation, construction, and
performance of this Agreement shall be governed by the laws of the state of New
York (excluding any that mandate the use of another jurisdiction’s laws). Any
litigation, arbitration, or similar proceeding with respect to such matters only
may be brought within that state, and all parties to this Agreement consent to
that state’s jurisdiction and agree that venue anywhere in that state would be
proper.
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Interpretation and
Amendments. This Agreement is
intended to comply with or be exempt
from Code Section
409A, and the Company shall have complete discretion to interpret and
construe this Agreement and any associated documents in any manner
that establishes an exemption from (or otherwise conforms them to) the
requirements of Section 409A. If, for any reason including
imprecision in drafting, any Agreement provision
does not accurately reflect its intended establishment of an exemption
from or compliance with Code
Section 409A, as demonstrated by consistent interpretations or other
evidence of intent, the provision shall be considered ambiguous and shall be
interpreted by the Company in a fashion consistent herewith, as
determined in the sole and absolute discretion of
the Company.
[SIGNATURE
PAGE FOLLOWS]
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I
ACKNOWLEDGE THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE COMPANY AND
ME RELATING TO THE SUBJECTS COVERED IN THIS AGREEMENT ARE CONTAINED IN IT
AND THAT I HAVE ENTERED INTO THIS AGREEMENT VOLUNTARILY AND NOT IN
RELIANCE ON ANY PROMISES OR REPRESENTATIONS BY THE COMPANY OTHER THAN
THOSE CONTAINED IN THIS AGREEMENT ITSELF.
I
FURTHER ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT, THAT I
UNDERSTAND ALL OF IT, AND THAT I HAVE BEEN GIVEN THE OPPORTUNITY TO
DISCUSS THIS AGREEMENT WITH MY PRIVATE LEGAL COUNSEL AND HAVE AVAILED
MYSELF OF THAT OPPORTUNITY TO THE EXTENT I WISHED TO DO SO. I UNDERSTAND
THAT BY SIGNING THIS AGREEMENT I AM GIVING UP MY RIGHT TO A JURY
TRIAL.
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CAPITAL
TRUST, INC.
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Dated: ______________
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By:
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/s/ Xxxx X. Xxxxx | |
Name: | Xxxx X. Xxxxx | ||
Title: | Chief Executive Officer | ||
Dated: ______________
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/s/ Xxxxxxx X. Xxxxxx | |
XXXXXXX
X. XXXXXX
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SCHEDULE
A
SEPARATION AGREEMENT AND
GENERAL
RELEASE
This SEPARATION AGREEMENT AND GENERAL
RELEASE (“Release”) made this
___ day of _________, ____ by and between Capital Trust, Inc. (the “Company”) and Xxxxxxx
X. Xxxxxx (“Executive”):
In exchange for the mutual promises
exchanged herein and other good and valid consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
Executive agrees that his employment
with the Company has ended or will end on [date]. Executive will be
entitled to those separation and other benefits as set forth in his Employment
Agreement with the Company dated as of [date].
In exchange for the benefits provided
herein, Executive irrevocably and unconditionally releases the Company, its
current or former parents, subsidiaries, or affiliates, their past, present, or
future employees or agents, their successors, their benefit plans and the
administrators of such plans (collectively, the “Released Parties”),
from all known or unknown claims that Executive presently may have arising out
of his employment with, or separation from, the Company, other than claims (i)
seeking enforcement of this Release, (ii) for vested awards or benefits under
the Company’s employee benefit plans, including the 2004 Long-Term Incentive
Plan and the Long-Term Incentive Plan, and (iii) to indemnification and coverage
under the Company’s directors and officers’ insurance policies (“Claims”). The
Claims Executive is releasing include, without limitation, claims under the Age
Discrimination in Employment Act of 1967 (“ADEA”), Title VII of
the Civil Rights Act of 1964, the Americans with Disabilities Act, the Employee
Retirement Income Security Act of 1974, the Fair Labor Standards Act, the Family
and Medical Leave Act, the New York State Human Rights Law; the New York City
Human Rights Law; or any other federal, state, or local common law, statute,
regulation, or law of any other type. Executive acknowledges that he
is releasing Claims he knows he has and Claims he may not know he has, and
understands the significance of doing so.
Executive agrees to withdraw with
prejudice all complaints or charges, if any, he has filed against any Released
Party with any agency or court. Executive agrees that he will never
file any lawsuit or complaint against them based on the Claims purportedly
released in this Release. Executive promises never to seek any
damages, remedies, or other relief for himself personally (any right to which he
hereby waives) by filing or prosecuting a charge with any administrative agency
with respect to any Claim purportedly released by this
Release. Executive promises to request any administrative agency or
other body assuming jurisdiction of any such lawsuit, complaint, or charge to
withdraw from the matter or dismiss the matter with prejudice.
A-1
Executive agrees that this Release is
not an admission of guilt or wrongdoing by the Released Parties and acknowledges
that the Released Parties do not believe or admit that they have done anything
wrong.
Executive agrees to keep the fact and
terms of this Release in strict confidence. Executive agrees not to
disclose this document, its contents or subject matter to any person other than
his immediate family, attorney, accountant or income tax preparer, or otherwise
as required by law. Executive agrees that he will not denigrate,
disparage, defame, impugn, or otherwise damage or assail the reputation or
integrity of the Company or any Released Party.
Executive acknowledges that, before
signing this Release, he was given at least 21 calendar days to consider this
Release. Executive waives any right he might have to additional time
beyond this consideration period within which to consider this
Release. Executive acknowledges that: (a) he took advantage of that
time to consider this Release before signing it; (b) he carefully read this
Release; (c) he fully understands what this Release means; (d) he is entering
into it voluntarily; (e) he is receiving valuable consideration in exchange for
his execution of this Release that he would not otherwise be entitled to
receive; and (f) the Company, in writing, encouraged him to discuss this Release
with his attorney (at his own expense) before signing it, and that he did so to
the extent he deemed appropriate. Executive may revoke his release of
claims under the ADEA within seven (7) days after he signs this Release, in
which case he will not be entitled to receive all of the benefits set forth
herein.
This Release sets forth the entire
agreement between Executive and the Company pertaining to the subject matter of
this Release. This Release may not be modified or canceled in any
manner except by a writing signed by both Executive and an authorized Company
official. Executive acknowledge that the Company has made no
representations or promises to him other than those in this
Release. If any provision in this Release is found to be
unenforceable, all other provisions will remain fully enforceable. It
is not necessary that the Company sign this Release for it to become binding on
both Executive and the Company. This Release binds Executive’s heirs,
administrators, representatives, executors, successors, and assigns, and will
inure to the benefit of the Released Parties and their heirs, administrators,
representatives, executors, successors, and assigns. This Release
shall be construed as a whole according to its fair meaning; it shall not be
construed strictly for or against Executive or the Released
Parties. Unless the context indicates otherwise, the term "or" shall
be deemed to include the term "and" and the singular or plural number shall be
deemed to include the other. Disputes under this Release are to be
resolved in accordance with the existing arbitration agreement between the
parties. Except to the extent governed by federal law, this Release
shall be governed by the statutes and common law of the State of New York
(excluding any that mandate the use of another jurisdiction's
laws). Section headings in this Agreement are included for
convenience of reference only and shall not be a part of this Agreement for any
other purpose.
A-2
TAKE
THIS RELEASE HOME, READ IT, AND CAREFULLY CONSIDER ALL OF ITS PROVISIONS
BEFORE SIGNING IT. THIS RELEASE INCLUDES A RELEASE OF KNOWN AND
UNKNOWN CLAIMS.
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CAPITAL
TRUST, INC.
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Date: ______________
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By:
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Name: | |||
Title: | |||
Date: ______________
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XXXXXXX
X. XXXXXX
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A-3
SCHEDULE
B
I
recognize that differences may arise between Capital Trust, Inc. (the “Company”) and me
during or following my employment with the Company, and that those differences
may or may not be related to my employment. I understand and agree
that by entering into this Agreement to Arbitrate Claims (“Agreement”), I
anticipate gaining the benefits of a speedy, impartial dispute-resolution
procedure.
Except as
provided in this Agreement, the Federal Arbitration Act shall govern the
interpretation, enforcement and all proceedings pursuant to this
Agreement. To the extent that the Federal Arbitration Act either is
inapplicable, or held not to require arbitration of a particular claim or
claims, New York law pertaining to agreements to arbitrate shall
apply.
I
understand that any reference in this Agreement to the Company will be a
reference also to all of its subsidiary and affiliated entities, all benefit
plans, the benefit plans’ sponsors, fiduciaries, administrators, and affiliates,
and all successors and assigns of any of them.
The
Company and I mutually consent to the resolution by arbitration of all claims or
controversies (“claims”), past,
present or future, which arise, directly or indirectly, out of my employment (or
its termination) or the business of the Company, that the Company may have
against me or that I may have against the Company or against its officers,
directors, employees or agents in their capacity as such or
otherwise. The claims covered by this Agreement include, but are not
limited to, claims for wages or other compensation due; claims for breach of any
contract or covenant (express or implied); tort claims; claims for
discrimination (including, but not limited to, race, sex, sexual orientation,
religion, national origin, age, marital status, or medical condition, handicap
or disability); and claims for violation of any federal, state, or other
governmental law, statute, regulation, or ordinance, except claims excluded
elsewhere in this Agreement.
Except as
otherwise provided in this Agreement, both the Company and I agree that neither
of us shall initiate or prosecute any lawsuit or administrative action (other
than an administrative charge of discrimination to the EEOC or similar fair
employment practices agency, or an administrative charge within the jurisdiction
of the National Labor Relations Board or U.S. Department of Labor), in any way
related to any claim covered by this Agreement.
Claims
Not Covered by the Agreement
This
Agreement does not cover claims for workers’ compensation or unemployment
compensation benefits; or any claim as to which final and binding arbitration
cannot be required as a matter of law.
Claims,
either by the Company or by me, seeking injunctive relief for alleged violations
of intellectual property rights and non-disclosure and non-solicitation
covenants also are not covered by this Agreement (although all other aspects of
such claims, including any claims for damages, are covered by this
Agreement).
B-1
The
Company and I agree that the aggrieved party must give written notice of any
claim to the other party no later than the applicable Statute of Limitations as
may be prescribed by law.
Written
notice to the Company, or its officers, directors, employees or agents, shall be
sent to the addresses set forth in my Employment Agreement. I will be
given written notice at the last address recorded in my personnel
file.
The
written notice shall identify and describe the nature of all claims asserted and
the facts upon which such claims are based. The notice shall be sent
to the other party by certified or registered mail, return receipt
requested.
Representation
Any party
may be represented by an attorney or other representative selected by the
party.
Discovery
Each
party shall have the right to take the deposition of three (3) individuals and
any expert witness designated by another party. Each party also shall
have the right to make requests for production of documents to any
party. The subpoena right specified below shall be applicable to
discovery pursuant to this paragraph. Additional discovery may be had
where the arbitrator selected pursuant to this Agreement so orders, upon an
appropriate showing of justification.
At least
30 days before the arbitration, the parties must exchange lists of witnesses,
including any expert, and copies of all exhibits intended to be used at the
arbitration.
Each
party shall have the right to subpoena witnesses and documents for the
arbitration.
Arbitration
Procedures
The
arbitration will be held under the auspices of the American Arbitration
Association (“AAA”).
The
Company and I agree that, except as provided in this Agreement, the arbitration
shall be in accordance with the AAA’s National Rules for Resolution of
Employment Disputes (or other then-current employment arbitration
procedures). The arbitrator shall be either a retired judge, or an
attorney licensed to practice law in the state in which the arbitration is
convened and with demonstrated experience and expertise in executive
compensation matters (the “Arbitrator”). The arbitration shall take
place in or near the city in which I am or was last employed by the
Company.
B-2
The
Arbitrator shall be selected as follows. The sponsoring organization
shall give each party a list of 11 arbitrators drawn from its panel of
employment dispute arbitrators. Each party may strike all names on
the list it deems unacceptable. If only one common name remains on
the lists of all parties, that individual shall be designated as the
Arbitrator. If more than one common name remains on the lists of all
parties, the parties shall strike names alternately from the list of common
names until only one remains. The party who did not initiate the
claim shall strike first. If no common name exists on the lists of
all parties, the sponsoring organization shall furnish an additional list and
the process shall be repeated. If no arbitrator has been selected
after two lists have been distributed, then the parties shall strike alternately
from a third list, with the party initiating the claim striking first, until
only one name remains. That person shall be designated as the
Arbitrator.
The
Arbitrator shall apply the substantive law (and the law of remedies, if
applicable) of the state in which the claim arose, or federal law, or both, as
applicable to the claim(s) asserted. If the parties’ dispute concerns
a contract in which the parties have included a choice of law provision, the
Arbitrator shall apply the law as designated by the parties. The
Arbitrator is without jurisdiction to apply any different substantive law, or
law of remedies. The Arbitrator, and not any federal, state, or local
court or agency, shall have exclusive authority to resolve any dispute relating
to the interpretation, applicability, enforceability or formation of this
Agreement, including but not limited to any claim that all or any part of this
Agreement is void or voidable. The arbitration shall be final and
binding upon the parties, except as provided in this Agreement.
The
Arbitrator shall have jurisdiction to hear and rule on pre-hearing disputes and
is authorized to hold pre-hearing conferences by telephone or in person, as the
Arbitrator deems necessary. The Arbitrator shall have the authority
to entertain a motion to dismiss and/or a motion for summary judgment by any
party and shall apply the standards governing such motions under the Federal
Rules of Civil Procedure.
Either
party may obtain a court reporter to provide a stenographic record of
proceedings.
Either
party, upon request at the close of hearing, shall be given leave to file a
post-hearing brief. The time for filing such a brief shall be set by
the Arbitrator.
The
Arbitrator shall render a written award and opinion in the form setting forth
his/her findings and conclusions.
Either
party shall have the right, within 20 days of issuance of the Arbitrator’s
opinion, to file with the Arbitrator a motion to reconsider (accompanied by a
supporting brief), and the other party shall have 20 days from the date of the
motion to respond. The Arbitrator thereupon shall reconsider the
issues raised by the motion and, promptly, either confirm or change the
decision, which (except as provided by this Agreement) shall then be final and
conclusive upon the parties.
B-3
The
Company will be responsible for paying any filing fee and the fees and costs of
the Arbitrator and the arbitration; provided, however, that if I am the party
initiating the claim, I am responsible for contributing an amount equal to the
filing fee to initiate a claim in the court of general jurisdiction in the state
in which I am (or was last) employed by the Company. Each party shall
pay for its own costs and attorneys’ fees, if any. However, if any
party prevails on a statutory claim which affords the prevailing party
attorneys’ fees, or if there is a written agreement providing for fees, the
Arbitrator may award reasonable fees to the prevailing party, under the
standards for fee shifting provided by law.
Judicial
Review
Either
party may bring an action in any court of competent jurisdiction to compel
arbitration under this Agreement and to enforce an arbitration
award.
Interstate
Commerce
I
understand and agree that the Company is engaged in transactions involving
interstate commerce and that the Federal Arbitration Act applies to this
Agreement.
This
Agreement to arbitrate shall survive the termination of my
employment. It can only be revoked or modified by a writing signed by
the parties which specifically states an intent to revoke or modify this
Agreement.
This is
the complete agreement of the parties on the subject of arbitration of
disputes. This Agreement supersedes any prior or contemporaneous oral
or written understandings on the subject. No party is relying on any
representations, oral or written, on the subject of the effect, enforceability
or meaning of this Agreement, except as specifically set forth in this
Agreement.
If any
provisions of this Agreement are adjudged to be void or otherwise unenforceable,
in whole or in part, such adjudication shall not affect the validity of the
remainder of the Agreement, as the parties hereto intend to create a binding
agreement to arbitrate regardless of the unenforceability of any particular term
or terms.
The
promises by the Company and by me to arbitrate differences, rather than litigate
them before courts or other bodies, provide consideration for each
other.
B-4
Voluntary Agreement
I
ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT, THAT I UNDERSTAND ITS
TERMS, THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE COMPANY AND ME
RELATING TO THE SUBJECTS COVERED IN THE AGREEMENT ARE CONTAINED IN IT, AND THAT
I HAVE ENTERED INTO THE AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY
PROMISES OR REPRESENTATIONS BY THE COMPANY OTHER THAN THOSE CONTAINED IN THIS
AGREEMENT ITSELF.
I
UNDERSTAND THAT BY SIGNING THIS AGREEMENT I AM GIVING UP MY RIGHT TO A
JURY TRIAL.
|
Employee
initials:
_____________
|
I FURTHER
ACKNOWLEDGE THAT I HAVE BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS AGREEMENT
WITH MY PRIVATE LEGAL COUNSEL AND HAVE AVAILED MYSELF OF THAT OPPORTUNITY TO THE
EXTENT I WISH TO DO SO.
CAPITAL
TRUST, INC.
|
|||
Dated: December
31, 2008
|
By:
|
/s/ Xxxx X. Xxxxx | |
Name: | Xxxx X. Xxxxx | ||
Title: | Chief Executive Officer | ||
Dated: December
31, 2008
|
|
/s/ Xxxxxxx X. Xxxxxx | |
XXXXXXX
X. XXXXXX
|
|||
B-5