EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is entered into as of this 3rd
day of April, 2002, by and between CapitalSource Finance LLC, a Delaware limited
liability company (the "Employer"), and Xxxxx X. Xxxxxxx, an individual (the
"Executive").
WHEREAS, the Executive is currently employed as the Chief Credit
Officer and a Senior Vice President of the Employer;
WHEREAS, the Employer and the Executive desire to enter into this
Agreement to set out the terms and conditions for the employment relationship of
the Executive with the Employer; and
WHEREAS, CapitalSource Holdings LLC, a Delaware limited liability
company and the sole manager of the Employer (the "Manager"), has approved and
authorized the Employer's execution, delivery and performance of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto agree as
follows:
1. Employment Agreement. On the terms and conditions set forth in
this Agreement, the Employer agrees to employ the Executive and the Executive
agrees to be employed by the Employer for the Employment Period set forth in
Section 2 and in the position and with the duties set forth in Section 3. Terms
used herein with initial capitalization not otherwise defined are defined in
Section 20.
2. Term. The initial term of employment under this Agreement
shall be for a three-year period commencing on January 1, 2002 (the "Initial
Term"). The term of employment shall be automatically renewed for an additional
consecutive 12-month period (the "Extended Term") as of the second and every
subsequent anniversary of the date of this Agreement (the "Effective Date"),
unless and until either party provides written notice to the other party in
accordance with Section 10 hereof not less than 30 days before such anniversary
date that such party is electing not to renew the term of employment under this
Agreement ("Non-Renewal"), in which case the term of employment hereunder shall
end as of the end of such Initial Term or Extended Term, as the case maybe,
unless sooner terminated as hereinafter set forth. Such Initial Term and all
such Extended Terms are collectively referred to herein as the "Employment
Period." A notice of Non-Renewal given by either party to this Agreement shall
not be deemed a termination of the Executive's employment for purposes of
Sections S or 9 unless otherwise expressly provided in such notice of
Non-Renewal. Anything herein to the contrary notwithstanding, if on the date of
a Change of Control the remaining term of the Employment Period is less than 12
months, the Employee shall have the option to
extend the Employment Period for a period of 12 full months following the date
of the Change of Control, in which case the term of employment hereunder shall
end on the last day of the 12th full month following the date of the Change of
Control. Such option shall be exercised by the Employee by giving the Employer
written notice thereof not later than the earlier of the expiration of the
Employment Period (before giving effect to the Change of Control) and 10 days
following the date of the Change of Control.
3. Position and Duties. The Executive shall serve as the Chief
Credit Officer and a Senior Vice President of the Employer during the Employment
Period. As such, the Executive shall render services to the Employer of the type
customarily performed by persons serving in such capacity. The Executive shall
also perform such other duties with the Employer and any Company Affiliate as
the Chief Executive Officer or the President of the Employer or the Manager may
from time to time reasonably determine and assign to the Executive. The
Executive shall devote the Executive's reasonable best efforts and full business
time to the performance of the Executive's duties and the advancement of the
business and affairs of the Employer, except for previously disclosed
activities, board activities, charitable work and similar activities which do
not materially interfere with the performance of the Executive's duties
hereunder.
4. Place of Performance. In connection with the Executive's
employment by the Employer, the Executive shall be based at the principal
offices of the Employer in Chevy Chase, Maryland except as otherwise agreed by
the Executive and the Employer and except for reasonable travel on the
Employer's business consistent with the Executive's position.
5. Compensation and Benefits; Options; Change of Control.
(a) Base Salary. During the Employment Period, the
Employer shall pay to the Executive a base salary (the "Base Salary") at the
rate of $300,000 per calendar year, less applicable deductions, and prorated for
any partial year. The Base Salary shall be reviewed by the Employer no less
frequently than annually and shall be increased by three percent per annum or
such greater amount as may be determined in the discretion of the Employer and
such adjusted Base Salary shall constitute the "Base Salary" for purposes of
this Agreement. The Base Salary shall be paid in substantially equal
installments in accordance with the Employer's regular payroll procedures.
(b) Annual Bonus. During the Employment Period, the
Executive shall be eligible to receive for each calendar year, an annual bonus
(the "Annual Bonus"), payable at the sole discretion of the Manager. In the
event the Manager determines to pay such bonus for any calendar year, such bonus
shall in no event be more than 100% of the Base Salary for such year and such
bonus shall be paid no later than the end of the first calendar quarter of such
year. After a Change of
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Control, the Executive shall be paid an Annual Bonus of not less than 50% of his
Base Salary.
(c) Vacation; Benefits. The Employer provides a package
of benefits to its employees, including vacation and sick leave. The Employer
shall provide to the Executive benefits consistent with and comparable to those
the Employer provides to similarly-situated employees of the Employer, except
that the terms of any options to purchase equity securities of the Employer or
any Company Affiliate shall be as set forth in a separate option agreement
between the Employer and the Executive and shall at all times be governed by the
terms of such agreement. All benefits are provided at the Employer's sole
discretion, provided that the Executive shall not be excluded from vacation time
and benefits offered other similarly situated employees, and the Executive shall
be covered by a disability insurance policy that provides benefits of at least
60% of the Executive's Base Salary (not to exceed benefits of $10,000 per
month). The Employer shall have the right to change insurance carriers and to
adopt, amend, terminate or modify employee benefit plans and arrangements at any
time and without the consent of the Executive.
(d) Change of Control. Upon the occurrence of a Change of
Control in which the aggregate consideration paid to the holders of equity
securities of the Employer and the Company Affiliates is both (i) at least $600
million (paid in cash or in securities that are, or upon issuance will be,
traded on a United States national securities exchange or NASDAQ, or any
combination of cash and such securities) and (ii) not less than 1.5 times the
consolidated book value of the Employer and the Company Affiliates as of the end
of the month preceding the date of the Change of Control, the Total Equity Value
shall be calculated. In the event the Total Equity Value is less than
$5,000,000, the Employer shall owe the Executive an amount equal to the
difference between $5,000,000 and the Total Equity Value.
For purposes of Section 5(d)(i), the value of any securities included
in the consideration shall be based upon the price of such securities on the
date of the Change of Control, determined on the basis of the last reported sale
price of such securities as reported on the national securities exchange upon
which such securities is listed or on NASDAQ, as the case may be, or if there is
no such reported sale on such day, on the basis of the average of the closing
bid and asked quotations as so reported. The Employer shall require any
successor to the Employer resulting from the Change of Control to expressly
assume the obligations of the Employer to the Executive under this Section 5,
and to pay all amounts payable as a result of the Change of Control within 10
days following the date of the Change of Control.
6. Expenses. The Executive is expected and is authorized to incur
reasonable expenses in the performance of his duties hereunder. The Employer
shall reimburse the Executive for all such expenses reasonably and actually
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incurred in accordance with policies which may be adopted from time to time by
the Employer promptly upon periodic presentation by the Executive of an itemized
account, including reasonable substantiation, of such expenses.
7. Confidentiality, Non-Disclosure and Non-Competition Agreement.
The Employer and Executive acknowledge and agree that during the Executive's
employment with the Employer the Executive will have access to and may assist in
developing Company Confidential Information and related materials and will
occupy a position of trust and confidence with respect to the Employer's affairs
and business and the affairs and business of the Company Affiliates. The
Executive agrees that the following obligations are necessary to preserve the
confidential and proprietary nature of Company Confidential Information and
related materials and to protect the Employer and the Company Affiliates against
harmful solicitation of employees and customers, harmful competition and other
actions by the Executive that would result in serious adverse consequences for
the Employer and the Company Affiliates:
(a) Non-Disclosure. During and after the Executive's
employment with the Employer, the Executive will not use, disclose or transfer
any Company Confidential Information or related materials other than as
authorized in writing by the Employer or within the scope of the Executive's
duties with the Employer, and will not use in any way other than in the
Employer's business any Company Confidential Information, including information
or material received by the Employer or any Company Affiliate from others and
intended to be kept in confidence by its recipients. The Executive understands
that the Executive is not allowed to sell, transfer, license or otherwise
exploit any products or services that embody, or otherwise use or exploit in
whole or in part, any Company Confidential Information or related materials. The
Executive will take all reasonable precautions to prevent the inadvertent or
accidental disclosure of Company Confidential Information.
(b) Materials. The Executive will not remove any Company
Confidential Information or any other property of the Employer or any Company
Affiliate from the Employer's premises or make copies of such materials except
for normal and customary use in the Employer's business. The Executive will
return to the Employer all Company Confidential Information, related materials
and copies of the foregoing and all other property of the Employer or any
Company Affiliate at any time upon the request of the Employer, and in any
event, without such request and as a condition to receiving final compensation,
upon the termination of the Executive's employment with the Employer (whether
voluntary or involuntary). The Executive agrees not to retain any copies of any
Company Confidential Information and related materials after the Executive
ceases to be employed by the Employer.
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(c) No Solicitation or Hiring of Employees. During the
Non-Compete Period, the Executive shall not, without the prior written consent
of the Employer, directly or indirectly: (i) interfere with, disrupt or attempt
to interfere with or disrupt (through solicitation or otherwise for the benefit
of any person or entity other than the Employer or a Company Affiliate) any
present or prospective relationship, contractual or otherwise, between the
Employer or any Company Affiliate and any of the licensors, licensees, or
employees of the Employer or any Company Affiliate or any then existing client,
customer or supplier of the Employer or any Company Affiliate; or (ii) solicit,
encourage or induce any of the employees, agents, consultants or advisors of the
Employer or any Company Affiliate to take employment with any other person or
entity (other than the Employer or a Company Affiliate) or solicit, encourage or
induce any officer or employee who has left the employment of the Employer or
any Company Affiliate until after 12 months following the termination of such
officer's or employee's employment with the Employer or a Company Affiliate to
take employment with any other person or entity (other than the Employer or a
Company Affiliate); or (iii) hire any of the employees, agents, consultants or
advisers of the Employer or any Company Affiliate (other than on behalf of the
Employer or a Company Affiliate) or hire any officer or employee who has left
the employment of the Employer or any Company Affiliate until after 12 months
following the termination of such officer's or employee's employment with the
Employer or a Company Affiliate (other than on behalf of the Employer or a
Company Affiliate); or (iv) solicit or accept the business of any then existing
customer or client of the Employer or any Company Affiliate with respect to
products or services the same as or similar to those previously supplied by the
Employer or such Company Affiliate to such customer or client.
(d) Non-Competition.
(1) Subject to Section 7(d)(3), during the
Non-Compete Period, the Executive shall not, directly or indirectly, in any
Geographic Area: (i) engage for his own account or own behalf or in conjunction
with any other person or entity (other than the Employer or a Company Affiliate)
in any capacity, in a Competitive Activity; (ii) render any services in any
capacity to any person or entity engaged in a Competitive Activity (other than
the Employer or a Company Affiliate); or (iii) become interested in any person
or entity engaged in a Competitive Activity (other than the Employer and the
Company Affiliates) as a partner, shareholder, director, officer, employee,
principal, member, agent, trustee, consultant or in any other relationship or
capacity; provided, however, the Executive may own, directly or indirectly,
solely as a passive investment, securities of any such entity which are traded
on a national securities exchange or NASDAQ if the Executive (A) is not a
controlling person of or a member of a group which controls, such entity, and
(B) does not, directly or indirectly, own 5% or more of any class of securities
of such entity. The Executive acknowledges that this covenant has a unique, very
substantial and immeasurable value to the Employer, that the Executive has
sufficient assets and skills to provide a livelihood for the Executive
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while such covenant remains in force and that, as a result of the foregoing, in
the event that the Executive breaches such covenant, monetary damages would be
an insufficient remedy for the Employer and equitable enforcement of the
covenant would be proper.
(2) If the restrictions against engaging in
Competitive Activities contained in Section 7(d)(1) shall be determined by any
court of competent jurisdiction to be unenforceable by reason of their extending
for too great a period of time or over too great a geographical area or by
reason of their being too extensive in any other respect, Section 7(d)(1) shall
be interpreted to be effective for the maximum period of time for which it may
be enforceable and over the maximum geographical area as to which it may be
enforceable and to the maximum extent in all other respects as to which it may
be enforceable, all as determined by such court in such action.
(3) The provisions of Section 7(d)(1) shall
become null and void in the event (i) the Employer terminates the employment of
the Executive without Cause or (ii) the Executive terminates his employment with
the Employer for Good Reason. All other provisions of Section 7 shall continue
in full force and effect following such termination of employment.
(e) Prior Proprietary Information. The Executive agrees
not to disclose to the Employer or any Company Affiliate or use in the business
of the Employer or any Company Affiliate any information or material acquired by
the Executive prior to his employment by the Employer and known by the Executive
to be confidential relating to the business of any third person and intended by
that person not to be disclosed to the Employer or any Company Affiliate.
(f) Publicity. During the Employment Period, the
Executive hereby grants to the Employer the right to use the Executive's name
and likeness, without additional consideration, on, in and in connection with
technical, marketing or disclosure materials, or any combination thereof,
published by or for the Employer or any Company Affiliate.
(g) Conflicting Obligations and Rights. The Executive
agrees to inform the Employer of any apparent conflicts between the Executive's
work for the Employer and any obligations the Executive may have to preserve the
confidentiality of another's proprietary information or related materials before
using the same on the Employer's behalf. Otherwise, the Employer may conclude
that no such conflict exists and the Executive agrees thereafter to make no such
claim against the Employer. The Employer shall receive such disclosures in
confidence and consistent with the objectives of avoiding any conflict of
obligations and rights or the appearance of any conflict of interest.
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(h) Enforcement, The Executive acknowledges that in the
event of the unauthorized use or disclosure of any Company Confidential
Information or related materials by the Executive, the business interests of the
Employer and the Company Affiliates will be irreparably injured, the full extent
of the damages to the Employer and the Company Affiliates will be impossible to
ascertain, monetary damages will not be an adequate remedy for the Employer and
the Company Affiliates, and the Employer will be entitled to enforce this
Agreement by an injunction or other equitable relief, without the necessity of
posting bond or security, which the Executive expressly waives. The Executive
understands that the Employer may waive some of the requirements expressed in
this Agreement, but that such a waiver to be effective must be made in writing
and should not in any way be deemed a waiver of the Employer's right to enforce
any other requirements or provisions of this Agreement. The Executive agrees
that each of the Executive's obligations specified in this Agreement is a
separate and independent covenant and that the unenforceability of any of them
shall not preclude the enforcement of any other covenants in this Agreement.
8. Termination of Employment.
(a) Permitted Terminations. The Executive's employment
hereunder may be terminated during the Employment Period under the following
circumstances:
(i) Death. The Executive's employment hereunder
shall terminate upon the Executive's death;
(ii) By the Employer. The Employer may terminate
the Executive's employment:
(A) Disability. If the Executive shall
have been substantially unable to perform the Executive's material duties
hereunder by reason of illness, physical or mental disability or other similar
incapacity, which inability shall continue for three consecutive months or six
months in any twelve month period (a "Disability") (provided, that until such
termination, the Executive shall continue to receive his compensation and
benefits hereunder, reduced by any benefits payable to him under any disability
insurance policy or plan applicable to him or her); or
(B) Cause. For Cause or without Cause;
(iii) By the Executive. The Executive may
terminate his employment for any reason or for no reason.
(b) Termination. Any termination of the Executive's
employment by the Employer or the Executive (other than because of the
Executive's death). shall be communicated by written Notice of Termination to
the other party hereto in
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accordance with Section 10 hereof. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon, if any, and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated.
Termination of the Executive's employment shall take effect on the Date of
Termination. The Executive agrees, in the event of any dispute under Section
8(a)(ii)(A) as to whether a Disability exists, and if requested by the Employer,
to submit to a physical examination by a licensed physician selected by the
Employer, the cost of such examination to be paid by the Employer. The written
medical opinion of such physician shall be conclusive and binding upon each of
the parties hereto as to whether a Disability exists and the date when such
Disability arose. This Section shall be interpreted and applied so as to comply
with the provisions of the Americans with Disabilities Act and any applicable
state or local laws.
9. Compensation Upon Termination.
(a) Death. If the Executive's employment is terminated
during the Employment Period as a result of the Executive's death, this
Agreement shall terminate without further notice or any action required by the
Employer or the Executive's legal representatives. Upon the Executive's death,
the Employer shall pay or provide the following:
(i) Base Salary. The Employer shall pay to the
Executive's legal representative or estate, as applicable, an amount equal to
one year's Base Salary; provided, that the Employer may at its discretion pay
the aggregate of such amount in a lump sum within thirty days following the
Executive's death; and
(ii) Accrued Benefits. The Employer shall pay to
the Executive's legal representative or estate, as applicable, the Accrued
Benefits.
The Employer shall pay to the Executive's estate, or as may be directed by the
legal representatives of such estate, the Executive's Base Salary and Accrued
Benefits due pursuant to Section 9(a)(i) and (ii), at the time such payments are
due, and the Employer shall have no further obligation to the Executive under
this Agreement.
(b) Disability. If the Employer terminates the
Executive's employment during the Employment Period because of the Executive's
Disability pursuant to Section 8(a)(ii)(A), the Employer shall pay to the
Executive the Executive's Base Salary due through the Date of Termination and
all Accrued Benefits, if any, to which the Executive is entitled as of the Date
of Termination, at the time such payments are due, and the Employer shall have
no further obligations to the Executive under this Agreement; provided, that
payments so made to the Executive with respect to any period that the Executive
is substantially unable to perform the Executive's material duties hereunder by
reason of illness, physical or
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mental illness or other similar incapacity shall be reduced by the sum of the
amounts, if any, payable to the Executive by reason of such disability, at or
prior to the time of any such payment, under any disability insurance policy or
benefit plan and which amounts have not previously been applied to reduce any
such payment.
(c) Termination by the Employer for Cause or by the
Executive without Good Reason. If, during the Employment Period, the Employer
terminates the Executive's employment for Cause pursuant to Section 8(a)(ii)(B)
or the Executive terminates his employment without Good Reason, the Employer
shall pay to the Executive the Executive's Base Salary due through the Date of
Termination and all Accrued Benefits, if any, to which the Executive is entitled
as of the Date of Termination, at the time such payments are due, and the
Employer shall have no further obligations to the Executive under this
Agreement.
(d) Termination by the Employer without Cause or by the
Executive with Good Reason. Subject to Section 9(e), if the Employer terminates
the Executive's employment during the Employment Period other than for Cause or
Disability pursuant to Section 8(a) or if the Executive terminates his
employment hereunder with Good Reason, the Employer shall (i) pay the Executive
(A) the Executive's Base Salary due through the Date of Termination, (B) a pro
rata portion (based upon the number of days the Executive was employed during
the calendar year in which the Date of Termination occurs) of the average amount
of the Annual Bonuses, if any, that were paid to the Executive for the two
calendar years immediately preceding the year of the Date of Termination (the
"Average Bonus Amount") and (C) all Accrued Benefits, if any, to which the
Executive is entitled as of the Date of Termination, in each case at the time
such payments are due and (ii) pay, during the 12-month period commencing on the
Date of Termination (the "Severance Period"), to the Executive an aggregate
amount equal to Executive's Base Salary for the calendar year in which the Date
of Termination occurs, payable in equal installments on the Employer's regular
salary payment dates, plus the Average Bonus Amount (if any) (such Average Bonus
Amount to be paid on the last day of the Severance Period); provided, that no
notice of Non-Renewal shall be deemed to be a termination of the Executive's
employment for such purposes unless otherwise expressly provided in such notice
of Non-Renewal. Anything herein to the contrary notwithstanding, if, after the
occurrence of a Change of Control, the Employer (or its successor) terminates
the Executive's employment hereunder other than for Cause or Disability pursuant
to Section 8(a) or if the Executive terminates his employment hereunder for Good
Reason, all amounts payable to the Executive pursuant to this Section 9(d) shall
be paid to the Executive within 10 days following the date of the termination of
employment, and the Employer shall require any successor to the Employer
resulting from the Change of Control to expressly assume this obligation of the
Employer.
(e) Liquidated Damages. The parties acknowledge and agree
that damages which will result to the Executive for termination by the Employer
of the
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Executive's employment without Cause or by the Executive for Good Reason shall
be extremely difficult or impossible to establish or prove, and agree that the
amounts payable to the Executive under Section 9(d) (the "Severance Payments")
shall constitute liquidated damages for any such termination. The Executive
agrees that, except for such other payments and benefits to which the Executive
may be entitled as expressly provided by the terms of this Agreement or any
applicable benefit plan, such liquidated damages shall be in lieu of all other
claims that the Executive may make by reason of any such termination of his
employment and that, as a condition to receiving the Severance Payments, the
Executive will execute a release of claims in a form reasonably satisfactory to
the Employer.
10. Notices. All notices, demands, requests, or other
communications which may be or are required to be given or made by any party to
any other party pursuant to this Agreement shall be in writing and shall be hand
delivered, mailed by first-class registered or certified mail, return receipt
requested, postage prepaid, delivered by overnight air courier, or transmitted
by facsimile transmission addressed as follows:
(i) If to the Employer:
CapitalSource Finance LLC
0000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxx Xxxxx, Xxxxxxxx 00000
Attn: General Counsel
Facsimile Number: 000-000-0000
(ii) If to the Executive:
Xxxxx X. Xxxxxxx
CapitalSource
Xxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile Number: 000-000-0000
Each party may designate by notice in writing a new address to
which any notice, demand, request or communication may thereafter be so given,
served or sent. Each notice, demand, request, or communication that shall be
given or made in the manner described above shall be deemed sufficiently given
or made for all purposes at such time as it is delivered to the addressee (with
the return receipt, the delivery receipt, confirmation of facsimile transmission
or the affidavit of messenger being deemed conclusive but not exclusive evidence
of such delivery) or at such time as delivery is refused by the addressee upon
presentation.
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11. Severability. The invalidity or unenforceability of any one or
more provisions of this Agreement shall not affect the validity or
enforceability of the other provisions of this Agreement, which shall remain in
full force and effect.
12. Survival. It is the express intention and agreement of the
parties hereto that the provisions of Sections 7, 9, 10, 11, 13, 17, 20 and 21
hereof and this Section 12 shall survive the termination of employment of the
Executive for a period of three years. In addition, all obligations of the
Employer to make payments hereunder shall survive any termination of this
Agreement on the terms and conditions set forth herein.
13. Assignment. The rights and obligations of the parties to this
Agreement shall not be assignable or delegable, except that (i) in the event of
the Executive's death, the personal representative or legatees or distributees
of the Executive's estate, as the case may be, shall have the right to receive
any amount owing and unpaid to the Executive hereunder and (ii) the rights and
obligations of the Employer hereunder shall be assignable and delegable in
connection with any subsequent merger, consolidation, sale of all or
substantially all of the assets or equity interests of the Employer or Holdings
or similar transaction involving the Employer or Holdings or a successor
corporation. The Employer shall require any successor to the Employer to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Employer would be required to perform it if no such
succession had taken place.
14. Binding Effect. Subject to any provisions hereof restricting
assignment, this Agreement shall be binding upon the parties hereto and shall
inure to the benefit of the parties and their respective heirs, devisees,
executors, administrators, legal representatives, successors and assigns.
15. Amendment; Waiver. This Agreement shall not be amended,
altered or modified except by an instrument in writing duly executed by the
parties hereto. Neither the waiver by either of the parties hereto of a breach
of or a default under any of the provisions of this Agreement, nor the failure
of either of the parties, on one or more occasions, to enforce any of the
provisions of this Agreement or to exercise any right or privilege hereunder,
shall thereafter be construed as a waiver of any subsequent breach or default of
a similar nature, or as a waiver of any such provisions, rights or privileges
hereunder.
16. Headings. Section and subsection headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed to
be a part of this Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
17. Governing Law. This Agreement, the rights and obligations of
the parties hereto, and any claims or disputes relating thereto, shall be
governed by and
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construed in accordance with the laws of the State of Maryland (but not
including any choice of law rule thereof that would cause the laws of another
jurisdiction to apply).
18. Entire Agreement. This Agreement constitutes the entire
agreement between the parties respecting the employment of the Executive, there
being no representations, warranties or commitments except as set forth herein.
19. Counterparts. This Agreement may be executed in two
counterparts, each of which shall be an original and all of which shall be
deemed to constitute one and the same instrument.
20. Definitions.
"Accrued Benefits" means (i) any compensation deferred by the
Executive prior to the Date of Termination and not paid by the Employer, (ii)
any amounts or benefits owing to the Executive or to the Executive's
beneficiaries under the then applicable benefit plans of the Employer, and (iii)
any amounts owing to the Executive for reimbursement of expenses properly
incurred by the Executive prior to the Date of Termination and which are
reimbursable in accordance with Section 6.
"Agreement" means this Employment Agreement.
"Annual Bonus" has the meaning set forth in Section 5(b).
"Average Bonus Amount" has the meaning set forth in Section
9(d).
"Base Salary" has the meaning set forth in Section 5(a).
"Cause" means (i) the conviction of, or plea of nolo
contendere to, a felony or a crime involving moral turpitude (excluding a
traffic violation not involving a period of incarceration of more than 24 hours)
or the willful commission of any other act or omission involving dishonesty or
fraud with respect to, and materially adversely affecting the business affairs
of, the Employer or any Company Affiliate or any of their customers or
suppliers, (ii) conduct tending to bring the Employer or any Company Affiliate
into substantial public disgrace or disrepute that causes substantial and
material injury to the business and operations of the Employer or such Company
Affiliate, (iii) substantial and repeated failure to perform duties of the
office held by the Executive as reasonably directed by the Employer (other than
any such failure resulting from the Executive's incapacity due to injury or
illness), and such failure is not cured within 30 days after the Executive
receives written notice thereof from the Employer that specifically identifies
the manner in which the Employer believes the Executive has not substantially
performed his duties, or (iv) gross negligence or willful misconduct with
respect to the Employer or any Company Affiliate that causes substantial and
material injury
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to the business and operations of the Employer or such Company Affiliate. For
purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Employer.
"Change of Control" means the occurrence of one or more of the
following events: (i) the direct or indirect sale, exchange or other transfer of
all or substantially all of the assets of the Employer or Holdings or all or
substantially all of the membership interests in the Employer or Holdings (or of
any equity interests into which they may have been converted) in a single
transaction, or series of related transactions which when taken as a whole
constitute one transaction to or with any other entity or group of entities
(other than the Employer or a Company Affiliate) except in connection with an
IPO; or (ii) the merger or consolidation of the Employer or Holdings with or
into another entity (other than the Employer or a Company Affiliate), or any
other form of business combination or reorganization, in which the Employer or a
Company Affiliate shall not be the continuing or surviving entity of such
merger, consolidation, business combination or reorganization, except in
connection with an IPO.
"Company Affiliate" means, collectively, Holdings, Investment,
and each Subsidiary thereof, and any corporation, limited liability company,
partnership or other entity that owns a controlling interest in the Employer and
any successor thereto.
"Company Confidential Information" means the following
materials and information, whether having existed, now existing or to be
developed or created during the Executive's employment by the Employer:
(a) Products and Services. All information
relating to products and services, whether owned or licensed by the Company,
whether existing or in various stages of research and development, that is not
generally known to the public or within the industry or trade in which Company
competes (such as know-how, training, specifications, technical data, processes,
techniques, methodologies, and strategies) and the physical embodiments of such
information.
(b) Business Procedures. All information
concerning or relating to the way the Company conducts its business which is not
generally known to the public (such as internal business procedures, controls,
plans, financing techniques and practices, computer system passwords and other
computer security controls, financial information, information supplied by
clients and customers of the Company and employee data) and the physical
embodiments of such information.
(c) Marketing Plans and Customer Lists. All
information pertaining to the Company's proprietary marketing plans and
strategies; forecasts
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and projections; proprietary marketing practices, procedures and policies;
financial data; credit terms; proprietary pricing practices, procedures and
policies; goals and objectives; proprietary quoting practices, procedures and
policies; and proprietary customer data including customer lists, contacts,
representatives, requirements and needs, specifications, data provided by or
about prospective existing or past customers and contract terms applicable to
such customers, and the physical embodiments of such information.
(d) Generally Known. Any information in addition
to the foregoing which is not generally known to the public or within the
industry or trade in which the Company competes that gives the Company any
advantage over its competitors, and the physical embodiments of such
information.
(e) General Knowledge. The general skills,
knowledge and experience gained during the Executive's employment with the
Employer, and information publicly available or generally known within the
industry or trade in which the Company competes, is not considered Company
Confidential Information.
"Competitive Activity" means any activity consisting of or
involving the type of business conducted by the Executive on behalf of the
Employer or any Company Affiliate during the Executive's employment with the
Employer or any Company Affiliate, including, without limitation, the structured
finance business and/or the healthcare middle-market finance business.
"Date of Termination" means (i) if the Executive's employment
is terminated by the Executive's death, the date of the Executive's death; (ii)
if the Executive's employment is terminated because of the Executive's
Disability pursuant to Section 8(a)(ii)(A), 30 days after Notice of Termination,
provided that the Executive shall not have returned to the performance of the
Executive's duties on a full-time basis during such 30-day period; (iii) if the
Executive's employment is terminated by the Employer for Cause pursuant to
Section 8(a)(ii)(B) or by the Executive pursuant to Section 8(a)(iii), the date
specified in the Notice of Termination; or (iv) if the Executive's employment is
terminated during the Employment Period other than pursuant to Section 8(a), the
date on which Notice of Termination is given.
"Effective Date" shall have the meaning set forth in Section
2.
"Employment Period" has the meaning set forth in Section 2.
"Extended Term" shall have the meaning set forth in Section 2.
"Geographic Area" shall mean the United States of America.
"Good Reason" means (i) the Employer's failure to perform or
observe any of the material terms or provisions of this Agreement in any
material respect,
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and the continued failure of the Employer to cure such default within 30 days
after written demand for performance has been given to the Employer by the
Executive, which demand shall describe specifically the nature of such alleged
failure to perform or observe such material terms or provisions; (ii) a material
reduction in the Executive's duties, position (including the failure to be named
to the position of Chief Credit Officer or a more senior position),
responsibilities or authority without his written consent; (iii) any requirement
by the Employer without the written consent of the Executive that the Executive
relocate to a place more than 25 miles from Chevy Chase, Maryland to perform his
duties hereunder; (iv) a reduction in Executive's Base Salary or (v) the failure
of the Employer to obtain the assumption of the Employer's obligations under
this Agreement by a successor as contemplated by Section 13.
"Holdings" means CapitalSource Holdings LLC, a Delaware
limited liability company, and its successors and assigns.
"Initial Term" shall have the meaning set forth in Section 2.
"Investment" means CapitalSource Investment LLC, a Delaware
limited liability company, and its successors and assigns.
"IPO" means an underwritten public offering registered under
the Securities Act of 1933, as amended, by the Employer or Holdings, or a
corporate successor to the Employer or Holdings, of its equity securities.
"Manager" means Holdings, in its capacity as the sole manager
of the Employer, and its successors and assigns in such capacity.
"NASDAQ" means the National Association of Securities Dealers
Automated Quotation System.
"Non-Compete Period" means the duration of the Employment
Period and the 12 month period following the earlier of the expiration of the
Employment Period or the Date of Termination.
"Non-Renewal" has the meaning set forth in Section 2.
"Plan" means the CapitalSource Holdings 2000 Equity Incentive
Plan.
"Severance Payments" has the meaning set forth in Section
9(e).
"Severance Period" has the meaning set forth in Section 9(d).
"Subsidiary" means any corporation of which the Employer or
any Company Affiliate owns securities having a majority of the ordinary voting
power in electing the board of directors, directly or through one or more
subsidiaries, and
15
any partnership, limited liability company or other entity in which the
Employer, any Company Affiliate or any Subsidiary owns a controlling interest.
"Total Equity Value" means, with respect to the Executive, an
amount equal to the sum of: (i) all special payments made by the Employer to the
Executive during the Employment Period other than the Base Salary, the Annual
Bonus and benefits paid to employees generally; (ii) the positive difference
between (A) the aggregate proceeds received by the Executive prior to the date
of the Change of Control with respect to sales of equity interests in the
Employer and any Company Affiliate owned by the Executive and (B) the aggregate
purchase price paid by the Executive with respect to such equity interests, plus
(iii) the value, as hereinafter determined, of all equity interests in the
Employer or any Company Affiliate held by the Executive on the date of the
Change of Control (whether vested or unvested). The value of such equity
interests shall be an amount equal to the difference between (A) the aggregate
value of the consideration paid (excluding debt assumed) with respect to such
equity interests as a result of the Change of Control and (B) the aggregate
purchase price paid by the Executive for such equity interests.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Agreement, or have caused this Agreement to be duly executed and delivered
on their behalf.
CAPITALSOURCE FINANCE LLC
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
EXECUTIVE
/s/ Xxxxx X. Xxxxxxx
----------------------------------
Xxxxx X. Xxxxxxx
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