Execution Copy
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated and effective as of the
25th day of July, 2001 (the "Effective Date"), is between CRIIMI MAE Inc., a
Maryland corporation (the "Company") and Xxxxxxx X. Xxxxxx (the "Executive").
R E C I T A L S
A. The Executive is currently employed by CRIIMI MAE Management, Inc., a
wholly-owned subsidiary of the Company ("CM Management"), and serves as the
Chief Financial Officer of the Company.
B. The Board of Directors of the Company recognizes that it is in the best
interests of the Company and its shareholders to retain capable and experienced
executive officers such as the Executive.
C. The Board of Directors recognizes that the Executive has made
substantial contributions to the Company and desires to provide for the
continuing employment of the Executive and to encourage the continued dedication
and attention of the Executive to the Company.
D. The Executive is willing to continue to serve the Company.
E. The Company and the Executive desire to enter into this Employment
Agreement.
NOW, THEREFORE, in consideration of the premises, and the mutual agreements
herein contained, the Company and the Executive agree as follows:
1 EMPLOYMENT.
1.1. Employment; Position. The Company hereby employs the Executive as
Chief Financial Officer of the Company and the Executive hereby accepts such
employment for the Term (defined below) of this Agreement.
1.2. Duties. The Executive shall report directly to the Company's President
and Chairman (the "Chairman") of the Board of Directors (the "Board"), unless
the Chairman, President or the Board instructs her otherwise, and shall perform
such duties consistent with the Company's bylaws, as amended, and her position
as Chief Financial Officer as may be reasonably requested of her by the
Chairman, President or by the Board.
1.3. Attention and Effort. The Executive shall be required to devote her
full business time, attention and effort to the Company's business and affairs
and perform diligently her duties as are customarily performed by chief
financial officers of companies similar in character or size to the Company.
Subject to the terms of Section 7, this shall not preclude the
Executive from serving on community and civic boards, participating in
industry associations, or otherwise engaging in other business activities which,
in the Company's reasonable judgment, do not unreasonably interfere with her
duties to the Company.
1.4. Support Services. The Executive shall be entitled to all of the
administrative, operational and facility support customary for a chief financial
officer having the responsibilities of the Executive. This support shall
include, without limitation, a suitably appointed private office, a secretary or
administrative assistant, and payment of, or reimbursement for, reasonable
cellular telephone expenses, reasonable business entertainment expenses, and any
and all other business expenses reasonably incurred on behalf of, or in the
course of performing, duties for the Company. The Executive agrees to provide
such documentation of these expenses as reasonably may be required.
2 TERM. The Term of this Agreement shall commence on the Effective Date and
shall continue until the second anniversary thereof (the "Term"), unless earlier
terminated pursuant to Section 5 hereof. As used herein, the term "Employment
Period" shall mean the period from the Effective Date until the earlier to occur
of (i) the expiration of the Term or (ii) the earlier termination of the
Executive's employment pursuant to Section 5 of this Agreement.
3 COMPENSATION. Throughout the Term, the Company shall pay or provide, as
the case may be, to the Executive, the compensation and other benefits and
rights set forth in this Section 3.
3.1. Base Salary. During the Employment Period, the Company shall pay or
cause CM Management to pay the Executive an annual base salary at the rate of
$315,000 per annum, payable in accordance with the Company's usual pay practices
(and in any event no less frequently than monthly). The Company shall increase
the Executive's annual base salary the earlier of each anniversary of this
Agreement or during the same month that annual increases are generally made to
the Company's salaried employees by a minimum amount equal to the Executive's
annual base salary in effect during the month (the "Adjustment Month")
immediately prior to the month in which the adjustment is to occur, multiplied
by the greater of (i) twenty percent (20%) or (ii) the percentage increase in
the Consumer Price Index-United States City Average Urban Wage Earners and
Clerical Workers (1967=100) (the "CPI") for the Adjustment Month over the CPI
for the twelfth (12th) month preceding the Adjustment Month. The Executive's
annual base salary, as such base salary may be increased, is referred to herein
as the "Base Salary."
3.2. Bonus. The payment of bonuses, if any, to the Executive shall be
determined from time to time by the Chairman, President or the Board in their
sole discretion, provided that, in each calendar year, the Company shall pay to
the Executive a bonus in the minimum amount of one-third (1/3) of Executive's
Base Salary then in effect (the "Minimum Bonus"). The Minimum Bonus shall be
earned and prorated for partial calendar years, it being understood by all
parties hereto that the Executive shall receive at least a full one-third of her
Base Salary as a Minimum Bonus for calendar year 2001.
3.3. Insurance.
3.3.1. The Company shall maintain or cause CM Management to continue to
maintain the policies regarding disability and group term life insurance for the
Executive, and for medical, hospitalization and dental insurance for the
Executive, her spouse and eligible family members in effect immediately prior to
the Effective Date (collectively, "Insurance Benefits"). The Company shall
provide or cause CM Management to provide the Insurance Benefits to the
Executive at no cost to the Executive.
3.3.2. In addition, the Company shall provide or cause CM Management to
provide, at the Company's or CM Management's cost, a two (2) year renewable term
life insurance on the Executive's life, with a death benefit of at least Five
Hundred Thousand Dollars ($500,000). Ownership of such policy, and the
beneficiaries thereof, shall be subject to the determination and control of the
Executive.
3.4. Automobile. CM Management purchased a Lexus automobile that is
currently used by the Executive. The Company shall cause CM Management to
provide such automobile to the Executive for her use until such time as such
automobile is two (2) model years old, whereupon, and each two (2) model years
thereafter, the Company shall (x) purchase as a replacement an automobile chosen
by the Executive at a price equaling (but not exceeding) the greater of (i) the
original purchase price of the Lexus ("the "Lexus Purchase Price") or (ii) Forty
Thousand Dollars ($40,000) or (y) lease an automobile selected by the Executive
for a two (2) year term at a leasing cost equaling (but not exceeding) the cost
to lease an automobile worth the greater of (i) the Lexus Purchase Price or (ii)
Forty Thousand Dollars ($40,000) over the two (2) year term, the Company to pay
that fraction of the leasing cost equal to the lesser of (A) the greater of (i)
the Lexus Purchase Price or (ii) Forty Thousand Dollars ($40,000) or (B) the
leasing cost over the two (2) year term, and the Executive to pay the balance,
if any, of such leasing cost. In lieu of having the Company provide an
automobile, the Executive may elect to be paid a monthly automobile allowance in
an amount equal to the monthly rental payment for a lease of an automobile with
a price of Forty Thousand Dollars ($40,000) for a two (2) year lease. Such
automobile allowance shall terminate in all events upon termination of
employment, whether for Cause (as defined Section 5.6) or not. With respect to
each such automobile, the Company shall provide at its cost comprehensive
automobile theft, casualty and liability insurance in coverage amounts
reasonably satisfactory to the Executive and shall pay for all reasonable costs
of operation, maintenance and repair of such automobile.
3.4.1. In the event that the Executive's employment under this Agreement
terminates for any reason (including voluntary or involuntary resignation) the
Executive shall have the right to either (a) purchase the automobile at 90% of
fair market value or (b) assume the lease of the automobile (including the right
to purchase the automobile pursuant to the lease) then being provided for her
pursuant to Section 3.4.
3.5. Parking Space. The Company shall provide or cause CM Management to
provide, at no cost to the Executive, a parking space in the garage of the
building where its headquarters is located, or nearby if no such garage exists
in the headquarters building.
3.6. Pension, Profit Sharing, Retirement and Other Benefit Plans. The
Company shall allow or cause CM Management to allow the Executive to participate
in all pension, profit sharing, retirement and other benefit plans of the
Company or CM Management generally available from time to time to employees of
the Company or CM Management and for which the Executive qualifies under the
terms thereof, and nothing in this Agreement shall, or shall be deemed to, in
any way affect the Executive's right and benefits thereunder except as expressly
provided herein.
3.7. Vacation and Sick Leave. At the Effective Date, the Company shall
provide a vacation and sick leave policy identical to the vacation and sick
leave policy of CM Management immediately prior to the Effective Date. The
Executive shall be entitled to such periods of vacation and sick leave allowance
each year as provided under CM Management's vacation and sick leave policy for
executive officers, but in no case shall such policy afford less vacation and
sick leave than afforded immediately prior to the Effective Date. The Company
also shall provide to the Executive such additional periods of vacation and sick
leave allowance which CM Management was required to provide to the Executive,
but were unused and accrued, up to the Effective Date.
3.8. Membership Fees. The Company shall bear or cause CM Management to, on
the Executive's behalf, bear the cost of all dues and fees necessary for the
Executive to obtain or maintain her professional licenses and to obtain or
maintain membership in appropriate professional associations and organizations,
and the Company shall reimburse or cause CM Management to reimburse the
Executive for all costs and expenses actually and reasonably incurred to attend
meetings of all such associations and organizations. The Executive agrees to
provide such documentation of all of the foregoing dues, fees, costs and
expenses as reasonably may be required.
3.9.Expense Allowance. The Company shall reimburse or cause CM Management
to reimburse the Executive or provide her with an expense allowance of up to Ten
Thousand Dollars ($10,000) for each twelve (12) months of the Term for financial
planning, tax return and financial statement preparation services.
0.00.Xxxx for Payment of Withholding Taxes on Option Shares. In the event
the Company is required to withhold taxes on the exercise of an option by the
Executive, the Company hereby agrees to lend an amount equal to such taxes to
the Executive upon the following terms and conditions. The principal amount
shall be due within sixty (60) days of the first to occur of (i) sale of the
option shares, (ii) termination of employment hereunder or (iii) the fifth (5th)
anniversary date of the Effective Date, whichever is earlier. Interest on the
principal amount shall accrue at the appropriate applicable Federal rate, as
defined in Section 1274(d) of the Internal Revenue Code, and shall be payable
when the principal amount is due. Of the dividends paid on the option shares
during the term of the promissory note, an amount sufficient to pay any income
taxes due on such dividends by the Executive may be retained by the Executive
with the balance being paid to the Company, to be applied to curtail the loan,
first to accrued and unpaid interest, then to reduce the outstanding principal
balance. The Executive agrees to pledge the Executive's option shares to the
Company as security for any such loan, pursuant to a pledge agreement reasonably
satisfactory to counsel for the Company.
3.11.Use of Office After Cessation of Employment. Beginning on the day
after the cessation of the Executive's employment with the Company, except in
the case of termination of the Executive's employment for Cause or death, and
continuing until the earlier of (i) the end of one year after such cessation or
(ii) the date, if ever, on which the Executive begins full time employment with
another employer, the Company shall provide to the Executive, at no cost to the
Executive, for her personal use, office space at a location in the Company's
headquarters (other than in an executive suite of the Company's offices) and
reasonable secretarial assistance and office support.
4 PERMANENT DISABILITY.
4.1. Determination. The Executive's "Permanent Disability" shall be deemed
to have occurred one (1) day after (i) one hundred fifty (150) business days in
the aggregate during any consecutive twelve (12) month period, or (ii) one
hundred eighty (180) consecutive days that the Executive, by reason of physical
or mental disability or illness, shall have been unable to discharge her
principal duties under this Agreement.
4.2. Resolution of Disagreement. If either the Company or the Executive,
after receipt of notice of the Executive's Permanent Disability from the other,
disagrees that the Executive's Permanent Disability shall have occurred, the
Executive shall promptly submit to a physical examination by, or under the
direction of, the chief of medicine of any major accredited hospital in the
Washington, D.C. metropolitan area and, unless such physician (or her designee
physician) shall issue a written statement to the effect that, in such
physician's opinion, based on such physician's diagnosis, the Executive is
capable of resuming her employment and devoting such time and energy as may be
reasonably required to the performance of her principal duties hereunder within
thirty (30) days after the date of such statement, such Permanent Disability
shall be deemed to have occurred on a date determined in accordance with Section
4.1.
5 TERMINATION OF EMPLOYMENT. The Executive's employment under this
Agreement and the Term shall be terminated immediately upon the occurrence of
any event set forth in Sections 5.1 through 5.4.
5.1. Immediately upon the death of the Executive.
5.2. By the Company at any time after the Permanent Disability of the
Executive, subject to compliance by the Company with the Americans With
Disabilities Act, or by the Executive at any time after her Permanent
Disability.
5.3. By the Company at any time for "Cause" (as defined in Section 5.6).
5.4. By the Executive's resignation.
5.5. For purposes hereof, Cause shall mean:
(i) Active participation by the Executive in fraudulent conduct;
(ii) conviction of, or a guilty plea to, a felony;
(iii) a deliberate act or series of deliberate acts which, in the
reasonable judgment of the Company, results in material injury to the business,
operations or business reputation of the Company;
(iv) gross negligence;
(v) the Executive's willful failure to perform any of her material duties
under this Agreement; or
(vi) the Executive's material breach of any provision of this Agreement,
which material breach has not been cured to the Company's reasonable
satisfaction within ten (10) days after the Company gives written notice thereof
to the Executive or within such longer period of time, up to sixty (60) days
after such notice, which is reasonably required to cure the default if the
Executive is acting diligently to cure the default.
5.6. However, there shall not be Cause in the case of clause (iii) of
Section 5.5, if the Executive promptly and diligently, after receipt of written
notice from the Company, takes such action which causes the Company, in its
reasonable judgment, to believe that any such material injury has been
rectified; and there shall not be Cause in the case of clause (v) of Section
5.5, if the Executive promptly and diligently, after receipt of written notice
from the Company, discontinues her failure to perform and rectifies any injury
which resulted from her failure to perform. Any repetition of any such
deliberate act or any further willful failure to perform, shall be Cause without
any further opportunity to cure.
6 SEVERANCE COMPENSATION.
6.1. Termination by Death. If the Executive's employment is terminated by
death, the Executive's estate shall be entitled to receive the following:
(i) within ninety (90) days after the date of death, severance compensation
in a lump sum payment equal to the aggregate amount of her Base Salary then in
effect for eighteen (18) months together with the greater of (i) the amount of
the Reorganization Payments paid to the Executive, as defined in Section 8.15,
hereof or (ii) all discretionary bonuses and Minimum Bonuses earned by the
Executive during the Term, pursuant to Section 3.2 hereof (collectively, the
"Earned Bonuses");
(ii) within ninety (90) days after the date of her death, all rights and
benefits accrued or earned by the Executive as of the date of her death under
Sections 3.6 and 3.7 and, for the year in which death occurs, the expense
allowance provided for in Section 3.9 and any unpaid Base Salary earned by the
Executive through the date of her death; and
(iii) all benefits, if any, provided by any insurance policies in
accordance with their terms.
6.1.1. Upon the Executive's death, any unvested rights to exercise options
to purchase option shares pursuant to one or more option agreements entered into
by the Company and the Executive (the "Option Agreements") shall immediately
vest and may be
exercised by the Executive's personal representative for a period of one
(1) year thereafter or such longer period permitted by the Company's stock
option plan(s).
6.2. Termination for Cause. If the Executive's employment is terminated by
the Company for Cause, the Company nor any of its subsidiaries or affiliates
shall have any further obligations to the Executive under this Agreement except
for the following:
(i) the Executive's right to that portion of any unpaid Base Salary and
bonus, including any Minimum Bonus, and other compensation or benefits accrued
or earned under Sections 3.6, 3.7 and 3.9 of this Agreement through the date of
such termination;
(ii) the Executive's rights and benefits under the Company's or CM
Management's pension, profit sharing, retirement and other benefit plans; and
(iii) the Executive's rights and benefits, if any, provided by any
insurance policies in accordance with their terms, including the right, if she
has not already done so, to acquire or designate ownership and control of such
policies.
6.2.1. Any unvested rights to exercise options to purchase option shares
(except for rights which would have vested within thirty (30) days of such
termination for Cause) shall terminate immediately, and all rights to exercise
options to purchase option shares that are vested or which will vest within
thirty (30) days of such termination for Cause must be exercised within one
hundred eighty (180) days following such termination of employment or all such
rights shall terminate.
6.3. Termination without Cause or for Permanent Disability. If the
Executive's employment is terminated by the Company without Cause or for
Permanent Disability, the Executive shall be entitled to the following:
(i) severance compensation equal to her Base Salary then in effect for
eighteen (18) months from the date of such termination, payable at such times as
her Base Salary would have been paid if her employment had not been terminated;
(ii) within ninety (90) days after the date of such termination, all rights
and benefits accrued or earned by the Executive under Sections 3.6 and 3.7 as of
the date of such termination, an amount equal to the greater of (i) the
Reorganization Payments or (ii) all Earned Bonuses, and, for the year in which
such termination occurs, the expense allowance provided for in Section 3.9 and
any unpaid Base Salary and Minimum Bonus earned by the Executive through the
date of such termination; and
(iii) the Executive's rights and benefits, if any, provided by any
insurance policies in accordance with their terms for eighteen (18) months from
the date of such termination, including the right, if she has not already done
so, to acquire or designate ownership and control of such policies.
6.3.1. If the Executive's employment is terminated without cause or by
reason of her Permanent Disability, the Executive's rights to exercise options
to purchase option shares in accordance with the vesting schedule set forth in
the Option Agreements shall not be
affected by such termination and such options may be exercised for a period
of one (1) year thereafter or such longer period permitted by the Company's
stock option plan(s).
6.4. Involuntary Resignation. If the Executive resigns from all offices and
directorships of the Company and all its subsidiaries and affiliates for any of
the reasons set forth in Sections 6.4.1 through 6.4.6, such resignation shall be
deemed an "Involuntary Resignation," and the Executive shall be entitled to
receive the same severance compensation as is, and all other rights and
benefits, provided for in Section 6.3 except that, if the Involuntary
Resignation occurs as a result of or following a "change in control" (as defined
in Section 6.4.7 below), any cash or in kind payments shall be paid to the
Executive in a lump sum as soon as administratively practicable (but in no event
later than 30 days) following the change in control. The Executive's rights to
exercise options to purchase option shares in accordance with the vesting
schedule set forth in the Option Agreements shall not be affected by an
Involuntary Resignation.
6.4.1. The Company materially changes the Executive's duties as set forth
in Section 1.2 without her consent. The Executive shall be deemed to have
consented to any written proposal calling for a material change in her duties as
set forth in Section 1.2, unless she shall give written notice of her objection
thereto to the Company within thirty (30) days after receipt of such written
proposal.
6.4.2. The Executive's place of employment or the principal executive
offices of the Company are located more than fifteen (15) road miles from 00000
Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxx Xxxxxx, Xxxxxxxx.
6.4.3. There occurs a material breach by the Company of any of its
obligations under this Agreement, which breach has not been cured in all
material respects within thirty (30) days after the Executive gives written
notice thereof to the Company, which notice sets forth in reasonable detail the
nature and circumstances of such breach.
6.4.4. The Company or any subsidiary or affiliate of the Company violates a
federal or state criminal law involving moral turpitude, and the Executive was
unaware of such unlawful activity at the time of its occurrence.
6.4.5. There occurs a "change in control."
(i) The term "change in control" shall mean the first to occur of the
following events:
A. Any person or group of commonly controlled persons obtains ownership or
control, directly or indirectly, of twenty-five percent (25%) or more of the
voting control of, or beneficial ownership of (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934), the voting capital stock of the Company;
or
B. The Company's stockholders approve (i) an agreement to merge or
consolidate with another corporation or other entity resulting (whether
separately or in connection with a series of related transactions) in a change
in ownership of twenty percent (20%) or more of the voting control of, or
beneficial ownership of (as defined in Rule 13d-3
under the Securities Exchange Act of 1934), the voting capital stock of the
Company, or (ii) an agreement to sell or otherwise dispose of all or
substantially all of the Company's assets (including, without limitation, a plan
of liquidation or dissolution) , or (iii) otherwise approve of a fundamental
alteration in the nature of the Company's business; or
C. Individuals who, as of the date hereof, constitute the Company's Board
(the "Incumbent Board") cease for any reason to constitute at least a majority
of the Board, provided that any person becoming a director subsequent to the
date hereof whose election, or nomination for election, by the shareholders of
the Company was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board (other than any individual whose initial
assumption of office is the result of an actual or threatened election or
removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a person other than the Company) shall be considered
as though such persons were a member of the Incumbent Board; or
D. Without limitation of the foregoing, the Company no longer owns,
directly or indirectly, a majority of the voting stock of CM Management, unless
(i) the Company or (ii) a subsidiary, the majority of the voting stock of which
is owned, directly or indirectly, by the Company, assumes the obligations that
the Company has agreed to cause CM Management to fulfill.
(ii) In the event of termination within six (6) months following a "change
in control," all of the Executive's Options shall become immediately exercisable
notwithstanding any vesting schedule that would otherwise apply and the
Executive shall also be entitled to the benefit set forth in Section 3.11.
6.4.6. The Company, without the Executive's prior written consent, fails to
pay or reduces the Executive's Base Salary, fails to increase the Executive's
Base Salary in accordance with Section 3.1, or fails to pay or reduces the
Minimum Bonus.
6.4.7. The Company imposes requirements on the Executive, or gives
instructions or directions to the Executive, which are: (x) contrary to or in
violation of (i) rules, principles, or codes of professional responsibility or
(ii) law (as set forth in written statutes or regulations thereunder), which the
Executive is obligated to follow; (y) such that compliance by the Executive with
such requirements, instructions or directions would likely (i) have a material
adverse effect on the Executive or (ii) cause the Executive to suffer
substantial liability, and (z) not withdrawn by the Company after written
request by the Executive, which written request sets forth the Executive's
complete explanation as to why she believes the requirements, instructions or
directions should be withdrawn.
6.5. Voluntary Resignation or Failure to Extend the Term. If the Executive
voluntarily resigns her employment, or is an employee of the Company at the
second anniversary of the commencement of the Term and the Executive and the
Company have not reached mutual agreement with respect to the Executive's
continued employment by the Company, the Executive's employment shall be
terminated and the Executive shall be entitled to receive the following:
(i) within ninety (90) days after the date of such termination, all rights
and benefits accrued or earned by the Executive under Sections 3.6 and 3.7 as of
the date of such termination, and, for the year in which such termination
occurs, the expense allowance provided for in Section 3.9 and any unpaid Base
Salary and bonus, including any Minimum Bonus, earned by the Executive through
the date of such termination; and
(ii) the Executive's rights and benefits, if any, provided by any insurance
policies in accordance with their terms for eighteen (18) months after such
date, including the right, if she has not already done so, to acquire or
designate ownership and control of such policies. In the case of failure to
extend the term only, the Executive also shall receive severance compensation
equal to her Base Salary then in effect for eighteen (18) months after such
date, payable at such times as her Base Salary would have been paid if the Term
had not expired together with a payment within ninety (90) days after any
failure to extend the Term, equal to the greater of (i) the Reorganization
Payments or (ii) all Earned Bonuses.
6.5.1. Any unvested rights to exercise options to purchase option shares
(except for rights which would have vested within thirty (30) days of such
termination) shall terminate and all rights to exercise options to purchase
option shares that are vested or which will vest within thirty (30) days of such
termination must be exercised one hundred eighty (180) days after such voluntary
resignation or such rights shall terminate.
6.5.2. The rights to exercise options to purchase option shares in
accordance with the vesting schedule set forth in the Option Agreements shall
not be affected by termination of employment for failure to extend the Term of
the Executive's employment.
6.6 Certain Additional Payments of the Company. Anything in this Agreement
to the contrary notwithstanding, in the event it shall be determined that any
payment or distribution by the Company, CM Management or any of their
subsidiaries to or for the benefit of the Executive, whether paid or payable,
pursuant to the terms of this Agreement or otherwise (a "Payment") would be
subject to the excise tax imposed by Section 4999 of the Code or similar section
or any interest or penalties with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax") , then the Executive shall be entitled to
receive an additional payment (a "Gross-Up Payment") in an amount such that
after payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including any Excise Tax imposed upon the
Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Payments.
6.7 Legal Expenses. If, with respect to any alleged failure by the Company,
CM Management or any of their subsidiaries to comply with any of the terms of
this Agreement, the Executive hires legal counsel with respect to this Agreement
or institutes any negotiations or institutes or responds to legal action to
assert or defend the validity of, enforce her rights under, or recover damages
for breach of this Agreement and thereafter the Company, CM Management or any of
their subsidiaries is found in a judgment no longer subject to review or appeal
to have breached this Agreement in any material respect, then the Company shall
indemnify the Executive for her actual expenses for attorneys' fees and
disbursements, together with such additional payments, if any, as may be
necessary so that the net after-tax payments to
the Executive equal such fees and disbursements.
7 [INTENTIONALLY OMITTED]
8 MISCELLANEOUS.
8.1. [INTENTIONALLY OMITTED]
8.2. No Restrictions. The Executive represents and warrants that she is not
a party to any agreement, contract or understanding, whether employment or
otherwise, which would interfere with the performance of her duties hereunder.
8.3. Severability. The provisions of this Agreement are severable, and if
any one or more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions and any partially
unenforceable provision to the extent enforceable nevertheless shall be binding
and enforceable.
8.4. Successors and Assigns; Benefits. The rights and obligations of the
Company, and its subsidiaries and affiliates under this Agreement shall inure to
the benefit of, and shall be binding on, the Company and its subsidiaries and
affiliates, and their respective successors and assigns, and the rights and
obligations (other than obligations to perform services) of the Executive under
this Agreement shall inure to the benefit of, and shall be binding upon, the
Executive and her heirs, personal representatives and assigns. The benefits of
the Executive's obligations to perform services shall run equally to the
Company's subsidiaries and affiliates as though they are parties to this
Agreement.
8.5. Dispute Resolution. Any controversy (excluding a disagreement covered
by Section 4.2 (Permanent Disability)) or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration in
Xxxxxxxxxx County, Maryland in accordance with the Commercial Arbitration Rules
of the American Arbitration Association, and judgment upon the award rendered by
the arbitrator or arbitrators may be entered in any court having jurisdiction
thereof. The arbitrator or arbitrators shall be deemed to possess the powers to
issue mandatory orders and restraining orders in connection with such
arbitration. The expenses of the arbitration shall be borne equally by the
parties to the arbitration, provided that each party shall pay for and bear
costs of its own experts and counsel's fees.
8.6. Notices. All notices and other communications required or permitted
under this Agreement shall be in writing, and shall be deemed properly given if
delivered personally, mailed by registered or certified mail in the United
States mail, postage prepaid, return receipt requested, sent by facsimile, or
sent by Express Mail, Federal Express or other nationally recognized express
delivery service, as follows:
If mailed to the Company or the Board:
CRIIMI MAE Inc.
00000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: President
Fax Number: 000-000-0000
If to the Executive:
Xxxxxxx X. Xxxxxx
00000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Notice given by hand, certified or registered mail, or by Express Mail, Federal
Express or other such express delivery service shall be effective upon actual
receipt. Notice given by facsimile transmission shall be effective upon actual
receipt if received during the recipient's normal business hours, or at the
beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. All notices by facsimile
transmission shall be confirmed promptly after transmission in writing by
certified mail or personal delivery. Any party may change any address to which
notice is to be given to it by giving notice as provided above of such change of
address.
8.7. No Waiver. The failure of either party to enforce any provision of
this Agreement shall not in any way be construed as a waiver of any such
provision as to any future violations thereof, nor prevent that party thereafter
from enforcing each and every other provision of this Agreement. The rights
granted the parties herein are cumulative and the waiver of any single remedy
shall not constitute a waiver of such party's right to assert all other legal
remedies available to it under the circumstances.
8.8. Prior Agreements. This Agreement supersedes all prior agreements and
understandings between the parties and may not be modified or terminated orally.
No modification or attempted waiver shall be valid unless in writing and signed
by the party against whom the same is sought to be enforced.
8.9. Governing Law. This Agreement shall be governed by, and construed in
accordance with the laws of the State of Maryland, without reference to
provisions that refer a matter to the law of any other jurisdiction. Each party
hereto hereby irrevocably submits itself to the non-exclusive personal
jurisdiction of the federal and state courts sitting in Maryland; accordingly,
subject to the provisions for arbitration provided in Section 8.5, any
justifiable matters involving the Company and the Executive with respect to this
Agreement may be adjudicated only in a federal or state court sitting in
Maryland.
8.10. Tax Withholding. All payments required to be made by the Company
hereunder to the Executive shall be subject to the withholding of such amounts
relating to taxes and other government assessments as the Company may reasonably
determine it should withhold pursuant to any applicable law, rule or regulation.
8.11. Captions. Captions and section headings used herein are for
convenience and are not a part of this Agreement and shall not be used in
construing it.
8.12. Singular, Plural and Gender. Where necessary or appropriate to the
meaning hereof, the singular and plural shall be deemed to include each other,
and the masculine, feminine and neuter shall be deemed to include each other.
8.13. Indemnification. The Executive shall have the full benefit of all
indemnifications authorized by the Company's Charter and bylaws applicable to
officers and directors and the Company shall provide Directors and Officers
Insurance for the Executive in such amounts and on such terms as is maintained
for any other officer or director of the Company.
8.14. [INTENTIONALLY OMITTED]
8.15. Reorganization Payments. In connection with the Chapter 11
reorganization of the Company, the Company or CM Management paid retention
payments for the calendar year 2000 to the Executive equal to $272,500 and paid
a bonus to the Executive equal to $75,000 on or before July 13, 2001
(collectively, the "Reorganization Payments").
[The next page is the signature page]
IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement, intending to be bound legally as of the date first above written.
COMPANY
CRIIMI MAE Inc.
a Maryland corporation
/s/Xxxxxxx X. Xxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxx
Chairman of the Board
EXECUTIVE
/s/Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx
