CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE
CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE
Confidential Separation Agreement and General Release (“Agreement”) made as of this 9th day of May, 2011 by and between Centerline Capital Group Inc., a Delaware corporation (“Centerline”), and Xxxxxx X. Xxxx.
WHEREAS;
A. Xx. Xxxx was employed by Centerline as Executive Managing Director of Affordable Housing and as an officer and director of various Centerline affiliates.
B. Centerline and Xx. Xxxx have agreed that his services as Executive Managing Director are no longer required by Centerline and Xx. Xxxx has agreed to a termination of his employment with Centerline on the terms and conditions set forth herein and to resign as an officer of Centerline and any and all of Centerline’s parents, subsidiaries, affiliates and any other entities organized in connection with, or related to, Centerline or its affiliates in the business of organizing entities which offer interests to investors (collectively, the “Company Group”).
1. Last Day of Employment. Xx. Xxxx’x last day of employment with Centerline was March 5, 2011 (the “Separation Date”). Xx. Xxxx agrees that except as expressly set forth herein, he shall not be entitled to any payment or benefit from Centerline subsequent to the Separation Date.
2. Separation Benefits. In exchange for Xx. Xxxx’x execution of this Agreement and continued compliance with his obligations under Paragraphs 3, 5-8, 10, and 11 below, and provided he does not exercise his revocation right under Section 22, below, Centerline will provide Xx. Xxxx with the benefits set forth in subsections (a) and (b), below (together, the “Separation Benefits”), to which he is not otherwise entitled.
(a) Centerline shall pay Xx. Xxxx $531,693 within ten (10) days of the expiration of the revocation period described in Section 22, below;
Xx. Xxxx acknowledges that no payment for any bonus or wages for any prior period are due him other than unpaid base wages through the Separation Date;
(b) Xx. Xxxx (and his spouse and eligible dependents) shall be entitled to continue to participate in Centerline’s medical, dental and vision plans on the same terms and conditions as active executives of Centerline for the period determined by COBRA regulations and in exchange for Xx. Xxxx’x execution of this Agreement and provided he does not exercise his revocation right under Section 22 below, Centerline shall pay the full cost of coverage for the first twelve (12) months of the COBRA period. Xx. Xxxx’x right to coverage pursuant to this Section 2(b) shall lapse if Xx. Xxxx becomes a participant in a comparable medical, dental and vision plan offered by a subsequent employer.
(c) In exchange for Xx. Xxxx’x execution of this Agreement and provided he does not exercise his revocation right under Section 22 below, Centerline shall reimburse Xx. Xxxx for his legal fees and costs (and related disbursements), not to exceed $8,000, incurred in connection with all matters relating to the negotiation and/or execution of the releases, employment terms and all other matters covered by this Agreement.
(d) Xx. Xxxx shall promptly, but no later than thirty (30) days after the Separation Date, submit to Centerline all amounts which may be due him from Centerline as reimbursable expenses for payment in accordance with Centerline’s expense reimbursement policy. Centerline shall reimburse Xx. Xxxx for such expenses no later than thirty (30) days after submission.
3. Resignations. As of the Separation Date, Xx. Xxxx shall resign as a trustee, director, and officer of the entities set forth on Schedule A to his resignation letter, the form of which is attached hereto as Exhibit A. Xx. Xxxx shall sign the resignation letter attached as Exhibit A upon his execution of this Agreement. In the event that it becomes evident to Centerline at any time after the Separation Date that there are additional Company Group entities that are subsidiaries of Centerline in which Xx. Xxxx holds a position as trustee, director or officer, Centerline will so notify Xx. Xxxx in writing and request his written resignation within five (5) business days of delivery of such written notice. In the event Xx. Xxxx does not respond within such five-day period, Xx. Xxxx agrees that the Attorney-in-Fact (as defined below) may execute any such resignation letter on his behalf in accordance with Section 9 hereof.
4. Release of Claims. Xx. Xxxx agrees for himself, his heirs, executors, administrators, assigns and agents to fully, finally and forever release Centerline and any and all of its subsidiaries, affiliates or related business entities (including, without limitation, Centerline Holding Company, Centerline Financial Holdings LLC and Centerline Financial LLC), and each of said entities’ parents, subsidiaries, affiliates, and their successors and assigns, and, to the extent acting on behalf of said entities, each of such entities’ current and former employees, officers, directors, owners, shareholders, representatives, administrators, fiduciaries, agents, insurers, and employee benefit programs (and the trustees, administrators, fiduciaries and insurers of any such programs) (collectively, the “Released Parties”) from any and all claims, actions, causes of actions, suits and demands whatsoever, known or unknown, asserted or unasserted, at law or at equity, in any and all forums that he, his heirs, executors, administrators and assigns have, had, or may have including, but not limited to, any and all rights under the Age Discrimination in Employment Act (“ADEA”), Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, the Employee Retirement Income Security Act of 1974, the Family and Medical Leave Act of 1993, the New York State Human Rights Law, the New York City Human Rights Law, the New York Labor Law, and any other federal, state or local laws, statutes or regulations, as well as any claim of breach of any express or implied contract, wrongful or abusive discharge or employment discrimination whether based on federal, state or local law or judicial or administrative decision, claims for additional wages or compensation or severance pay of any nature, claims for attorneys’ fees, and any and all claims arising out of his employment with the Employer. This release shall not prevent Xx. Xxxx from enforcing this Agreement or release claims against the Released Parties for indemnification and/or advancement available as of the Separation Date to similarly situated Centerline officers.
5. Weil Interests. As of the Separation Date, Xx. Xxxx shall withdraw as a member of and transfer his interest in the following entities to the other members/shareholders of such entities: (i) Centerline GP Holdings LLC (ii) Centerline GP Dispositions LLC. and (iii) 000 Xxxx Xxxxxx Court Corp. In connection with such withdrawal and transfer Xx. Xxxx shall execute and deliver those documents and instruments attached hereto as Exhibits B, C and D. Centerline shall indemnify and hold Xx. Xxxx harmless from any and all claims by third parties (including all costs and expenses) arising out of or relating to these interests, except claims arising from his fraud, gross negligence or willful misconduct. The Company Group entities, as applicable, shall provide to Xx. Xxxx, in a timely manner, all information necessary for him to satisfy his tax reporting obligations with respect to his current and former member, partner or shareholder interests in the Company Group entities, as applicable.
6. Business Materials. All written materials, records and documents made by Xx. Xxxx or coming into his possession concerning the business or affairs of the Company Group shall be the sole property of Centerline and Xx. Xxxx has returned the same to Centerline and shall retain no copies in any form or media, except as expressly permitted by Centerline; provided, however, it is understood that Xx. Xxxx shall be entitled to retain all personal files.
7. Office Equipment. From and after the Separation Date, Centerline shall not pay for Xx. Xxxx’x Blackberry device or any other wireless services; provided, however, Xx. Xxxx shall, subject to Section 6 above, be entitled to retain his Blackberry device and telephone number.
8. Cooperation.
(a) Xx. Xxxx agrees that he will cooperate in providing the Company Group with information and other assistance relating to the Company Group’s businesses conducted prior to the Separation Date, and that he will be reasonably available during business hours to provide such cooperation.
(b) Xx. Xxxx agrees that he will assist and cooperate with the Company Group in connection with the defense or prosecution of any claim that may be made against or by the Company Group, or in connection with any ongoing or future investigation or dispute or claim of any kind involving the Company Group, including any proceeding before any arbitral, administrative, judicial, legislative, or other body or agency, including testifying in any proceeding to the extent such claims, investigations or proceedings are related to knowledge possessed by him, or any act or omission by him. Centerline shall reimburse Xx. Xxxx for all reasonable expenses actually incurred in connection with his provision of testimony or assistance.
(c) Xx. Xxxx agrees promptly to perform such acts and deeds, and to execute and deliver such conveyances, assignments, proxies, consents, agreements, instruments, HUD 2530 forms or letters of resignation, as the Company Group may at any time reasonably request in writing in connection with the implementation of this Agreement or in order to better assure and confirm unto the parties hereto their respective rights, powers and remedies hereunder, or in connection with the management transition resulting from his resignation, including, but not limited to the execution of any documents reasonably requested by any lender, partner or affiliate of the Company Group (the “Documentation”).
(d) Unless Centerline in good faith determines for a particular matter that cooperation or assistance with Xx. Xxxx would be inconsistent with its obligations to its shareholders or other fiduciary duties, Centerline will assist and cooperate with Xx. Xxxx in connection with the defense of any claim that may be brought against him, or in connection with any investigation or dispute or claim of any kind involving his work for Centerline and/or its affiliates, including any proceeding before any arbitral, administrative, judicial, legislative, or other body or agency, including, without limitation, providing Xx. Xxxx with access to relevant non-privileged documents in the possession of Centerline. Under no circumstances shall such cooperation or assistance require Centerline and/or any of its affiliates to disclose any privileged communication.
9. Power of Attorney. If, for any reason or no reason, Xx. Xxxx shall fail to execute any Documentation (exclusive of any Federal, state or local filings) within five (5) business days following delivery of a written request therefor, Xx. Xxxx hereby makes and appoints the senior in house counsel of Centerline, as his attorney-in-fact (“Attorney-in-Fact”) to act in his name, place and xxxxx for the purpose of making, executing and delivering the Documentation (exclusive of any Federal, state or local filings), and, without limiting the foregoing, for the purpose of making, executing and delivering all documents and doing such lawful things which the Attorney-in-Fact deems necessary to (i) effect the resignation of Xx. Xxxx as a trustee, director or officer of any entity related to the Company Group; (ii) take any further ministerial actions as may be necessary to effect the foregoing. This power is coupled with an interest, is irrevocable, and all powers conferred upon the Attorney-in-Fact herein above shall remain at all times in full force and effect, notwithstanding Xx. Xxxx’x incapacity, disability, death, or any uncertainty with regard thereto. Xx. Xxxx hereby consents and agrees that any third party shall be entitled to accept the provisions hereof as conclusive evidence of the right of the Attorney-in-Fact to execute and deliver the Documentation and to effect any other action pursuant to the provisions hereof, notwithstanding any other notice or direction to the contrary heretofore or hereafter given by or on behalf of Xx. Xxxx. Upon exercise of this power of attorney, the Attorney-in-Fact will deliver written notice to Xx. Xxxx, including a copy of the executed Documentation.
10. Covenant Not to Disclose. Xx. Xxxx acknowledges and agrees that, by virtue of the performance of the normal duties of his position with Centerline and by virtue of the relationship of trust and confidence between Xx. Xxxx and Centerline, Centerline has permitted Xx. Xxxx to have access to and Xx. Xxxx has become familiar with, acquired knowledge of and developed or maintained the Company Group’s Confidential Information (as defined below), which Xx. Xxxx recognizes permits the Company Group to enjoy a competitive advantage and the premature disclosure of which would irreparably injure the Company Group. Xx. Xxxx covenants and agrees that he will not, at any time, directly or indirectly use, disclose (in any manner, including transmitting via or posting on the Internet), reproduce, distribute, reverse engineer or otherwise provide, in whole or in part, to or on behalf of any person (other than the Company Group) or use for his own account, any data or knowledge of operations of the Company Group which are proprietary in nature and/or confidential, whether in writing, in computer or other form or conveyed orally, including but not limited to confidential or proprietary records, data, trade secrets, pricing policies, bid amounts, bid strategies, rate structures, personnel policies, methods or practices of obtaining or doing business by the Company Group, or any other confidential or proprietary information whatsoever (the “Confidential Information”), whether or not obtained with the knowledge and permission of Centerline and whether or not developed, devised or otherwise created in whole or in part by the efforts of Xx. Xxxx; provided, however, that Confidential Information shall not be deemed to include any information that (i) is or hereafter becomes generally available to the public other than through disclosure by Xx. Xxxx, or (ii) is rightfully received by Xx. Xxxx following the Separation Date from a third party who Xx. Xxxx has no reason to believe is under a confidentiality agreement with Centerline. Xx. Xxxx further covenants and agrees that he shall retain all such knowledge and information which he has acquired or developed respecting such Confidential Information in trust for the sole benefit of the Company Group and its successors and assigns. Xx. Xxxx shall not, without the prior written consent of Centerline, unless compelled pursuant to the order of a court or other governmental or legal body having jurisdiction over such matter, communicate or divulge any such Confidential Information to anyone other than Centerline and those designated by it. In the event Xx. Xxxx is compelled by order of a court or other governmental or legal body to communicate or divulge any Confidential Information to anyone other than Centerline and those designated by it, Xx. Xxxx shall promptly notify Centerline of any such order and shall cooperate fully with Centerline (and the owner of such Confidential Information) in protecting such information to the extent possible under applicable law; provided, that such Confidential Information may be disclosed if Xx. Xxxx is advised by counsel that failure to disclose would subject him to risk of penalty or fine. Nothing herein shall prohibit Xx. Xxxx from discussing any matters with his attorney for the purposes of seeking legal advice, provided that Xx. Xxxx notifies his attorney of his obligation under this Section 10.
11. Non-Interference Covenant. To protect Centerline’s legitimate business interests, including Centerline’s Confidential Information and business relationships, Xx. Xxxx covenants and agrees that he will not, for a period of one (1) year, commencing on March 1, 2011, directly or indirectly, for whatever reason, whether for his own account or for the account of any other person, firm, company or other organization: (i) solicit for employment, hire, assist others to solicit for employment or hire, or otherwise deal with in a manner which interferes with the Company Group’s relationship with any person or entity who is (A) at the time of such action an employee, officer or director of the Company Group or who constitutes a bona fide prospective employee, officer, trustee or director of the Company Group or (B) at any time during the six (6) month period preceding such action was an employee, officer or director of the Company Group, if such action is taken with respect to a business that competes with the Company Group; provided, however, Xx. Xxxx will not be deemed to be in violation of this clause (i) if an employee of the Company Group is hired by Xx. Xxxx’x future employers, provided that Xx. Xxxx either obtained the prior written consent of Centerline to take such action or did not otherwise violate this provision, (ii) interfere in any manner with any of the Company Group’s contracts or relationships with any investor, customer, client or supplier (of services or tangible or intangible property) of the Company Group, or any person or entity who is a bona fide prospective, investor customer, client or supplier of the Company Group; (iii) interfere with any existing or proposed contract or relationship between the Company Group and any other party or (iv) speak or write in any manner which is disparaging of the Company Group, its business practices, employees, officers, trustees or directors; provided that nothing in this Section 11 shall preclude Xx. Xxxx to make any disclosures required by applicable law, regulation or legal process. Similarly, no officer or director of the Company Group shall speak or write in any manner that is disparaging of Xx. Xxxx. For the avoidance of doubt, nothing herein shall prevent Xx. Xxxx from soliciting the business of any current or prospective investor, customer, client or supplier of the Company Group.
12. Remedies. It is expressly understood, acknowledged and agreed by Xx. Xxxx and Centerline that (i) the restrictions contained in Sections 10 and 11 of this Agreement represent a reasonable and necessary protection of the legitimate interests of Centerline and Xx. Xxxx (as applicable) and that the failure to observe and comply with the covenants and agreements in Sections 10 and 11 may cause irreparable harm to Centerline or Xx. Xxxx (as applicable); (ii) it is and will continue to be difficult to ascertain the nature, scope and extent of the harm; and (iii) a remedy at law for such failure may be inadequate. Accordingly, it is the intention of the parties that, in addition to any other rights and remedies which Centerline or Xx. Xxxx may have in the event of any breach of said Sections, Centerline and Xx. Xxxx may be entitled, and is expressly and irrevocably authorized by Xx. Xxxx and Centerline (as applicable), to demand and obtain specific performance, including without limitation temporary and permanent injunctive relief, and all other appropriate equitable relief against Xx. Xxxx or Centerline to enforce against Xx. Xxxx or Centerline (as applicable), or in order to prevent any breach or any threatened breach by Xx. Xxxx or Centerline, of the covenants and agreements contained in those Sections in any court of competent jurisdiction without the need to post any bond or undertaking. Any action, suit or other legal proceeding to resolve any matter arising as a result of a breach of the restrictions contained in Sections 10 or 11, may be commenced in any court of competent jurisdiction and the parties hereby consent to the jurisdiction of such a court.
13. Indemnification. Notwithstanding anything contained in the Release of this Agreement, the Company Group shall indemnify Xx. Xxxx, defend and hold him harmless and provide him with the advancement of expenses arising in connection with his employment to the full extent that it does or is required to do so with respect to all other officers and directors of the Company Group, whether by operation of law or pursuant to the Company Group’s governing instruments. Centerline shall continue to maintain for a period of six (6) years from the Separation Date a tail director and officers’ insurance policy covering Xx. Xxxx on the same basis as all other officers and directors as of such date.
14. Governing Law. This Agreement shall be governed by the laws of the State of New York without regard to the conflicts of principles thereof.
15. Amendment and Modification. This Agreement may be modified, amended or supplemented only by an instrument in writing signed by all of the parties hereto.
16. Waiver of Compliance. Except as otherwise provided in this Agreement, any failure of any of the parties to comply with any obligation, covenant, agreement or condition herein may be waived by the party or parties entitled to the benefits thereof only by a written instrument signed by the party granting such waiver, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent other failure.
17. Severability. The invalidity or unenforceability of any provision of this Agreement in any such jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction, or the validity, legality or enforceability of this Agreement, including any such provision, in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law. Upon such determination that any provision is invalid, illegal or incapable of being enforced, the parties hereto will negotiate in good faith to modify this Agreement so as to affect the original intentions of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby and thereby are fulfilled to the extent possible.
18. Notices. All notices, Documents and other communications given or made pursuant hereto shall be in writing and delivered by hand or sent by registered or certified mail (postage prepaid, return receipt requested), facsimile or by nationally recognized overnight air courier service and shall be deemed to have been duly given or made as of the date delivered if delivered personally or by facsimile, or if mailed, on the third business day after mailing (on the first business day after mailing in the case of a nationally recognized overnight air courier service) to the parties at the following addresses:
If to Xx. Xxxx:
Xxxxxx X. Xxxx
00 Xxxxxxx Xxxx Xxx
Xxxxxxxx, XX 00000
with a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
If to Centerline:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
19. Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, supersedes all prior agreements and undertakings, both written and oral, and may not be modified in any way except in writing by the parties hereto.
20. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
21. Tax Withholding. Any compensation or benefits payable under this Agreement shall be subject to applicable federal, state and local withholding taxes. Xx. Xxxx agrees that (i) he shall bear sole responsibility for payment of any federal, state or local income or other taxes or related penalties associated with his receipt of any amounts pursuant to this Agreement and (ii) Centerline shall have no obligation to mitigate or hold Xx. Xxxx harmless from any such tax obligations. To the extent applicable, it is intended that this Agreement comply with the provisions of Section 409A of the Code. This Agreement shall be interpreted and administered in a manner consistent with this intent.
22. Review and Revocation Period. Xx. Xxxx has twenty-one (21) days after receiving this Agreement to consider it, sign it, and return it to Centerline, although he may waive this time period by signing it sooner. After signing this Agreement, Xx. Xxxx has seven (7) days in which to revoke his release of claims under this Agreement. Xx. Xxxx understands that if he revokes his release of claims under this Agreement, he will not receive the Separation Benefits described in Section 2 of this Agreement, but all other terms of this Agreement, including Xx. Xxxx’x resignations under Paragraph 3 above, will remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily executed this Agreement as of the date set forth below:
| Date: |
May 9, 2011
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Centerline Capital Group Inc. | ||
| By: |
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
President
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Date:
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May 6, 2011
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/s/ Xxxxxx X. Xxxx
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| Xxxxxx X. Xxxx | ||||
