Exhibit 10.10
CONSULTING AGREEMENT AND RELEASE
THIS CONSULTING AGREEMENT ("Consulting Agreement" or "Agreement")) is made
and entered into effective as of the 25th day of August, 2003 at 5:30 P.M. EST
("Effective Date"), by and between CRIIMI MAE, Inc., a Maryland corporation (the
"Company") and Xxxxx X. Xxxxxx ("Consultant").
W I T N E S S E T H:
-------------------
WHEREAS, Consultant previously served as a Senior Vice President of the
Company (the "Employment"); and
WHEREAS, the Company desires to secure the services of Consultant as a
consultant on the terms and conditions herein provided.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants
and obligations contained herein, the Company and Consultant agree as follows:
1. RETENTION OF CONSULTANT
Company hereby engages the services of Consultant to provide consulting
services as described herein.
2. TERM
This Consulting Agreement shall commence on the Effective Date and end on
the earlier of: (A) December 31, 2003; (B) thirty (30) days after the
commencement of employment of the Company's new head of asset management; or (C)
a material breach by Consultant or Company in the performance of their
respective duties under this Consulting Agreement which goes uncured for a
period of five (5) business days after written notice of such breach has been
delivered (the "Consulting Period").
3. OBLIGATIONS OF CONSULTANT
A. Consultant's duties and powers shall include such projects as may be
reasonably requested by the Company and which are reasonably consistent with his
duties and responsibilities as existed with the Company immediately prior to the
termination of Consultant's Employment as an executive with the Company (the
"Services"). Consultant shall work on a full-time basis during the Consulting
Period. Consultant will use reasonable diligence in performing the Services.
B. Consultant shall meet with and advise Company on matters relating to the
Services at such times as reasonably requested by the Company.
1
4. COMPENSATION
During the Consulting Period, the Company shall pay to Consultant, in
consideration of his Services and the Release contemplated hereunder, a monthly
consulting fee in an amount equal to $30,000 (pro-rated for partial months
during the Consulting Period based on the business days worked by Consultant
during such month over the number of business days in such month) (the "Fee").
The Fee for any month shall be paid on the last day of such month. In addition
to the Fee, Consultant shall be entitled to business expense reimbursement
during the Consulting Period in accordance with the business expense
reimbursement policy of the Company as it may exist from time to time.
5. RELATIONSHIP OF PARTIES
In performing services hereunder, Consultant will at all times and for all
purposes, constitute an independent contractor and not an employee, officer or
agent of the Company or any of its subsidiaries or affiliates. In no event will
Consultant be, or represent himself to be, an officer, employee or agent of the
Company or any subsidiary or affiliate of the Company nor will Consultant bind,
or attempt to bind, the Company or any subsidiary or affiliate of the Company to
any contract, agreement, liability or obligation of any nature. The Company will
not be required to provide any Company benefits to Consultant which it provides
to its employees including without limitation retirement plans, insurance
programs and vacation whether or not Consultant is determined to actually be an
employee by any agency, court or tribunal during the Consulting Period. In
addition, unless otherwise determined by the Company, the Company shall be under
no obligation to withhold any taxes or other amounts to be paid to Consultant in
the form of Fees for his service as a consultant.
6. NOTICE AND PAYMENT
A. Any notice required to be given under the terms of this Consulting
Agreement shall be in writing and delivered personally to the other designated
party at the above stated address or mailed by certified, registered (return
receipt requested) or by Federal Express.
B. Either party may change the address to which notice or payment is to be
sent by written notice to the other under any provision of this paragraph.
7. JURISDICTION/DISPUTES
This Consulting Agreement shall be governed in accordance with the laws of
the State of Maryland without giving effect to that state's conflict of law
principles. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by binding arbitration in
Xxxxxxxxxx County, Maryland in accordance with the Commercial Arbitration Rules
of the American Arbitration Association. Either party may provide the other a
written request for binding arbitration ("Request for Arbitration"). Arbitration
shall commence within thirty days of the date of the Request for Arbitration. A
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
2
shall pay for and bear costs of its own experts and counsel's fees;
provided, that, the arbitrator shall have the right to award payment of
reasonable legal fees and expenses to the prevailing party in such arbitration.
8. CONSULTING AGREEMENT BINDING ON SUCCESSORS
The provisions herein shall be binding upon and shall inure to the benefit
of the Parties hereto, their heirs, administrators, and permitted successors and
assigns.
9. ASSIGNABILITY
The rights and obligations hereunder may not be assigned by any act without
the prior written consent of the other Party hereto.
10. WAIVER
No waiver by either Party of any default shall be deemed as a waiver of
prior or subsequent default of the same or other provisions of this Consulting
Agreement.
11. SEVERABILITY
If any term, clause or provision hereof is held invalid or unenforceable by
a court of competent jurisdiction, such invalidity shall not affect the validity
or operation of any other term, clause or provision and such invalid term,
clause or provision shall be deemed to be severed from this Consulting
Agreement.
12. INTEGRATION
This Consulting Agreement constitutes the entire understanding of the
Parties and is intended as a final expression of their agreement with respect to
the subject matter hereof. It shall not be modified or amended except in writing
signed by the Parties hereto and specifically referring to this Consulting
Agreement.
13. COUNTERPARTS
This Consulting Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which together will
constitute one and the same agreement.
14. JOINT DRAFTING
The Parties acknowledge and agree that this Agreement was jointly drafted
by the Company on the one side and by Consultant on the other side and in the
case of any ambiguity contained in this Agreement, such ambiguity shall not be
interpreted against the drafter.
15. NO WARRANTIES; LIMITATION ON LIABILITY OF CONSULTANT
The Parties acknowledge and agree that Consultant does not make any
warranty, express or implied, with respect to the Services rendered by
Consultant or the results obtained from work performed by Consultant. In no
event shall Consultant be liable for consequential, incidental, special or
indirect damages, or for acts of negligence which are not intentional or gross
in nature, regardless of whether either party has been advised of the
possibility of such damages. If Consultant is adjudicated by a court of
competent jurisdiction and found to have engaged in gross
3
negligence or willful or intentional misconduct, Company hereby agrees that
Consultant's liability hereunder for damages, regardless of the form of action,
shall not exceed the total amount of the Fees actually paid by the Company to
Consultant under the terms of this Consulting Agreement. Company hereby agrees
that any breach by Consultant of this Agreement shall not be the basis for
Company to claim any right to refuse to perform its obligations under the
Employment Agreement, dated July 25, 2001, between CRIIMI and Executive as it
has been amended from time to time (the "Employment Agreement"), and that
Company shall not be entitled by reason of Consultant's breach hereunder to take
or claim any setoff or recoupment against any rights which Consultant may have
under the terms of the Employment Agreement.
16. RELEASE
Consultant hereby acknowledges that the termination of his employment with
the Company was due to the failure of the parties to reach a mutual agreement on
an extension of the Term (as defined in the Employment Agreement) thereof and
was not a wrongful termination by the Company and its affiliates or by
Consultant. In consideration of the benefits provided in this Agreement,
including, without limitation, payment of the Fees, Consultant agrees to the
limited release of the Company and its respective current and former officers,
directors, shareholders, employees, representatives, heirs, attorneys and
agents, as well as its respective predecessors, parent companies, subsidiaries,
affiliates divisions, successors and assigns and their respective current and
former officers, directors, shareholders, employees, representatives, attorneys
and agents (the "Released Parties") from all claims, liabilities, and causes of
action which Consultant had, now has or may have against the Released Parties
related to his employment and the termination thereof and arising under: (i) any
claim, tort or cause of action for wrongful or unlawful discharge or demotion,
violation of public policy, invasion of privacy, intentional or negligent
infliction of emotional distress, defamation, unlawful effort to prevent
employment, discrimination on the basis of race, color, sex, national origin,
ancestry, religion, age, disability, handicap, medical condition or marital
status; (ii) Title VII of the Civil Rights Act of 1964, as amended; (iii) The
National Labor Relations Act, as amended; (iv) The Civil Rights Act of 1991; (v)
Sections 1981 through 1988 of Title 42 of the United States Code, as amended;
(vi) The Immigration Reform Control Act, as amended; (vii) The Americans With
Disabilities Act of 1990, as amended; (viii) The Age Discrimination in
Employment Act of 1967, as amended; (iv) The Occupational Safety and Health Act,
as amended; (x) The Family and Medical Leave Act of 1993; (xi) Maryland
Occupational Health and Safety Laws; (xii) Maryland Fair Employment Practice
Act; and (xiii) Xxxxxxxxxx County Discrimination Laws. This release shall not
include any claim arising under any national, state or local statute, law, or
ordinance other than those herein delineated, and shall specifically exclude any
claims, liabilities, causes of action or attorneys' fees arising from the
Company's obligations under the Employment Agreement including Consultant's
right to receive all wages and benefits thereunder, Consultant's rights under
the Employee Retirement Income Security Act of 1974, as amended, and
Consultant's rights to receive all insurance, including indemnification and
defense rights and benefits he is eligible to receive. This limited release is
solely for the benefit of the Released Parties and shall in no way release any
rights or benefits to which Consultant may be entitled from any other entity or
person.
4
[the next page is the signature page]
5
IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement as of the date first written above.
CRIIMI MAE, INC.
00000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx, 00000
By:/s/Xxxxx X. Xxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxx
Chairman of the Board, Chief
Executive Officer and President
/s/Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
00000 Xxxxxxxx Xxx
Xxxxx, Xxxxxxxx 00000
6
