AMENDED AND RESTATED
--------------------
EXECUTIVE EMPLOYMENT AGREEMENT
------------------------------
THIS AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT ("AGREEMENT")
is entered into effective as of JANUARY 16, 2007 (the "EFFECTIVE DATE") by and
between CENTERLINE CAPITAL GROUP, INC., A DELAWARE CORPORATION (the "COMPANY"),
and XXXXXXXX X. X. XXXXXXX ("EXECUTIVE"). In addition, this Agreement is being
executed by the Company's ultimate parent company, CENTERLINE HOLDING COMPANY, a
Delaware statutory trust ("CENTERLINE"), for purposes of guaranteeing
performance by the Company as set forth in Section 10(k) herein. Certain
capitalized terms used in this Agreement are used with the definitions ascribed
to them on the attached EXHIBIT A, which is incorporated into this Agreement by
this reference.
BACKGROUND
----------
The Company and Executive have previously entered into an Executive
Employment Agreement (the "EMPLOYMENT AGREEMENT") dated as of January 16, 2007.
Effective as of the date hereof, the Company has amended its Salary,
Discretionary Bonus, Long Term Disability, Severance Pay, total disability
policy, provision regarding termination without Cause and Resignation for Good
Reason and Change in Control provision. As a result thereof, the parties hereto
wish to amend and restate the Employment Agreement as provided herein.
WHEREAS, the parties desire to enter into an employment relationship on
the terms and conditions set forth below:
THEREFORE, the parties, intending to be legally bound, agree as
follows:
1. EMPLOYMENT. The Company will employ Executive, and Executive will be employed
by the Company, during the Employment Period on and subject to the terms and
conditions contained in this Agreement. The "EMPLOYMENT PERIOD" is the period
commencing on the Effective Date and continuing for a period of three (3) years
(the "Initial Term") with automatic renewals thereafter for successive one (1)
year periods unless terminated as provided in this Agreement.
2. DUTIES. During the Employment Period, Executive will work for the Company in
the capacity of Executive Managing Director and Group Head of the Credit Risk
Products Group. During the Employment Period, Executive shall report to the
Chief Executive Officer of the Company and Executive shall perform the types of
duties and functions as shall be reasonably assigned to Executive from time to
time by the Chief Executive Officer of the Company and shall be consistent with
Executive's position. Executive will devote substantially all of his business
time, best efforts and ability to the business of the Company and its
affiliates, will faithfully and diligently perform Executive's duties pursuant
to this Agreement, will comply with the overall policies established by the
board of trustees of Centerline and will do all things reasonably in Executive's
power to promote, develop and extend Centerline's business and that of its
subsidiaries. In determining whether Executive is devoting substantially all his
business time, best efforts and ability to the business of the Company and its
affiliates, Executive may only engage in those business activities aside from
his duties hereunder which are either (i) set forth in the attached EXHIBIT B,
or (ii) are disclosed to Centerline's board of trustees and approved by it.
3. COMPENSATION AND BENEFITS. During the Employment Period, the Company will pay
and provide Executive as compensation for Executive's services pursuant to this
Agreement the consideration specified and determined in accordance with this
SECTION 3, in each case subject to all withholdings required by applicable law.
a. The Company will pay Executive a base salary (the "SALARY") of $
400,000.00 per annum payable in equal bi-weekly installments, which
amount shall be subject to increase at the end of the Initial Term and
every third year thereafter so long as this Agreement shall be in
effect. In addition, the Company will pay Executive bonus compensation
("ANNUAL BONUS") to the extent it is awarded to him under and subject
to the terms of an annual incentive bonus compensation plan or program
sponsored by the Company (the "BONUS PLAN").
b. Executive may also be awarded long term deferred compensation under
one or more plans or programs established by the Company (including
but not limited to Out-Performance Programs) or Centerline and its
affiliates from time to time (the "DEFERRED COMPENSATION PLANS") and
may be offered an opportunity to co-invest with Centerline and/or its
subsidiaries in funds sponsored by them on such terms and conditions
as shall be determined by Centerline. Amounts, if any, payable to
Executive under the terms of the Deferred Compensation Plans shall be
governed solely by the terms of the Deferred Compensation Plans and
awards made thereunder and the terms and conditions of any
co-investment opportunity provided to Executive shall be established
by Centerline and communicated to Executive. Executive shall be under
no obligation to participate in any co-investment opportunity and such
participation shall not be a condition of nor affect in any manner
Executive's continued employment by the Company.
c. Executive shall be entitled to twenty (20) days vacation per year for
each year this Agreement is in effect. All vacation shall be taken at
such times as shall be agreed upon by the Chief Executive Officer of
the Company. In the event of a termination of this Agreement, no
amount shall be payable to the Executive for any accrued but not yet
taken vacation time. Executive's right to carry over unused vacation
days to subsequent years shall be subject to and limited by
Centerline's policy regarding the carry over of unused vacation days
in effect for similarly situated executives.
d. Executive will be entitled to participate in any fringe benefit and
other employee benefit plans and programs available to salaried
employees of the Company as in effect from time to time, to the extent
that Executive may be eligible to do so under the applicable
provisions of the plans and programs ("BENEFIT RIGHTS").
e. Executive shall be entitled to reimbursement of amounts incurred by
him in connection with the performance by him of his duties and
obligations hereunder in accordance with the Company's expense
reimbursement policy ("REIMBURSABLE AMOUNTS"). Executive shall apply
for all reimbursements for a particular calendar year not later than
forty-five (45) days after it ends, and payment shall occur not later
than two and one-half months after the end of the calendar year to
which the Reimbursable Amounts relate.
f. The Company shall also provide Executive with supplemental long term
disability insurance which will provide Executive with a full
disability benefit of Fifteen Thousand Dollars ($15,000.00) per month
after an exclusion period of ninety (90) days and otherwise on
substantially the same terms as are set forth on the attached EXHIBIT
C (the "Disability Coverage"). During the ninety (90) day exclusion
period, the Company will pay Executive his full Salary. Disability
Coverage shall be provided in a manner which is most tax advantageous
to the Executive, provided Executive cooperates fully in the
implementation of any reasonable plan proposed by the Company to
achieve such results.
4. TERMINATION; SEVERANCE BENEFITS. The Employment Period and Executive's
employment with the Company will terminate upon the first to occur of the
following and the Company shall make the following payments and no other
payments upon the occurrence of such event, subject in all cases to the terms
and conditions of subsection 10(e) hereof:
a. DEATH. If Executive dies during the Employment Period, the Termination
Date will be the date of Executive's death. In such event, the Company
shall pay Executive's estate within two and one-half months of the
date of Executive's death a death benefit equal to: (i) severance
compensation equal to one year of Executive's then current Salary and
100% of the amount of the Executive's most recently declared and paid
Annual Bonus ("SEVERANCE PAY"); (ii) Executive's earned but unpaid
Salary, any Reimbursement Amounts for the period prior to termination,
any accrued but unused vacation, and any declared but unpaid Annual
Bonus (collectively "ENTITLEMENTS"); (iii) BENEFIT RIGHTS; (iv)
additional benefits (if any) in accordance with the applicable Company
plans, programs and arrangements ("COMPANY ARRANGEMENTS"); and (v) the
Company shall pay the COBRA premiums for Executive's dependents for
the lesser of (A) one (1) year or (B) until Executive's dependents
cease to be eligible for such COBRA benefits (including, without
limitation, by reason of any such dependents becoming eligible for
substantially similar coverage from another employer). Upon a
termination of the Executive by reason of Executive's death, any
unvested options and restricted stock awarded to Executive under any
compensation plan sponsored by the Company and any promote shares
under a co-investment made by the Executive with the Company or its
affiliates shall fully vest upon the date of his death. Furthermore,
the Executive shall be eligible for consideration for an Annual Bonus
for the year in which the Executive dies; provided, however, nothing
herein shall entitle the Executive to an Annual Bonus and any award of
an Annual Bonus shall be subject to the terms and provisions of the
Bonus Plan.
b. TOTAL DISABILITY. If Executive incurs a Total Disability, the
Termination Date will be the date Executive (or Executive's
beneficiary or representative) first becomes entitled to receive
benefits under the Disability Coverage unless deferred or extended by
the Centerline's Compensation Committee, in which case it will be the
extended or deferred date (the "DISABILITY PAYMENT DATE"). In such
event the Company shall pay to or on behalf of the Executive (or
Executive's beneficiary or representative) (i) on each regular pay day
the pro rata portion of any Salary which accrues from the date
Executive incurs the Total Disability to the Disability Payment Date,
(ii) within two and one-half months of the Disability Payment Date, a
disability benefit equal to (A) Severance Pay; (B) the Entitlements;
(C) Benefit Rights; and (D) Company Arrangements; (iii) subsequent to
the Disability Payment Date, any payments due on account of the
Disability Coverage and (iv) the COBRA premiums for Executive and his
dependents for the lesser of (A) one (1) year or (B) until Executive
and his dependents cease to be eligible for such COBRA benefits
(including, without limitation, by reason of Executive becoming
eligible for substantially similar coverage from a subsequent
employer). For these purposes, a "TOTAL DISABILITY" is a physical
and/or mental condition giving rise to Executive (or Executive's
beneficiary or representative) receiving benefits on account of
Executive's being totally disabled under any Disability Coverage. Upon
a termination of the Executive by reason of Total Disability, any
unvested options and restricted stock awarded to Executive under any
compensation plan sponsored by the Company and any promote shares
under a co-investment made by the Executive with the Company or its
affiliates shall fully vest upon the Termination Date. Furthermore,
the Executive shall be eligible for consideration for an Annual Bonus
for the year in which the Executive incurs a Total Disability;
provided, however, nothing herein shall entitle the Executive to an
Annual Bonus and any award of an Annual Bonus shall be subject to the
terms and provisions of the Bonus Plan.
c. TERMINATION FOR CAUSE; RESIGNATION WITHOUT GOOD REASON. Executive's
employment may be terminated by the Company for Cause at any time upon
written notice from the Company to Executive. The Company's notice
must set forth the facts or circumstances constituting Cause and
specify the Termination Date. Executive may resign without the
existence of Good Reason at any time upon not less than ninety (90)
days written notice to the Company. Executive's notice must specify
the Termination Date. Upon the occurrence of either such event, the
Company shall only be obligated to pay Executive any amounts due under
SECTION 4(G) below. Upon a termination of the Executive by the Company
with Cause or a termination by the Executive without Good Reason, any
unvested options and restricted stock awarded to Executive under any
compensation plan sponsored by the Company shall be forfeited as of
the Termination Date. Vested options shall continue to be exercisable
in accordance with the compensation plan pursuant to which they were
issued.
d. FAILURE TO RENEW, RETIREMENT, TERMINATION WITHOUT CAUSE OR RESIGNATION
FOR GOOD REASON. In the event the Company shall determine that
Executive's Employment Period will not be renewed pursuant to Section
1 of this Employment Agreement, the Company shall so notify Executive
not less than sixty (60) days and not more than ninety (90) days prior
to the expiration of the Employment Period, in which case the
Termination Date shall be the expiration of the Employment Period and
the Executive's employment shall be deemed to have been terminated by
the Company without Cause. In addition, Executive may be terminated by
the Company without Cause at any time upon not less than thirty (30)
days written notice to Executive, in which case the Company's notice
must specify the Termination Date. Executive may resign if Good Reason
exists upon not less than ten (10) days written notice to the Company.
Executive's notice must set forth the facts and circumstances
constituting Good Reason and specify the Termination Date.
In the event of Executive's Retirement, (i) any unvested options and
restricted stock awarded to Executive under any compensation plan
sponsored by the Company and any promote shares under a co-investment
made by the Executive with the Company or its affiliates shall fully
vest upon the Termination Date and (ii) the terms and provisions of
Sections 5, 6, 7 and 8 of this Agreement shall continue in full force
and effect.
If Executive's employment is terminated by the Company without Cause
or Executive terminates his employment with the Company for Good
Reason, Executive shall have no further rights or claims hereunder or
with regard hereto except that, subject to his execution of a release
running to the Company and its related entities and their respective
partners, shareholders, officers, directors and employees of all
claims relating to his employment and termination substantially in the
form of EXHIBIT D (with such reasonable changes therein as may be
deemed by counsel to the Company to be required or desirable to
reflect applicable law at the time of delivery of such release) (the
"Release"), (i) the Company will pay Executive a separation payment
equal to the Entitlements and Severance Pay within two and one-half
months after terminating employment, (ii) Executive will be entitled
to the Benefit Rights and Company Arrangements, and (iii) the Company
will pay the COBRA premiums for Executive and his dependents for the
lesser of (A) one (1) year or (B) until Executive and his dependents
cease to be eligible for such COBRA benefits (including, without
limitation, by reason of Executive becoming eligible for substantially
similar coverage from a subsequent employer). If Executive elects not
to deliver the Release, then the Company shall have no obligation to
pay Executive the severance provided for in clause (i) above, but
shall be obligated to pay to Executive the amounts provided for in
clause (ii) above at the times provided therein. Any payments to be
made to Executive pursuant to this SECTION 4(D) are in addition to any
benefits that may be payable under any life insurance, disability
insurance or similar policies of insurance that the Company may
maintain on Executive's behalf and to which Executive contributes all
or any portion of the premiums to maintain. If Executive's employment
is terminated hereunder, Executive shall be under no obligation to
seek other employment and there shall be no offset against any amounts
due to Executive under this Agreement on account of any remuneration
attributable to any subsequent employment that Executive may obtain.
Upon a termination of the Executive by the Company without Cause or, a
termination by the Executive with Good Reason, any unvested options
and restricted stock awarded to Executive under any compensation plan
sponsored by the Company and any promote shares under a co-investment
made by the Executive with the Company or its affiliates shall fully
vest upon the end of any rescission period allowed with respect to the
release provided as Exhibit D. Furthermore, the Executive shall be
eligible for consideration for an Annual Bonus for the year in which
the Executive terminates with Good Reason or is Terminated without
Cause; provided, however, nothing herein shall entitle the Executive
to an Annual Bonus and any award of an Annual Bonus shall be subject
to the terms and provisions of the Bonus Plan.
e. CHANGE OF CONTROL. In the event that Executive's employment is
terminated by the Company either in anticipation of, or within three
months before, or within one (1) year after, a Change in Control
(other than as a result of Cause, death or Total Disability) or by the
Executive for Good Reason within one (1) year after a Change of
Control, the Company shall have no liability or further obligation to
the Executive and the Executive shall have no further rights or claims
hereunder or with regard hereto except that, subject to his execution
(within 30 days after delivery to Executive) of the Release: (i) the
Company will, within two and one-half months of the Executive's
employment termination date, pay Executive the Entitlements and a
separation payment equal to twenty-four months of Executive's then
current Salary and 150% of the amount of the Executive's most recently
declared and paid Annual Bonus; (ii) Executive will be entitled to the
Benefits Rights and the Company Arrangements; and (iii) all medical
and dental, disability and life insurance then provided to senior
executives of the Company shall be continued at no cost to the
Executive or his dependents following the Termination Date for a
period of twenty-four (24) months, or at the discretion of the
Company, a cash payment shall be made in lieu of such benefits. If
Executive elects not to sign and deliver the Release, then the Company
shall have no obligation to pay Executive the monies and benefits
described in the prior sentence. Upon a termination of Executive's
employment governed by this Section 4(e), any unvested options and
restricted stock awarded to Executive under any compensation plan
sponsored by the Company and any promote shares under a co-investment
made by the Executive with the Company or its affiliates shall fully
vest upon the Termination Date. Furthermore, the Executive shall be
eligible for consideration for an Annual Bonus for the year in which
the Executive's employment is terminated under the terms of this
Section 4(e); provided, however, nothing herein shall entitle the
Executive to an Annual Bonus and any award of an Annual Bonus shall be
subject to the terms and provisions of the Bonus Plan. For purposes of
this Section 4(e), the Termination Date shall be Executive's last day
of employment with the Company.
f. IMMEDIATE CESSATION OF EMPLOYMENT. If the Company gives notice to
Executive pursuant to SUBSECTION (C) above, or Executive gives notice
to the Company pursuant to SUBSECTION (C) above, the Company may
further direct Executive to immediately cease Executive's activities
on behalf of the Company, to remove Executive's personal belongings
from the premises of the Company and/or to discontinue using any of
the Company's facilities.
g. ARREARAGES. In connection with the Executive's termination of
employment for any reason, the Company shall pay Executive (or
Executive's estate or legal representative, as the case may be) on the
Termination Date his (a) accrued but unpaid Salary, if any, as of the
Termination Date, (b) accrued but unpaid Annual Bonus for the Fiscal
Year prior to the Fiscal Year in which Executive's employment is
terminated as of the Termination Date and (c) unpaid Reimbursable
Amounts, if any, as of the Termination Date (collectively, the
"ARREARAGES"). If termination is pursuant to SUBSECTION (C) above, the
payments under this SUBSECTION (G) will be in complete fulfillment of
the Company's obligations to Executive under this Agreement.
Otherwise, the Company shall be obligated to make the additional
payments required pursuant to this SECTION 4 in addition to the
Arrearages.
h. COOPERATION. The Executive agrees to cooperate with the Company,
during the Employment Period and thereafter (including following the
Executive's termination of employment for any reason), consistent with
Executive's duties, responsibilities and availability under the terms
of this Agreement, by making himself reasonably available to testify
on behalf of the Company or any of its Affiliates in any action, suit,
or proceeding, whether civil, criminal, administrative, or
investigative, and to assist the Company, or any Affiliate, in any
such action, suit, or proceeding, by providing information and meeting
and consulting with: (i) the Board or its representatives or counsel,
(ii) representatives or counsel to the Company, and/or (iii) any
Affiliate as reasonably requested. The Company agrees to reimburse the
Executive, for all reasonable expenses actually incurred in connection
with his provision of testimony or assistance.
5. NON-COMPETITION AGREEMENT.
a. Executive absolutely and unconditionally covenants and agrees with the
Company that, from the period commencing on the date of this Agreement
and continuing for a period of ninety (90) days following the
termination of his employment by Executive without Good Reason and for
a period of one (1) year following the end of his employment for any
other reason (the "NONCOMPETE PERIOD"), Executive will not, either
directly or indirectly, solely or jointly with any other person or
persons, as an employee, consultant, or advisor (whether or not
engaged in business for profit), or as an individual proprietor,
partner, shareholder, director, officer, joint venturer, investor or
lender, render services in or directed into any state within the
United States of an executive, advertising, marketing, sales,
supervisory, technical, research, purchasing or consulting nature to
any person or entity that engages in or intends to engage in a
Competitive Business (as defined in EXHIBIT A) (i) as conducted as of
the date of execution of this Agreement; (ii) as conducted during the
term of this Agreement; or (iii) as proposed to be conducted by the
Company Group as of the Termination Date (collectively,
"COMPETITION"). Notwithstanding the foregoing, Executive may return to
work for NATIXIS Capital Markets North America, Inc. or its successors
without complying with the Noncompete Period.
b. If a court or arbitration panel concludes through appropriate
proceedings that the Executive has breached the covenant set forth in
this SECTION 5, the term of the covenant shall be extended for a term
equal to the period for which the Executive is determined to have
breached the covenant.
6. COVENANT NOT TO DISCLOSE. Executive acknowledges and agrees that, by virtue
of the performance of the normal duties of his position with the Company and by
virtue of the relationship of trust and confidence between the Executive and the
Company, the Company will permit Executive to have access to and Executive will
become familiar with, acquire knowledge of and develop or maintain the Company's
Confidential Information (as defined below), whether currently existing or to be
developed in the future, which Executive recognizes permits the Company to enjoy
a competitive advantage and the premature disclosure of which would irreparably
injure the Company. The Executive covenants and agrees that he will not, at any
time, whether during the term of this Agreement or otherwise, 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 secret, pricing policy, bid
amount, bid strategy, rate structure, personnel policy, method or practice 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 the Company and whether or not
developed, devised or otherwise created in whole or in part by the efforts of
the Executive and shall take no action that threatens to do so. The Executive
further covenants and agrees that he shall retain all such knowledge and
information which he shall acquire or develop respecting such Confidential
Information in trust for the sole benefit of the Company and its successors and
assigns. Executive shall not, without the prior written consent of the Company,
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 the Company and those designated
by it. In the event Executive is compelled by order of a court or other
governmental or legal body to communicate or divulge any Confidential
Information to anyone other than the Company and those designated by it,
Executive shall promptly notify the Company of any such order and shall
cooperate fully with the Company (and the owner of such Confidential
Information) in protecting such information to the extent possible under
applicable law.
7. NON-INTERFERENCE COVENANT. To protect the Company's legitimate business
interests, including the Company's Confidential Information and business
relationships, Executive covenants and agrees that he will not, at any time,
whether during the term of this Agreement or during the Non-Compete Period,
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, employ, or otherwise deal with in a manner which
interferes with the Company Group's relationship with any person or entity who
is an employee, officer, director or independent contractor of the Company Group
at any time or who constitutes a bona fide prospective employee, officer,
trustee, director or independent contractor of the Company Group, unless such
person or entity shall no longer be actively employed, or engaged by the Company
Group and shall no longer constitute a bona fide prospective employee, officer,
director or independent contractor of the Company Group; provided, however,
Executive will not be deemed to be in violation of this clause (i) if an
employee of the Company Group is hired by Executive's future employer provided
that Executive 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)
solicit or otherwise 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.
8. BUSINESS MATERIALS AND PROPERTY DISCLOSURE. All written materials, records
and documents made by the Executive or coming into his possession concerning the
business or affairs of the Company Group shall be the sole property of the
Company Group and, upon termination of his employment with the Company or upon
request by the Company, the Executive shall return the same to the Company and
shall retain no copies in any form or media. The Executive shall also return to
the Company all other property in his possession owned by the Company upon
termination of his employment.
9. BREACH BY EXECUTIVE. It is expressly understood, acknowledged and agreed by
the Executive that (i) the restrictions contained in SECTIONS 5, 6, 7 and 8 of
this Agreement represent a reasonable and necessary protection of the legitimate
interests of the Company and that his failure to observe and comply with his
covenants and agreements in Sections 5, 6, 7, or 8 will cause irreparable harm
to the Company; (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
by Executive will be inadequate. Accordingly, it is the intention of the parties
that, in addition to any other rights and remedies which the Company may have in
the event of any breach of said Sections, the Company shall be entitled, and is
expressly and irrevocably authorized by Executive, to demand and obtain specific
performance, including without limitation temporary and permanent injunctive
relief, and all other appropriate equitable relief against Executive in order to
enforce against Executive, or in order to prevent any breach or any threatened
breach by Executive, 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 5, 6,
7, or 8 or an action to enforce any award rendered pursuant to the arbitration
provisions in Section 10(g), may be commenced in a court of the State of New
York and the parties hereby consent to the jurisdiction of such a court. The
parties hereto unconditionally waive their respective right to demand a jury
trial in any dispute relating to this Agreement. If any restriction with regard
to Competition is found by any court of competent jurisdiction, or an
arbitrator, to be unenforceable because it extends for too long a period of time
or over too great a range of activities, or in too broad a geographic area, it
shall be interpreted to extend over the maximum period of time, range of
activities or geographic area to which it may be enforceable and the Company
shall have no further obligations hereunder.
10. GENERAL PROVISIONS.
a. Except insofar as Executive may be subject to general policies adopted
by the Company from time to time, this Agreement contains the entire
agreement between the parties with respect to its subject matter, and
all prior other representations, warranties, conditions or agreements
relating to the subject matter of this Agreement, whether or not
reduced to writing in whole or part, are hereby revoked, terminated
and declared to be null and void. The preceding sentence
notwithstanding, this Agreement is in furtherance of, and does not
affect or modify, any Deferred Compensation Plan in which the
Executive may participate or Executive's participation in any benefit
plan or program provided by the Company Group.
b. The waiver by any party of any breach or default of any provision of
this Agreement will not operate or be construed as a waiver of any
subsequent breach or default of the same or any other provision of
this Agreement. This Agreement may not be changed orally, but only by
an instrument in writing duly executed on behalf of the party against
which enforcement of any waiver, change, modification, consent or
discharge is sought.
c. This Agreement is binding upon and will inure to the benefit of the
Company and Centerline, Executive and their respective successors,
assigns, heirs and legal representatives. Insofar as Executive is
concerned, this Agreement is personal and Executive's duties under it
may not be assigned or delegated. The Company may assign or delegate
its rights or obligations under this Agreement to any successor owner
of the Company's business, and, if ownership of the Company's business
is transferred or the Company is merged with or consolidated into
another entity, the Company will cause the successor to assume all of
the Company's obligations under this Agreement.
d. The existence, terms, and conditions of this Agreement are and shall
be deemed to be fully confidential and shall not be disclosed by
Executive or the Company to any person or entity, except: (i) as may
be required by law; (ii) by Executive to his accountant to the extent
necessary to prepare his tax returns; (iii) by Executive to his family
and attorney; (iv) by the Company or any affiliate of the Company to
their attorneys and human resources personnel or to any entity which
shall have executed a confidentiality agreement with the Company or
any affiliate of the Company; and (v) by Executive to any lender,
condominium or cooperative board, or other entity or person that may
require employment or other financial information for bona fide
reasons that are not competitive with the Company, provided that the
financial terms of this Agreement may not be disclosed to any
potential employer that is a competitor of the Company, and that
Executive gives each such person to whom disclosure is made notice of
the confidentiality provisions of this Agreement. Notwithstanding the
foregoing Executive shall not be prohibited from disclosing the
general terms of his compensation to prospective Employers.
e. The Company may withhold from any and all amounts payable to Executive
hereunder pursuant to such federal, state and local taxes as may be
required to be withheld pursuant to any applicable laws or regulation.
The Executive is solely responsible for the payment of any tax
liability (including any taxes and penalties arising under Section
409A of the Internal Revenue Code of 1986, as amended (the "Code"))
that Executive incurs as a result of any payments or benefits that the
Executive receives pursuant to this Agreement. The Company shall not
have any obligation to pay the Executive for any such tax liabilities.
Nevertheless, if the Company reasonably determines that any payments
or benefits pursuant to Section 4 above would cause the Executive to
incur liability for additional tax under Section 409A of the Code,
then the Company (of its own initiative or upon request of the
Executive) may suspend such payments or benefits until the end of the
six-month period immediately following termination of the Executive's
employment (the "409A Suspension Period"). As soon as reasonably
practical after the end of the 409A Suspension Period (and in no event
more than two and one-half months thereafter), the Company will make a
lump-sum payment to the Executive, in cash, in an amount equal to any
payments and benefits that the Company does not make on account of the
409A Suspension Period. At the close of the 409A Suspension Period,
the Executive will receive any remaining payments and benefits due
pursuant to Section 4 in accordance with the terms of that Section (as
if there had not been any suspension beforehand). Notwithstanding the
foregoing, in the event that this Agreement or any payment or benefit
paid to the Executive hereunder is deemed to be subject to Section
409A of the Code, Executive and the Company agree to negotiate in good
faith to adopt such amendments that are necessary to comply with
Section 409A of the Code or to exempt such payments or benefits from
Section 409A of the Code.
f. In the event that any dispute shall arise between Executive and the
Company relating to Executive's rights under this Agreement, the
Company shall pay to Executive all reasonable legal fees and expenses
incurred in connection with such dispute, if the Company is not the
prevailing party in an action for injunctive relief or if it is
finally determined by the arbitration referred to in SECTION 10(G)
hereof or by a court of competent jurisdiction that Executive is the
prevailing party in all or substantially all material respects with
respect to any dispute.
g. In the event of any dispute between the Company and Executive with
regard to this Agreement or his employment or termination thereof with
the Company, other than for injunctive relief pursuant to SECTIONS 5,
6, 7 AND 8 hereof, such dispute shall be resolved pursuant to the
rules of the American Arbitration Association ("AAA") by arbitration
conducted in New York City, New York. The decision of the arbitrator
or arbitrators shall be final and binding on the parties hereto and
may be entered in any court having jurisdiction. Each party shall bear
its own costs of arbitration and shall equally divide the charges of
the arbitrators and the AAA, except as provided in SECTION 10(F).
h. All notices hereunder shall be given in writing and shall be either
delivered personally, or sent by certified or registered mail, return
receipt requested, addressed to the other party at such party's
address on the books of the Company or at the Company's executive
offices (to the attention of the General Counsel), as the case may be.
Notices shall be deemed given when received, or two (2) business days
after mailing, whichever is earlier.
i. The parties have entered into this Agreement in the belief that its
provisions are valid, reasonable and enforceable. If any one or more
of the provisions shall be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision in this
Agreement, but this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained therein.
j. Executive acknowledges that the prohibitions and restrictions set
forth in this Agreement are reasonable and necessary for the
protection of the business of the Company, that the restrictions and
prohibitions here will not prevent him from earning a livelihood after
the termination of Executive's employment and that part of the
compensation paid and benefits provided to Executive are in
consideration for entering into this Agreement.
k. Centerline hereby agrees that all obligations with respect to
compensation owed to Executive under this Agreement by the Company
shall be fully and unconditionally guaranteed by Centerline and
Centerline agrees to take such actions as are necessary to ensure
compliance with any provision hereof requiring action on the part of
Centerline. Centerline's obligations hereunder shall be binding on its
successors and assigns (including, without limitation, any entity that
succeeds to all or a substantial portion of Centerline's business or
assets).
l. This Agreement is governed by, and is to be construed in accordance
with, the law of the State of New York without reference to the
conflicts of laws principles thereof.
m. The provisions of Sections 4(H), 5, 6, 7, 8, 9, 10(F), 10(G) and 11 of
this Agreement shall survive and shall continue to be binding upon the
Executive and the Company notwithstanding the termination of this
Agreement for any reason whatsoever.
n. The parties warrant and represent that each has the legal capacity and
authority to enter into this Agreement.
o. In the event of a conflict between the terms and provisions of any
Bonus Plan or Deferred Compensation Plan and this Agreement, the terms
of this Agreement shall prevail.
p. Nothing in this Agreement shall affect in any way any prior awards to
Executive of stock options or restricted stock which shall continue to
be governed by the terms of the award and the Deferred Compensation
Program governing such award.
11. INDEMNIFICATION. The Company shall indemnify and hold the Executive harmless
from and against any and all liabilities to which he may be subject as a result
of his employment hereunder (including as a result of service by him at the
request of the Company as an officer or director of the Company or as an officer
or director of any of its subsidiaries or affiliates) and shall provide
Executive with the advancement of expenses with respect to such indemnification
to the fullest extent that may be provided for laws applicable to the Company,
its subsidiaries and affiliates. During the Employment Period and for a period
of six (6) years thereafter, the Company shall maintain directors' and officers'
insurance coverage which shall include Executive as a covered person in amounts
maintained by comparable companies.
[The next page is the signature page.]
IN WITNESS WHEREOF, the parties have executed this Agreement,
Centerline Capital Group, Inc. and Centerline Holding Company acting by their
respective duly authorized officers, effective as of the Effective Date.
CENTERLINE CAPITAL GROUP, INC. EXECUTIVE:
By /s/ Xxxx X. Schnitizer /s/ Xxxxxxxx X. X. Xxxxxxx
---------------------- --------------------------
Name: Name: Xxxxxxxx X. X. Xxxxxxx
Title:
CENTERLINE HOLDING COMPANY
By /s/ Xxxx X. Schnitizer
----------------------
Name: XXXX X. XXXXXXXXX
Title: CHIEF EXECUTIVE OFFICER AND PRESIDENT
482661
EXHIBIT A
DEFINITIONS
When used in the Executive Employment Agreement to which this EXHIBIT A is
appended (the "AGREEMENT"), the following terms have the following meanings. Any
capitalized terms used below which are defined in the Agreement are used with
the meanings ascribed to them in the Agreement.
"CAUSE" means: (a) Executive's having been found or pleading guilty or NOLO
CONTENDRE to committing any felony involving fraud, embezzlement, theft or moral
turpitude, or any misdemeanor involving the same and materially damaging the
Company's reputation or financial interests; (b) any substantial and repeated
failure, inability or refusal to perform, or breach of, Executive's material
duties reasonably assigned to him and consistent with his duties and
responsibilities as an officer of the Company, or a trustee, director or
officer, as applicable, of Centerline or any member of the Company Group; (c)
Executive's repeated failure to follow reasonable material directions consistent
with his duties and responsibilities under this Agreement from the Chief
Executive Officer of Centerline, the board of directors of the Company or the
board of directors of Centerline; (d) Executive's willful and material breach of
this Agreement; (e) Executive's willful and repeated failure to substantially
perform his duties and responsibilities consistent with his duties and
responsibilities under this Agreement with regard to a material matter, (f)
Executive's fraud or breach of fiduciary duty to the Company or its affiliates,
embezzlement, dishonesty or other dishonest act, in all cases of a material
nature; (g) any material violation of a provision of the written Code of Conduct
of the Company or other similar written policies of the Company (or failure to
agree to observe the code of conduct) as in effect from time to time, which
violation has a material adverse effect on the Company or its affiliates or (h)
Executive's material unauthorized use or disclosure of any proprietary
information or trade secrets of Centerline.
"CHANGE IN CONTROL" means any of the following:
(i) ACQUISITION OF CONTROLLING INTEREST. Any Person (other than
Persons who are Employees at any time more than one year before a
transaction) becomes the Beneficial Owner, directly or indirectly, of
securities of the Company representing 50% or more of the combined voting
power of the Company's then outstanding securities. In applying the
preceding sentence, (i) securities acquired directly from the Company or
its Affiliates by or for the Person shall not be taken into account, and
(ii) an agreement to vote securities shall be disregarded unless its
ultimate purpose is to cause what would otherwise be Change of Control, as
reasonably determined by the Board.
(ii) CHANGE IN BOARD CONTROL. Individuals who, as of the Effective
Date, are members of the Board of Centerline ("Incumbent Board"), cease for
any reason to constitute a majority of the Board of Centerline, provided,
however, that if the election of a trustee is approved by vote of at least
a majority of the Incumbent Board, such new trustee shall, for purposes of
this Agreement, be considered as a member of the Incumbent Board.
(iii) MERGER. The Company consummates a merger, or consolidation of
the Company with any other corporation unless: (a) the voting securities of
the Company outstanding immediately before the merger or consolidation
would continue to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least 50% of
the combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation; and (b) no Person (other than Persons who are Employees at
any time more than one year before a transaction) becomes the Beneficial
Owner, directly or indirectly, of securities of the Company representing
50% or more of the combined voting power of the Company's then outstanding
securities.
(iv) SALE OF ASSETS. The shareholders of the Company approve an
agreement for the sale or disposition by the Company of all, or
substantially all, of the Company's assets.
(v) LIQUIDATION OR DISSOLUTION. The shareholders of the Company
approve a plan or proposal for liquidation or dissolution of the Company.
Notwithstanding the foregoing, a "Change in Control" shall not be deemed to
have occurred by virtue of the consummation of any transaction or series of
integrated transactions immediately following which the record holders of the
Shares of the Company immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate ownership in
an entity which owns all or substantially all of the assets of the Company
immediately following such transaction or series of transactions.
"COMPANY GROUP" means Centerline or its affiliates, including, without
limitation, American Mortgage Acceptance Company, Centerline Capital Group,
Inc., Centerline Capital Company LLC, Centerline Affordable Housing Advisors,
LLC, Centerline Mortgage Capital Inc., Centerline Mortgage Partners Inc.,
Centerline Financial Holdings LLC, Centerline Investors I, LLC and Centerline
REIT, Inc.
"COMPETITIVE BUSINESS" means any of the businesses of the Company Group,
including, without limitation:
(A) engaging, participating, or being involved directly or indirectly in
any respect in the business of analyzing, investing in, purchasing or assisting
any person or entity in the analysis, investment in or purchase of
non-investment grade Commercial Mortgage Backed Securities (including servicing
loans or originating loans) other than for Executive's own account or by way of
investment by Executive in less than five percent (5%) of the outstanding stock
or other securities or a publicly traded entity;
(B) arranging for or providing, directly or indirectly, debt and/or equity
financing products or services to developers or owners of real property other
than for Executive's own account or by way of investment by Executive in less
than five percent (5%) of the outstanding stock or other securities or a
publicly traded entity;
(C) engaging, participating, or being involved directly or indirectly
in any respect in the business of the syndication and sale of housing tax
credits, historic rehabilitation tax credits, new markets tax credits or home
ownership tax credits other than for Executive's own account or by way of
investment by Executive in less than five percent (5%) of the outstanding stock
or other securities or a publicly traded entity; or
(D) providing credit intermediation relating to debt or equity
interests in real property other than for Executive's own account or by way of
investment by Executive in less than five percent (5%) of the outstanding stock
or other securities or a publicly traded entity.
"CONTINUOUS SERVICE" means the absence of any interruption or termination of
service as an Centerline employee or consultant. Continuous Service shall not be
considered interrupted in the case of: (i) sick leave; (ii) military leave;
(iii) any other leave of absence approved by the Centerline, provided that such
leave is for a period of not more than 90 days, unless reemployment upon the
expiration of such leave is guaranteed by contract or statute, or unless
provided otherwise pursuant to Centerline policy adopted from time to time.
Changes in status between service as an employee and a consultant will not
constitute an interruption of Continuous Service.
"FISCAL YEAR" means the fiscal year of the Company which is the period
commencing January 1 and ending December 31 of each calendar year.
"GOOD REASON" means any of the following events that the Company does not
reasonably cure within ten (10) days after receiving written notice thereof from
the Executive (with Good Reason being established only at the end of such ten
(10) day period): (a) a material adverse change or diminution in Executive's
duties, responsibilities or title as an employee of the Company or Centerline;
(b) a reduction of more than five percent (5%) in Executive's Salary, (c) a
failure on the part of the Company to increase Executive's Salary by at least
ten percent (10%) over the then current Salary level at the end of the Initial
Term and at the end of each three (3) year period thereafter; (d) for a period
commencing with a Change of Control and ending the close of the Fiscal Year
following the Fiscal Year in which a Change of Control occurs, a reduction in
Executive's total compensation (Salary plus Annual Bonus on an annualized basis)
of more than ten (10%) of the average total compensation paid to Executive for
two (2) Fiscal Years immediately preceding the Fiscal Year in which the Change
of Control occurs, (e) an amendment, modification or termination of the Bonus
Plan, which would result on a prospective basis in a reduction of greater than
ten percent (10%) of the bonus pool which would otherwise be available under the
Bonus Plan, if such amendment, modification or termination of the Bonus Plan had
not been made and/or (f) the forced relocation of Executive to a location which
is more than fifty (50) miles from his place of work as of the date of execution
of this Agreement, which is 000 Xxxxxxx Xxx., Xxx Xxxx, Xxx Xxxx.
Notwithstanding the foregoing, a decrease in all, or any part of, Executive's
compensation if such decrease is in accordance with an across-the-board decrease
applying generally to similarly situated executives of the Company (other than
such a decrease upon a Change of Control) shall not constitute "Good Reason".
"RETIREMENT" means the Executive's voluntary termination of employment upon not
less than sixty (60) days prior written notice (unless waived by the Company),
under circumstances not involving Termination for Cause if the Participant has
attained age 62 and completed at least 10 consecutive years of Continuous
Service immediately before ending Continuous Service. A Participant's Continuous
Service for this purpose shall include any service with the Company or any of
its Affiliates, as well as the Participant's service (i) with any predecessor to
the Company or its Affiliates, and (ii) with any company acquired by the Company
or any Affiliate.
"TERMINATION DATE" means the effective date of termination of the Employment
Period and Executive's employment with the Company, regardless of the cause of
such termination.
EXHIBIT B
---------
OTHER BUSINESS ACTIVITIES OF EXECUTIVE
--------------------------------------
482661
EXHIBIT C
---------
SUMMARY - DISABILITY INSURANCE TERMS
------------------------------------
Total Monthly Benefit (with COLA): $15,000.00
Beginning Date: 91st Day
Benefit Paid: to age 65
EXHIBIT D
FORM OF GENERAL RELEASE
It hereby is agreed, by and among Centerline Capital Group, Inc.
("EMPLOYER"), and ____________ ("EMPLOYEE"), as follows:
1. [The Employee submits, and the Employer accepts, his
permanent resignation from employment effective ___________][The Employer
requests and the Employee submits to his termination from employment effective
___________]. Employee hereby waives any and all rights or claims to
reinstatement or reemployment by the Employer. Employer reaffirms it obligation
to make the payments required pursuant to Section ___ of that certain agreement
dated as of ___________, 2007 between the Employer and the Employee (the
"Employment Agreement").
2. In consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged by the
Employee, Employee, for his self, his heirs, executors, administrators,
successors and assigns, hereby releases and forever discharges the Employer,
including any and all of Employer's subsidiaries, affiliates or related business
entities (including, without limitation, American Mortgage Acceptance Company,
Centerline Capital Group, Inc., Centerline Capital Company LLC, Centerline
Affordable Housing Advisors, LLC, Centerline Mortgage Capital Inc., Centerline
Mortgage Partners Inc., Centerline Financial Holdings LLC, Centerline Investors
I, LLC and Centerline REIT, Inc.), its or their past, present and future owners,
partners, directors, officers, agents, representatives, and employees or any of
its or their subsidiaries, affiliates, parents, or related business entities,
and its or their respective heirs, executors, administrators, successors and
assigns, of, from and/or for all manner of actions, proceedings, causes of
action, suits, debts, sums of money, accounts, contracts, controversies,
agreements, promises, damages, judgments, claims, and demands whatsoever, known
or unknown, whether arising in law or equity, out of any federal, state or city
constitution, statute, ordinance, bylaw or regulation, or under the Employment
Agreement, arising out of or relating to Employee's employment by the Employer,
including but not limited to the termination of such employment, all claims of
discrimination on the basis of age, alienage, citizenship, creed, disability,
gender, handicap, marital status, national origin, race, religion sex or sexual
orientation, and, without limitation, any claims arising under Title VII of the
Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal
Pay Act, the Rehabilitation Act, the Americans With Disabilities Act, the WARN
Act, Sections 1981 and 1983 of the Civil Rights Act of 1866, the New York State
Human Rights Law, New York Labor Law, the New York City Human Rights Law, and
any other federal, state or local statute, ordinance, rule, regulation or order
(collectively, "Claims" or "Damages"), which Employee ever had, now has, or
which he, or his heirs, executors, administrators, successors or assigns can or
may have for, or by reason of, any matter, cause, event, act, omission,
transaction or occurrence up to and including the date of the execution of this
Release, arising out of or relating to Employee's employment by the Employer,
including but not limited to the termination of such employment.
3. The Employer, for itself, its successors, assigns and legal
representatives, hereby releases and forever discharges the Employee, and the
Employee's heirs, executors, administrators, legal representatives and assigns,
from and against any and all Claims or Damages which the Employer ever had, now
has for, or by reason of, any matter, cause, event, act, omission, transaction
or occurrence up to and including the date of the execution of this Release,
arising out of or relating to Employee's employment by the Employer; provided,
however, that the Employer is not releasing any claims ("Retained Claims") with
respect to any act or failure to act by the Employee that constitutes Employee's
bad faith, gross negligence or willful misconduct or any fraudulent,
intentionally improper, unauthorized or unlawful acts by the Employee, [with the
understanding that the Employer is not currently aware of any such acts] (1);
and provided further that any Retained Claims that are not brought in a legal
proceeding against the Employee within eighteen (18) months following the date
of this Release shall be deemed released and forever discharged from and after
the date which is eighteen (18) months following the date of this Release.
4. (a) Except with respect to amounts owed pursuant to the
Employment Agreement and any vested benefits under the Employer's employee
benefit plans or those of its subsidiaries or affiliates, Employee covenants not
to in any way cause to be commenced or prosecuted, or to commence, maintain or
prosecute any action, charge, complaint or proceeding of any kind, on his own
behalf or as a member of any alleged class of persons, in any court or before
any administrative or investigative body or agency (whether public, quasi-public
or private), against the Employer, or any of its subsidiaries, parents,
affiliates, related business entities, or their respective successors or
assigns, or any individual now or previously employed by the Employer, or by any
of its subsidiaries, parents, affiliates, or related business entities and their
successors and assigns, with respect to any act, omission, transaction or
occurrence up to and including the date of this Agreement.
(b) Employee further represents that he has not commenced,
maintained, prosecuted or participated in any action, charge, complaint or
proceeding of any kind (on his own behalf and/or on behalf of any other person
and/or on behalf of or as a member of any alleged class of persons) that is
presently pending in any court, or before any administrative or investigative
body or agency (whether public, quasi-public, or private), against or involving
the Employer, or any of the Employer's subsidiaries, parents, affiliates, or
related business entities, or their successors or assigns or any individual now
or previously employed by the Employer, or by any of its subsidiaries, parents,
affiliates, or related business entities or their successors and assigns.
(c) The Employer covenants not to in any way cause to be
commenced or prosecuted, or to commence, maintain or prosecute any action,
charge, complaint or proceeding of any kind in any court or before any
administrative or investigative body or agency (whether public, quasi-public or
private), against the Employee with respect to any act, omission, transaction or
occurrence up to an including the date of this Release relating to the
Employer's employment of the Employee or the termination of his employment;
provided, however, that the Employer is not waiving and shall not waive such
right with respect to any act or failure to act by the Employee that constitutes
Employee's bad faith, gross negligence or willful misconduct or any fraudulent,
intentionally improper, unauthorized or unlawful acts by the Employee. [As of
the date of this Release, the Employer is not aware of any act or failure to act
by the Employee that would give rise to any action, charge, complaint or
proceeding of any kind in any court or before any administrative or
investigative body or agency (whether public, quasi-public or private), against
the Employee.] (1)
(d) The Employer represents that it has not commenced,
maintained, prosecuted or participated in any action, charge, complaint or
proceeding of any kind that is presently pending in any court, or before any
administrative or investigative body or agency (whether public, quasi-public, or
private), against or involving the Employee or relating to the Employee's
employment with the Employer or the termination of his employment.
5. Employee acknowledges that he has been fully and fairly
represented by counsel in connection with the execution and delivery of this
Release, the terms of which have been explained to him.
6. Employee acknowledges that he has considered fully the
terms of this Agreement before signing; that he has read this Agreement in its
entirety and understands its terms; that he agrees to all terms and conditions
contained herein; that he is signing this Agreement knowingly and voluntarily;
and, that he intends to abide by its terms in all respects.
7. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York without regard to New York's
choice of law provisions. Any action to enforce this Agreement shall be brought
in the New York State Supreme Court, County of New York. The parties hereby
consent to such jurisdiction.
-----------------------------
(1) This bracketed sentence will be included in the Release if at the time of
the execution of the Release, the Employer is able to make such statement. If at
that time the Employer is not able to make such statement, the Release must be
executed without such sentence.
8. This Agreement may be executed in more than one
counterpart, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
------------------------ ------------------------------
Date [Employee]
Signed before me this
day of , [Year]
---- ----
--------------------------
Notary Public
CENTERLINE CAPITAL GROUP, INC.
By:
-------------------------- --------------------------
Date Name:
Title:
Signed before me this
day of , [Year]
---- ----
--------------------------
Notary Public
[If at time of execution the Employee is 40 years of age or older, this General
Release is to be modified to comply with the provisions of the Older Workers
Benefit Protection Act or similar legislation]
