Exhibit 10.2
EMPLOYMENT AGREEMENT
I, Thomas C. Ruffing, agree to the terms and conditions of
employment with Capital Trust, Inc. ("CT") and CT Investment Management Co., LLC
("CTIMCO," and together with CT, the "Company") set forth in this Employment
Agreement (this "Agreement") dated as of August 4, 2006 ("Effective Date").
1. Term of Employment. My employment under this Agreement shall
commence effective as of the Effective Date and shall end on December 31, 2008
("Expiration Date") or such earlier date on which my employment is terminated
under Section 5 of this Agreement (the period from the Effective Date through
the Expiration Date, or such earlier termination as provided for herein being
referred to herein as the "Term"). If the Company continues to employ me beyond
the Expiration Date without entering into a written agreement extending the term
of this Agreement, except as provided in a new written employment agreement
between the Company and me, I shall continue to receive the base salary in
effect as of the Expiration Date for as long as I remain employed by the
Company, but all other obligations and rights under this Agreement shall
prospectively lapse as of the Expiration Date, except my right to payment of
compensation accrued or earned prior to the Expiration Date or any other rights
which by their terms extend beyond the Expiration Date, including the Company's
ongoing indemnification obligation under Section 4, any post-termination payment
provisions under Section 5(a), my confidentiality and other obligations under
Section 6, and our mutual arbitration obligations under Section 8, and I
thereafter shall be an at-will employee of the Company.
2. Nature of Duties. I shall be the Company's Chief Credit
Officer and Head of Asset Management and shall have all of the customary powers
and duties associated with those positions. I shall devote my full business time
and effort to the performance of my duties for the Company. I shall be subject
to the Company's policies, procedures and approval practices, as generally in
effect from time to time and made known to me, to the extent consistent with
this Agreement. I shall not, while employed by the Company, engage in, accept
employment from or provide services to any other person, firm, corporation,
governmental agency or other entity; provided, however, that subject to Section
6(c) hereof, I may (a) devote a reasonable amount of time to civic activities,
provided that such activities do not conflict with or detract from my diligent
performance of my duties hereunder.
3. Place of Performance. I shall be based in New York City,
except for required travel on the Company's business.
4. Compensation and Related Matters.
(a) Base Salary. The Company shall pay me base salary at an
annual rate of $250,000, subject to future upward adjustments at the discretion
of the Company's Board of Directors ("Board"). My base salary shall be paid in
conformity with the Company's salary payment practices generally applicable to
senior Company executives.
(b) Annual Bonuses; Annual Long Term Equity Incentive
Grants. The Company shall pay me annual bonuses and grant me annual long term
equity incentives, determined as follows:
(i) For calendar year 2006 and each subsequent full
calendar year of the Term, I shall be eligible to receive an annual bonus from
the Company ("Annual Bonus"), payable no later than 90 days after the end of the
calendar year in respect of which the bonus is awarded, in such amount as may be
determined by the Board in its sole and absolute discretion, but in no event
less than $250,000 per year.
(ii) I shall be eligible for such other bonuses and
other incentive compensation under bonus and incentive stock plans (including
plans that provide for performance compensation tied to carried interest and
incentive investment management fees from funds under management) generally
available to other senior Company executives as the Compensation Committee
determines in its sole discretion.
(c) Restricted Stock.
(i) As of the Effective Date, pursuant to the 2004
Long Term Incentive Plan (the "LTIP"), the Company shall grant to me 19,510
Restricted Shares of Class A common stock of CT (the "Initial Grant"). The
Initial Grant shall (unless my employment has earlier terminated or as otherwise
provided for herein) vest as follows: (I) 50% of the shares shall vest in two
equal installments at the end of 2007 and 2008, and (II) 50% of the shares shall
be structured as a "Performance Compensation Award" pursuant to Section 10(b) of
the LTIP, and shall vest on the Expiration Date, subject to satisfaction of the
Grant Performance Hurdle (as defined below), measured for the period commencing
on the Effective Date and ending on the Expiration Date. For purposes of this
Agreement, "Grant Performance Hurdle" shall mean a total shareholder return of
13% per annum (consisting of declared dividends, plus share price growth, plus
any other property or consideration received by shareholders in connection with
their ownership of Class A common stock of CT). All dividends that are earned
and accrue with respect to all vested and unvested Restricted Shares issued
pursuant to the Initial Grant shall be currently paid to me. For the purpose of
calculating whether the Grant Performance Hurdle has been achieved, the starting
and ending share price shall be determined based on the average closing price of
the Class A common stock of CT for the ten trading day periods which end on the
Effective Date and on the third anniversary of the Effective Date.
(d) Performance Compensation Award. As of the Effective
Date, pursuant to the LTIP, the Company shall grant to me a Performance
Compensation Award that provides for cash payments to me equal to 4% of any
payments received by the Company as incentive management fees paid by CT
Mezzanine Partners III, Inc. ("Fund III") (representing 10% of the fees
allocated to employees of the Company). The Performance Compensation Award shall
(unless otherwise provided for herein) vest as follows: 65% shall be vested as
of the Effective Date and the remaining 35% shall be vested upon the Company's
receipt of the incentive management fees.
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(e) Standard Benefits. During my employment, I shall be
entitled to participate in all employee benefit plans and programs, including
paid vacations, to the same extent generally available to other senior Company
executives, in accordance with the terms of those plans and programs.
(f) Indemnification. The Company shall extend to me the
same indemnification arrangements as are generally provided to other senior
Company executives, including after the termination of my employment.
(g) Expenses. I shall be entitled to receive prompt
reimbursement, which the Company shall make within two and one-half months after
I submit adequate documentation, for all reasonable and customary travel and
business expenses I incur in connection with my employment but I must incur and
account for those expenses in accordance with the policies and procedures
established by the Company.
(h) Sarbanes-Oxley Act Loan Prohibition. To the extent that
any Company benefit, program, practice, arrangement, or this Agreement would or
might otherwise result in my receipt of an illegal loan ("Loan"), the Company
shall use reasonable efforts to provide me with a substitute for the Loan that
is lawful and of at least equal value to me.
5. Termination.
(a) Rights and Duties. If my employment is terminated, I
shall be entitled to the amounts or benefits shown on the applicable row of the
following table, subject to the balance of this Section 5 and to the terms and
conditions set forth in Section 13, below. The Company and I shall have no
further obligations to each other, except the Company's ongoing indemnification
obligation under Section 4, my confidentiality and other obligations under
Section 6, and our mutual arbitration obligations under Section 8, or as set
forth in any written agreement I subsequently enter into with the Company.
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DISCHARGE Payment or provision when due of (1) any unpaid base
FOR CAUSE salary, expense reimbursements, and vacation days
accrued prior to termination of employment, and (2)
other unpaid vested amounts or benefits under
Company compensation, incentive, and benefit plans
(including, without limitation vested interests I
may have with respect to Fund II and Fund III or any
previous grant of equity). In addition, I may
continue to exercise my vested options for up to the
earlier of (a) the expiration date of such options
or (b) the date 90 days following my termination.
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DISABILITY Same as for "Discharge for Cause" EXCEPT that (1) my
base salary, less any payments I receive under any
state-mandated or other disability insurance policy,
shall continue for six months following my
termination, (2) I shall be entitled to receive a
pro-rated Annual Bonus for the year in which my
disability became effective hereunder, based on the
number of days I worked for the Company that year,
(3) the Company shall pay the COBRA premiums
associated with continuing medical insurance
coverage for my benefit and the benefit of my
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spouse and dependent children for one year following
my disability effective date, and (IV) I will
continue to vest for one year following my
disability effective date in all awards previously
granted to me, and in determining the Grant
Performance Hurdle for any remaining performance
vesting period, I will be credited with the
shareholder return for the full year preceding the
year of my disability effective date. In addition, I
may continue to exercise my options that are granted
or first vest after 2004 until the later of December
31 of the year in which my employment terminates and
the date two and one-half months after my employment
terminates (but in no event after the expiration
date of such options).
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DISCHARGE OTHER THAN Same as for "Discharge for Cause" EXCEPT that, in
FOR CAUSE OR DISABILITY exchange for my execution of a release in accordance
with this section, (1) I shall be entitled to
receive a lump-sum payment equal to the greater of
(x) the sum of my base salary and Annual Bonus
payable through December 31, 2008 or (y) the sum of
(I) one year of my base salary and (II) the highest
Annual Bonus paid to me during the Term, (2) all
restricted stock grants made prior thereto and the
Initial Grant shall immediately vest in full, (3)
the Performance Compensation Award described in
Section 4(d), above, shall immediately vest in full,
(4) I may continue to exercise my options that are
granted or first vest after 2004 until the later of
December 31 of the year in which my employment
terminates and the date two and one-half months
after my employment terminates (but in no event
after the expiration date of such options, and (5)
the Company shall pay the COBRA premiums associated
with continuing medical insurance coverage for my
benefit and the benefit of my spouse and dependent
children for 18 months following my date of
discharge or such earlier time I shall obtain
comparable coverage through another employer.
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RESIGNATION WITHOUT GOOD Same as for "Discharge for Cause."
REASON
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RESIGNATION WITH GOOD Same as for "Discharge Other Than for Cause or
REASON Disability."
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DEATH Same as for "Discharge for Cause" EXCEPT that (1) my
legal representative shall be entitled to receive
any death benefits payable under the life insurance
maintained on my behalf by the Company as well as
any earned but as of yet unpaid bonus amounts from
the year preceding the date of my death, (2) any
equity and performance compensation awards I have
shall continue to vest for one year following the
date of my death, and in determining the Grant
Performance Hurdle for any remaining performance
vesting period, my estate will be credited with the
shareholder return for the full year preceding the
year of my death, (3) the Company shall pay the
COBRA premiums associated with continuing medical
insurance
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coverage for the benefit of my spouse and dependent
children for one year following my date of death,
and (4) my options that are granted or first vest
after 2004 may continue to be exercised until the
later of December 31 of the year in which my
employment terminates and the date two and one-half
months after my employment terminates (but in no
event after the expiration date of such options.
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(b) Discharge for Cause. The Company may terminate my
employment at any time if the Board has Cause to terminate me. For purposes of
this Agreement, "Cause" is defined as:
(i) Fraud and Dishonesty. My commission of a
willful act of fraud, embezzlement or misappropriation of any money or
properties of the Company or its affiliates (other than an insubstantial and
unintentional misappropriation that has been remedied within 10 days after the
Company provides me with notice of such misappropriation).
(ii) Criminal Act. My conviction of a felony or any
material violation of any federal or state securities law (whether by plea of
nolo contendere or otherwise) or my being enjoined from violating any federal or
state securities law or being determined to have violated any such law.
(iii) Reckless Conduct. My engaging in willful or
reckless misconduct in connection with any property or activity, the purpose or
effect of which materially and adversely affects the Company and/or its
subsidiaries and affiliates, and/or their predecessors and successors
(collectively, the "Group").
(iv) Substance Abuse. My repeated and intemperate
use of alcohol or illegal drugs after written notice from the Board that such
use, if continued, would result in the termination of my employment hereunder.
(v) Breach of Agreement. My failure to cure my
material breach of any of my obligations under this Agreement (other than by
reason of physical or mental illness, injury, or condition) after having
received 10 days' notice from the Board of the breach.
(vi) Barred from Office. My becoming barred or
prohibited by the SEC from holding my position with the Company.
(vii) Material Breach of Company Policy or Code of
Ethics. My material breach of any Company policy (provided that I have been
provided with a copy of or access to, or am otherwise aware of, the policy) or
of the Company's Code of Ethics.
(viii) Failure to Perform Duties. My continued
failure or refusal to perform any material duty or responsibility under this
Agreement (other than by
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reason of physical or mental illness, injury, or condition) after having
received 10 days' notice from the Board.
(c) Termination for Disability. Except as prohibited by
applicable law, the Company may terminate my employment on account of
Disability, or may transfer me to inactive employment status, which shall have
the same effect under this Agreement as a termination for Disability.
"Disability" means a physical or mental illness, injury, or condition that
prevents me from performing substantially all of my duties under this Agreement
for at least 120 consecutive calendar days or for at least 180 calendar days,
whether or not consecutive, in any 365 calendar day period, or is likely to do
so, as certified by a physician selected by the Board.
(d) Discharge Other Than for Cause or Disability. The
Company may terminate my employment at any time for any reason, and without
advance notice. If I am terminated by the Company other than for Cause under
Section 5(b) or Disability under Section 5(c), I will only receive the special
benefits provided for a Discharge other than for Cause or Disability under
Section 5(a) if I sign a separation agreement and general release in the form
attached hereto as Schedule A and do not thereafter revoke the release.
(e) Resignation. If I resign other than for Good Reason,
the Company may accept my resignation effective on the date set forth in my
notice or any earlier date. If I resign other than for Good Reason, I agree that
the Restricted Period (as defined in Section 6(b)) shall begin on the date of my
resignation. If I resign for Good Reason, my employment will end on my last date
of work and I will receive the benefits to which I am entitled under Section
5(a), but only if I sign the separation agreement and general release described
in Section 5(d), above, and I do not thereafter revoke the release. "Good
Reason" means that, without my express written consent and through no fault of
my own, one or more of the following events occurred after my execution of this
Agreement:
(i) Demotion. My title and responsibilities are
substantially and adversely diminished during the Term.
(ii) Compensation Reduction. My cash compensation
provided for under this Agreement is materially reduced.
(iii) Relocation. The Company requires me, without
my consent, to be based at any office or location outside of a 40-mile radius of
midtown Manhattan, New York, New York.
(iv) Breach of Promise. The Company fails to cure
its material breach of this Agreement within thirty business days after I give
it written notice thereof.
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(v) No Comparable Offer Following Change of
Control. The Company is involved in a Change in Control (as defined below) and I
am not offered a position by the acquiring entity (or the Company's successor,
as the case may be) comparable to the position I held with the Company prior to
the Change in Control. For purposes of this section, "Change in Control" shall
mean:
(1) a merger or acquisition in which 50% or
more of the Company's voting stock outstanding after the merger or acquisition
is held by holders different from those who held the Company's voting stock
immediately prior to such merger or acquisition;
(2) the sale, transfer or other disposition
of all or substantially all of the assets of the Company in liquidation or
dissolution of the Company;
(3) a transfer of all or substantially all of
the Company's assets pursuant to a partnership or joint venture agreement or
similar arrangement where the Company's resulting interest is or becomes less
than 50%;
(4) on or after the Effective Date, a change
in ownership of the Company through an action or series of transactions, such
that any person is or becomes the beneficial owner, directly or indirectly, of
50% or more of the Company's voting stock; or
(5) a change occurs in the composition of the
Board during any two-year period such that the individuals who, as of the
beginning of such two-year period, constitute the Board (such Board shall be
hereinafter referred to as the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that for
purposes of this definition, any individual who becomes a member of the Board
subsequent to the beginning of the two-year period, whose election, or
nomination for election by the Company's stockholders, was approved by a vote of
at least a majority of those individuals who are members of the Board and who
were also members of the Incumbent Board (or deemed to be such pursuant to this
proviso) shall be considered as though such individual were a member of the
Incumbent Board; and provided further, however, that any such individual whose
initial assumption of office occurs as a result of or in connection with a
solicitation subject to Rule 14a-12(c) of Regulation 14A promulgated under the
Exchange Act of 1934, as amended, or other actual or threatened solicitation of
proxies or consents by or on behalf of an entity other than the Board shall not
be so considered as a member of the Incumbent Board.
However, an event that is or would constitute Good Reason shall
cease to be Good Reason if: (1) I do not give the Company written notice of my
intent to terminate my employment within 45 days after I have objective notice
that a Good Reason event has occurred; (2) the Company reverses the action or
cures the default that constitutes Good Reason within 30 days after I notify it
in writing that Good Reason exists before I terminate employment; or (3) I was a
primary instigator of the Good Reason event and the circumstances make it
inappropriate for me to receive Good Reason resignation benefits under this
Agreement.
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(f) Death. If I die while employed under this Agreement,
the payments required by Section 5(a) in the event of my death shall be made.
6. Confidentiality and Other Obligations.
(a) Confidential Information. During the term of my
employment, in exchange for my promises to use such information solely for the
Company's benefit, the Company has provided and will continue to provide me with
Confidential Information concerning, among other things, its business,
operations, clients, investors, and business partners. "Confidential
Information" refers to information not generally known by others in the form in
which it is used by the Company, and which gives the Company a competitive
advantage over other companies which do not have access to this information,
including secret, confidential, or proprietary information or trade secrets of
the Company and its subsidiaries and affiliates, conveyed orally or reduced to a
tangible form in any medium, including information concerning the operations,
future plans, customers, business models, strategies, and business methods of
the Company and its subsidiaries and affiliates, as well as information about
the Company's active and prospective investors, clients and business partners
and their respective investment preferences, risk tolerances, portfolio
allocations and amounts, cash flow requirements, contact information, and other
information about how to best serve their needs and preferences. "Confidential
Information" does not include information that (i) I knew prior to my employment
with the Company, (ii) subsequently came into my possession other than through
my work for the Company and not as a result of a breach of any duty owed to the
Company, or (iii) is generally known within the relevant industry.
(b) Promise Not to Disclose. I promise never to use or
disclose any Confidential Information before it has become generally known
within the relevant industry through no fault of my own. I agree that this
promise shall never expire.
(c) Promise Not to Solicit. Because my position enables me
to learn Confidential Information regarding the investors in the Company and its
funds and how best to serve them, I further agree that, during the "Restricted
Period" (as defined below) (1) as to any investor in the Company (or in any
investment fund or vehicle owned, managed, or established by the Company) with
whom I had dealings or about whom I acquired proprietary information during my
employment, I will not solicit or attempt to solicit (or assist others to
solicit) the investor to invest in or do business with any person, entity, or
investment fund or vehicle other than the Company (or its funds or vehicles);
and (2) I will not solicit or attempt to solicit (or assist others to solicit)
for employment any person who is, or within the preceding six months was, an
officer, manager, employee, or consultant of the Company. I agree that the
restrictions set forth in this paragraph should not prohibit me from engaging in
my livelihood and do not foreclose my working with investors not identified in
this paragraph.
The "Restricted Period" shall mean the period of my
employment with the
Company and:
(i) Twelve (12) months after my termination for
Cause under Section 5(b), resignation without Good Reason under Section 5(e), or
resignation with Good Reason under Section 5(e)(v); and
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(ii) Six (6) months after my resignation with Good
Reason under Section 5(e)(i) through (iv).
(d) Promise Not to Engage in Certain Employment. I agree
that, during the Restricted Period, I will not, without the prior written
consent of the Board, accept any employment, provide any services, advice or
information; or assist or engage in any activity (whether as an employee,
consultant, or in any other capacity, whether paid or unpaid) with (1) any
specialty finance firm or investment management company focused on commercial
real estate-related debt instruments or (2) any business that, as of the date of
my termination, directly competes with the Company.
(e) Return of Information. When my employment with the
Company ends, I will promptly deliver to the Company, or, at its written
instruction, destroy, all documents, data, drawings, manuals, letters, notes,
reports, electronic mail, recordings, and copies thereof, of or pertaining to it
or any other Group member in my possession or control. In addition, during my
employment with the Company or the Group and thereafter, I agree to meet with
Company personnel and, based on knowledge or insights I gained during my
employment with the Company and the Group, answer any question they may have
related to the Company or the Group.
(f) Intellectual Property. Intellectual property
(including such things as all ideas, concepts, inventions, plans, developments,
software, data, configurations, materials (whether written or machine-readable),
designs, drawings, illustrations, and photographs, that may be protectable, in
whole or in part, under any patent, copyright, trademark, trade secret, or other
intellectual property law), developed, created, conceived, made, or reduced to
practice during my Company employment (except intellectual property that has no
relation to the Group or any Group customer that I developed, etc., purely on my
own time and at my own expense), shall be the sole and exclusive property of the
Company, and I hereby assign all my rights, title, and interest in any such
intellectual property to the Company.
(g) Enforcement of This Section. This section shall
survive the termination of this Agreement for any reason. I acknowledge that (a)
my services are of a special, unique, and extraordinary character and it would
be very difficult or impossible to replace them, (b) this section's terms are
reasonable and necessary to protect the Company's legitimate interests, (c) this
section's restrictions will not prevent me from earning or seeking a livelihood,
(d) this section's restrictions shall apply wherever permitted by law, and (e)
my violation of any of this section's terms would irreparably harm the Company.
Accordingly, I agree that, if I violate any of the provisions of this section,
the Company or any Group member may be entitled to seek, in addition to other
remedies available to it, an injunction to be issued by any court of competent
jurisdiction restraining me from committing or continuing any such violation.
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7. Notice.
(a) To the Company. I will send all communications to the
Company in writing, by mail, hand delivery or facsimile, addressed as follows
(or in any other manner the Company notifies me to use):
Capital Trust, Inc.
Attention: Mr. John R. Klopp
410 Park Avenue, 14th Floor
New York, New York 10022
Fax: (212) 655-0044
Tel.: (212) 655-0220
With copy to: Martin L. Edelman, Esq.
Michael L. Zuppone, Esq.
Paul, Hastings, Janofsky & Walker LLP
75 East 55th Street
New York, New York 10022-3205
(b) To Me. All communications from the Company to me
relating to this Agreement must be sent to me in writing at my Company office or
in any other manner I notify the Company to use.
(c) Time Notice Deemed Given. Notice shall be deemed to
have been given when delivered or, if earlier (1) when mailed by United States
certified or registered mail, return receipt requested, postage prepaid, or (2)
faxed with confirmation of delivery, in either case, addressed as required in
this section.
8. Arbitration of Disputes. Except for the Company's right to
seek injunctive relief in accordance with Section 6(g), above, all disputes
between the Company and me are to be resolved by final and binding arbitration
in accordance with the separate Arbitration Agreement attached as Schedule B to
this Agreement. This section shall remain in effect after the termination of
this Agreement.
9. Amendment. No provisions of this Agreement may be modified,
waived, or discharged except by a written document signed by a duly authorized
Company officer and me. Thus, for example, promotions, commendations, and/or
bonuses shall not, by themselves, modify, amend, or extend this Agreement. A
waiver of any conditions or provisions of this Agreement in a given instance
shall not be deemed a waiver of such conditions or provisions at any other time.
10. Interpretation; Exclusive Forum. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the state of New York (excluding any that mandate the
use of another jurisdiction's laws). Any litigation, arbitration, or similar
proceeding with respect to such matters only may be brought within that state,
and all parties to this Agreement consent to that state's jurisdiction and agree
that venue anywhere in that state would be proper.
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11. Successors. This Agreement shall be binding upon, and shall
inure to the benefit of, me and my estate, but I may not assign or pledge this
Agreement or any rights arising under it, except to the extent permitted under
the terms of the benefit and compensation plans in which I participate.
12. Taxes. I am solely responsible for the payment of any tax
liabilities (including any taxes and penalties arising under Section 409A of the
Internal Revenue Code (the "Code") that may result from any payments or benefits
that I receive pursuant to this Agreement. The Company shall not have any
obligation to pay, mitigate, or protect me from any such tax liabilities.
Nevertheless, if the Company reasonably determines that my receipt of payments
or benefits pursuant to Section 5 above would cause me to incur liability for
additional tax under Section 409A of the Code, then the Company may in its
discretion suspend such payments or benefits until the end of the six-month
period following termination of my employment (the "409A Suspension Period"). As
soon as reasonably practical after the end of the 409A Suspension Period, the
Company will make a lump sum payment to me, in cash, in an amount equal to any
payments and benefits that the Company does not make during the 409A Suspension
Period. Thereafter, I will receive any remaining payments and benefits due
pursuant to Section 5 in accordance with the terms of that Section (as if there
had not been any suspension beforehand). The Company shall withhold taxes from
payments it makes pursuant to this Agreement as it determines to be required by
applicable law.
13. Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute the same instrument.
15. Entire Agreement. All oral or written agreements or
representations, express or implied, with respect to the subject matter of this
Agreement are set forth in this Agreement. Notwithstanding the foregoing, I
agree to comply with the Company's policies and Code of Ethics.
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I ACKNOWLEDGE THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE COMPANY AND ME
RELATING TO THE SUBJECTS COVERED IN THIS AGREEMENT ARE CONTAINED IN IT AND THAT
I HAVE ENTERED INTO THIS AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY
PROMISES OR REPRESENTATIONS BY THE COMPANY OTHER THAN THOSE CONTAINED IN THIS
AGREEMENT ITSELF.
I FURTHER ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT, THAT I
UNDERSTAND ALL OF IT, AND THAT I HAVE BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS
AGREEMENT WITH MY PRIVATE LEGAL COUNSEL AND HAVE AVAILED MYSELF OF THAT
OPPORTUNITY TO THE EXTENT I WISHED TO DO SO. I UNDERSTAND THAT BY SIGNING THIS
AGREEMENT I AM GIVING UP MY RIGHT TO A JURY TRIAL.
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Dated: August 4, 2006 CAPITAL TRUST, INC.
By: /s/ John R. Klopp
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Name: John R. Klopp
Title: Chief Executive Officer
Dated: August 4, 2006 CT INVESTMENT MANAGEMENT CO., LLC
By: /s/ John R. Klopp
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Name: John R. Klopp
Title: Chief Executive Officer
Dated: August 4, 2006 /s/ Thomas C. Ruffing
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THOMAS C. RUFFING
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SCHEDULE A
SEPARATION AGREEMENT AND GENERAL RELEASE
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This SEPARATION AGREEMENT AND GENERAL RELEASE ("Release") made this ___
day of _________, ____ by and between Capital Trust, Inc. ("CT") and CT
Investment Management Co., LLC ("CTIMCO," and together with CT, the "Company"),
on the one part, and Thomas C. Ruffing ("Executive"), on the other:
In exchange for the mutual promises exchanged herein and other good and
valid consideration, the receipt of which is hereby acknowledged, the parties
agree as follows:
1. Employment Termination
Executive agrees that his employment with the Company has ended or will
end on [date]. Executive will be entitled to those separation and other benefits
as set forth in his Employment Agreement with the Company dated as of [date].
2. Claims Released
In exchange for the benefits provided herein, Executive irrevocably and
unconditionally releases the Company, its current or former parents,
subsidiaries, or affiliates, their past, present, or future employees or agents,
their successors, their benefit plans and the administrators of such plans
(collectively, the "Released Parties"), from all known or unknown claims that
Executive presently may have arising out of his employment with, or separation
from, the Company, other than claims (i) seeking enforcement of this Release,
(ii) for vested awards or benefits under the Company's employee benefit plans,
including the 2004 Long-Term Incentive Program, and (iii) to indemnification and
coverage under the Company's directors and officers' insurance policies
("Claims"). The Claims Executive is releasing include, without limitation,
claims under the Age Discrimination in Employment Act of 1967 ("ADEA"), Title
VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the
Employee Retirement Income Security Act of 1974, the Fair Labor Standards Act,
the Family and Medical Leave Act, the New York State Human Rights Law; the New
York City Human Rights Law; or any other federal, state, or local common law,
statute, regulation, or law of any other type. Executive acknowledges that he is
releasing Claims he knows he has and Claims he may not know he has, and
understands the significance of doing so.
3. Pursuit of Released Claims
Executive agrees to withdraw with prejudice all complaints or charges,
if any, he has filed against any Released Party with any agency or court.
Executive agrees that he will never file any lawsuit or complaint against them
based on the Claims purportedly released in this Release. Executive promises
never to seek any damages, remedies, or other relief for himself personally (any
right to which he hereby waives) by filing or prosecuting a charge with any
administrative agency with respect to any Claim purportedly released by this
Release. Executive
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promises to request any administrative agency or other body assuming
jurisdiction of any such lawsuit, complaint, or charge to withdraw from the
matter or dismiss the matter with prejudice.
4. Nonadmission of Liability
Executive agrees that this Release is not an admission of guilt or
wrongdoing by the Released Parties and acknowledges that the Released Parties do
not believe or admit that they have done anything wrong.
5. Confidentiality and Non-Disparagement
Executive agrees to keep the fact and terms of this Release in strict
confidence. Executive agrees not to disclose this document, its contents or
subject matter to any person other than his immediate family, attorney,
accountant or income tax preparer, or otherwise as required by law. Executive
agrees that he will not denigrate, disparage, defame, impugn, or otherwise
damage or assail the reputation or integrity of the Company or any Released
Party.
6. Consideration of Release
Executive acknowledges that, before signing this Release, he was given
at least 21 calendar days to consider this Release. Executive waives any right
he might have to additional time beyond this consideration period within which
to consider this Release. Executive acknowledges that: (a) he took advantage of
that time to consider this Release before signing it; (b) he carefully read this
Release; (c) he fully understands what this Release means; (d) he is entering
into it voluntarily; (e) he is receiving valuable consideration in exchange for
his execution of this Release that he would not otherwise be entitled to
receive; and (f) the Company, in writing, encouraged him to discuss this Release
with his attorney (at his own expense) before signing it, and that he did so to
the extent he deemed appropriate. Executive may revoke his release of claims
under the ADEA within seven (7) days after he signs this Release, in which case
he will not be entitled to receive all of the benefits set forth herein.
7. Miscellaneous
This Release sets forth the entire agreement between Executive and the
Company pertaining to the subject matter of this Release. This Release may not
be modified or canceled in any manner except by a writing signed by both
Executive and an authorized Company official. Executive acknowledge that the
Company has made no representations or promises to him other than those in this
Release. If any provision in this Release is found to be unenforceable, all
other provisions will remain fully enforceable. It is not necessary that the
Company sign this Release for it to become binding on both Executive and the
Company. This Release binds Executive's heirs, administrators, representatives,
executors, successors, and assigns, and will inure to the benefit of the
Released Parties and their heirs, administrators, representatives, executors,
successors, and assigns. This Release shall be construed as a whole according to
its fair meaning; it shall not be construed strictly for or against Executive or
the Released Parties. Unless the context indicates otherwise, the term "or"
shall be deemed to include the term "and" and the singular or plural number
shall be deemed to include the other. Disputes under this
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Release are to be resolved in accordance with the existing arbitration agreement
between the parties. Except to the extent governed by federal law, this Release
shall be governed by the statutes and common law of the State of New York
(excluding any that mandate the use of another jurisdiction's laws). Section
headings in this Agreement are included for convenience of reference only and
shall not be a part of this Agreement for any other purpose.
- --------------------------------------------------------------------------------
TAKE THIS RELEASE HOME, READ IT, AND CAREFULLY CONSIDER ALL OF ITS PROVISIONS
BEFORE SIGNING IT. THIS RELEASE INCLUDES A RELEASE OF KNOWN AND UNKNOWN CLAIMS.
- --------------------------------------------------------------------------------
Date: ________________________ CAPITAL TRUST, INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
Date: ________________________ CT INVESTMENT MANAGEMENT CO., LLC
By: _______________________________
Name: _____________________________
Title: ____________________________
Date: _____________________________ ___________________________________
THOMAS C. RUFFING
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SCHEDULE B
MUTUAL AGREEMENT TO ARBITRATE CLAIMS
------------------------------------
I recognize that differences may arise between Capital Trust,
Inc. ("CT") and CT Investment Management Co., LLC ("CTIMCO," and together with
CT, the "Company"), on the one part, and me, on the other part, during or
following my employment with the Company, and that those differences may or may
not be related to my employment. I understand and agree that by entering into
this Agreement to Arbitrate Claims ("Agreement"), I anticipate gaining the
benefits of a speedy, impartial dispute-resolution procedure.
Except as provided in this Agreement, the Federal Arbitration Act
shall govern the interpretation, enforcement and all proceedings pursuant to
this Agreement. To the extent that the Federal Arbitration Act either is
inapplicable, or held not to require arbitration of a particular claim or
claims, New York law pertaining to agreements to arbitrate shall apply.
I understand that any reference in this Agreement to the Company
will be a reference also to all of its subsidiary and affiliated entities, all
benefit plans, the benefit plans' sponsors, fiduciaries, administrators, and
affiliates, and all successors and assigns of any of them.
Claims Covered by the Agreement
The Company and I mutually consent to the resolution by
arbitration of all claims or controversies ("claims"), past, present or future,
which arise, directly or indirectly, out of my employment (or its termination)
or the business of the Company, that the Company may have against me or that I
may have against the Company or against its officers, directors, employees or
agents in their capacity as such or otherwise. The claims covered by this
Agreement include, but are not limited to, claims for wages or other
compensation due; claims for breach of any contract or covenant (express or
implied); tort claims; claims for discrimination (including, but not limited to,
race, sex, sexual orientation, religion, national origin, age, marital status,
or medical condition, handicap or disability); and claims for violation of any
federal, state, or other governmental law, statute, regulation, or ordinance,
except claims excluded elsewhere in this Agreement.
Except as otherwise provided in this Agreement, both the Company
and I agree that neither of us shall initiate or prosecute any lawsuit or
administrative action (other than an administrative charge of discrimination to
the EEOC or similar fair employment practices agency, or an administrative
charge within the jurisdiction of the National Labor Relations Board or U.S.
Department of Labor), in any way related to any claim covered by this Agreement.
Claims Not Covered by the Agreement
This Agreement does not cover claims for workers' compensation or
unemployment compensation benefits; or any claim as to which final and binding
arbitration cannot be required as a matter of law.
Claims, either by the Company or by me, seeking injunctive relief
for alleged violations of intellectual property rights and non-disclosure and
non-solicitation covenants also
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are not covered by this Agreement (although all other aspects of such claims,
including any claims for damages, are covered by this Agreement).
Required Notice of All Claims and Statute of Limitations
The Company and I agree that the aggrieved party must give
written notice of any claim to the other party no later than the applicable
Statute of Limitations as may be prescribed by law.
Written notice to the Company, or its officers, directors,
employees or agents, shall be sent to the addresses set forth in my Employment
Agreement. I will be given written notice at the last address recorded in my
personnel file.
The written notice shall identify and describe the nature of all
claims asserted and the facts upon which such claims are based. The notice shall
be sent to the other party by certified or registered mail, return receipt
requested.
Representation
Any party may be represented by an attorney or other
representative selected by the party.
Discovery
Each party shall have the right to take the deposition of three
(3) individuals and any expert witness designated by another party. Each party
also shall have the right to make requests for production of documents to any
party. The subpoena right specified below shall be applicable to discovery
pursuant to this paragraph. Additional discovery may be had where the arbitrator
selected pursuant to this Agreement so orders, upon an appropriate showing of
justification.
Designation of Witnesses
At least 30 days before the arbitration, the parties must
exchange lists of witnesses, including any expert, and copies of all exhibits
intended to be used at the arbitration.
Subpoenas
Each party shall have the right to subpoena witnesses and
documents for the arbitration.
Arbitration Procedures
The arbitration will be held under the auspices of the American
Arbitration Association ("AAA").
The Company and I agree that, except as provided in this
Agreement, the arbitration shall be in accordance with the AAA's National Rules
for Resolution of Employment Disputes (or other then-current employment
arbitration procedures). The arbitrator shall be either a retired judge, or an
attorney licensed to practice law in the state in which the arbitration is
convened and with demonstrated experience and expertise in executive
compensation matters (the "Arbitrator"). The arbitration shall take place in or
near the city in which I am or was last employed by the Company.
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The Arbitrator shall be selected as follows. The sponsoring
organization shall give each party a list of 11 arbitrators drawn from its panel
of employment dispute arbitrators. Each party may strike all names on the list
it deems unacceptable. If only one common name remains on the lists of all
parties, that individual shall be designated as the Arbitrator. If more than one
common name remains on the lists of all parties, the parties shall strike names
alternately from the list of common names until only one remains. The party who
did not initiate the claim shall strike first. If no common name exists on the
lists of all parties, the sponsoring organization shall furnish an additional
list and the process shall be repeated. If no arbitrator has been selected after
two lists have been distributed, then the parties shall strike alternately from
a third list, with the party initiating the claim striking first, until only one
name remains. That person shall be designated as the Arbitrator.
The Arbitrator shall apply the substantive law (and the law of
remedies, if applicable) of the state in which the claim arose, or federal law,
or both, as applicable to the claim(s) asserted. If the parties' dispute
concerns a contract in which the parties have included a choice of law
provision, the Arbitrator shall apply the law as designated by the parties. The
Arbitrator is without jurisdiction to apply any different substantive law, or
law of remedies. The Arbitrator, and not any federal, state, or local court or
agency, shall have exclusive authority to resolve any dispute relating to the
interpretation, applicability, enforceability or formation of this Agreement,
including but not limited to any claim that all or any part of this Agreement is
void or voidable. The arbitration shall be final and binding upon the parties,
except as provided in this Agreement.
The Arbitrator shall have jurisdiction to hear and rule on
pre-hearing disputes and is authorized to hold pre-hearing conferences by
telephone or in person, as the Arbitrator deems necessary. The Arbitrator shall
have the authority to entertain a motion to dismiss and/or a motion for summary
judgment by any party and shall apply the standards governing such motions under
the Federal Rules of Civil Procedure.
Either party may obtain a court reporter to provide a
stenographic record of proceedings.
Either party, upon request at the close of hearing, shall be
given leave to file a post-hearing brief. The time for filing such a brief shall
be set by the Arbitrator.
The Arbitrator shall render a written award and opinion in the
form setting forth his/her findings and conclusions.
Either party shall have the right, within 20 days of issuance of
the Arbitrator's opinion, to file with the Arbitrator a motion to reconsider
(accompanied by a supporting brief), and the other party shall have 20 days from
the date of the motion to respond. The Arbitrator thereupon shall reconsider the
issues raised by the motion and, promptly, either confirm or change the
decision, which (except as provided by this Agreement) shall then be final and
conclusive upon the parties.
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Arbitration Fees and Costs
The Company will be responsible for paying any filing fee and the
fees and costs of the Arbitrator and the arbitration; provided, however, that if
I am the party initiating the claim, I am responsible for contributing an amount
equal to the filing fee to initiate a claim in the court of general jurisdiction
in the state in which I am (or was last) employed by the Company. Each party
shall pay for its own costs and attorneys' fees, if any. However, if any party
prevails on a statutory claim which affords the prevailing party attorneys'
fees, or if there is a written agreement providing for fees, the Arbitrator may
award reasonable fees to the prevailing party, under the standards for fee
shifting provided by law.
Judicial Review
Either party may bring an action in any court of competent
jurisdiction to compel arbitration under this Agreement and to enforce an
arbitration award.
Interstate Commerce
I understand and agree that the Company is engaged in
transactions involving interstate commerce and that the Federal Arbitration Act
applies to this Agreement.
Requirements for Modification or Revocation
This Agreement to arbitrate shall survive the termination of my
employment. It can only be revoked or modified by a writing signed by the
parties which specifically states an intent to revoke or modify this Agreement.
Sole and Entire Agreement
This is the complete agreement of the parties on the subject of
arbitration of disputes. This Agreement supersedes any prior or contemporaneous
oral or written understandings on the subject. No party is relying on any
representations, oral or written, on the subject of the effect, enforceability
or meaning of this Agreement, except as specifically set forth in this
Agreement.
Severability
If any provisions of this Agreement are adjudged to be void or
otherwise unenforceable, in whole or in part, such adjudication shall not affect
the validity of the remainder of the Agreement, as the parties hereto intend to
create a binding agreement to arbitrate regardless of the unenforceability of
any particular term or terms.
Consideration
The promises by the Company and by me to arbitrate differences,
rather than litigate them before courts or other bodies, provide consideration
for each other.
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Voluntary Agreement
I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT, THAT I
UNDERSTAND ITS TERMS, THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE COMPANY
AND ME RELATING TO THE SUBJECTS COVERED IN THE AGREEMENT ARE CONTAINED IN IT,
AND THAT I HAVE ENTERED INTO THE AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON
ANY PROMISES OR REPRESENTATIONS BY THE COMPANY OTHER THAN THOSE CONTAINED IN
THIS AGREEMENT ITSELF.
I UNDERSTAND THAT BY SIGNING THIS AGREEMENT employee initials
I AM GIVING UP MY RIGHT TO A JURY TRIAL.
-----------------
I FURTHER ACKNOWLEDGE THAT I HAVE BEEN GIVEN THE OPPORTUNITY TO
DISCUSS THIS AGREEMENT WITH MY PRIVATE LEGAL COUNSEL AND HAVE AVAILED MYSELF OF
THAT OPPORTUNITY TO THE EXTENT I WISH TO DO SO.
Dated: August __, 2006 CAPITAL TRUST, INC.
By: ________________________
Name: John R. Klopp
Title: Chief Executive Officer
Dated: August __, 2006 CT INVESTMENT MANAGEMENT CO., LLC
By: ________________________
Name: John R. Klopp
Title: _____________________
Dated: August __, 2006 ____________________________
THOMAS C. RUFFING
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