EXHIBIT
10.35
C. Jeffrey
Knittel Transportation Finance
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT by and among CIT Group Inc. a
Delaware corporation (the "Company") and C. Jeffrey Knittel (the
"Executive") dated as of the 7th day of May 2008.
WHEREAS,
the Company and the Executive entered into an Employment Agreement
dated August 1, 2004 (the “Agreement”);
WHEREAS,
the Company and the Executive entered into a Revised Amendment
Agreement, dated November 28, 2007 (the "Amendment Agreement"), to
the Agreement;
WHEREAS,
the Company and the Executive wish to amend and restate the
Agreement to reflect the Amendment Agreement and to amend the
definition of "Change of Control";
WHEREAS,
the Company desires to continue to employ the Executive in
accordance with the following terms and conditions, and the
Executive desires to be so employed.
NOW, THEREFORE,
IT IS HEREBY AGREED AS FOLLOWS:
1.
Effective Date . The "Effective Date" shall mean September
1, 2004.
2.
Term . The Company hereby agrees to employ the Executive,
and the Executive hereby agrees to be employed by the Company
subject to the terms and conditions of this Agreement, for the
period commencing on the Effective Date and ending on December 31,
2008 (the "Term"). This Employment Agreement and the Term may be
extended for one (1) or more additional periods by written
agreement signed by the parties hereto at any time prior to the end
of the term in effect. The Company or the Executive, as applicable,
shall give notice no later than thirty (30) days before the end of
the Term (or extended term) of its or his intent not to extend the
Agreement.
3.
Terms of Employment .
(a)
Position and Duties .
(i)
During the Term (A) the Executive shall serve as President
–Transportation Finance with such authority, duties and
responsibilities as are commensurate with such position and as may
be consistent with such position, reporting to the Chief Executive
Officer of the Company or such other officer as designated by the
Chief Executive Officer of the Company, and (B) the Executive's
services shall be performed at the location such services were
performed immediately prior to the Effective Date.
(ii)
During the Term, and excluding any periods of vacation and sick
leave to which the Executive is entitled, the Executive agrees to
devote substantially all of his attention and time during normal
business hours to the business and affairs of the Company and, to
the extent necessary to discharge the responsibilities assigned to
the Executive hereunder, to use the Executive's reasonable best
efforts to perform faithfully and efficiently such
1
responsibilities.
During the Term, it shall not be a violation of this Agreement for
the Executive to serve on civic or charitable boards or committees,
or manage personal investments, so long as such activities do not
significantly interfere with the performance of the Executive's
responsibilities as an employee of the Company in accordance with
this Agreement. It is expressly understood and agreed that to the
extent that any such activities have been conducted by the
Executive prior to the Effective Date, the continued conduct of
such activities (or the conduct of activities similar in nature and
scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of the
Executive's responsibilities to the Company.
(b)
Compensation .
(i)
Base Salary . During the Term, the Executive shall receive
an annual base salary ("Annual Base Salary") of no less than the
rate of the Executive's base salary on the date immediately prior
to the Effective Date. During the Term, the Annual Base Salary
shall be reviewed at the time that the salaries of all of the
executive officers of the Company are reviewed. Any increase in
Annual Base Salary shall not serve to limit or reduce any other
obligation to the Executive under this Agreement. Annual Base
Salary shall not be reduced after any such increase and the term
Annual Base Salary as utilized in this Agreement shall refer to
Annual Base Salary as so increased. Annual Base Salary shall be
payable as earned during the Term at such time and in such manner
consistent with the Company’s payroll practices for other
senior executives, unless otherwise deferred in accordance with the
terms of the CIT Group Inc. Deferred Compensation Plan, as amended
(the "DCP").
(ii)
Annual Bonus . For each complete calendar year during the
Term, the Executive shall be entitled to a bonus pursuant to the
Company's incentive plans and programs ("Annual Bonus").
Executive's target bonus for the first complete year during the
Term shall be 100% of his Annual Base Salary ("Target Bonus").
Notwithstanding paragraph 3(b)(v) hereof, the Target Bonus in
subsequent years of the Term shall not be less than the amount set
forth in the previous sentence. Annual Bonuses, if any, shall be
paid not later than March 15 of the calendar year following the
calendar year to which they relate, unless otherwise deferred in
accordance with the terms of the DCP.
(iii)
Incentive Awards .
A.
During the Term, the Executive shall be eligible to participate in
annual and long-term incentive plans applicable to comparable
executives of the Company.
(iv)
Other Benefits . During the Term, the Executive shall be
entitled to participate in all employee pension, welfare,
perquisites, fringe benefit, and other benefit plans, practices,
policies and programs generally applicable to comparable executives
of the Company in substantially comparable positions as the
Executive. In addition, the Executive shall be entitled to
continued participation in any supplemental and/or excess
retirement plans available to similarly situated executives of the
Company, and in the Company's Executive Retirement Plan, and
retiree medical and life insurance plans in which the Executive was
participating on the date of this Agreement during the Term, at
economic levels at least equal to the levels of
2
Executive's
participation in such plans or programs as of the date immediately
prior to the Effective Date.
(v)
Modifications . The Company may at any time or from time to
time amend, modify, suspend or terminate any bonus or incentive
compensation or employee benefit plans or programs provided
hereunder for any reason and without the Executive's consent;
provided that, without the Executive's consent, the Company may not
reduce the aggregate value of the employee benefit plans or
programs provided to the Executive hereunder unless such reduction
is consistent with reductions affecting similarly situated
employees of comparable rank of the Company.
(vi)
Expense Reimbursement . During the Term, the Executive shall
be entitled to receive prompt reimbursement for all expenses
incurred by the Executive in accordance with the Company's expense
reimbursement policies. Reimbursement shall be made as soon as
practicable after a request for reimbursement is received by the
Company, but in no event later than the last day of the calendar
year next following the calendar year in which such expense was
incurred. Additionally, neither the provision of in-kind benefits
nor the reimbursement of expenses in any one calendar year shall
affect the level or amount of in-kind benefits to be provided, or
the expenses eligible for reimbursement, in any other calendar
year. The Executive’s right to reimbursement under this
Section 3(b)(vi) is not subject to liquidation or exchange for
another benefit.
(vii)
Vacation . During the Term, the Executive shall be entitled
to paid vacation in accordance with the plans, policies, programs
and practices of the Company as in effect with respect to the
senior executives of the Company.
4.
Termination of Employment . For purposes of this Agreement,
the terms "terminate," "terminated" and "termination" mean a
termination of the Executive’s employment that constitutes a
"separation from service" within the meaning of the default rules
of Section 409A of the Internal Revenue Code of 1986, as amended
(the "Code").
(a)
Death or Disability . The Executive's employment shall
terminate automatically upon the Executive's death during the Term.
If the Company determines in good faith that the Disability of the
Executive has occurred during the Term (pursuant to the definition
of Disability set forth below), it may give to the Executive
written notice in accordance with Section 11(a) of this Agreement
of its intention to terminate the Executive's employment. In such
event, the Executive's employment with the Company shall terminate
effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), provided that, within
the 30 days after such receipt, the Executive shall not have
returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" shall mean the absence of
the Executive from the Executive's duties with the Company on a
full-time basis for 180 consecutive business days as a result of
incapacity due to mental or physical illness which is determined to
be total and permanent by a physician selected by the Company or
its insurers and acceptable to the Executive or the Executive's
legal representative.
(b)
Cause . The Company may terminate the Executive's employment
during the Term for Cause. For purposes of this Agreement, "Cause"
shall mean:
3
(i)
the willful and continued failure of the Executive to perform
substantially the Executive's duties with the Company or one of its
affiliates (other than any such failure resulting from incapacity
due to physical or mental illness), after a written demand for
substantial performance is delivered to the Executive by the Chief
Executive Officer of the Company or such other officer as
designated by the Chief Executive Officer which specifically
identifies the manner in which the Chief Executive Officer or his
designee believes that the Executive has not substantially
performed the Executive's duties, or
(ii)
the willful engaging by the Executive in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the
Company or its affiliates, or
(iii)
conviction of a felony or guilty or nolo contendere plea by the
Executive with respect thereto; or
(iv)
a material breach of Section 8 of this Agreement.
For purposes of
this provision, no act or failure to act on the part of the
Executive shall be considered "willful" unless it is done, or
omitted to be done, by the Executive in bad faith or without
reasonable belief that the Executive's action or omission was in
the best interests of the Company. Any act, or failure to act,
based upon express authority given pursuant to a resolution duly
adopted by the Board with respect to such act or omission or upon
the instructions of the Chief Executive Officer of the Company or
based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the
Company.
(c)
Good Reason . The Executive's employment may be terminated
by the Executive for Good Reason. For purposes of this Agreement,
"Good Reason" shall mean in the absence of a written consent of the
Executive:
(i)
the assignment to the Executive of any duties materially
inconsistent with the Executive's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 3(a) of this Agreement,
provided that a promotion shall not be Good Reason, or any other
action by the Company which results in a material diminution in
such position, authority, duties or responsibilities, excluding for
this purpose an action not taken in bad faith and which is remedied
by the Company promptly after receipt of notice thereof given by
the Executive; or
(ii)
any material failure by the Company to comply with any of the
provisions of Section 3(b) of this Agreement, other than failure
not occurring in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the Executive;
or
(iii)
the Company's requiring the Executive to be based at any office or
location more than 50 miles from that provided in Section
3(a)(i)(B) hereof; or
(iv)
any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement;
or
4
(v)
the failure of the Company to offer to renew this Agreement on the
terms and conditions (including payment of Annual Base Salary and
participation in incentive plan and benefit programs) at least as
favorable as in the final year of the Executive's last Employment
Agreement, unless, at the time of a failure to renew this
Employment Agreement, the Executive has reached the age of 65 and
can be lawfully required to retire; or
(vi)
any failure by the Company to comply with and satisfy Section 10(b)
of this Agreement.
(d)
Notice of Termination . Any termination by the Company for
Cause, or by the Executive for Good Reason, shall be communicated
by Notice of Termination to the other party hereto given in
accordance with Section 11(a) of this Agreement. For purposes of
this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this
Agreement relied upon; (ii) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the
provision so indicated; and (iii) if the Date of Termination (as
defined below) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than
thirty days after the giving of such notice). The failure by the
Executive or the Company to set forth in the Notice of Termination
any fact or circumstance which contributes to a showing of Good
Reason or Cause shall not waive any right of the Executive or the
Company, respectively, hereunder or preclude the Executive or the
Company, respectively, from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights
hereunder.
(e)
Date of Termination . "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, or
by the Executive for Good Reason, the date of receipt of the Notice
of Termination or any later date specified therein within 30 days
of such notice, as the case may be; (ii) if the Executive's
employment is terminated by the Company other than for Cause or
Disability, the Date of Termination shall be the date on which the
Company notifies the Executive of such termination; and (iii) if
the Executive's employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of death of
the Executive or the Disability Effective Date, as the case may
be.
5.
Obligations of the Company upon Termination .
(a)
Good Reason; Other Than for Cause . If, during the Term, the
Company shall terminate the Executive's employment other than for
Cause or the Executive shall terminate employment for Good
Reason:
(i)
the Company shall pay to the Executive in cash the aggregate of the
following amounts:
A.
in a lump sum within 10 days after the Date of Termination, the sum
of (1) the Executive's Annual Base Salary through the Date of
Termination to the extent not theretofore paid, and (2) the product
of (x) the Severance Bonus defined below and (y) a fraction, the
numerator of which is the number of days in the calendar year in
which the Date of Termination occurs through the Date of
Termination, and the denominator of which is 365, in
5
each case to
the extent not theretofore paid. For purposes of this Agreement,
the term "Severance Bonus" means the greater of (I) the Executive's
average Annual Bonus over the two calendar years preceding the Date
of Termination and (II) the Executive's Target Bonus. For the
purpose of calculating the Executive's average Annual Bonus
hereunder, $186,667 shall be the Executive's Annual Bonus for 2002;
and
B.
the sum of (1) the greater of (x) the Annual Base Salary payable
for the remainder of the Term after the Date of Termination, or (y)
the product of 2 times the Annual Base Salary, and (2) the product
of 2 times the Executive's Severance Bonus, which amount shall be
payable in accordance with Executive's normal payroll periods
immediately prior to the Date of Termination in equal installments
for a period of 2 years, subject to compliance with Section 8 of
this Agreement; and
(ii)
all restrictions on restricted stock held by the Executive shall
lapse and all outstanding unvested stock options, stock
appreciation rights, tandem options, tandem stock appreciation
rights, performance shares, performance units, or any similar
equity share or unit held by the Executive shall vest immediately.
Notwithstanding any provision regarding an earlier termination of
stock options set forth in any stock option or other agreement, the
stock options referred to in this Section 5(a)(ii) shall terminate
and have no force or effect upon the earlier of (x) two (2) years
after a termination of employment for Good Reason or Other Than for
Cause or (y) the expiration of the option term as defined in the
applicable stock option agreement, provided that any such
extension of the post-termination exercise period shall not extend
the maximum term during which any such option may be exercised
beyond the earlier of its original expiration date or 10 years from
the original date of grant; and
(iii)
subject to compliance with Section 8, continued benefit coverage
which permits the Executive to continue to receive, for 2 years
from the Date of T
