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Exhibit 10.31
Joseph M. Leone
AMENDED AND RESTATED
AGREEMENT by and among CIT Group Inc. a Delaware corporation (the
"Company") and Joseph M. Leone (the "Executive") dated as of the
8th 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 an Amendment Agreement, dated
November 12, 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.
3. Terms of
Employment .
(a) Position and
Duties .
(i)
During the Term (A) the Executive shall serve as Vice Chairman
–Chief Financial Officer 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
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
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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 150% 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.
(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 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;
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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.
(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 .
(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:
(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.
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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) Notice of
Termination . Any termination by the Company for Cause or by
the Executive for any reason, including retirement, 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 Company to set forth in the Notice
of Termination any fact or circumstance which contributes to a
showing of Cause shall not waive any right of the Company hereunder
or preclude the Company from asserting such fact or circumstance in
enforcing the Company's rights hereunder.
(d) Date of
Termination . "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause or as
a result of the Executive's resignation or retirement, 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;
(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.
(e) Retirement
. If the Executive's employment terminates on or after May 26, 2008
(the "Retirement Date") (including during any extension of the Term
pursuant to Section 2 or during the Change of Control Extension
Period (as defined in Section 9(a)), if applicable) for any reason
other than termination of employment (i) due to the Executive's
death or Disability, (ii) due to the Executive's involuntary
termination by the Company for Cause or (iii) without Cause during
the Change in Control Extension Period, such termination shall be
treated as a retirement for all purposes of this Agreement, and the
only amounts payable to the Executive in connection with such
retirement shall be the amounts contemplated by Section 5(e).
5. Obligations of
the Company upon Termination .
(a) Termination
other than for Cause Prior to the Retirement Date . If the
Executive's employment with the Company is terminated by the
Company without Cause prior to the Retirement Date, then, as of the
date of such termination of employment, the following shall
apply:
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(i)
(A) The Company shall pay to the Executive in cash the aggregate of
the following amounts 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 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.
(B)
In addition, to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Executive any other
amounts or benefits required to be paid or provided or which the
Executive is eligible to receive under any plan, program, policy or
practice or contract or agreement of the Company and its affiliates
in accordance with the terms and normal procedures of each such
plan, program, policy or practice. !
(ii)
In addition, the Executive shall be deemed as of the Date of
Termination to have attained the age of 55 for purposes of (i) all
relevant Company retirement plans (including qualified,
supplemental and excess plans, including without limitation the
Company's Executive Retirement Plan and New Executive Retirement
Plan) and (ii) all performance share and stock option awards
outstanding as of such Date of Termination; provided ,
however , that the payment provisions (or the Executive's
elections, if applicable) under the applicable Company nonqualified
retirement plan will apply for purposes of determining the time and
form of payment of the retirement benefits resulting from the
operation of this provision.
(b) Termination
for Cause or Resignation for Any Reason Prior to the Retirement
Date . If, during the Term, (i) the Executive's employment
shall be terminated by the Company for Cause or (ii) the Executive
shall resign prior to the Retirement Date for any reason, this
Agreement shall terminate without further obligations to the
Executive other than the obligation to pay or provide to the
Executive an amount equal to the amount described in clause (1) of
Section 5(a)(i)(A) above and timely payment or provision of the
benefits set forth in Section 5(a)(i)(B) above, in each case, to
the extent theretofore unpaid.
(c) Death . If
the Executive's employment is terminated by reason of the
Executive's death during the Term, this Agreement shall terminate
without further obligations to the Executive's legal
representatives under this Agreement, other than for (i) payment of
a lump sum cash amount equal to the Executive's Annual Base Salary
as in effect at the time of the Executive's death, (ii) payment of
the amount set forth in Section 5(a)(i)(A) above; and (iii) timely
payment or provision of the benefits set forth in Section 5(a)(iv)
above. In addition, 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. The payments provided for in subsections (i) and (ii)
of this Section 5(c) shall be paid to the Executive's estate or
beneficiary, as applicable, in a lump sum in cash within 30 days of
the Date of Termination.
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(d) Disability
. If the Executive's employment is terminated by reason of the
Executive's Disability, this Agreement shall terminate without
further obligations to the Executive, other than for (i) payment of
a cash amount equal to the Executive's Annual Base Salary as in
effect at the time of the Executive's Disability, which shall be
paid in equal installments over 12 months in accordance with
Executive's normal payroll periods in effect immediately prior to
the Date of Termination, (ii) payment of the amount set forth in
Section 5(a)(i)(A) above (payable to the Executive in a lump sum in
cash within 10 days of the Date of Termination), and (iii) timely
payment or provision of the benefits set forth in Section 5(a)(iv)
above. In addition, 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. To the extent permitted by applicable law and in
accordance with the Company's Long-Term Disability plan, the
Executive shall continue to accrue age and service credit through
retirement for purposes of the Company's qualified and nonqualified
retirement plans.
(e) Retirement
. If the Executive's employment is terminated by reason of his
retirement under the terms of the applicable Company retirement
plan during the Term, this Agreement shall terminate without
further obligations to the Executive other than for (i) payment of
the amount set forth in Section 5(a)(i)(A) above (payable to the
Executive in a lump sum in cash within 30 days of the Date of
Termination) and (ii) timely payment or provision of the benefits
set forth in Section 5(a)(i)(B) above.
(f)
Non-exclusivity of Rights . Except as specifically provided,
nothing in this Agreement shall prevent or limit the Executive's
continuing or future participation in any plan, program, policy or
practice provided by the Company or any of its affiliates and for
which the Executive may qualify, nor, subject to Section 11(e),
shall anything herein limit or otherwise affect such rights as the
Executive may have under any contract or agreement with the Company
or its affiliates. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan, policy,
practice or program of, or any contract or agreement with, the
Company or its affiliates at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy,
practice or program or contract or agreement except as explicitly
modified by this Agreement. As used in this Agreement, the terms
"affiliated companies" and "affiliates" shall include any company
controlled by, controlling or under common control with the
Company.
(g) In connection
with the Executive's retirement under Section 5(e) hereof or the
termination of Executive's employment other than for Cause under
Section 5(a) hereof, the Executive shall deliver to the Company a
release of claims in the form attached hereto as Exhibit A.
6. Full
Settlement . The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action
which the Company may have against the Executive or others. In no
event shall the Executive be obligated to seek other employ
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