This NonDisclosure Agreement NDA involves
Title: CIFC CORP. AMENDED AND RESTATED NON-DISCLOSURE, NON-COMPETITION, NON-HIRING, NON-SOLICITATION AND SEVERANCE AGREEMENT
Governing Law: New York Date: 6/17/2014
Industry: Investment Services Sector: Financial
AMENDED AND RESTATED NON-DISCLOSURE, NON-COMPETITION, NON-HIRING, NON-SOLICITATION AND SEVERANCE AGREEMENT
This AMENDED AND RESTATED NON-DISCLOSURE, NON-COMPETITION, NON-HIRING, NON-SOLICITATION AND SEVERANCE AGREEMENT (this “ Agreement ”) is made and entered into as of June 13, 2014 between CIFC Corp., (together with its Affiliates, as defined below, the “ Company ”) and Stephen Vaccaro (the “ Employee ”):
WHEREAS, the Company desires to continue to employ the Employee, and the Employee desires to perform services for the Company in a position which will allow the Employee access to various trade secrets and confidential information belonging to the Company and which will require the Employee to perform services of a unique and special nature;
WHEREAS, the Company desires to receive from the Employee covenants: (a) not to compete with the Business (as defined below); (b) not to disclose any Confidential Information (as defined below) acquired during the course of employment with the Company; (c) not to hire or attempt to hire any employee or consultant of the Company; (d) not to solicit any employee or consultant of the Company to terminate his employment or consultant status, as applicable, with the Company; and (e) not to solicit any customer or supplier of the Company to terminate its relationship with the Company;
WHEREAS, in consideration for such covenants the Company desires to provide the Employee with certain severance payments subject to the conditions set forth herein;
WHEREAS, the Company and the Employee previously entered into a Non-Disclosure, Non-Competition, Non-Hiring, Non-Solicitation and Severance Agreement, dated June 14, 2006 (the “ Prior Agreement ”); and
WHEREAS, the Company and the Employee desire to amend and restate the Prior Agreement to reflect the terms contained herein.
NOW, THEREFORE, in consideration of the Company continuing to employ the Employee and of the mutual promises herein contained, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending legally to be bound, hereby amend and restate the Prior Agreement in its entirety as follows:
1. Definitions . The following definitions apply for the purposes of this Agreement:
(a) Affiliate . “Affiliate” means, with respect to any specified entity, any person or entity that directly or through one or more intermediaries controls or is controlled by or is under common control with the specified entity. For purposes of this Agreement an “Affiliate” of Commercial Industrial Finance Corp. shall include any entity acquired or formed directly or indirectly or invested in by Commercial Industrial Finance Corp. or its subsidiaries.
(b) Base Salary . “Base Salary” means the annual base salary the Company pays the Employee as wages. Base Salary shall not include any bonuses, commissions or overtime pay, but shall include any amount that the Company contributes to an employee benefit plan on behalf of the Employee pursuant to a salary reduction agreement and that is not includable in the gross income of the Employee under Sections 125, 132(f)(4), 402(g) or 457 of the Code or is not paid currently due to the Employee’s election to defer the receipt thereof under an employee benefit plan of the Company.
(c) Board . “Board” means the Board of Directors of the Company.
(d) Business . “Business” means the Company’s business of owning, managing, operating and/or controlling investment funds and other investment vehicles that are engaged in a business with a strategy substantially similar to the strategy that, as of the date hereof, the Company is pursuing or contemplating pursuing.
(e) Cause . “Cause” means (i) the Employee shall have breached in any material respect this Agreement; (ii) the Employee’s commission of a felony or violation of any law involving moral turpitude, dishonesty, disloyalty or fraud; (iii) any failure by the Employee to substantially comply with any written rule, regulation, policy or procedure of the Company or its Subsidiaries applicable to the Employee, which noncompliance could reasonably be expected to have a material adverse effect on the business of the Company or any Subsidiary; (iv) any failure by the Employee to comply with the Company’s or its Subsidiaries’ policies with respect to insider trading applicable to the Employee; (v) a willful material misrepresentation at any time by the Employee to any member of the Board or any director or superior executive officer of the Company or its Subsidiaries; (vi) the Employee’s willful failure or refusal to comply with any of his material obligations hereunder or a reasonable and lawful instruction of the Board or the person to whom the Employee reports; or (vii) commission by the Employee of any act of fraud or gross negligence in the course of his Service hereunder or any other action by the Employee, in either case that is determined to be materially detrimental to the Company or any of its Subsidiaries (which determination, in the case of gross negligence or such other action, shall be made by the Company in its reasonable discretion); provided that, except for any willful or grossly negligent acts or omissions, the commission of any act or omission described in clause (i) or (iii) that is capable of being cured shall not constitute Cause hereunder unless and until the Employee, after written notice from the Company to him specifying the circumstances giving rise to Cause under such clause, shall have failed to cure such act or omission to the reasonable satisfaction of the Company within 10 business days after such notice; and provided further , that the Employee’s Service shall be deemed to have terminated for Cause if, after the Employee’s Service has terminated, facts and circumstances are discovered that would have justified a termination for Cause.
(f) Client . “Client” means at any particular time, any Person who is at such time a client of the Company, including loan originators, CLOs or other investment vehicles for which the Company has served as manager, and investors in such CLOs or other investment vehicles, and (i) any Persons which are known to the Employee to be Affiliates of such Client or (ii) any Persons who are members of the immediate family of such Client or any of its Affiliates.
(g) CLO . “CLO” shall mean any collateralized loan obligation fund.
(h) Code . “Code” means the Internal Revenue Code of 1986, as amended.
(i) Competing Business . “Competing Business” has the meaning set forth in Section 3.
(j) Confidential Information . “Confidential Information” includes all proprietary information or data relating to the Business of the Company or its Subsidiaries to which the Employee has access and/or learns prior to or during the Employee’s Service, including business and financial information; new product development; formulas, identities of and information concerning Clients, Potential Clients, vendors and suppliers; development, expansion and business strategies, plans and techniques; computer programs, devices, methods, techniques, processes and inventions; research and development activities; compilations and other materials developed by or on behalf of the Company or its Subsidiaries (whether in written, graphic, audio-visual, electronic or other media, including computer software). Confidential Information also includes information of any third party doing business with the Company or its Subsidiaries that such third party identifies as being confidential or that is subject to a confidentiality agreement with such third party. Confidential Information shall not include any information that is in the public domain or otherwise publicly available (other than as a result of a wrongful act of the Employee or an agent or other employee of the Company or its Subsidiaries, including a breach of Section 4).
(k) Disability . “Disability” means a permanent disability within the meaning of Section 22(e)(3) of the Code.
(l) ERISA . “ERISA” means the Employee Retirement Income Security Act of 1974, as amended at any relevant time.
(m) Involuntary Termination . “Involuntary Termination” means the (i) termination by the Company of the Employee’s Service, other than by reason of Cause or (ii) termination of the Employee’s Service with the Company as a result of the Employee’s death or Disability.
(n) Person . “Person” means any individual, partnership (limited or general), corporation, limited liability company, limited liability partnership, association, trust, joint venture, unincorporated organization or any similar entity.
(o) Potential Client . “Potential Client” shall mean, at any particular time, any Person to whom the Company, through any of their officers, employees, agents or consultants (or persons acting in any similar capacity), has, within two years prior to such time, offered (by means of a personal meeting, telephone call, email, letter or other written proposal specifically directed to the particular Person) to provide services, but who is not at such time a Client of the Company.
(p) Proprietary Information . “Proprietary Information” means collectively the Confidential Information and Trade Secrets; provided , however , that Proprietary Information does not include any information that (A) is already known to the Employee at the time it is disclosed to the Employee by the Company; or (B) before being divulged by the Employee (1) has become generally known to the public through no wrongful act by the Employee or (2) has been approved for release to the general public by a written authorization of the Company.
(q) Restricted Period . “Restricted Period” has the meaning set forth in Section 3.
(r) Service . “Service” means the provision of services in the capacity of (i) an employee of the Company or its Subsidiaries, (ii) a non-employee member of the Company’s Board or the board of directors of a Subsidiary, or (iii) a consultant or other independent advisor to the Company or its Subsidiaries.
(s) Trade Secrets . “Trade Secret” means information, including but not limited to, technical and nontechnical data, formulas, patterns, designs, compilations, computer programs and software, devices, inventions, methods, techniques, drawings, processes, financial plans, product plans, and lists of actual or potential customers, suppliers, research, development, existing and future products and services and employees of the Company, which (A) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (B) is the subject of the Company’s efforts to maintain secrecy.
(t) Treasury Regulations . “Treasury Regulations” means the Treasury regulations, including temporary regulations, promulgated under the Code.
2. Acknowledgements . The Company is engaged in the Business. The Employee acknowledges that the services rendered to the Company by the Employee have been or will be of a special and unusual character which have a unique value to the Company and that the Employee has had or will have access to Proprietary Information belonging to the Company, the loss of which cannot adequately be compensated by damages in an action at law. The Employee further acknowledges that the Business is highly specialized, the identity and particular needs of the Company’s Clients and Potential Clients may not generally be known, and the documents and information regarding the Company’s Clients and Potential Clients, services, methods of operation, investments, negotiations, and management are highly confidential and constitute trade secrets.
3. Non-Competition Covenant . The Employee acknowledges and agrees that (a) in the course of the Employee’s Service the Employee shall become familiar with the Trade Secrets of the Company and its Subsidiaries and with other Proprietary Information concerning the Company or its Subsidiaries, (b) the Employee’s services to the Company or its Subsidiaries are unique in nature and of an extraordinary value to the Company and its Subsidiaries, and (c) the Company and its Subsidiaries could be irreparably damaged if the Employee were to provide similar services to any person or entity competing with the Company or its Subsidiaries or engaged in a similar business, in a capacity of employee, member, partner, shareholder, officer or director. In consideration for and as an inducement to the Company to enter into this
Agreement, the Employee covenants and agrees that during the period beginning on the date hereof and ending on the date that is one year from the date of the termination of the Employee’s Service for any reason whatsoever (the “ Restricted Period ”), the Employee shall not, directly or indirectly, either for himself or for or through any other person, participate in any business or enterprise anywhere in the United States that involves the ownership, management, operation or control of any investment fund or other investment vehicle that is (at the time of the Employee’s termination of Service) or becomes during the term of the Restricted Period engaged in a business with a strategy substantially similar to that of th