Exhibit 10.1
CONFIDENTIAL RELEASE AND
WAIVER OF CLAIMS (“Release”)
1.
Release of Claims . In exchange for the benefits
described in Paragraph 2 below, I, Brian R. DiDonato, on
behalf of myself and the undersigned trust, hereby release and
forever discharge Capmark Investments L.P.
(“Capmark”), Capmark Financial Group Inc.
(“Parent”) and Parent’s subsidiaries and related
entities and companies, any and all of their respective employee
benefit plans, fringe benefit plans or programs, and any and all of
their respective present and past officers, directors,
shareholders, employees, agents and representatives, and the
successors and assigns of each (all of the foregoing, collectively
and together with Capmark and Parent, the “Capmark
Group”) from any and all manner of claims, suits, demands,
actions, causes of action, administrative claims, liability, claims
for damages, class action claims or other claims made on my behalf
or on behalf of the undersigned trusts whatsoever that I, my heirs,
representatives, agents, successors, guardians, trusts, trustees or
assigns ever had, have now or may have, whether known or unknown,
that arise on or before the date of my execution of this Release
(collectively, the “Released Claims”). The
Released Claims include but are not limited to any claims arising
from or relating to my recruitment or hiring by, or my employment
with, Capmark and/or any entity within the Capmark Group, any
contingent or otherwise discretionary compensation awards or
payments of any kind whatsoever, any Parent common stock
(“Common Stock”) or options to purchase Common Stock
issued to me, transferred to the undersigned trust, and/or
repurchased by Parent in connection with the payment described in
Paragraph 2, any provisions of my Amended and Restated Management
Stockholder’s Agreements and Stock Option Agreements with
Parent, any pending applications for employment with Capmark and/or
any entity within the Capmark Group, or my separation of employment
from Capmark and/or any entity within the Capmark Group including,
but not limited to: (i) any claim (including any claim with
respect to taxes of any kind) arising under the Employee Retirement
Income Security Act of 1974, Title VII of the Civil Rights Act, 42
U.S.C. § 2000e et seq. , the Pennsylvania Human
Relations Act, 43 P.S. § 951 et seq. , the Americans
with Disabilities Act, 42 U.S.C. § 12101, et seq. , the
Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.,
the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621 et seq., any other federal, state or local
law, or any law of any jurisdiction outside of the United States as
applicable, (ii) breach of contract claims,
(iii) defamation, wrongful discharge, emotional distress or
any other tort claim, (iv) any common law claim, and
(v) any claim for attorneys’ fees and costs, arising in
law or equity. In addition, to the extent applicable, I
expressly waive and release all rights under California Civil Code
section 1542 which states (language in parentheses added):
A general release does
not extend to claims which the creditor (e.g., employee) does not
know or suspect to exist in his or her favor at the time of
executing the release, which, if known by him or her, must have
materially affected his settlement with the debtor (e.g., the
employer).
Without limiting or
modifying my release and waiver of the Released Claims as set forth
herein, the Released Claims do not include any right, claim or
remedy arising after the date on which I sign this Release nor does
this Release prevent me from participating,
1
cooperating, initiating
or assisting in an investigation or proceeding conducted within the
Capmark Group or by any government agency, oversight board,
commission or other regulatory or investigative body; provided,
however, with respect to any such investigation or proceeding or
related charges, I hereby waive and release all claims for any
recovery of monetary damages and any other form of personal relief
attributable to events or omissions occurring on or before the date
on which I sign this Release.
2.
Release Consideration . In consideration for my
execution of this Release, Parent agrees to make a lump sum payment
to me in the total gross amount of $3,822,000, less all applicable
federal, state and local taxes, if applicable, and benefit
withholdings, for the repurchase of my Common Stock (held
individually or in trust) upon the terms and subject to the
conditions of Parent’s letter to me dated May 13, 2008
(“Parent’s Letter”). I acknowledge that in the
absence of my execution of this Release, I would not be entitled to
the benefits described in this Paragraph 2. I acknowledge
further that such benefits are adequate and satisfactory
consideration to me. Parent agrees to make the payment
referenced in this Paragraph in accordance with the terms of
Parent’s Letter, provided there has been no revocation of
this Release within the revocation period set forth in Paragraph 16
below.
3.
Participation in Incentive Vehicles .
(a) I acknowledge and agree that I have been granted
certain membership interests in Capmark UK Realty Fund Incentive
Vehicle, LLC, a Delaware limited liability company (the “
UK Incentive Vehicle ”), including specifically: as a
Class B Member, a 3.826% carried interest allocation to me
(the “ UK Carried Interest Percentage ”).
(b)
I further understand and agree that, in accordance with the Limited
Liability Company Agreement of the UK Incentive Vehicle, the entire
amount of my UK Carried Interest Percentage is unvested and
therefore the entire portion of my Carried Interest Percentage was
forfeited to Capmark Structured Fund Carried Interest, L.P (the
“Acquirer”) as of the Separation Date (defined
below).
(c)
I acknowledge and agree that I have purchased and have been granted
certain partnership interests in Capmark Structured Real Estate
Fund Incentive Vehicle, L.P., a Delaware limited partnership (the
“ Partnership ”), including specifically:
(i) as a Class A Limited Partner, an employee capital
commitment to the Partnership of One Million Dollars ($1,000,000)
(the “ Capital Commitment Interest ”), and
(ii) as a Class B Limited Partner, a 4.459% carried
interest allocation to me (the “ Debt Fund Carried
Interest Percentage ”).
(d)
If Capmark Group is willing to offer to purchase my Capital
Commitment Interest, Capmark Group will send an Agreement of
Assignment and Assumption of Limited Partnership Interest (the
“ Assignment Agreement ”) to me for my
consideration. The purchase price shall be an amount in cash
equal to the fair value of my Capital Commitment Interest
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