Exhibit 10.9


 


CAPITAL TRUST, INC.


2007 LONG-TERM INCENTIVE PLAN


 






 


Deferral Election Agreement for Deferred Share
Units


 






 


DEFERRAL
AGREEMENT (the “Deferral Agreement”), made this         
day of            ,
          , by and between                               
(the “Participant”), and Capital Trust, Inc. (the “Company”).


 


WHEREAS,
the Company has established the Capital Trust, Inc. 2007 Long-Term
Incentive Plan (the “Plan”), which is attached as Exhibit  B, and
the Participant is eligible to participate in said Plan;


 


WHEREAS,
Section 9(a) of the Plan permits the Committee to authorize deferral
compensation elections with any deferred compensation being credited to
Deferred Share Units (“DSUs”) in accordance with Section 9 of the Plan;


 


NOW,
THEREFORE, it is mutually agreed as follows:


 


1.                                       Term of Election. This Deferral
Agreement and the provisions of the Plan constitute the entire agreement
between the parties, and will continue in full force and effect until, either
you execute a superseding Deferral Agreement, you revoke the Deferral Agreement
in a writing sent to and approved by the Committee, you cease service with the
Company, or the Plan is terminated by appropriate corporate action, whichever
shall first occur. This Deferral Agreement will become effective:


 


a.                                       on
the January 1st following the execution of this Deferral Agreement; or


 


b.                                      on
the first day of the next calendar month following the execution of this Deferral
Agreement, but only if this Deferral Agreement is executed within the 30-day
period after you first become eligible for Plan participation.


 


2.                                       Compensation being Deferred. You
make the following election (which shall supersede any prior election only to
the extent of an election made affirmatively herein) to defer the following amount
of fees/compensation for as long as this Deferral Agreement is in effect:


 


a.                                                   
percent (        %) of the amount otherwise
payable in cash.


 


b.                                                  
percent (        %) of the amount otherwise
payable in shares of the Company’s common stock.


 


c.                                                   
percent (        %) of any Restricted Share Units
(“RSUs”) in which the Participant earns a vested interest (but only if the
underlying Award Agreement specifically authorizes deferral elections).


 


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3.                                       Crediting, Vesting, and Distribution of Deferred
Compensation. The Company agrees to make DSU credits in
accordance with Section 9 of the Plan and the elections that you make in
the Distribution Election Agreement that is attached hereto as Exhibit A.


 


4.                                       Taxes. Except to the extent
otherwise specifically provided in another document establishing contractual
rights for you, by signing this Deferral Agreement, you acknowledge that you
shall be solely responsible for the satisfaction of any taxes that may arise
pursuant to this Award (including taxes arising under Sections 409A or 4999 of
the Code), and that neither the Company nor the administrator of the Plan shall
have any obligation whatsoever to pay such taxes or otherwise indemnify or hold
you harmless from any or all of such taxes. The Committee shall nevertheless
have the discretion –


 


a.                                       to
condition any issuance of Shares on your satisfaction of applicable employment
and withholding taxes; and


 


b.                                      to
unilaterally interpret this Deferral Agreement and the Plan in any manner that (i) conforms
with the requirements of Section 409A of the Code with respect to
compensation that is deferred and that vests after December 31, 2004, (ii) that
voids any election of yours to the extent it would violate Section 409A of
the Code, and (iii) for any distribution election that would violate Section 409A
of the Code, that defers distributions pursuant to the Award until the earliest
to occur of a distribution event that is allowable under Section 409A of
the Code or any distribution event that is both allowable under Section 409A
of the Code and is elected by you, subject to any valid second election to
defer, that the Committee permits second elections to defer in accordance with Section 409A(a)(4)(C).


 


The Committee shall have
the sole discretion to interpret the requirements of the Code, including Section 409A,
for purposes of the Plan and this Deferral Agreement.


 


5.                                       Designation of Death Beneficiary. Notwithstanding
anything to the contrary contained herein or in the Plan, following the
execution of this Deferral Agreement, you may expressly designate a death beneficiary
(the “Death Beneficiary”) to your rights and interest under this
Deferral Agreement. You shall designate the Death Beneficiary by completing and
executing a designation of death beneficiary agreement substantially in the form attached
hereto as Attachment 1 to Exhibit A (“Designation of Death Beneficiary”)
and delivering an executed copy of the Designation of Death Beneficiary to the
Company.


 


6.                                       Restrictions on Transfer of Award. This
Deferral Agreement may not be sold, pledged, or otherwise transferred
without the prior written consent of the Committee. Notwithstanding the
foregoing, you may transfer this Deferral Agreement


 


(i)                           by
instrument to an inter vivos or testamentary trust (or other entity) in which
each beneficiary is a permissible gift recipient, as such is set forth in subsection (ii) of
this Section, or


 


(ii)                        by gift to
charitable institutions or by gift or transfer for consideration to any of the
following relatives of yours (or to an inter vivos trust, testamentary trust or
other entity primarily for the benefit of the following relatives of 


 


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yours): any child, stepchild,
grandchild, parent, stepparent, grandparent, spouse, former spouse, domestic
partner, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, or sister-in-law, and shall include adoptive
relationships.


 


Any
transferee of your rights shall succeed to and be subject to all of the terms
of this Deferral Agreement and the Plan.


 


7.                                       Conditions on Issuance of Shares; Transfer
Restrictions. Notwithstanding any other provision of the Plan or
of this Deferral Agreement: (i) the Committee may condition your
receipt of Shares on your execution of a shareholder agreement imposing terms
generally applicable to other similarly-situated employee-shareholders; and (ii) any
Shares issued pursuant to this Deferral Agreement shall be non-transferable
until the first day of the seventh month following the termination of your
Continuous Service.


 


8.                                       Notices. Any notice or
communication required or permitted by any provision of this Deferral Agreement
to be given to you shall be in writing and shall be delivered electronically,
personally, or sent by certified mail, return receipt requested, addressed to
you at the last address that the Company had for you on its records. Each party
may, from time to time, by notice to the other party hereto, specify a new
address for delivery of notices relating to this Deferral Agreement. Any such
notice shall be deemed to be given as of the date such notice is personally
delivered or properly mailed.


 


9.                                       Binding Effect. Except as otherwise
provided in this Deferral Agreement or in the Plan, every covenant, term, and
provision of this Deferral Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective legatees, legal
representatives, successors, transferees, and assigns.


 


10.                                 Modifications. This Deferral
Agreement may be modified or amended at any time, in accordance with Section 15
of the Plan and provided that you must consent in writing to any modification
that adversely and materially affects your rights or obligations under this
Deferral Agreement (with such an affect being presumed to arise from a
modification that would trigger a violation of Section 409A of the Code).


 


11.                                 Headings. Section and other
headings contained in this Deferral Agreement are for reference purposes only
and are not intended to describe, interpret, define or limit the scope or
intent of this Deferral Agreement or any provision hereof.


 


12.                                 Severability. Every provision of
this Deferral Agreement and of the Plan is intended to be severable. If any
term hereof is illegal or invalid for any reason, such illegality or invalidity
shall not affect the validity or legality of the remaining terms of this
Deferral Agreement.


 


13.                                 Counterparts. This Deferral
Agreement may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument.


 


14.                                 Plan Governs. By signing this
Deferral Agreement, you acknowledge that you have received a copy of the Plan
and that your Deferral Agreement is subject to all the provisions 


 


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contained
in the Plan, the provisions of which are made a part of this Deferral
Agreement, and your Award is subject to all interpretations, amendments, rules and
regulations which from time to time may be promulgated and adopted
pursuant to the Plan. In the event of a conflict between the provisions of this
Deferral Agreement and those of the Plan, the provisions of the Plan shall
control.


 


15.                                 Investment Purposes. By executing
this Deferral Agreement, you represent and warrant that any Shares issued to
you pursuant to your Award will be held for investment purposes only for your
own account, and not with a view to, for resale in connection with, or with an
intent in participating directly or indirectly in, any distribution of such
Shares within the meaning of the Securities Act of 1933, as amended (the “Securities
Act”).


 


16.                                 Not a Contract of Employment. By
executing this Deferral Agreement you acknowledge and agree that nothing in
this Deferral Agreement or the Plan confers on you any right to continue an
employment, service or consulting relationship with the Company, nor shall it
affect in any way your right or the Company’s right to terminate your
employment, service, or consulting relationship at any time, with or without
Cause; and the Company would not have executed this Deferral Agreement but for
these acknowledgements and agreements.


 


17.                                 Securities Law Restrictions. Regardless
of whether the offering and sale of Shares under the Plan have been registered
under the Securities Act of 1933, as amended (the “Securities Act”), or
have been registered or qualified under the securities laws of any state, the
Company at its discretion may impose restrictions upon the sale, pledge or
other transfer of such Shares (including the placement of appropriate legends
on stock certificates or the imposition of stop-transfer instructions) if, in
the judgment of the Company, such restrictions are necessary or desirable in
order to achieve compliance with the Securities Act or the securities laws of
any state or any other law or to enforce the intent of this Award.


 


18.                                 Long-term Consideration for Award. [OPTIONAL]
The terms and conditions set forth in Exhibit D are hereby
incorporated by reference and made an integral part of this Award
Agreement. An invalidation of all or part of Exhibit D, or
your commencement of litigation to invalidate, modify, or alter the terms and
conditions set forth in Exhibit D, shall cause this Award to become
null, void, and unenforceable.


 


19.                                 Governing Law. The laws of the
State of New York shall govern the validity of this Deferral Agreement, the
construction of its terms, and the interpretation of the rights and duties of
the parties hereto.


 


BY YOUR
SIGNATURE BELOW, along with the signature of the Company’s
representative, you and the Company agree that this Award is being made under
and governed by the terms and conditions of this Award and the Plan.


 


	
   

  	
  CAPITAL TRUST, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


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  PARTICIPANT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  The undersigned
  Participant hereby accepts the terms of this

  Award and the Plan.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


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EXHIBIT A


 


CAPITAL TRUST, INC.


2007 LONG-TERM INCENTIVE PLAN


 






 


Distribution Election Agreement regarding Deferred
Share Units


 






 


DISTRIBUTION
AGREEMENT, made this          day of   
        ,           , by and
between                    
                     (the “Participant”), and Capital Trust, Inc.
(the “Company”), with respect to compensation that you defer pursuant to the
terms and conditions of the Deferral Agreement (the “Deferral Agreement”) dated
                             ,      
   between the Participant and the
Company.


 


WHEREAS,
the Company has established the Capital Trust, Inc. 2007 Long-Term
Incentive Plan (the “Plan”), and you have elected to defer compensation and
thereby to participate in said Plan and to accrue Deferred Share Units (“DSUs”)
in accordance with Section 9 of the Plan;


 


NOW
THEREFORE, it is mutually agreed as follows:


 


1.                                       Form and
Time of Payment. By the execution hereof, I agree to participate in the
Plan, upon the terms and conditions set forth therein, and, in accordance
therewith, elect to have my Account distributed to me in whole Shares (with
cash being paid in lieu of fractional Shares), upon
the earliest of the events checked below:


 


	
  Event

  	
   

  	
  Form of Distribution

  	
   

  	
  Time of Distribution

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  o Death

  	
   

  	
  o            One
  lump sum distribution.  

   

  o            Substantially
  equal annual payments over a period of       
  years (up to 10).

  	
   

  	
  o            As
  soon as practicable.

   

  o            The
  next January 1st.  

   

  o            Other:                        .

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  o Disability

  	
   

  	
  o            One
  lump sum distribution.  

   

  o            Substantially
  equal annual payments over a period of       
  years (up to 10).

  	
   

  	
  o            As
  soon as practicable.  

   

  o            The
  next January 1st.

   

  o            Other:                        .

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  o Other Separation from Service

  	
   

  	
  o            One
  lump sum distribution.  

   

  o            Substantially
  equal annual payments over a period of       
  years (up to 10).

  	
   

  	
  o            As
  soon as practicable.  

   

  o            The
  next January 1st.

   

  o            Other:                        .

  



 

















 


	
  o Change in Control

  	
   

  	
  o            One
  lump sum distribution.

   

  o            Substantially
  equal annual payments over a period of       
  years (up to 10).

  	
   

  	
  o            As
  soon as practicable.  

   

  o            The
  next January 1st.

   

  o            Other:                        .

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  o Specified Date

  	
   

  	
  o            One
  lump sum distribution.  

   

  o            Substantially
  equal annual payments over a period of       
  years (up to 10).

  	
   

  	
  Date:
                  
        ,       .

  



 


2.                                       Designation
of Beneficiary. In the event of my death before I have collected all of the
benefits payable under the Plan, I hereby direct that any remaining benefits payable
under the Plan be distributed to the beneficiary or beneficiaries I have
designated pursuant to Attachment 1.


 


3.                                       Effect
of Election. I recognize and agree that the elections made in Section 1
hereof apply to the entire value of my account, and these elections may only
be changed at least one year in advance of the earliest date on which payments
would otherwise commence pursuant to Section 1 hereof, and may only
be changed pursuant to an election that conforms with the requirements set
forth in Section 9 of the Plan.


 


With
respect to the elections made in Section 1 hereof, I may, by submitting an
effective superseding Distribution Agreement at any time and from time to time,
prospectively change the beneficiary designation and the manner of payment to a
beneficiary. Such elections shall, however, become irrevocable upon my death.


 


4.                                       Taxes.
I recognize and agree that I am solely responsible and liable for the
satisfaction of all income taxes and penalties that may arise in
connection with my participation in the Plan (including any taxes arising under
Section 409A of the Code). The Company shall not have any obligation to
indemnify or otherwise hold me or any of my beneficiaries harmless from any or
all of such taxes, but is permitted to take discretionary action pursuant to Section 11(c) of
the Plan.


 


5.                                       Mutual
Commitments. The Company agrees to make payment of all amounts due to me in
accordance with the terms of the Plan and the elections I make herein. I agree
to be bound by the terms of the Plan, as in effect on the date hereof or
properly amended hereafter.


 


6.                                       The
terms of Sections 6 through 18 of the Deferral Agreement are incorporated
herein by reference, and shall apply to this Distribution Agreement based on
the understanding that references in such Sections to Deferral Agreement shall
refer to this Distribution Agreement for purposes hereof.


 


[Signature Page to Follow]


 

















 


IN
WITNESS WHEREOF, the parties hereto have hereunto set their
hands the day and year first above-written.


 


	
   

  	
  CAPITAL
  TRUST, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Printed Name:

  	
   

  
	
   

  	
  A duly
  authorized executive officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PARTICIPANT

  
	
   

  	
   

  
	
   

  	
  Printed Name:

  	
   

  
					



 

















 


Attachment 1


 


CAPITAL TRUST, INC.


2007 LONG-TERM INCENTIVE PLAN


 


Designation of Death Beneficiary


 


In the
event of my death or “Disability” within the meaning of the Capital Trust, Inc.
2007 Long-Term Incentive Plan (the “Plan”),
I hereby designate the following person to be my beneficiary for the Award(s)
(within the meaning of the Plan) identified below:


 


Name of Beneficiary:


 


 


Address:


 


 


 


Social Security No.:


 


 


This
beneficiary designation of mine relates to any and all of my rights under the
following Award or Awards:


 


o                  any Award that I
have received or ever receive in the future under the Plan.


 


o                  the                                   
Award that I received pursuant to an award agreement dated                   
    ,         
between me and Capital Trust, Inc. (the “Company”).


 


I
understand that this beneficiary designation operates to entitle the above-named
beneficiary to succeed, in the event of my death, to any and all of my rights
under the Award(s) designated above, and shall be effective from the date this form is
delivered to the Company until such date as I revoke this designation. A
revocation shall occur only if I deliver to an executive officer of the Company
either (i) a written revocation of this designation that is signed by me
and notarized, or (ii) a designation of death beneficiary, in the form set
forth herein, that is executed and notarized on a later date.


 


	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Your Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Your Name
  (printed):

  	
   

  	
   

  



 


Sworn to before me this


        
day of                         ,
200  


 


	
   

  	
   

  	
   

  
	
  Notary Public

  



 


County of                                    


State of
                                       


 


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EXHIBIT B


 


CAPITAL TRUST, INC.


2007 LONG-TERM INCENTIVE PLAN


 






 


Plan Document


 






 


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EXHIBIT C


 


CAPITAL TRUST, INC.


2007 LONG-TERM INCENTIVE PLAN


 






 


Plan Prospectus


 






 


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EXHIBIT D


 


CAPITAL TRUST, INC.


2007 LONG-TERM INCENTIVE PLAN


 






Long-Term Consideration and


Company Recovery for Breach


 






 


By signing and accepting
your Award Agreement, you recognize and agree that the Company’s key
consideration in granting this Award is securing your long-term commitment to
serve as its                   [include
job title or description] who will advance and promote the Company’s business
interests and objectives. Accordingly, you agree that this Award shall be
subject to the terms and conditions set forth in Section 25 of the Plan
(relating to the termination, rescission, and recapture if you violate certain
commitments made therein to the Company), as well as to the following terms and
conditions as material and indivisible consideration for this Award:


 


(a)                                  Fiduciary
Duty. During your employment with the Company you shall devote your full
energies, abilities, attention and business time to the performance of your job
responsibilities and shall not engage in any activity which conflicts or
interferes with, or in any way compromises, your performance of such
responsibilities.


 


(b)                                 Confidential
Information. You recognize that by virtue of your employment with the
Company, you will be granted otherwise prohibited access to confidential
information and proprietary data which are not known, and not readily
accessible to the Company’s competitors. This information (the “Confidential
Information”) includes, but is not limited to, current and prospective
customers; the identity of key contacts at such customers; customers’
particularized preferences and needs; marketing strategies and plans; financial
data; personnel data; compensation data; proprietary procedures and processes;
and other unique and specialized practices, programs and plans of the Company
and its customers and prospective customers. You recognize that this
Confidential Information constitutes a valuable property of the Company,
developed over a significant period of time and at substantial expense. Accordingly,
you agree that you shall not, at any time during or after your employment with
the Company, divulge such Confidential Information or make use of it for your
own purposes or the purposes of any person or entity other than the Company.


 


(c)                                  Non-Solicitation
of Customers. You recognize that by virtue of your employment with the
Company you will be introduced to and involved in the solicitation and
servicing of existing customers of the Company and new customers obtained by
the Company during your employment. You understand and agree that all efforts
expended in soliciting and servicing such customers shall be for the permanent
benefit of the Company. You further agree that during your employment with the
Company you will not engage in any conduct which could in any way jeopardize or
disturb any of the Company’s customer relationships. You also recognize the
Company’s legitimate interest in protecting, for a reasonable period of time
after your employment with the Company, the Company’s customers. Accordingly,
you agree that, for a period beginning on the date hereof and ending one (1) year
after termination of your employment with the Company, regardless of the reason
for such termination, you shall not, directly or indirectly, without the prior
written consent of the Chairman of the Company, market, offer, sell or
otherwise furnish 


 


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any products or services
similar to, or otherwise competitive with, those offered by the Company to any
customer of the Company.


 


(d)                                 Non-Solicitation
of Employees. You recognize the substantial expenditure of time and effort
which the Company devotes to the recruitment, hiring, orientation, training and
retention of its employees. Accordingly, you agree that, for a period beginning
on the date hereof and ending two (2) years after termination of your
employment with the Company, regardless of the reason for such termination, you
shall not, directly or indirectly, for yourself or on behalf of any other
person or entity, solicit, offer employment to, hire or otherwise retain the
services of any employee of the Company.


 


(e)                                  Non-Competition.
<IF DESIRED, PHJW TO CUSTOMIZE TO CONFORM WITH
APPLICABLE LAW.>


 


(f)                                    Survival
of Commitments; Potential Recapture of Award and Proceeds. You acknowledge
and agree that the terms and conditions of this Section regarding
confidentiality and non-solicitation [and non-competition] shall survive both (i) the
termination of your employment with the Company for any reason, and (ii) the
termination of the Plan, for any reason. You acknowledge and agree that the
grant of Deferred Share Units in this Award Agreement is just and adequate
consideration for the survival of the restrictions set forth herein, and that
the Company may pursue any or all of the following remedies if you either
violate the terms of this Section or succeed for any reason in
invalidating any part of it (it being understood that the invalidity of
any term hereof would result in a failure of consideration for the Award):


 


(i)                                     declaration
that the Award is null and void and of no further force or effect;


 


(ii)                                  recapture
of any cash paid or Shares issued to you, or any designee or beneficiary of
you, pursuant to the Award;


 


(iii)                               recapture of the proceeds,
plus reasonable interest, with respect to any Shares that are both issued
pursuant to this Award and sold or otherwise disposed of by you, or any
designee or beneficiary of you.


 


The remedies provided
above are not intended to be exclusive, and the Company may seek such
other remedies as are provided by law, including equitable relief.


 


(g)                                 Acknowledgement.
You acknowledge and agree that your adherence to the foregoing requirements
will not prevent you from engaging in your chosen occupation and earning a
satisfactory livelihood following the termination of your employment with the
Company.


 


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