exv10w3






Exhibit 10.3




EMPLOYMENT AGREEMENT




     EMPLOYMENT AGREEMENT (this “Agreement”) by and between Steven M. Sherwyn
(“Executive”) and Care Investment Trust Inc. (the “Company”) is dated as of
November 1, 2010 (the “Effective Date”).



     WHEREAS, the Company wishes to retain Executive in the position of Chief Financial Officer of
the Company and Executive desires to serve as Chief Financial Officer of the Company; and



     WHEREAS, Executive and the Company desire to memorialize herein the terms and conditions
related to Executive’s employment by the Company.



     NOW THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:



     1. Agreements between the Parties. This Agreement is intended to memorialize all of
the terms and conditions of Executive’s employment by the Company. This Agreement shall supersede
that certain Consulting Agreement, dated as of September 14, 2010, between SMS Advisory &
Consulting Services, LLC, the managing member of which is Executive, and the Company, in all
respects, other than with respect to such provisions that expressly survive therein.



     2. Employment.



          (a) Term. The Company shall employ Executive, and Executive agrees to be employed
with the Company, upon the terms and conditions set forth in this Agreement, for the period
beginning on the Effective Date and ending on December 31, 2013 (the “Employment Period”).
Thereafter, the Employment Period shall be automatically extended for subsequent one (1)-year
periods (each a “Renewal Period”) unless written notice to the contrary is given by either
the Company or Executive at least ninety (90) days prior to the expiration of the initial
Employment Period or any subsequent Renewal Period. Notwithstanding the foregoing, the Employment
Period shall be subject to earlier termination as provided in Sections 4 and 5 hereof (the
“Term”).




          (b) Duties of Position. During the Employment Period, Executive shall serve as Chief
Financial Officer of the Company. Executive’s duties shall include, without limitation, primary
responsibility for the Company’s financial functions, including all accounting, financial
reporting, treasury, budgeting, forecasting and planning, including responsibility for the
Company’s earnings model; oversight responsibility of real estate investment trust compliance,
investor relations, research, risk management, information technology systems and functions,
benefits and payroll; and involvement in all equity and debt financings and serving as the






1









 







principal financial officer for purposes of executing all reports and financial statement
certifications required to be filed by the Company pursuant to the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), together with such other duties as may be assigned to him
from time to time by the Chief Executive Officer of the Company (the “CEO”). Company, in
consultation with Executive, shall use commercially reasonable efforts to engage a controller
reasonably dedicated to the Company who shall report to the Executive. Executive agrees to devote
substantially all of Executive’s business time, attention and energies to the performance of the
duties assigned to Executive hereunder, and to perform such duties faithfully, diligently and to
the best of Executive’s abilities and subject to such laws, rules, regulations and policies from
time to time applicable to the Company and its employees. Executive may (i) serve as a director to
one corporate or other business or charitable entity, subject to the approval of the Board and (ii)
manage his personal investments, subject to the conduct, ethics and investment policies of the
Company (including, without limitation, the Company’s Code of Business Conduct, Code of Ethics and
Securities Trading Policy, as such policies may be amended or supplemented from time to time), to
the extent that such activities under clauses (i) and (ii) do not materially interfere with the
performance of Executive’s duties under this Agreement. Solely for purposes of clarification,
Company acknowledges that Executive is in the process of completing certain consulting assignments
as disclosed in writing to the Company. Such assignments shall not interfere with Executive’s
responsibilities and duties under this Agreement and shall be completed no later than December 31,
2010.




          (c) Insurance and Indemnification. Company shall maintain reasonable and customary
directors’ and officers’ insurance. Company shall indemnify Executive in accordance with the
Company’s standard form of indemnification agreement.




     3. Compensation and Benefits.



          (a) Base Salary. Executive’s base salary shall be as follows: (i) from and after the
Effective Date until November 30, 2010, $150,000 per annum (pro-rated for the partial calendar
year) and (ii) from and after December 1, 2010, $200,000 per annum (pro-rated for any partial
calendar year), each payable in equal installments no less than monthly (as in effect from time to
time, the “Base Salary”).




          (b) Initial Payments to Executive. On or about January 3, 2011, the Company shall
make to Executive a one-time grant of 10,000 shares of common stock of the Company, which are
immediately vested, subject to the terms of the Company’s Equity Plan (as defined below).




          (c) Annual Cash Performance Bonus. For each year during Executive’s employment with
the Company beginning with the year ending December 31, 2011, Executive shall be eligible to
receive an annual performance cash bonus (the “Annual Cash Bonus”) based upon certain
annual performance targets set by the Board or a committee thereof in their






2









 







discretion in accordance with the Company’s applicable corporate governance charters and
guidelines and both the Company’s and Executive’s performance in relation to those targets as
determined by the Board or committee thereof, subject to Section 3(e) below. The Annual Cash Bonus
shall be payable if the annual performance targets set forth in Section 3(e) below are achieved, as
determined by the Board in its sole discretion. The Annual Cash Bonus payable to Executive for
each year shall be subject to review and approval by the Board or a committee thereof in their
discretion in accordance with the Company’s applicable corporate governance charters and
guidelines. Any Annual Cash Bonus payable to Executive will be paid at the time the Company
normally pays such bonuses to its senior executives, but in no event later than two-and-one-half
months following December 31 of the applicable year.




          (d) Annual Equity Performance Bonus. For each year during Executive’s employment with
the Company beginning with the year ending December 31, 2011, Executive shall be eligible to
receive long-term equity incentive compensation awards (which may consist of restricted stock,
stock options, stock appreciation rights or other types of equity bonus awards, as determined by
the Board or a committee thereof in their discretion in accordance with the Company’s applicable
corporate governance charters and guidelines) (the “Annual Equity Bonus”) pursuant to the
Company’s equity incentive compensation plans and programs in effect from time to time including,
without limitation, the 2007 Care Investment Trust Inc. Equity Plan, dated as of June 19, 2007 (the
“Equity Plan”). These awards shall be granted in amounts and with vesting schedules based
upon the annual performance targets as determined by the Board or such committee, subject to
Section 3(e) below. The Annual Equity Bonus shall be payable if the annual performance targets set
forth in Section 3(e) below are achieved, as determined by the Board in its sole discretion. The
Annual Equity Bonus to be granted to Executive for each year shall be subject to review and
approval by the Board or a committee thereof in their discretion in accordance with the Company’s
applicable corporate governance charters and guidelines.




          (e) Bonus for 2011. For the year ending December 31, 2011, the Company’s annual
performance targets for purposes of the Annual Cash Bonus and Annual Equity Bonus shall include a
“Threshold Bonus Level” (payable if the “threshold” performance target is achieved but no higher
performance target is achieved) with (i) $100,000 in cash and (ii) restricted stock units or other
equity related award of the Company (subject to a time-vesting schedule and the Equity Plan) with
the underlying common stock having a then-current market value equal to approximately $150,000; a
“Target Bonus Level” (payable if the “target” performance target is achieved but no higher
performance target is achieved) with (i) $150,000 in cash and (ii) restricted stock units or other
equity related award of the Company (subject to a time-vesting schedule and the Equity Plan) with
the underlying common stock having a then-current market value equal to approximately $200,000; and
a “Maximum Bonus Level” (payable if the “maximum” performance target is achieved) with (i) $200,000
in cash and (ii) restricted stock units or other equity related award of the Company (subject to a
time-vesting schedule and






3









 







the Equity Plan) with the underlying common stock having a then-current market value equal to
approximately $250,000.




          (f) Vacation. Executive shall be eligible for four (4) weeks of annual vacation to be
accrued and taken in accordance with the Company’s policy with respect to senior executives.




          (g) Other Benefits. In addition, Executive will be eligible to participate in all
fringe benefit plans and qualified and non-qualified retirement plans of the Company and its
affiliates, as are generally available to the other senior management employees of the Company and
its affiliates, such as health insurance plans, disability insurance plans and life insurance
plans, provided that Executive meets the qualifications thereof.




          (h) Expenses. During the Employment Period, all reasonable business expenses incurred
by Executive in the performance of his duties hereunder shall be reimbursed by the Company in
accordance with the applicable expense reimbursement policies of the Company.




          (i) Withholding. Executive agrees that all amounts payable to him under this
Agreement shall be subject to the withholding of such amounts, if any, relating to tax and other
payroll deductions as the Company may reasonably determine to be required pursuant to applicable
law and regulation. However, nothing in this Agreement shall be construed to require the Company
to make any payments to compensate Executive for any adverse tax effect associated with any
payments or benefits or for any deduction or withholding from any payment or benefit.




     4. Termination of Employment. Executive’s employment hereunder may be terminated in
accordance with this Section 4.



          (a) Death. Executive’s employment hereunder shall terminate upon his death.




          (b) Disability. If, as determined by the Board in its reasonable good faith judgment,
Executive (i) is unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12 months, or (ii) is, by reason of any
medically determinable physical or mental impairment which can be expected to result in death or
can be expected to last for a continuous period of not less than 12 months, receiving income
replacement benefits for a period of not less than 3 months under an accident and health plan
covering employees of the Company, and, in the case of either clause (i) or (ii), within ten (10)
days after written Notice of Termination (as defined in Section 5(a)) is given shall not have
returned to the performance of his duties hereunder on a full-time basis, the Company may terminate
Executive’s employment hereunder for “Disability.”







4









 








          (c) Cause. The Company may terminate Executive’s employment hereunder for Cause. For
purposes of this Agreement, the Company shall have “Cause” to terminate Executive’s employment
hereunder, as determined in the good faith judgment of the Board, upon the occurrence of any of the
following events:





          (i) the conviction of, or a plea of nolo contendere by, Executive for the commission of
(1) a felony, (2) any crime involving moral turpitude, deceit, dishonesty or fraud or (3)
any crime resulting in Executive’s incarceration which the Board determines to be
detrimental to the best interests of the Company;




          (ii) continuing willful failure by Executive for ten (10) business days to
substantially perform his duties hereunder (other than such failure resulting from
Executive’s incapacity due to physical or mental illness or subsequent to the issuance of a
Notice of Termination by Executive for Good Reason) after demand for substantial performance
is delivered by the Company in writing that specifically identifies the manner in which the
Company believes Executive has not substantially performed his duties; or




          (iii) Executive’s theft or fraud relating to Executive’s employment or the business of
the Company or its subsidiaries, willful misconduct (including, but not limited to, breach
by Executive of the provisions of Section 7) that is injurious to the Company or its
subsidiaries (unless such injury is de minimis), or willful or violation of any law, rule
regulation or policy with respect to a material aspect of the business of the Company.



          (d) Good Reason. Executive may terminate his employment hereunder for “Good Reason”
within thirty (30) days after the occurrence, without his written consent, of one of the following
events that has not been cured within ten (10) business days after written notice thereof has been
given by Executive to the Company:





          (i) the assignment to Executive of duties materially inconsistent with his status as,
or the removal of any title of, Chief Financial Officer of the Company;




          (ii) the Executive is directed to directly report to a Person (as defined below) other
than the CEO, the Board or a committee thereof (unless this Agreement is assigned to an
external management company in accordance with Section 11 below);




          (iii) a reduction by the Company in Executive’s Base Salary, Annual Cash Bonus
opportunity or Annual Equity Bonus opportunity, or a material failure by the Company to pay
or provide any Base Salary or contractually committed cash or equity bonus payment or
amounts when due;



5









 






          (iv) the requirement by the Company that the principal place of performance of
Executive’s services be at a location more than fifty (50) miles from the primary office of
Executive as of the Effective Date; or




          (v) a material failure by the Company to comply with any material provision of this
Agreement.



          (e) The Company may terminate Executive’s employment at any time for any reason, including
without Cause. Executive may terminate Executive’s employment at any time for any reason,
including without Good Reason, upon thirty (30) days’ advance written notice to the Company.




          (f) The Company shall not be required to make the payments and provide the benefits specified
in Section 6 below unless Executive executes and delivers to the Company an agreement releasing the
Company, its affiliates and its officers, directors and employees from all liability (other than
the payments and benefits under this Agreement), substantially in the form attached hereto as
Exhibit A.




          (g) Unless the Company agrees in writing to waive this requirement, upon the termination of
Executive’s employment for any reason, Executive agrees to promptly resign (i) as a director of the
Company, any subsidiary or affiliate of the Company or any other entity to which the Company
appoints Executive to serve as a director, (ii) from all offices held by Executive in any or all of
such entities in clause (i) above, and (iii) from all fiduciary positions (including as trustee)
held by Executive with respect to any pension plans or trusts established by any such entities in
clause (i) above.




     5. Termination Procedure.



          (a) Notice of Termination. Any termination of Executive’s employment by the Company
or by Executive, including notice not to renew the Employment Period of this Agreement (other than
termination due to Executive’s death) shall be communicated by written Notice of Termination to the
other party hereto in accordance with Section 12. For purposes of this Agreement, a “Notice of
Termination” shall mean a notice that shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Executive’s employment under the provision so indicated.




          (b) Date of Termination. “Date of Termination” of this Agreement shall mean
(i) if the Term of this Agreement expires, the date of such expiration, (ii) if Executive’s
employment is terminated pursuant to Section 4(a) above, the date of Executive’s death, (iii) if
Executive’s employment is terminated pursuant to Section 4(b) above, ten (10) days after delivery
to Executive of Notice of Termination, provided that Executive has not returned to the performance
of his duties hereunder on a full-time basis prior to the Date of Termination, (iv) if






6









 







Executive’s employment is terminated pursuant to Sections 4(c) above, the date specified in
the Notice of Termination, and (v) if Executive’s employment is terminated pursuant to Section 4(d)
above, the date set forth on a Notice of Termination not earlier than ten (10) days or later than
30 days after the date of delivery of such Notice of Termination. Upon the Date of Termination,
the Term of this Agreement shall expire and the Company shall have no further obligation to
Executive except to the extent Executive is expressly entitled to any payments or other benefits
pursuant to Section 6 hereof, or to any continued insurance coverage in accordance with applicable
law; provided that the provisions set forth in Sections 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18 and
19 hereof and this Section 5(b) shall remain in full force and effect after the termination of
Executive’s employment, notwithstanding the expiration of the Term of, or termination of, this
Agreement.




     6. Obligations of the Company upon Termination of Employment.



          (a) Expiration of Term and Termination by the Company for Cause or by Executive without
Good Reason. If Executive’s employment shall be terminated (i) due to Executive’s notice not
to renew the Employment Period or a Renewal Period and upon expiration of the Term of this
Agreement, (ii) by the Company for Cause, or (iii) by Executive without Good Reason, then not later
than 30 days after the Date of Termination (or such earlier time as may be required by applicable
law) the Company shall pay Executive (A) his Base Salary (at the rate in effect at the time Notice
of Termination is given) through the Date of Termination to the extent theretofore unpaid, (B) the
value of any vacation days earned but unused through the Date of Termination pursuant to Section
3(f), and (C) reimbursement for all business expenses properly incurred in accordance with Company
policy prior to the Date of Termination and not yet reimbursed by the Company (the benefits payable
pursuant to clauses (A), (B), and (C) hereafter referred to as the “Accrued Obligations”),
and the Company shall have no additional obligations to Executive under this Agreement.




          (b) Death; Disability. If, during the Employment Period, Executive’s
employment shall terminate on account of death (other than on account of death after delivery of a
valid Notice of Termination for Cause or by Executive without Good Reason) or Disability, the
Company shall have no further obligations to Executive other than to provide Executive (or his
estate):





          (i) the Accrued Obligations;




          (ii) not later than 30 days after the Date of Termination, a pro-rated Annual Cash
Bonus and Annual Equity Bonus based upon the number of days in the year of termination
through the Date of Termination relative to 365 days, assuming for such purposes that the
performance targets applicable to the Annual Cash Bonus and the Annual Equity Bonus have
been satisfied at the Target Bonus Level for the year in which the Date of Termination
occurs;



7









 






          (iii) the health benefits set forth under Other Benefits in Section 3(f) for 12 months
following the Date of Termination;




          (iv) full vesting of all Company equity awards as of the Date of Termination; and




          (v) continuing exercisability of all stock options and stock appreciation rights for
the lesser of (x) 12 months after the Date of Termination or (y) the remainder of their
term.



          (c) For any Other Reason. If, during the Employment Period, the Company shall
terminate Executive’s employment for any reason other than those provided in Section 6(a) or 6(b)
above, including due to the Company’s notice not to renew the Employment Period or a Renewal Period
and upon the expiration of the Term of this Agreement, or Executive terminates Executive’s
employment for Good Reason, the Company shall have no further obligations to Executive other than:





          (i) the Accrued Obligations;




          (ii) the Company shall pay to Executive not later than 30 days after the Date of
Termination an amount equal to the greater of (1) 12 months or (2) the number of whole
months falling between the Date of Termination and February 1, 2013 of Executive’s Base
Salary at the rate in effect at the time of such termination;




          (iii) Executive shall be entitled to the health benefits set forth under Other Benefits
in Section 3(g) until the earlier of (x) the 12 month anniversary of the Date of Termination
and (y) the date upon which Executive receives similar health benefits from another Person
(as defined below) or is eligible to receive them from a subsequent employer;




          (iv) Executive shall be entitled to full vesting of all Company equity awards as of the
Date of Termination; and




          (v) Executive shall be entitled to continuing exercisability of all stock options and
stock appreciation rights for the lesser of (x) 12 months after the Date of Termination or
(y) the remainder of their term.



          (d) No Mitigation or Offset. In the event of Executive’s termination of employment
hereunder, Executive shall be under no obligation to seek other employment or otherwise mitigate
the obligations of the Company under this Agreement, and no benefit payable hereunder shall be
subject to offset.



8









 







     7. Prohibited Activities.



          (a) Non-Solicitation and Business Relationships. Executive agrees that during
Executive’s employment by the Company and for two (2) years following Executive’s Date of
Termination (the “Non-Solicitation Period”), Executive shall not, directly or indirectly,
solicit, induce, or attempt to solicit or induce any officer, director, employee, consultant, agent
or joint venture partner of the Company or any of its affiliates to terminate his, her or its
employment or other relationship with the Company or any of its affiliates for the purpose of
associating with any competitor of the Company or any of its affiliates, or otherwise encourage any
such person to leave or sever his, her or its employment or other relationship with the Company or
any of its affiliates for any other reason, or authorize the taking of such actions by any other
person or entity, or assist or participate with any such person or entity in taking such action.




          (b) Non-Competition. Executive acknowledges that the services to be rendered by him
to the Company are of a special and unique character. In consideration of his employment hereunder,
Executive agrees that during Executive’s employment by the Company and for the one (1)-year period
following the termination of Executive’s employment hereunder by either party for any reason (other
than (i) expiration of the Term of this Agreement due to the Company’s notice not to renew the
Employment Period, (ii) termination by Executive with Good Reason, or (iii) termination by the
Company of Executive without Cause), Executive will not engage, directly or indirectly, whether as
principal, agent, representative, consultant, employee, partner, stockholder, limited partner,
other investor or otherwise (other than a passive investment of not more than five percent (5%) of
the stock, equity or other ownership interest of any corporation, partnership or other entity),
within the United States of America, in any business that competes directly with the principal
businesses conducted by the Company as of the Executive’s Date of Termination.




     8. Confidential Information/Intellectual Property. Executive shall hold in confidence
for the benefit of the Company all of the information and business secrets in respect of the
Company and all of its affiliates, including, but not limited to, all information and data relating
to or concerned with the business, finances, pending transactions and other affairs of the Company
and all of its affiliates, and Executive shall not at any time before or after Executive’s
employment by the Company is terminated for any reason, or Executive resigns for any reason,
willfully use or disclose or divulge any such information or data to any other Person (as defined
below) except (i) with the prior written consent of the Company, (ii) to the extent necessary to
comply with applicable law or the valid order of a court of competent jurisdiction, in which event
Executive shall notify the Company as promptly as reasonably practicable (and, if possible, prior
to making such disclosure), and (iii) in the performance of Executive’s duties hereunder. The
foregoing provisions of this Section 8 shall not apply to any information or data which has been
previously disclosed to the public or is otherwise in the public domain in each case other than as
a result of the breach by Executive of his obligations under this Section 8. Executive agrees
that any Intellectual Property developed by him during his employment by the



9









 




Company is, and will always remain, solely the property of the Company. Executive further
agrees that he shall have no rights to any such Intellectual Property. For purposes of this
Agreement, “Person” means an individual, corporation, partnership, limited liability company, joint
venture, association, trust, unincorporated organization, other entity or “group” (as defined in
the Exchange Act). For purposes of this Agreement, “Intellectual Property” means any trademarks,
copyrights, patents now or hereafter owned and trade secrets, including but not limited to
formulas, compilations, programs, devices, methods, techniques, processes, designs, strategies,
concepts, algorithms, models, databases, software, systems, technical know-how, operating
instructions or marketing plans.




     9. No Waiver. No failure or delay on the part of the Company or Executive in
exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The remedies provided for
herein are cumulative and are not exclusive of any remedies that may be available to the Company or
Executive at law or in equity. No waiver of or consent to any departure by either the Company or
Executive from any provision of this Agreement shall be effective unless signed in writing by the
party entitled to the benefit thereof. No amendment, modification or termination of any provision
of this Agreement shall be effective unless signed in writing by all parties hereto. Any waiver of
any provision of this Agreement, and any consent to any departure from the terms of any provision
of this Agreement, shall be effective only in the specific instance and for the specific purpose
for which made or given.



     10. Severability of Provisions. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other jurisdiction. Moreover, if
any one or more of the provisions contained in this Agreement shall be held to be excessively broad
as to duration, activity or subject, such provision shall be construed by limiting and reducing it
so as to be enforceable to the maximum extent allowed by applicable law.



     11. Successors; Non-Assignability. This Agreement shall inure to the benefit of the
Company and its successors and assigns, as applicable. If the Company shall merge or consolidate
with or into, or transfer substantially all of its assets, to another corporation or other form of
business organization, this Agreement shall be binding on, and run to the benefit of, the successor
of the Company resulting from such merger, consolidation, or transfer. If the Company shall
transfer the management and operations of the Company, including the responsibility to provide a
Chief Financial Officer for the Company, to an external management company, this Agreement shall be
binding on, and run to the benefit of, such external management company. The rights and
obligations of Executive under this Agreement are personal to Executive and may not be assigned or
delegated to any other Person; provided, however, that nothing in this Agreement shall preclude
Executive from designating any of his



10









 




beneficiaries to receive any benefits payable hereunder upon his death, or his executors,
administrators or other legal representatives from assigning any rights hereunder to the person or
persons entitled thereto.




     12. Notices. Any notice given hereunder shall be in writing and shall be deemed to
have been given when delivered by messenger or courier service (against appropriate receipt), or
two business days after being mailed by registered or certified mail (return receipt requested), to
an address furnished by a party hereto to the other party in writing from time to time.



     13. Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York applicable to contracts made and to be entirely
performed within such State.



     14. [Reserved]



     15. Dispute Resolution.



          (a) Subject to the provisions of Section 15(b), any dispute, controversy or claim arising
between the parties relating to this Agreement, or otherwise relating in any way to Executive’s
employment by or interest in the Company or any of its affiliates (whether such dispute arises
under any federal, state or local statute or regulation, or at common law), shall be resolved by
final and binding arbitration before a single arbitrator, selected by the American Arbitration
Association in accordance with its rules pertaining at the time the dispute arises. In such
arbitration proceedings, the arbitrator shall have the discretion, to be exercised in accordance
with applicable law, to allocate among the parties the arbitrator’s fees, tribunal and other
administrative costs. The award of the arbitrator may be confirmed before and entered as a
judgment of any court having jurisdiction over the parties.




          (b) The provisions of Section 15(a) shall not apply with respect to any application made by
the Company for injunctive relief under this Agreement.




     16. Section 409A. If any compensation or benefits provided by this Agreement may
result in the application of Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”), the Company shall, in consultation with Executive, modify the Agreement in the
least restrictive manner necessary in order to, where applicable, (a) exclude such compensation
from the definition of “deferred compensation” within the meaning of such Section 409A or (b)
comply with the provisions of such Section 409A, other applicable provision(s) of the Code and/or
any rules, regulations or other regulatory guidance issued under such statutory provisions and to
make such modifications, in each case, without any diminution in the value of the payments to
Executive. To the extent required in order to comply with Section 409A of the Code, amounts and
benefits to be paid or provided to Executive under Section 6 of this Agreement shall be paid or
provided to Executive on the first business day after the date that is six months following the
Date of Termination.



11









 





     17. Headings. The paragraph headings used or contained in this Agreement are for
convenience of reference only and shall not affect the construction of this Agreement.



     18. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the matters set forth herein and supersedes any prior agreements or
understandings. There are no promises or undertakings with respect to Executive’s employment or
the subject matter hereof other than as expressly set forth herein.



     19. Execution in Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.



[THE NEXT PAGE IS THE SIGNATURE PAGE]






12









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year
first set forth above.



	 	 	 	 	 
	 	__________________________________________

Steven M. Sherwyn



CARE INVESTMENT TRUST INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




13











 





EXHIBIT A




Form of Mutual Release



FORM OF CONFIDENTIALITY AND RELEASE AGREEMENT



          THIS CONFIDENTIALITY AND RELEASE AGREEMENT (“Agreement”) is dated the __th day of ________,
20__, and is made by and between Care Investment Trust (“Care”) and Steven M. Sherwyn (“Officer”).




          WHEREAS, Officer has served as the Chief Financial Officer (“CFO”) of Care pursuant to an
employment agreement dated as of November 1, 2010 (the “Employment Agreement”); and




          WHEREAS, Officer and the Company desire to settle fully and finally any and all matters
between them and any issues that might have arisen out of Officer’s service as CFO of the Company
and the termination thereof.




          NOW, THEREFORE, in consideration of the promises, covenants and the mutual agreements set
forth herein and in the Employment Agreement, the parties voluntarily agree as follows:




     1. Waiver. Except for the benefits described in Section 6(_) of the Employment
Agreement, Officer hereby waives any and all claims to compensation, payments, or benefits of any
kind (whether pursuant to a written agreement or otherwise) from the Company.



     2. Non-Disclosure. (a) Officer agrees that Officer shall keep confidential, to the
full extent permitted by law, the terms of this Agreement, and all performance hereunder, except as
permitted by the Company or: (1) to the extent necessary to report income to appropriate taxing
authorities; (2) to members of his immediate family, who have agreed to be bound by the
confidentiality provisions of this Agreement; (3) to any attorney, C.P.A. or tax or financial
advisor for the purpose of confidentially obtaining any legal or tax or financial planning advice
pertaining to this Agreement and/or for the purpose of representation of his interest in connection
with any inquiry or action on the part of any government or taxing authority or agency; (4) in
response to an order of a court of competent jurisdiction or subpoena issued under the authority
thereof; or (5) in response to any inquiry or subpoena issued by a state or federal governmental
agency; provided, however, that notice of receipt of such judicial order, inquiry
or subpoena shall immediately be communicated to the Company telephonically, and confirmed
immediately thereafter in writing, so that the Company will have the opportunity to intervene to
assert what rights it has to non-disclosure prior to the response to the order, inquiry or subpoena
and Officer will cooperate with and support such efforts. Officer agrees that if he (or his tax
advisor or spouse) violates the terms of this Paragraph, Officer will be deemed to have materially
breached this Agreement.



     (b) Officer agrees that Officer will not make or issue, or procure any person, firm or entity
to make or issue, any statement in any form concerning the Releasees (as defined below), Officer’s
relationship with the Company or Officer’s resignation of his office



 









 




with the Company to any person or entity if such statement is harmful to or disparaging of the
Company or any of the Releasees.




     3. Prohibited Conduct. Officer agrees that he has not and will not engage in any
conduct that is injurious to the Company’s reputation and interests, including, but not limited to,
(1) divulging, communicating, or in any way making use of any confidential or proprietary
information acquired in the performance of his duties for Releasees (as that term is defined in
Section 8(a)); and (2) disparaging (or inducing others to disparage) Releasees, including making
comments or statements that would adversely affect the Company to the press or media, the Company’s
business partners, joint venture partners, tenants, borrowers, customers, competitors, or suppliers
or other individuals or entities with whom the Company has a business relationship. The terms of
this subsection are not intended to and shall not be interpreted to limit Officer’s obligations
pursuant to any prior agreements with the Company or applicable law.



     4. Return of Property. Officer agrees that he will, prior to _______ __, 20__,
return to the Company any and all cellular telephones, PDAs, Blackberries, laptop computers, notes,
keys, card keys or security passes, Company identification cards, Company credit or phone cards,
computer access codes and programs, files, memoranda, business plans, documents and, in general,
any and all tangible matter containing confidential information or information otherwise relating
to the Company’s business, including but not limited to all such information in electronic format
regardless of where such information is stored. Officer further agrees to return immediately any
property of the Company that may come into his possession or under his control.



     5. Release. (a) Officer acknowledges that there are various foreign, state and
federal laws that prohibit discrimination on the basis of, among other things, age, gender
(including sexual harassment), race, color, marital status, sexual preference/orientation, national
origin, religion, disability or veteran status. In consideration for the benefits provided herein
and in the Employment Agreement, Officer, as his free and voluntary act on behalf of himself, his
heirs, administrators, executors, successors and assigns (collectively, the “Releasor” ) hereby
releases and discharges the Company, its predecessor companies, successors and assigns and their
present or former shareholders, members, directors, officers, employees, and agents, and their
various benefits committees, trustees, fiduciaries, administrators, plans, and trusts (collectively
“Releasees”), of and from any and all debts, obligations, claims (including claims for attorneys’
fees and costs), demands, judgments or causes of action of any kind whatsoever in tort, contract,
by statute, or on any other basis for compensatory, punitive or other damages, whether known or
unknown, which Releasor ever had, now has or may have as of the date of signing this Agreement
against Releasees arising out of Officer’s employment by the Company and the termination of that
employment, including, but not limited to, claims for, arising out of or based on: (i) breach of
an alleged oral or written contract (express or implied); (ii) Title VII of the Civil Rights Act
of 1964; (iii) the Civil Rights Act of 1866 and 1871; (iv) the Americans with Disabilities Act; (v)
the Civil Rights Act of 1991; (vi) any Executive Order or based on any Federal, State or Local
regulation; (vii) the Age Discrimination in Employment Act of 1967, as amended (“ADEA”); (viii) the



Page 2 of 6









 




Older Workers’ Benefit Protection Act of 1990; (ix) the Rehabilitation Act of 1973; (x) the Family
and Medical Leave Act; (xi) the Employee Retirement Income Security Act; (xii) the Sarbanes-Oxley
Act of 2002; (xiii) any applicable whistleblower statute; (xiv) wrongful discharge, (xv)
intentional or negligent misrepresentation; (xvi) retaliatory or constructive discharge; (xvii)
interference with contract; (xviii) detrimental reliance; (xviv) defamation; (xx) emotional
distress; (xxi) the Worker Adjustment and Retraining Notification Act, as amended; (xxii) any other
applicable foreign, Federal, state or local government discrimination or similar statute, ordinance
or order that he might have or assert against any of said entities or persons by reason of his
employment with the Company or the cessation of said employment and all circumstances related
thereto, all claims for any compensation including back wages, front pay, bonuses, fringe benefits,
severance benefits; and (xxiii) any claim for attorneys’ fees and costs, and interest
(collectively, the “Claims”).




     (b) Officer represents that he has not filed any charge or lawsuit against the Company with
any governmental agency or Court. With respect to any charges that have been or may be filed
concerning events or actions relating to Officer’s employment or termination of employment and
which occurred on or before the date of this Agreement, Officer additionally waives and releases
any right he may have to recover money or any personal injunctive relief in any lawsuit or
administrative proceeding brought by any person on his behalf or which includes him in any class.
If Officer is made a member of a class in any proceeding, he shall opt out promptly after learning
of his inclusion. In this regard, Officer agrees to sign, without objection or delay, an “opt out”
form presented to him either by the court in which such proceeding is pending or by counsel for any
Releasee who is made a defendant in such proceeding. Officer expressly acknowledges that this
Agreement is intended to include in its effect, without limitation, not only Claims that are known,
anticipated or disclosed, but also Claims that are unknown, unanticipated and undisclosed, but
which may nevertheless exist as of the date of this Agreement. Officer expressly waives any right
to assert after the execution of this Agreement that any Claim that existed on or prior to the
effective date of this Agreement, through ignorance or oversight, has been omitted from the scope
of this Agreement. This Agreement does not waive or release any rights or claims which may arise
after the date Officer signs the Agreement.



     (c) Officer understands that nothing contained in this Agreement shall prohibit him from (a)
bringing any action to enforce the terms of this Agreement; (b) filing a timely charge or complaint
with the Equal Employment Opportunity Commission (“EEOC”) regarding the validity of this Agreement;
or (c) filing a timely charge or complaint with the EEOC or participating in any investigation or
proceeding conducted by the EEOC regarding any other claim. However, consistent with the release
language set forth in this Section 5, Officer acknowledges that he has waived any right to personal
recovery or personal injunctive relief in connection with any such charge or complaint whether
brought by him, by any administrative agency, or by any other person on his behalf or which
includes him in any class. Other than as set forth in this Section 5(c), Officer represents that he
has not and will not file any charge, claim or complaint of any kind against the Company with
respect to any events occurring on or before the date of this Agreement.



Page 3 of 6









 





     6. Invalid Provisions. If any provision, or portion thereof, of this Agreement is
determined to be invalid under applicable statute or rule of law, only such provisions, and only to
the extent determined to be invalid, shall be deemed omitted from this Agreement, the remainder of
which Agreement shall remain fully in force and effect; provided, however, that
upon any finding by a court of competent jurisdiction that the release and/or promises provided
herein are illegal, void or unenforceable, Officer agrees, at the Company’s request, to execute
promptly a release, waiver and/or promise of comparable scope that is legal and enforceable.



     7. Amendment. This Agreement shall not be amended, modified, or supplemented without
specific written provision to that effect, signed by both parties. No oral statement of any person
whosoever shall, in any manner or degree, modify or otherwise affect the terms and provisions of
this Agreement.



     8. Injunctive Relief. Officer further agrees and acknowledges that money damages may
not be a sufficient remedy for any actual or threatened breach of this Agreement by Officer, and
that, in addition to all other remedies, the Company may be entitled to specific performance and
injunctive or other equitable relief as a remedy for any such breach.



     9. Governing Law. THE CONSTRUCTION, INTERPRETATION AND PERFORMANCE OF THIS AGREEMENT
SHALL BE GOVERNED BY THE LAWS OF THE STATE IN WHICH EMPLOYEE WAS ENGAGED ON THE EFFECTIVE DATE OF
TERMINATION OF HIS EMPLOYMENT PURSUANT TO THE EMPLOYMENT AGREEMENT (THE “TERMINATION EFFECTIVE
DATE”)WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.



     10. Entire Agreement. This Agreement and the Employment Agreement contain the entire
agreement between the Company and Officer and fully supersede any and all prior agreements or
understandings pertaining to the subject matter hereof or Officer’s employment with the Company.
Officer represents and acknowledges that in executing this Agreement he has not relied upon any
representation or statement not set forth herein made by the Company or by any of its affiliates,
agents, representatives or attorneys with regard to the subject matter of this Agreement.



     11. Timing of Execution of This Agreement. Officer has the longer of twenty-one (21)
calendar days or through the Termination Effective Date to sign this Agreement. The earliest
Officer may sign this Agreement is seven (7) calendar days before the Termination Effective Date.
The Agreement will not be accepted and will not become effective if signed by Officer before seven
(7) calendar days before the Termination Effective Date. Officer may revoke this Agreement within
seven (7) calendar days after signing this Agreement, as described in Section 12 below.



     12. Review and Revocation Periods. (a) Officer understands that, pursuant to the
Older Workers’ Benefit Protection Act of 1990 (in case it should be held to apply), (i) he



Page 4 of 6









 




has been advised to consult with an attorney to review this Agreement, (ii) he has been given at
least twenty-one (21) calendar days to consider the Agreement before signing it, and (iii) he may
revoke the Agreement within seven (7) calendar days after signing it. Officer understands that
this revocation can be made by delivering the written notice of revocation to
________________________.




     (b) Officer agrees that if he executes this Agreement prior to the expiration of
twenty-one (21) calendar days after receiving it, Officer acknowledges that he had sufficient time
to consider this Agreement.



     (c) Officer understands that this Agreement shall not become effective until the
expiration of the revocation period: that is, this Agreement shall not become effective until the
eighth (8th ) calendar day after Officer signs this Agreement.



     13. Litigation. Officer agrees to cooperate with the Company in the execution of and
filing of whatever documents are necessary or helpful in effectuating this Agreement. Officer
agrees to cooperate with the Company in the truthful and honest investigation, prosecution and/or
defense of any claim in which the Releasees may have an interest (subject to reasonable limitations
concerning time and place), which may include without limitation (subject to the payment of
reasonable out-of-pocket expenses incurred for the benefit of Releasees and, in the case of
extraordinary expenses, only at the Company’s prior and specific request) making himself available
to participate in any proceeding involving any of the Releasees, allowing himself to be interviewed
by representatives of the Releasees without assertion of privilege, participating as requested in
interviews and/or preparation by any of the Releasees of other witnesses, protecting the applicable
legal privileges of the Releasees, appearing for depositions and testimony without requiring a
subpoena, and producing and/or providing any documents or names of other persons with relevant
information. The Company will attempt to provide reasonable notice to Officer if his participation
or testimony is needed. Officer will not waive the privileges enjoyed by any of the Releasees
without their prior written permission.



     14. Non-Admission. Nothing contained in this Agreement, or the fact of its submission
to Officer, shall be admissible evidence in any judicial, administrative, or other legal
proceeding, or be construed, as an admission of any liability or wrongdoing on the part of the
Company or the Releasees, of any violation of federal or state statutory or common law or
regulation or of any contract or benefit plan.



     BY SIGNING THIS AGREEMENT, EMPLOYEE ACKNOWLEDGES THAT HE (i) HAS READ, UNDERSTANDS, AND
VOLUNTARILY AND KNOWINGLY ACCEPTS ALL OF THE PROVISIONS OF THIS AGREEMENT, (ii) IS HEREBY ADVISED
TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS AGREEMENT, (iii) UNDERSTANDS THE AGREEMENT AND
KNOWS THAT HE IS GIVING UP IMPORTANT RIGHTS, INCLUDING CLAIMS UNDER THE FEDERAL AGE DISCRIMINATION
IN EMPLOYMENT ACT AND (iv) HAS SIGNED THIS AGREEMENT KNOWINGLY AND VOLUNTARILY.



Page 5 of 6









 






CARE INVESTMENT TRUST INC.




	 	 	 	 	 	 	 

	BY:
	 	 	 	 	 
	 

	Title:
	 	 	Date
	 	 
	 
	 	 	 	 	 	 
	 
	OFFICER	 	 	 	 
	 
	 	 	 	 	 	 
	Name

	 	Date
	 	 








Page 6 of 6