Exhibit 10.30


 


SEPARATION AGREEMENT AND RELEASE (“Agreement”)


 


1.               Release of Claims.  I, James Baio, hereby release and forever
discharge Capmark Finance Inc. (“Capmark”), Capmark Financial Group Inc. (“Parent”)
and Parent’s subsidiaries, affiliates and related entities and companies
(collectively with Capmark and Parent, the “Capmark Group”), any and all of
their respective employee benefit plans, incentive compensation plans, fringe
benefit plans or programs, and any and all of their respective present and past
officers, directors, shareholders, partners, members, employees, agents and
representatives, and the successors and assigns of each 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 whatsoever that I, my heirs, representatives, agents, successors,
guardians, trustees or assigns ever had, have now or may have including, but
not limited to, any claims arising from or relating to my employment with
Capmark or any other entity within the Capmark Group, the Letter Agreement
addressed to me dated September 5, 2006, a copy of which is attached
hereto as Exhibit A (“Letter Agreement”), any pending applications for
employment with Capmark, and the termination of my employment and positions
held with Capmark and/or any other entity within the Capmark Group including,
but not limited to: any claims 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 California Fair Employment and Housing Act, et seq.,
the Age Discrimination in Employment Act, 29 U.S.C. 621 et  seq.
(the “ADEA”), 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
Pennsylvania Human Relations Act, 43 P.S. § 951 et  seq., the
Pennsylvania Wage Payment & Collection Law, 43 P.S. § 260.1 et  seq.,
or any other federal, state or local law; breach of contract claims; defamation,
wrongful discharge or any other tort claim; any common law claim, and any claim
for attorneys’ fees and costs, arising in law or equity, whether known,
suspected or unknown, and however originating or existing, from the beginning
of time to the date of my execution of this Agreement.  I hereby represent that I have not
experienced any work-related injuries that could be covered by the Pennsylvania
Workers’ Compensation Act, or the workers’ compensation laws of California or
any other state.  I understand that this
Agreement does not prevent me from taking action to challenge the validity of
this Agreement under the Older Workers Benefit Protection Act, 29 U.S.C. § 626
(the “OWBPA”).


 


Furthermore, I agree that I
fully and forever waive any and all rights and benefits conferred upon me by
the provisions of Section 1542 of the Civil Code of the State of
California or any other similar state statute, which states as follows
(parentheticals added):


 


A general release does not extend to claims
which the creditor (i.e., me) does not know or suspect to exist in his
favor at the time of executing the release (i.e., this Agreement), which if
known by him must have materially affected his settlement with the debtor
(i.e., Capmark and any other entity within the Capmark Group).


 


I understand and agree that this means that if, hereafter, I discover
facts different from or in addition to those which I now know or believe to be
true, that the waivers and releases of this Agreement shall be and remain
effective in all respects notwithstanding such different or additional facts or
the discovery of such fact.


 

















 


2.               Release Consideration.  In consideration for my execution of this
Agreement, Capmark agrees to make a lump sum payment to me in the amount of
$1,400,000.00 (minus applicable federal, state, and local taxes, and benefit
withholdings) (such net amount, the “Payment Amount”) consisting of (i) $600,000
representing satisfaction in full of all severance payments payable to me by
the Capmark Group including, without limitation, payment of all severance
obligations to me under the Letter Agreement and (ii) $800,000
representing additional consideration to me.


 


Payment of the Payment Amount will be made
within thirty (30) days after the expiration of the revocation period set forth
in paragraph 13e.


 


I acknowledge that in the absence of my
execution of this Agreement, I would not be entitled to the Payment
Amount.  I acknowledge further that the
Payment Amount is adequate and satisfactory consideration to me for entering into
this Agreement.


 


3.               Future Payments and
Benefits.  I agree and
understand that Capmark does not have and will not have any obligation to
provide me at any time in the future with any payment or benefit other than
those set forth in paragraph 2, including any bonus or commission payment,
except for any benefit under the Capmark Financial Group Inc. Savings Incentive
Plan and under the Consolidated Omnibus Budget Reconciliation Act (COBRA).  The common stock and stock options that I
hold shall remain subject to the terms and conditions of the 2006 Equity Plan
for Key Employees of Capmark Financial Group Inc. and its Affiliates, the
Amended and Restated Management Stockholder’s Agreement, the Sale Participation
Agreement and the Stock Option Agreement. 
For purposes of my Amended and Restated Management Stockholder’s
Agreement, the company will treat the termination of my employment as a
termination by the Company without “Cause” as described in Section 6(b).  I also retain my rights to reimbursement of
business expenses eligible for reimbursement under Capmark policies.


 


4.               Non-disparagement.  I agree that I will not make any disparaging
comments, orally or in writing, about any entity within the Capmark Group, or
any of their respective shareholders or former or current employees,
consultants, advisors, directors, services or products.  I agree and understand that Capmark will
cause Parent’s Executive Committee to refrain from making any disparaging
comments, orally or in writing, about me. 
I agree and acknowledge that I will cooperate with Capmark regarding
questions that may arise regarding my duties at Capmark (or any other entity
within the Capmark Group) while I was an employee.  Capmark will cause Parent’s Chief Executive
Officer to provide a letter of recommendation on my behalf which shall in form
and substance be reasonably satisfactory to me and Capmark.  Capmark will cause Parent’s Chief Executive
Officer to undertake reasonable efforts to complete that letter of
recommendation within two weeks from my execution of this Agreement.


 


5.               End of Employment.  I agree that my last day of work with Capmark
was October 19, 2007 and that Capmark (and any other entity within the
Capmark Group) has no obligation to re-employ or hire me in the future.


 


6.               Resignation.   I hereby tender my resignation effective
immediately from all positions as a director or officer (including as Chief
Financial Officer) of any and all entities within the Capmark Group effective October 10,
2007.


 


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7.               Assignment.  To the extent, if any, that I have rights in
any invention, improvement, discovery, process, program, customer list, product
or system developed by me during my employment with Capmark, I hereby
irrevocably transfer, assign and convey such rights to Capmark and agree that
Capmark shall be and remain the sole and exclusive owner of all right, title
and interest in and to any such invention, improvement, discovery, process,
program, customer list, product or system, including, but not limited to, all
patent, copyright, trade secret and other proprietary rights therein that may
be secured in any place under laws now or hereinafter in effect.


 


8.               Non-disclosure.  I agree and acknowledge that during the
course of my employment with Capmark, I had access to and was privy to
information, documents and/or materials relating to entities within the Capmark
Group that are confidential and/or proprietary to entities within the Capmark
Group or which constitute or contain the trade secrets of entities within the
Capmark Group (collectively “Confidential Information”), the disclosure of
which will cause irreparable harm to entities within the Capmark Group.  Examples of Confidential Information include,
but are not limited to, borrower contact lists, source code, client
information, and any deal specific information. 
I agree not to discuss or disclose to any person or entity or use any of
the Confidential Information without prior express written permission from
Parent’s Chief Executive Officer, its Executive Vice President & Chief
Administrative Officer or its Executive Vice President & General
Counsel except to the extent required by law. 
I further agree that I have returned to Capmark all company property,
including all Confidential Information, in my possession.


 


9.               Successors and Assigns.  Capmark’s rights under this Agreement shall
inure to the benefit of and shall be binding upon the successors and assigns of
Capmark.  I shall not be entitled to
assign any of my rights or obligations under this Agreement.


 


10.         Confidentiality.  I understand and agree that I have not and
will not reveal, disclose or discuss in any fashion the contents or terms of
this Agreement, except to immediate family members, tax advisors, legal counsel
or as required by law, or to enforce this Agreement without prior express
written consent of Parent’s President & Chief Executive Officer, its
Executive Vice President & Chief Administrative Officer or its
Executive Vice President & General Counsel.  I understand that Capmark will keep this
Agreement confidential, provided, however, that Capmark and entities within the
Capmark Group may disclose the contents, terms and/or copies of this Agreement:
(a) to those people who have a legitimate business reason to know; (b) to
enforce the terms of this Agreement; (c) as Capmark determines such
disclosure is required under any contractual obligation of any entity within
the Capmark Group, or (d) as Capmark determines such disclosure is
required by applicable law, rule or regulation, including any required
filings with the Securities and Exchange Commission.


 


11.         Governing Law.  This Agreement is made and entered into in
the accordance with the laws of the State of California and shall in all
respects be interpreted, enforced and governed under the laws of California.


 


12.         Entire Agreement.  This Agreement contains the entire agreement
of the parties with respect to the subject matter hereof and merges and
supersedes all prior negotiations, agreements and understandings, if any with
the exception of the 2006 Equity Plan for Key Employees of Capmark Financial
Group Inc. and its Affiliates, the Amended and Restated Management Stockholder’s
Agreement, the Sale Participation Agreement and the Stock Option Agreement. No
modification, release, discharge or waiver of any provision of this 


 


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Agreement shall be of any force or effect unless made in writing and
signed by me and Parent’s Chief Executive Officer, its Executive Vice President &
Chief Administrative Officer or its General Counsel and specifically identified
as a modification, release or discharge of this Agreement.  Each paragraph and subparagraph of this
Agreement constitutes a separate and distinct provision. It is the intent of
the parties to the Agreement that the provisions of this Agreement be enforced
to the fullest extent permissible under the laws and public policies applicable
to enforcement.  Accordingly, if any
term, clause or provision of this Agreement shall for any reason be adjudged
invalid, unenforceable or void, the same shall not impair or invalidate any of
the other provisions of this Agreement, all of which shall be performed in
accordance with their respective terms.


 


13.         Rights under the ADEA/OWBPA
and Other Acknowledgments.  By signing this Agreement, I acknowledge and
agree that:


 


a.                                       I have carefully read and
understood all of the provisions and terms of this Agreement;


 


b.                                      I have signed this Agreement
knowingly and voluntarily;


 


c.                                       Capmark has advised me in
writing to consult with counsel prior to signing this Agreement;


 


d.                                      Capmark has provided me
twenty one (21) days from my receipt of this Agreement to consider its terms;


 


e.                                       I have the right to revoke
my execution of this Agreement within seven (7) days of executing it by
hand delivering or mailing, by return receipt, written notice of my revocation
to: Executive Vice President & Chief Administrative Officer, Capmark
Financial Group Inc., 411 Borel Avenue, Suite 320, San Mateo, CA
94402.  If delivered by mail, the
revocation must be post-marked within the seven (7) day period.  I understand that if I revoke my execution of
this Agreement, I will not receive the payment set forth in paragraph 2; and


 


f.                                         My resignation of my
employment with and positions held at Capmark and/or any other entity within
the Capmark Group is not as a result of any disagreement I have with the Parent
and/or any other entity within the Capmark Group regarding its or their
financial or accounting practices; and


 


g.                                      In signing this Agreement, I
have not relied on any representations or statements, whether oral or written,
other than the express language contained herein.


 


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I
HAVE CAREFULLY READ THIS ENTIRE AGREEMENT. 
I UNDERSTAND THAT BY SIGNING THIS AGREEMENT, I AM WAIVING ALL CLAIMS
AGAINST ANY AND ALL ENTITIES WITHIN THE CAPMARK GROUP RELATING TO MY EMPLOYMENT
WITH CAPMARK AND THE TERMINATION OF MY EMPLOYMENT AND POSITION(S) WITH
CAPMARK AND/OR ANY OTHER ENTITY WITHIN THE CAPMARK GROUP.


 


IN
WITNESS WHEREOF, and intending to be legally bound hereby, I have executed the
foregoing Agreement effective this 30th day of October, 2007.


 


 


	
   

  	
   

  	
  /s/ James R. Baio

  
	
   

  	
   

  	
  (Name)

  
	
   

  	
   

  	
   

  
	
  /s/ Patricia E. Baio

  	
   

  	
   

  
	
  Witness      (Signature)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Patricia E. Baio

  	
   

  	
   

  
	
  Witness      Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Capmark
  Finance Inc.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Linda Pickles

  	
   

  	
   

  
	
  Signature

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Linda Pickles

  	
   

  	
   

  
	
  Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  10/31/07

  	
   

  	
   

  
	
  Date

  	
   

  	
   

  



 


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