**Exhibit10.27**

 

# **CHANGE INCONTROL AGREEMENT**

 

This CHANGE IN CONTROLAGREEMENT (this “Agreement”) is entered into by and among CRIIMI MAE Inc. (the “Company”),a Maryland corporation, CRIIMI MAE Management, Inc. (“CM Management”), aMaryland corporation, and Stephen M. Abelman (the “Executive”) and shall beeffective as of February 1, 2005 (the “Effective Date”).

 

1.                                       Term.  This Agreement shall be effective for theperiod commencing on the Effective Date and ending on the third anniversary ofthe Effective Date, subject to earlier termination in accordance with the termsof this Agreement (the “Term”).  The Termshall be automatically renewed for a three-year period upon the occurrence of aChange in Control (as defined below).

 

2.                                       Change in Control Benefits.

 

(a)                                  If within two years of a Change inControl the Executive’s employment with either the Company, CM Management orCRIIMI MAE Services Limited Partnership (“CMSLP”) is terminated by the Company,CM Management or CMSLP (as applicable) without Cause (as defined below) or bythe Executive for Good Reason (as defined below), the Company, CM Managementand CMSLP shall be relieved of any further salary or compensation payments tothe Executive other than as expressly provided in this Paragraph 2.  Notwithstanding the preceding sentence, inreturn for the execution and delivery by the Executive of a general release andwaiver of claims in favor of the Company and its affiliates, the Executiveshall promptly receive from the Company and/or CM Management a lump sumseverance payment (subject to appropriate payroll and tax withholding anddeductions) equal in amount to $1,000,000.

 

(b)                                 Notwithstanding the preceding paragraph,immediately upon a Change in Control, any equity awards granted to theExecutive that have not yet become vested, exercisable or unrestricted (asapplicable) as of the date of such Change in Control shall become vested,exercisable or unrestricted (as applicable, and subject to appropriatewithholding and deductions).

 

(c)                                  The foregoing severance payment andbenefits shall be in lieu of any other severance payment or severance benefit(other than the payment of accrued but unpaid salary and vacation benefitsthrough the date of termination and a pro rata portion of any accrued butunpaid minimum annual bonus for the year of such termination) under any plan,policy or practice of the Company or under any employment agreement, employmentletter, severance agreement or other understanding between the Company or CMManagement and the Executive (collectively, any “Other Agreement”).  Notwithstanding the preceding sentence,Executive will continue to be entitled to officer indemnification and shall becovered by both the Company’s directors and officers insurance and theindemnification provisions contained in the Certificate of Incorporation and/orBy-laws of the Company irrespective of whether he is employed by the Company orCM Management at the time of the assertion of any liability against him.  Executive

 

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will also continue to beentitled only to such other benefits as are required by law to survive hisemployment.  If it shall be determinedthat any payment or benefit provided to the Executive would constitute an “excessparachute payment” within the meaning of Section 280G of the InternalRevenue Code of 1986, as amended (the “Code”), and would be subject to theexcise tax imposed by Section 4999 of the Code, then the cash paymentprovided to the Executive hereunder shall be reduced such that, after thededuction of appropriate payroll and tax withholding (including any such excisetax) from all “parachute payments” (as defined in the Code) provided to theExecutive, the Executive shall receive aggregate payments and benefits with thegreatest net present value.

 

(d)                                 The termination of the Executive’semployment with the Company or CM Management shall not affect any of theobligations of the Executive, the Company or CM Management that may arise underParagraph 3 below.

 

3.                                       Nonsolicitation, Developments,Nondisparagement and Confidentiality.  Inconsideration for the benefits provided pursuant to this Agreement, theExecutive agrees:

 

(a)                                  During the Term and for a period of twoyears following the termination of the Executive’s employment with the Companyand CM Management, he will not, directly or indirectly, (i) induce or attemptto induce, any employees or agents of the Company and/or any of its affiliatesto do anything from which the Executive is restricted by reason of thisAgreement, or (ii) offer or aid others to offer employment to any employees oragents of the Company and/or its any of its affiliates.

 

(b)                                 The Executive, the Company and CMManagement agree that, during the Term and following the termination of theTerm, no party will disparage the other, including the Company’s affiliates,products, services, customers, clients, counterparties, officers, directors,employees, former employees, representatives and agents, in any way whatsoever.

 

(c)                                  All data, concepts, ideas, designs,findings, discoveries, inventions, improvements, advances, methods, formulas,plans, programs (computer or otherwise), practices, techniques, developmentsand relationships with customers and prospective customers relating in any wayto the present products, services, or business of the Company, CM Managementand their affiliates (collectively “Developments”) that the Executive firstconceived, made, invented or suggested during or as a result of his employmentby the Company or CM Management, whether acting alone or in conjunction withothers, shall be the sole and absolute property of the Company and/or CMManagement (as applicable) free of any rights of any kind on the part of theExecutive.  The Executive shall promptlymake full disclosure of all Developments to the Company.  The Executive agrees to do all acts andthings (including, among others, the execution and delivery of patent andcopyright applications and instruments of assignment) deemed by the Company tobe necessary or desirable at any time in order to effect the full assignment tothe Company of his rights, if any, to such Developments.

 

(d)                                 The Executive recognizes that, inconnection with his employment by the Company and CM Management, he may learnof, and/or it may be desirable or necessary for the Company and CM Managementto disclose to him oral or written confidential information

 

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(“ConfidentialInformation”).  The Executive understandsthat Confidential Information is valuable and proprietary to the Company and CMManagement (or to third parties that have entrusted the ConfidentialInformation to the Company and CM Management). The Executive agrees that, except as required by his employment with theCompany and CM Management or by order of a court of competent jurisdiction, hewill not at any time, directly or indirectly, use, publish, communicate,describe, disseminate, or otherwise disclose Confidential Information to anyperson or entity without the express prior written consent of the Company.  The term Confidential Information shallinclude, but shall not be limited to: (i) customer and client lists, asset lists, lists of potentialcustomers, clients or properties and details of agreements with customers orregarding assets; (ii) acquisition, expansion, marketing, financial and otherbusiness information and plans of the Company and CM Management; (iii) researchand development; (iv) data compiled by the Company and CM Management; (v)computer programs; (vi) sources of supply; (vii) Confidential Informationdeveloped by specialized consultants or contractors for the Company and CMManagement; (viii) purchasing, operating, servicing and other cost data; (ix)special customer needs, cost and pricing data; and (x) employee information(including, but not limited to, personnel, payroll, compensation and benefitdata and plans), including all such information recorded in manuals, memoranda,projections, minutes, plans, drawings, designs, formula books, specifications,computer programs and records, whether or not legended or otherwise identifiedby the Company or CM Management as Confidential Information, as well as suchinformation that is the subject of meetings and discussions and notrecorded.  Notwithstanding anything inthis subparagraph 3(d), Confidential Information shall not include the contentsof Executive’s rolodex or his Microsoft contacts file.  Confidential Information also shall notinclude such information that is generally available to the public (other thanas a result of a disclosure by the Executive) or that is disclosed to theExecutive by a third party under no obligation to keep such informationconfidential.

 

(e)                                  Upon the termination of the Executive’semployment with the Company and CM Management or upon the Company’s request priorto such termination, whichever is sooner, the Executive shall immediatelydeliver to the Company all plans, designs, listings, manuals, records,notebooks, and similar repositories of or containing Confidential Informationor other documents and data relating to the Company’s and CM Management’sproducts, services, or business then in the Executive’s possession or controlor available from other persons receiving such documents from the Executive,whether prepared by the Executive or others. The Executive shall not retain any copies or abstracts of any suchdocuments.  Upon the termination of theExecutive’s employment with the Company and CM Management, the Executive shallimmediately deliver to the Company all the property of the Company and CM Managementin his possession or control including, but not limited to, computer(s) andoffice equipment.

 

(f)                                    Any substantial or material breach by theExecutive of any of the obligations set forth in this Paragraph 3 shallterminate any further obligations that the Company or CM Management may haverelative to providing compensation or benefits to the Executive and shallresult in the immediate expiration and voiding of any outstanding options,rights and other awards, vested or unvested.

 

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4.                                       Definitions.

 

(a)                                  “Cause” shall exist only if, afterreasonable investigation, a majority of the Board of Directors of the Company(the “Board”), after providing the Executive (and his counsel, if he sochooses) a reasonable opportunity to be heard, finds that one or more of thefollowing conditions exists:  (i) an actor acts of personal dishonesty or misrepresentation made by the Executive andintended to result in substantial personal enrichment of the Executive at theexpense of the Company or CM Management; (ii) demonstrably willful anddeliberate violations by the Executive of the Executive’s obligations underthis Agreement; (iii) the Executive’s gross neglect (other than any suchfailure resulting from incapacity due to physical or mental illness) or grossmisconduct in carrying out his duties resulting, in either case, in materialeconomic harm to the Company or CM Management; (iv) the final, non-appealableconviction by a court of law of, or plea of nolo contendere by, the Executiveof a felony.

 

(b)                                 A “Change in Control” shall mean theoccurrence during the Term of any one of the following events:

 

(i)                                     An acquisition (other than directly fromthe Company) of any shares of the Common Stock of the Company (“Common Shares”)or other voting securities of the Company by any “Person” (for purposes of thisSection only, as the term “person” is used for purposes of Section 13(d)or 14(d) of the Securities Exchange Act of 1934 (the “Exchange Act”)),immediately after which such Person has “Beneficial Ownership” (within themeaning of Rule 13d-3 promulgated under the Exchange Act) of fifty percent(50%) or more of either (i) the then outstanding Common Shares or (ii) thecombined voting power of the Company’s then outstanding voting securitiesentitled to vote for the election of directors, trustees or their equivalent(the “Voting Securities”); provided, however, that in determining whether aChange in Control has occurred, Common Shares or Voting Securities which areacquired in a “Non-Control Acquisition” (as hereinafter defined) shall notconstitute an acquisition which would cause a Change in Control.  A “Non-Control Acquisition” shall mean anacquisition by (i) an employee benefit plan (or a trust forming a part thereof)maintained by (A) the Company or (B) any corporation or other Person of which amajority of its voting power or its voting equity securities or equity interestis owned, directly or indirectly, by the Company (for purposes of thisdefinition, a “Related Entity”), (ii) the Company or any Related Entity, or(iii) any Person in connection with a “Non-Control Transaction” (as hereinafterdefined); or

 

(ii)                                  The individuals who, on the EffectiveDate, are members of the Board (the “Incumbent Board”), (i) cease for anyreason (including, without limitation, any increase or decrease in the size ofthe Board) to constitute at least a majority of the members of the Board, or(ii) following a Merger (as hereinafter defined), do not constitute at least amajority of the Board of Directors or its equivalent of (x) the SurvivingCorporation (as hereinafter defined), if fifty percent (50%) or more of thecombined voting power of the then outstanding voting securities of theSurviving Corporation is not Beneficially Owned, directly or indirectly by aParent Corporation, or (y) if there is one or more Parent Corporations, theultimate Parent Corporation (as hereinafter defined); provided, however, thatif the election, or nomination for election by the Company’s common shareholders,of any new director was approved by a vote of at least a majority of theIncumbent Board, such new director shall, for purposes of this Plan, beconsidered as a member of the Incumbent Board; provided, further, however, thatno individual shall be considered a member of the Incumbent Board if suchindividual initially assumed office

 

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as a result of an actualor threatened solicitation of proxies or consents by or on behalf of a Personother than the Board of Directors of the Company (a “Proxy Contest”), includingby reason of any agreement intended to avoid or settle any Proxy Contest; or

 

(iii)                               The consummation of:

 

(A)                              A merger, consolidation, reorganizationor joint venture with or into the Company or a direct or indirect subsidiary ofthe Company or in which securities of the Company are issued (a “Merger”),unless the Merger is a “Non-Control Transaction.”  A “Non-Control Transaction” shall mean:

 

(I)                                    the shareholders of the Companyimmediately before such Merger own directly or indirectly immediately followingthe Merger, in substantially similar proportion as among such shareholdersimmediately before the Merger, at least fifty percent (50%) of the outstandingcommon shares and the combined voting power of the outstanding votingsecurities of (x) the corporation or entity resulting from such Merger(the “Surviving Corporation”), if fifty percent (50%) or more of the combinedvoting power of the then outstanding voting securities of the Surviving Corporationis not Beneficially Owned, directly or indirectly, by another corporation orentity (such other corporation or entity, or group of corporations or entities,being hereinafter called a “Parent Corporation”), or (y) if there is one ormore Parent Corporations, the Parent Corporation;

 

(II)                                the individuals who were members of theIncumbent Board immediately prior to the execution of the agreement providingfor the Merger constitute at least a majority of the members of the Board of(x) the Surviving Corporation, if fifty percent (50%) or more of thecombined voting power of the then outstanding voting securities of theSurviving Corporation is not Beneficially Owned, directly or indirectly, by aParent Corporation, or (y) if there is one or more Parent Corporations, theParent Corporation; and

 

(III)                            no Person other than (1) the Company oranother corporation that is a party to the agreement of Merger, (2) any RelatedEntity, or (3) any employee benefit plan (or any trust forming a partthereof) that, immediately prior to the Merger, was maintained by the Companyor any Related Entity, or (4) any Person who, immediately prior to the Mergerhad Beneficial Ownership of fifty percent (50%) or more of the then outstandingCommon Shares or Voting Securities, has Beneficial Ownership, directly orindirectly, of fifty percent (50%) or more of the combined voting power of theoutstanding voting securities or common shares of (x) the SurvivingCorporation, if fifty percent (50%) or more of the combined voting power of thethen outstanding voting securities of the Surviving Corporation is notBeneficially Owned, directly or indirectly by a Parent Corporation, or (y) ifthere is one or more Parent Corporations, the Parent Corporation.

 

(B)                                A complete liquidation or dissolution ofthe Company; or

 

(C)                                The sale or other disposition of all orsubstantially all the assets of the Company and its subsidiaries taken as awhole to any Person or group of Persons in a single transaction or series oftransactions (other than a transfer to a Related Entity or under

 

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conditions that wouldconstitute a Non-Control Transaction with the disposition of assets beingregarded as a Merger for this purpose or the distribution to the Company’sshareholders of the stock of a Related Entity or any other assets); or

 

(iv)                              Any change in the constitution,capitalization, terms or conditions of the Preferred Stock of the Company thatresults in a Change on Control as described in subparagraphs 4(b)(i), (ii) and(iii) above; or

 

(v)                                 Any transaction or event that causes orresults in the Company becoming an externally managed real estate investmenttrust.

 

Notwithstanding theforegoing, a Change in Control shall not be deemed to occur solely because anyPerson (the “Subject Person”) acquired Beneficial Ownership of more than thepermitted amount of the then outstanding Common Shares or Voting Securities asa result of the acquisition of Common Shares or Voting Securities by theCompany which, by reducing the number of Common Shares or Voting Securitiesthen outstanding, increases the proportional number of shares BeneficiallyOwned by the Subject Persons; provided, that if a Change in Control would occur(but for the operation of this sentence) as a result of the acquisition ofCommon Shares or Voting Securities by the Company, and after such shareacquisition by the Company, the Subject Person becomes the Beneficial Owner ofany additional Common Shares or Voting Securities which increases the percentageof the then outstanding Common Shares or Voting Securities Beneficially Ownedby the Subject Person, then a Change in Control shall occur.

 

(c)                                  “Good Reason” will exist only upon (i)any material adverse change in the Executive’s titles, powers, responsibilities,authorities or reporting relationships, (ii) any material breach by the Companyof any provision of this Agreement or any Other Agreement, (iii) any reductionin the Executive’s base compensation (including, without limitation, anyguaranteed minimum cash or equity bonuses or awards), or (iv) the relocation ofthe Executive’s principal place of performance more than 20 miles from itslocation on the date hereof in Rockville, Maryland, in each case which occurswithout the Executive’s prior written consent and which is not fully correctedby the Company within 30 days of written notice to the Board.

 

5.                                       Full Settlement. The obligation of the Company and/or CM Management to make the paymentsor grant the benefits provided for in this Agreement and otherwise to performits or their obligations hereunder shall not be affected by any set-off,counterclaim, recoupment, defense or other claim, right or action which theCompany or CM Management may have against the Executive or others, except asotherwise provided in this Agreement.  Inno event shall the Executive be obligated to seek other employment or take anyother action by way of mitigation of the amounts payable or benefits granted tothe Executive under any of the provisions of this Agreement and such amounts orbenefits shall not be reduced because the Executive obtains other employment,except as otherwise provided in this Agreement.

 

6.                                       Applicable Law. Any question as to the scope, interpretation and effect of thisAgreement will be resolved under the substantive and procedural laws of theState of Maryland and the United States.

 

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7.                                       Enforceability. All provisions and portions of this Agreement are severable.  If any provision or portion of this Agreementor the application of any provision or portion of the Agreement shall bedetermined to be invalid or unenforceable to any extent or for any reason, allother provisions and portions of this Agreement shall remain in full force andeffect and shall continue to be enforceable to the fullest and greatest extentpermitted by law.

 

8.                                       No Representations. The Executive agrees that no promises, other than the promises in thisAgreement, have been made to him by or on behalf of the Company or CM Management.  He agrees that in executing this Agreement heis not relying upon any statement or representation, other than those set forthherein, made by or on behalf of the Company or CM Management concerning hisemployment by the Company or CM Management.

 

9.                                       Successors.

 

(a)                                  This Agreement is personal to theExecutive and without the prior written consent of the Company shall not beassignable by the Executive.  ThisAgreement shall inure to the benefit of and be enforceable by the Executive’slegal representatives.

 

(b)                                 This Agreement shall inure to the benefitof and be binding upon the Company, CM Management and their successors andassigns.

 

(c)                                  The Company shall require any successor(whether direct or indirect, by purchase, merger, consolidation or otherwise)to all or substantially all the business and/or assets of the Company to assumeexpressly and agree to perform this Agreement in the same manner and to thesame extent that the Company would be required to perform it if no suchsuccession had taken place.

 

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IN WITNESS WHEREOF, theparties have executed this Agreement effective as of the Effective Date.

 

 
|   | CRIIMI MAE INC.                     |
|--------|-------------------------------------|
|   |                                |
|   |                                |
|   | By:                                 | /s/ Mark Libera |   |
|   | Vice President and  General Counsel |
|   |                                |
|   |                                |
|   | CRIIMI MAE MANAGEMENT,  INC.        |
|   |                                |
|   | By:                                 | /s/ Mark Libera |   |
|   | Vice President and  General Counsel |
|   | EXECUTIVE                           |
|   |                                |
|   | /s/ Stephen M. Abelman              |   |
|   | Stephen M. Abelman                  |
|        |                                     |  |  |  |  |

 

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