Exhibit
10.1


 


CONFIDENTIAL RELEASE AND WAIVER
OF CLAIMS (“Release”)


 


1.               Release of Claims. In exchange for the benefits described in
Paragraph 2 below, I, Dawson Steven Lin, hereby
release and forever discharge Capmark Finance Inc. (“Capmark”), Capmark Financial
Group Inc. (“Parent”) and Parent’s subsidiaries and related entities and
companies, any and all of their respective employee benefit plans, fringe
benefit plans or programs, and any and all of their respective present and past
officers, directors, shareholders, employees, agents and representatives, and
the successors and assigns of each (all of the foregoing, collectively and
together with Capmark and Parent, the “Capmark Group”) from any and all manner
of claims, suits, demands, actions, causes of action, administrative claims,
liability, claims for damages, class action claims or other claims made on my
behalf whatsoever that I, my heirs, representatives, agents, successors,
guardians, trusts, trustees or assigns ever had, have now or may have, whether
known or unknown, that arise on or before the date of my execution of this
Release (collectively, the “Released Claims”). The Released Claims include but
are not limited to any and all claims arising from or relating to my
recruitment or hiring by, or my employment with, Capmark and/or any entity
within the Capmark Group, any contingent or otherwise discretionary
compensation awards or payments of any kind whatsoever, any Parent common stock
(“Common Stock”) or options to purchase Common Stock issued to me, any
provisions of my Amended and Restated Management Stockholder’s Agreement and
Stock Option Agreements with Parent, any pending applications for employment
with Capmark and/or any entity within the Capmark Group, or my separation of
employment from Capmark and/or any entity within the Capmark Group including,
but not limited to: (i) any claim (including any claim with respect to
taxes of any kind) arising under the Employee Retirement Income Security Act of
1974, Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., the
Pennsylvania Human Relations Act, 43 P.S. § 951 et seq., the Americans
with Disabilities Act, 42 U.S.C. § 12101, et seq., the Family and
Medical Leave Act, 29 U.S.C. § 2601 et seq., the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., any other federal,
state or local law, or any law of any jurisdiction outside of the United States
as applicable, (ii) breach of contract claims, (iii) defamation,
wrongful discharge, emotional distress or any other tort claim, (iv) any
common law claim, and (v) any claim for attorneys’ fees and costs, arising
in law or equity. In addition, to the extent applicable, I expressly waive and
release all rights under California Civil Code section 1542 which states
(language in parentheses added):


 


A general release does not extend to claims which
the creditor (e.g., employee) does not know or suspect to exist in his or her
favor at the time of executing the release, which, if known by him or her, must
have materially affected his settlement with the debtor (e.g., the employer).


 


Without limiting or modifying my release and waiver
of the Released Claims as set forth herein, the Released Claims do not include
any right, claim or remedy arising after the date on which I sign this Release
nor does this Release prevent me from participating, cooperating, initiating or
assisting in an investigation or proceeding conducted within the Capmark Group
or by any government agency, oversight board, commission or other 


 


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regulatory or investigative body; provided, however,
with respect to any such investigation or proceeding or related charges, I
hereby waive and release all claims for any recovery of monetary damages and
any other form of personal relief attributable to events or omissions occurring
on or before the date on which I sign this Release.


 


2.               Release Consideration. In consideration for my execution of this
Release, Capmark (or its affiliate) agrees to make a lump sum severance payment
to me in the total gross amount of Six Hundred Thousand U.S. Dollars (U.S.
$600,000.00), less all applicable United States federal, state, local and
international taxes, if applicable, and benefit withholdings. I acknowledge
that in the absence of my execution of this Release, I would not be entitled to
the benefits described in this Paragraph 2. I acknowledge further that such
benefits are adequate and satisfactory consideration for me. Capmark (or its
affiliate) agrees to make the payment referenced in this Paragraph 2 within 30
days after February 26, 2009, provided it has received an executed copy of
this Release.


 


3.               Future Payments and Benefits. I agree and understand that the Capmark
Group 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 above, including but not limited to any bonus, commission,
contingent compensation or equity repurchase payment, except for any (i) vested
options that I may have under my stock option agreements dated March 23,
2006 and June 1, 2007, (ii) benefit to which I may be entitled under
the terms of the Capmark Financial Group Inc. Savings Incentive Plan and the Consolidated Omnibus Budget Reconciliation
Act (COBRA) and (iii) rights
to the payments and benefits described in the Amended and Restated Human
Resources Memorandum to me from Linda Pickles dated September 23, 2008.


 


4.               Non-disparagement. I agree that I will not make any
disparaging comment, orally or in writing (including but not limited to email
messages, blogs, text messages and other electronic transmissions), about any
entity within the Capmark Group, or any shareholder, former or current
employee, consultant, advisor, director, service or product of any entity
within the Capmark Group, except as required by law or in connection with
litigation or other governmental or regulatory proceeding, investigation or
filing. I agree and acknowledge that I will use my best efforts to cooperate in
the future with Capmark regarding questions that may arise from time to time
regarding my duties at Capmark (or any other entity within the Capmark Group)
while I was an employee.


 


5.               End of Employment. I agree that my last day of employment by
Capmark is September 30, 2008 (the “Separation Date”) 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 as of the Separation Date,
from all positions as an, employee, officer, director and any other appointment
or designation (including but not limited to that of authorized signer) of or
by any and all entities within the Capmark Group.


 


7.               Assignment. To the extent, if any, that I have rights in any invention,
improvement, discovery, process, program, product or system developed by me
during my employment 


 


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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, 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 and was privy to
information, documents and other materials relating to the business of and
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 could 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 and specific
written permission from Parent’s Executive Vice President & Chief
Administrative Officer or General Counsel. I further agree that I have returned
to Capmark all company property, including all Confidential Information, in my
possession.


 


9.               Non-solicitation. I acknowledge and agree to remain bound by
all of my covenants and obligations against soliciting or offering employment
to any person employed by Capmark or any entity within the Capmark Group as set
forth in each of my Amended and Restated Management Stockholder’s Agreements
with Parent, respectively dated March 23, 2006 and June 1, 2007. Such
covenants and obligations remain unchanged and survive the effective date of
this Release in accordance with their terms.


 


10.         Successors and Assigns. Capmark’s rights under this Release 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 Release.


 


11.         No Admission. Nothing about the existence of this Release
or any of its provisions shall be considered any type of admission of any
wrongdoing, liability, fault or violation of law attributable to me or any
person or entity within the Capmark Group.


 


12.         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 Release, except to immediate family members, tax advisors, legal counsel
or as required by law, or to enforce the terms of this Release without prior
express written consent of the Executive Vice President & Chief
Administrative Officer of Parent or its General Counsel. I understand that
Capmark will keep this Release confidential; provided, however, that the
Capmark Group may, in its reasonable discretion, disclose the contents, terms
and/or copies of this Release: (a) to those people who have a legitimate business
reason to know, (b) to enforce the terms of this Release, (c) as
required under any contractual obligation of any entity within the Capmark
Group and (d) in accordance with applicable law, rule, regulation or other
legal authority requiring such disclosure including, without limitation, any
required filings with 


 


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the Securities and Exchange Commission. I understand
further that if Capmark receives inquiries from prospective employers or other
third parties regarding my employment with Capmark, it will disclose only the
dates of my employment and final job title. I agree to direct such inquires to
Parent’s Human Resources Department.


 


13.         Governing Law. This Release is made and entered into in
the accordance with the laws of the Commonwealth of Pennsylvania and shall in
all respects be interpreted, enforced and governed under the laws of
Pennsylvania.


 


14.         Entire Agreement. This Release contains the entire agreement
of the parties with respect to the subject matter hereof and merges all prior
negotiations, agreements and understandings, if any. No modification, release,
discharge or waiver of any provision of this Release shall be of any force or
effect unless made in writing and signed by me and Parent’s Executive Vice
President & Chief Administrative Officer or General Counsel and
specifically identified as a modification, release or discharge of this Release.
If any term, clause or provision of this Release shall for any reason be
adjudged invalid, unenforceable or void, the same shall not impair or
invalidate any of the other provisions of this Release, all of which shall be
performed in accordance with their respective terms.


 


12. Acknowledgments. By signing this Release, I acknowledge and
agree that:


 


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


 


b.                                      I have signed this Release knowingly and
voluntarily;


 


c.                                       Capmark advises me to consult with counsel
prior to signing this release;


 


d.                                      Capmark has provided me seven (7) calendar
days from my receipt of this Release, to consider its terms (the “Consideration
Period”), and the parties further agree that changes, if any, whether material
or not, will not restart the Consideration Period;


 


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


 


[Signature Page Follows]


 


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I
HAVE CAREFULLY READ THIS ENTIRE RELEASE. I UNDERSTAND THAT BY SIGNING THIS
RELEASE, I AM WAIVING ALL CLAIMS AGAINST ANY AND ALL ENTITIES WITHIN THE
CAPMARK GROUP RELATING TO MY EMPLOYMENT WITH CAPMARK AND THE SEPARATION OF MY
EMPLOYMENT WITH CAPMARK AND/OR ANY ENTITY WITHIN THE CAPMARK GROUP.


 


IN WITNESS WHEREOF, and intending to be legally
bound hereby, I have executed the foregoing Release as of October 3, 2008.


 


 


	
  /s/ Dawson Steven Lin

  	
   

  
	
  Dawson Steven Lin

  	
   

  
	
   

  	
   

  
	
  /s/ Evelyn G.
  Caigoy

  	
   

  
	
  Witness

  	
  (Signature)

  	
   

  
	
   

  	
   

  
	
  Evelyn G. Caigoy

  	
   

  
	
  Witness Name

  	
   

  
			



 


 


	
  FOR AND ON BEHALF OF

  
	
  CAPMARK FINANCIAL GROUP INC. AND

  
	
  CAPMARK FINANCE INC.:

  
	
   

  
	
  /s/ Linda Pickles

  	
   

  
	
  Linda Pickles

  
	
  Executive Vice President &

  
	
  Chief Administrative Officer

  



 


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