exv10w36



 







****Certain information in this agreement has been omitted and submitted separately to

the Securities and Exchange Commission. Confidential treatment has been requested with

respect to the omitted portions.****




     Exhibit 10.36



EMPLOYMENT AGREEMENT




     This EMPLOYMENT AGREEMENT (“Agreement”) is entered into as of this 4th day of
April, 2005 (the “Effective Date”), by and between CapitalSource Inc., a Delaware corporation (the
“Employer” or the “Company”), and Dean C. Graham, an individual (the “Executive”).



     WHEREAS, the Executive is currently employed as the President – Healthcare and Specialty
Finance Business; and



     WHEREAS, the Employer and the Executive desire to enter into this Agreement to set out the
terms and conditions for the continued employment relationship of the Executive with the Employer.



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



     1. Employment Agreement. On the terms and conditions set forth in this Agreement, the
Employer agrees to continue to employ the Executive and the Executive agrees to continue to be
employed by the Employer for the Employment Period set forth in Section 2 and in the positions and
with the duties set forth in Section 3. Terms used herein with initial capitalization not
otherwise defined are defined in Section 25.



     2. Term. The initial term of employment under this Agreement shall be for a five-year
period commencing on the Effective Date (the “Initial Term”). The term of employment shall be
automatically extended for an additional consecutive 12-month period (the “Extended Term”) on April
4, 2009 and each subsequent April 4, unless and until the Employer or Executive provides written
notice to the other party in accordance with Section 13 hereof not less than 60 days before such
anniversary date that such party is electing not to extend the term of employment under this
Agreement (“Non-Renewal”), in which case the term of employment hereunder shall end as of the end
of such Initial Term or Extended Term, as the case may be, unless sooner terminated as hereinafter
set forth. Such Initial Term and all such Extended Terms are collectively referred to herein as
the “Employment Period.” Anything herein to the contrary notwithstanding, if on the date of a
Change in Control the remaining term of the Employment Period is less than 24 months, the
Employment Period shall be automatically extended to the end of the 24-month period following such
Change in Control.



     3. Position and Duties. During the Employment Period, the Executive shall serve as
the President – Healthcare and Specialty Finance Business, as a member of the Credit Committee with
respect to the Healthcare and Specialty Finance Business, and as a member of the



 









 




Employer’s
Executive and Disclosure Committees (to the extent the Employer maintains such committees). In
such capacities, prior to any Change in Control the Executive shall report exclusively to the Chief
Executive Officer and, in a dual reporting role, the President of the Employer and shall be
responsible for all of the operations of the Healthcare and Specialty Finance Business. In any
publications, news releases, and public filings of the Employer in which the position of the
Executive is described, the Executive shall be referred to as a senior executive, a member of
senior management, or other comparable language. The Executive shall devote the Executive’s
reasonable best efforts and full business time to the performance of the Executive’s duties
hereunder and the advancement of the business and affairs of the Employer; provided that the
Executive shall be entitled to serve as a member of the board of directors of a reasonable number
of other companies, to serve on civic, charitable, educational, religious, public interest or
public service boards (including, without limitation, Avon Old Farms School), and to manage the
Executive’s personal and family investments, in each case, to the extent such activities do not
materially interfere with the performance of the Executive’s duties and responsibilities hereunder.




     4. Place of Performance. During the Employment Period, the Executive shall be based
primarily at a principal office of the Employer designated by the Employer in Chevy Chase,
Maryland, except for reasonable travel on the Employer’s business consistent with the Executive’s
position.



     5. Compensation and Benefits; Options; Change in Control.



          (a) Base Salary. During the Employment Period, the Employer shall pay to the
Executive a base salary (the “Base Salary”) at the rate of no less than $350,000 per calendar year,
less applicable deductions, and prorated for any partial year. The Base Salary shall be reviewed
for increase by the Employer no less frequently than annually and shall be increased in the
discretion of the Employer and any such adjusted Base Salary shall constitute the “Base Salary” for
purposes of this Agreement. The Base Salary shall be paid in substantially equal installments in
accordance with the Employer’s regular payroll procedures. The Executive’s Base Salary may not be
decreased during the Employment Period.




          (b) Annual Bonus. For each calendar year that ends prior to a Change in Control, the
Executive shall receive an annual cash bonus in an amount determined reasonably and in good faith
by the Employer based upon the Employer’s overall performance and the performance of the Executive
and the Healthcare and Specialty Finance Business. For each calendar year that ends after a Change
in Control, the Executive shall be paid in cash an annual bonus in an amount not less than two
times the Executive’s Base Salary as in effect on the last day of such calendar year. Any annual
bonus payable to the Executive hereunder shall be paid at the time bonuses are otherwise paid to
other executive officers of the Employer, but in any event,
by March 15 of the calendar year following the year with respect to which such annual bonus is
earned.




          (c) Reserved.





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          (d) Vacation; Benefits. During the Employment Period, the Executive shall be entitled
to four weeks vacation annually. In addition, the Employer shall provide to the Executive employee
benefits and perquisites on a basis that (i) prior to a Change in Control is comparable in all
material respects to that provided to any other member of the Employer’s Executive Committee (or
successor committee performing substantially similar functions), excluding the Chief Executive
Officer and President of the Employer and (ii) following a Change in Control is comparable in all
material respects to that provided to other executives of the Employer. Subject to the terms of
this Agreement, all benefits are provided at the Employer’s sole discretion. Subject to the terms
of this Agreement, the Employer shall have the right to change insurance carriers and to adopt,
amend, terminate or modify employee benefit plans and arrangements at any time and without the
consent of the Executive.




          (e) Additional Consideration. In consideration of entering into this Agreement, on
April 4, 2005, the Employer shall grant to the Executive 40,000 shares of the Employer’s common
stock, par value $0.01 (“Stock”), 20% of which shall vest and become freely transferable on the
date of the grant and on each of the first, second, third and fourth anniversaries of the date of
the grant. In addition, the Employer shall make the following additional grants of Stock: (i) on
April 4, 2006, the Employer shall grant the Executive 40,000 shares of Stock, 20% of which shall
vest and become freely transferable on each of the date of grant and the first, second, third and
fourth anniversaries of the date of grant; (ii) on April 4, 2007, the Employer shall grant the
Executive 40,000 shares of Stock that shall vest and become freely transferable as follows: (A) 20%
on each of the date of grant and the first and second anniversaries of the date of grant and (B)
40% on the third anniversary of the date of grant; (iii) on April 4, 2008, the Employer shall grant
the Executive 40,000 shares of Stock that shall vest and become freely transferable as follows:
(A) 20% on the date of grant, (B) 40% on the first anniversary of the date of grant and (C) 40% on
the second anniversary of the date of grant; and (iv) on April 4, 2010, the Employer shall grant
the Executive 40,000 shares of Stock, which shall be fully vested and freely transferable on the
date of grant. In addition to the foregoing grants of Stock, on April 4, 2005, the Employer shall
grant to the Executive 25,000 shares of the Employer’s Stock, and shall grant 25,000 shares of
Stock on each of the first, second, and third anniversaries of the date of this grant, all of which
Stock shall vest and become freely transferable on the date of each such grant. Schedule I, which
is attached as part of Exhibit A and is hereby incorporated in and made a part of this Agreement,
demonstrates the manner in which the foregoing provisions of this Section 5(e) are intended to be
applied. The terms and conditions of Schedule II, which is attached as part of Exhibit A and is
hereby incorporated in and made a part of this Agreement, shall apply to the grants of Stock made
pursuant to this Section 5(e). Unvested shares of Stock granted and any shares of Stock scheduled
to be granted in the future under this Section 5(e) shall be forfeited by the Executive if and only
if the Executive’s employment with the Employer and all the Company Affiliates is voluntarily
terminated by the Executive without Good Reason or is terminated by the Employer for Cause, in each
case, before the date on which such shares of Stock would otherwise vest hereunder.




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          (f) Change in Control.




          (1)(a) Immediately prior to the occurrence of a Change in Control and contingent upon the
occurrence of a Change in Control, (i) all deferred compensation credited on the Executive’s behalf
shall immediately vest; (ii) all vested stock options, stock appreciation rights or other similar
rights held by the Executive that are outstanding after such Change in Control shall remain
exercisable for the remainder of their originally scheduled terms (but only if such awards are
assumed by the acquirer); and (iii) all deferred compensation credited on the Executive’s behalf
will, to the extent applicable, be transferred or distributed to the Executive on the first date
such amounts may be distributed without incurring the 20% penalty tax imposed under Section 409A of
the Code (other than such amounts required to be credited pursuant to this Section 5(f)(1)(b) in
cancellation of the Applicable Awards). In the event of a Change of Control covered by Schedule
III, which is attached as part of Exhibit A and is hereby incorporated in and made a part of this
Agreement, Sections 5(f)(1)(b) and 5(f)(2) shall not apply to the Executive.




          (b) Prior to the occurrence of a Change in Control, the Employer shall establish a trust with
an independent institutional third party trustee selected by the Executive (the “Trust”). The
agreement governing the Trust shall be in a form mutually agreed upon by the parties and in any
event shall be consistent with the intent of this Section 5(f). The assets of the Trust shall not
be used for any purpose other than to satisfy certain liabilities to the Executive described
herein, except that if the Trust is dissolved in accordance with this Section 5(f)(1)(b) the
Employer shall retain the Trust assets. For the avoidance of doubt, the Trust shall be a “secular”
trust, the assets of which shall not be subject to the claims of the Employer’s creditors. Trust
assets shall be invested in short-term money market securities until distribution hereunder.
Immediately prior to the occurrence of a Change in Control and contingent upon a Change in Control,
the Employer shall deposit into the Trust cash in an amount equal to the sum of (i) the Value (as
defined below) of restricted shares of Stock previously granted to the Executive that are not
vested on the date of the Change in Control, (ii) the Value of any shares of Stock described in
Section 5(e) that have not been granted to the Executive as of the occurrence of the Change in
Control, (iii) the value of the spread with respect to any options to acquire Stock held by the
Executive as of the Change in Control (based on the difference between the Value of a share of
Stock and the applicable option exercise price) that are not vested and exercisable on the date of
the Change in Control and (iv) the value of any other equity-related award (based on the Value of a
share of Stock) held by the Executive that are not vested as of the Change in Control (such awards
collectively being referred to herein as the “Applicable Awards”). Upon contribution of the cash
to the Trust, (A) the related Applicable Awards described in clauses (i), (iii) and (iv), above,
shall be canceled and no longer outstanding and (B) the Applicable Awards described in clause (ii),
above, shall be considered granted for all purposes of this Agreement and then canceled and no
longer outstanding. For purposes hereof, the Value of a share of Stock shall be the per share
price of Stock immediately before the Change in Control as listed on the principal exchange on
which such Stock trades. Upon the earlier of the first anniversary of the Change in Control if the
Executive is employed by the Employer or any Company Affiliate on such date and the termination of
the Executive’s employment in a manner that entitles him to benefits under




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Section 9(a), (b), (d) or (e) (as applicable, the “Distribution Date”), the Executive (or his
estate) shall be paid, based on an election made by the Executive or his estate to the Employer at
the time of such payment, (X) the amount required to be held in Trust on his behalf hereunder
(including any earnings on such amount) (the “Cash Based Value”) or (Y) the value the Applicable
Awards would have had on the Distribution Date if such Applicable Awards were outstanding on such
date based on the value of Stock on such date (or the value on such date of the stock of any
publicly traded parent company of the Employer assuming the aggregate cash contributed to the Trust
had been invested in such stock on the date of the Change in Control) (the “Stock Based Value”).
Notwithstanding the foregoing, in any Change in Control transaction pursuant to which 100% of the
Stock holdings of shareholders of the Employer immediately prior to the transaction are exchanged
solely for cash, the Stock Based Value shall be $0. If the Executive fails to make such an
election by the Distribution Date, the Executive shall be paid the greater of the Cash Based Value
or the Stock Based Value. If the Executive is paid the Stock Based Value, the Executive shall be
paid shares of stock of the Employer (or the stock of any publicly-traded parent company of the
Employer) that are freely and immediately transferable by the Executive and the Trust shall be
dissolved and all amounts required to be kept in the Trust shall be returned to the Employer. If
the Executive is paid the Cash Based Value, the Executive shall be paid in cash. Notwithstanding
the foregoing, if any Applicable Award would have vested before the applicable Distribution Date,
the Executive shall be entitled to a payment of the value of such Applicable Award in the form
(cash or stock) and amount as determined in accordance with the principles of the four preceding
sentences (but using the vesting date rather than the Distribution Date for purposes of determining
such value) and such payment shall reduce the amount otherwise payable under this Section 5(f)(1).
The Employer shall be responsible for making any payments required under this Section 5(f). The
Executive shall forfeit his right to any future payment under this Section 5(f) and his interest in
the Trust (the assets of which shall revert to the Employer) only if his employment is terminated
after the occurrence of a Change in Control and before the Distribution Date in a manner described
in Section 9(c); provided that he shall not forfeit his right to any payment due him under this
Section 5(f) with respect to Applicable Awards that would have vested prior to his date of
termination. Payments under this Section 5(f)(1)(b) shall be delayed for six months following the
Executive’s separation from service if so required by Section 409A. To the extent permitted under
Section 409A of the Code, if the Executive shall be entitled to a payment pursuant to this Section
5(f)(1)(b) prior to the date at which a payment can be made to the Executive solely because of the
Code Section 409A six month delay in payment rule for key employees, to the extent permitted by
Section 409A the Executive shall be entitled to payment by the Employer of the applicable employee
portion of the withholding taxes due on such payment. Such a payment by the Employer of
withholding taxes shall reduce the amount otherwise payable to the Executive under this Section
5(f)(1).




          (2) Notwithstanding Section 5(f)(1) above, instead of funding a trust with the cash amounts
required to be deposited under Section 5(f)(1) pursuant to the cancellation of the Applicable
Awards, the Employer, may with the Executive’s consent (which shall not be unreasonably withheld),
obtain an irrevocable letter of credit for, or other irrevocable insurance or a guarantee of, the
amounts required to be so deposited from a insurance company or other




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financial institution with the highest credit rating from a nationally recognized rating agency on
terms that provide the Executive with no less protection or security than that provided under
Section 5(f)(1) above. Even if the Employer elects to not fund the Trust in accordance with this
Section 5(f)(2), the Cash Based Value for purposes of Section 5(f)(1) shall be calculated as if the
Employer had funded the Trust in accordance with Section 5(f)(1).




     6. Expenses. The Executive is expected and is authorized to incur reasonable expenses
in the performance of his duties hereunder. The Employer shall reimburse the Executive for all
such expenses reasonably and actually incurred in accordance with policies which may be adopted
from time to time by the Employer promptly upon periodic presentation by the Executive of an
itemized account, including reasonable substantiation, of such expenses.



     7. Confidentiality, Non-Disclosure and Non-Competition Agreement. The Employer and
the Executive acknowledge and agree that during the Executive’s employment with the Employer, the
Executive will have access to and may assist in developing Company Confidential Information and
will occupy a position of trust and confidence with respect to the Employer’s affairs and business
and the affairs and business of the Company Affiliates. The Executive agrees that the following
obligations are necessary to preserve the confidential and proprietary nature of Company
Confidential Information and to protect the Employer and the Company Affiliates against harmful
solicitation of employees and customers, harmful competition and other actions by the Executive
that would result in serious adverse consequences for the Employer and the Company Affiliates:



          (a) Non-Disclosure. During and after the Executive’s employment with the Employer,
the Executive will not knowingly use, disclose or transfer any Company Confidential Information
other than as authorized in writing by the Employer or within the scope of the Executive’s duties
with the Employer as determined reasonably and in good faith by the Executive. Anything herein to
the contrary notwithstanding, the provisions of this Section 7(a) shall not apply (i) when
disclosure is required by law or by any court, arbitrator, mediator or administrative or
legislative body (including any committee thereof) with actual or apparent jurisdiction to order
the Executive to disclose or make accessible any information; (ii) with respect to any other
litigation, arbitration or mediation involving this Agreement, including, but not limited to, the
enforcement of this Agreement; (iii) as to information that becomes generally known to the public
or within the relevant trade or industry other than due to the Executive’s violation of this
Section 7(a); (iv) as to information that is or becomes available to the Executive on a
non-confidential basis from a source which is entitled to disclose it to the Executive; or (v) as
to information that the Executive possessed prior to the commencement of employment with the
Employer.




          (b) Materials. The Executive will not remove any Company Confidential Information or
any other property of the Employer or any Company Affiliate from the Employer’s premises or make
copies of such materials except for normal and customary use in the Employer’s business as
determined reasonably and in good faith by the Executive. The Employer acknowledges that the
Executive, in the ordinary course of his duties, routinely uses




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and stores Company Confidential Information at home and other locations. The Executive will return
to the Employer all Company Confidential Information and copies thereof and all other property of
the Employer or any Company Affiliate at any time upon the request of the Employer and in any event
promptly after termination of Executive’s employment. The Executive agrees to attempt in good
faith to identify and return to the Employer any copies of any Company Confidential Information
after the Executive ceases to be employed by the Employer. Anything to the contrary
notwithstanding, nothing in this Section 7 shall prevent the Executive from retaining a home
computer, papers and other materials of a personal nature, including diaries, calendars and
Rolodexes, information relating to his compensation or relating to reimbursement of expenses,
information that he reasonably believes may be needed for tax purposes, and copies of plans,
programs and agreements relating to his employment.




          (c) No Solicitation or Hiring of Employees. During the Non-Compete Period, the
Executive shall not solicit, entice, persuade or induce any individual who is employed by the
Employer or the Company Affiliates (or who was so employed within 180 days prior to the Executive’s
action) to terminate or refrain from continuing such employment or to become employed by or enter
into contractual relations with any other individual or entity other than the Employer or the
Company Affiliates, and the Executive shall not hire, directly or indirectly, as an employee,
consultant or otherwise, any such person. Anything to the contrary notwithstanding, the Employer
agrees that (i) the Executive’s responding to an unsolicited request from any former employee of
the Employer for advice on employment matters; and (ii) the Executive’s responding to an
unsolicited request for an employment reference regarding any former employee of the Employer from
such former employee, or from a third party, by providing a reference setting forth his personal
views about such former employee, shall not be deemed a violation of this Section 7(c).
Notwithstanding the foregoing, this Section 7(c) shall not preclude the Executive from soliciting
for employment or hiring any person who has been discharged by the Employer or any Company
Affiliate without cause.




          (d) Non-Competition.




               (i) During the Non-Compete Period, the Executive shall not, directly or indirectly, (A)
solicit or encourage any client or customer of the Employer or a Company Affiliate, or any person
or entity who was a client or customer within 180 days prior to Executive’s action to terminate,
reduce or alter in a manner adverse to the Employer, any existing business arrangements with the
Employer or a Company Affiliate or to transfer existing business from the Employer or a Company
Affiliate to any other person or entity, (B) provide services to any entity if (i) the entity
competes with the Employer by engaging in any business engaged in by the Employer, or (ii) the
services to be provided by the Executive are competitive with the Employer and substantially
similar to those previously provided by the Executive to the Employer; provided, however, that
following a Change in Control this Section 7(d)(i)(B)(i) shall not apply to the Executive, or (C)
own an interest in any entity described in subsection (B)(i) immediately above; provided, however,
that Executive may own, as a passive investor, securities of any such entity that has outstanding
publicly traded securities so long as his direct holdings in any such entity shall not in the
aggregate constitute more than 5% of the voting power of such



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entity. For purposes of this Section 7(d), a “client or customer” shall be limited to any actual
borrower of the Employer (as set forth in the Employer’s CAM or substantially similar successor or
related system) and any other entity in the “term sheet issued,” “term sheet executed” or “credit
committee approved” categories listed in the Employer’s DealTracker or substantially similar
successor or related system. The Executive agrees that, before providing services, whether as an
employee or consultant, to any entity during the Non-Compete Period, he will provide a copy of this
Agreement to such entity, and such entity shall acknowledge to the Employer in writing that it has
read this Agreement. The Executive acknowledges that this covenant has a unique, very substantial
and immeasurable value to the Employer, that the Executive has sufficient assets and skills to
provide a livelihood for the Executive while such covenant remains in force and that, as a result
of the foregoing, in the event that the Executive breaches such covenant, monetary damages would be
an insufficient remedy for the Employer and equitable enforcement of the covenant would be proper.




               (ii) If the restrictions contained in Section 7(d)(i) shall be determined by any court of
competent jurisdiction to be unenforceable by reason of their extending for too great a period of
time or over too great a geographical area or by reason of their being too extensive in any other
respect, Section 7(d)(i) shall be modified to be effective for the maximum period of time for which
it may be enforceable and over the maximum geographical area as to which it may be enforceable and
to the maximum extent in all other respects as to which it may be enforceable.



          (e) Publicity. During the Employment Period, the Executive hereby grants to the
Employer the right to use, in a reasonable and appropriate manner, the Executive’s name and
likeness, without additional consideration, on, in and in connection with technical, marketing or
disclosure materials, or any combination thereof, published by or for the Employer or any Company
Affiliate.




          (f) Conflicting Obligations and Rights. The Executive agrees to inform the Employer
of any apparent conflicts between the Executive’s work for the Employer and any obligations the
Executive may have to preserve the confidentiality of another’s proprietary information or related
materials before using the same on the Employer’s behalf. The Employer shall receive such
disclosures in confidence and consistent with the objectives of avoiding any conflict of
obligations and rights or the appearance of any conflict of interest.




          (g) Enforcement. The Executive acknowledges that in the event of any breach of this
Section 7, the business interests of the Employer and the Company Affiliates will be irreparably
injured, the full extent of the damages to the Employer and the Company Affiliates will be
impossible to ascertain, monetary damages will not be an adequate remedy for the Employer and the
Company Affiliates, and the Employer will be entitled to enforce this Agreement by a temporary,
preliminary and/or permanent injunction or other equitable relief, without the necessity of posting
bond or security, which the Executive expressly waives. The Executive understands that the
Employer may waive some of the requirements expressed in this Agreement, but that such a waiver to
be effective must be made in writing and should not in any




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way be deemed a waiver of the Employer’s right to enforce any other requirements or provisions of
this Agreement. The Executive agrees that each of the Executive’s obligations specified in this
Agreement is a separate and independent covenant and that the unenforceability of any of them shall
not preclude the enforcement of any other covenants in this Agreement. The Executive further
agrees that any breach of this Agreement by the Employer prior to the Date of Termination shall not
release the Executive from compliance with his obligations under this Section 7, so along as the
Employer fully complies with Sections 9, 10, 11, and 12. The Employer further agrees that any
breach of this Agreement by the Executive that does not result in the Executive’s being terminated
for Cause, other than a willful (as defined in the definition of “Cause”) and material breach of
Sections 7(d)(i)(B) or 7(d)(i)(C) after his employment has terminated, shall not release the
Employer from compliance with its obligations under this Agreement. Notwithstanding the foregoing
two sentences, neither party shall be precluded from pursuing judicial remedies as a result of any
such breaches.




     8. Termination of Employment.



          (a) Permitted Terminations. The Executive’s employment hereunder may be terminated
during the Employment Period under the following circumstances:




               (i) Death. The Executive’s employment hereunder shall terminate upon the Executive’s
death;



               (ii) By the Employer. The Employer may terminate the Executive’s employment:



                    (A) Disability. If the Executive shall have been substantially unable to perform the
Executive’s material duties hereunder by reason of illness, physical or mental disability or other
similar incapacity, which inability shall continue for 180 consecutive days or 270 days in any
24-month period (a “Disability”) (provided, that until such termination, the Executive shall
continue to receive his compensation and benefits hereunder, reduced by any benefits payable to him
under any disability insurance policy or plan applicable to him or her); or



                    (B) Cause. For Cause or without Cause;



               (iii) By the Executive. The Executive may terminate his employment for any reason
(including Good Reason) or for no reason.



          (b) Termination. Any termination of the Executive’s employment by the Employer or the
Executive (other than because of the Executive’s death) shall be communicated by written Notice of
Termination to the other party hereto in accordance with Section 13 hereof. For purposes of this
Agreement, a “Notice of Termination” shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon, if any, and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of the Executive’s
employment under the provision so indicated. Termination of the Executive’s




9









 







employment shall take effect on the Date of Termination. The Executive agrees, in the event of any
dispute under Section 8(a)(ii)(A) as to whether a Disability exists, and if requested by the
Employer, to submit to a physical examination by a licensed physician selected by mutual consent of
the Employer and the Executive, the cost of such examination to be paid by the Employer. The
written medical opinion of such physician shall be conclusive and binding upon each of the parties
hereto as to whether a Disability exists and the date when such Disability arose. This Section
shall be interpreted and applied so as to comply with the provisions of the Americans with
Disabilities Act and any applicable state or local laws.




     9. Compensation Upon Termination.



          (a) Death. If the Executive’s employment is terminated during the Employment Period
as a result of the Executive’s death, this Agreement and the Employment Period shall terminate
without further notice or any action required by the Employer or the Executive’s legal
representatives. Upon the Executive’s death, the Employer shall pay or provide the following:




               (i) Base Salary. The Employer shall pay to the Executive’s legal representative or
estate, as applicable, a cash lump sum amount equal to one year’s Base Salary within thirty days
following the Executive’s death;



               (ii) Accrued Benefits. The Employer shall pay to the Executive’s legal representative
or estate, as applicable, the Accrued Benefits and the rights of the Executive’s legal
representative or estate with respect to equity or equity-related awards shall be governed by the
applicable terms of the related plan or award agreement; and



               (iii) Equity Awards. All outstanding equity awards held by the Executive immediately
prior to his death shall immediately vest (with outstanding options remaining exercisable for the
length of their remaining term) and all equity awards described in Section 5(e) that have not been
granted as of the Executive’s death shall be immediately granted to the Executive’s estate or
beneficiary, which such awards shall be fully vested.



     The Employer shall pay to the Executive’s estate, or as may be directed by the legal
representatives of such estate, the Executive’s Accrued Benefits due pursuant to Section 9(a)(ii),
at the time such payments are due. Any payments by the Employer pursuant to this Section 9(a)
shall be reduced by the amount of any payments to the Executive’s beneficiaries or estate paid on
account of any life insurance plan or policy provided by the Employer for the benefit of the
Executive. Except as set forth herein, the Employer shall have no further obligation to the
Executive under this Agreement.



          (b) Disability. If the Employer terminates the Executive’s employment during the
Employment Period because of the Executive’s Disability pursuant to Section 8(a)(ii)(A), (i) the
Employer shall pay to the Executive the Executive’s Base Salary due through the Date of
Termination, (ii) all Accrued Benefits, if any, to which the Executive is entitled as of the Date
of




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Termination at the time such payments are due, and (iii) all outstanding equity awards held by the
Executive immediately prior to his termination shall immediately vest (with outstanding options
remaining exercisable for the length of their remaining term) and all equity awards described in
Section 5(e) that have not been granted as of the Executive’s termination shall be immediately
granted to the Executive, which such awards shall be fully vested. Except as set forth herein, the
Employer shall have no further obligations to the Executive under this Agreement.




          (c) Termination by the Employer for Cause or by the Executive without Good Reason.
If, during the Employment Period, the Employer terminates the Executive’s employment for Cause
pursuant to Section 8(a)(ii)(B) or the Executive terminates his employment without Good Reason, the
Employer shall pay to the Executive the Executive’s Base Salary due through the Date of Termination
and all Accrued Benefits, if any, to which the Executive is entitled as of the Date of Termination,
at the time such payments are due, and the Executive’s rights with respect to equity or
equity-related awards shall be governed by the applicable terms of the related plan or award
agreement. Unvested shares of Stock previously granted and any shares of Stock scheduled to be
granted under Section 5(e) on or after the Date of Termination shall be forfeited by the Executive.
In addition, if the Executive voluntarily terminates his employment without Good Reason after a
Change in Control, the Employer shall: (i) continue to pay the Executive his Base Salary in effect
on his Date of Termination (without giving any effect to reductions thereto after a Change in
Control) during the Non-Compete Period; and (ii) immediately pay the Executive in a cash lump sum
an amount equal to a pro rata portion (based upon the number of days that the Executive was
employed during the calendar year in which the Date of Termination occurs) of the minimum cash
bonus required to be paid by the Employer under Section 5(b) for the year of his termination.
Except as set forth herein, the Employer shall have no further obligations to the Executive under
this Agreement.




          (d) Termination by the Employer without Cause or by the Executive with Good Reason.
Subject to Section 9(e), if the Employer terminates the Executive’s employment during the
Employment Period other than for Cause or Disability pursuant to Section 8(a) or if the Executive
terminates his employment hereunder with Good Reason, (i) the Employer shall immediately grant (to
the extent not already granted) all equity awards described in Section 5(e); (ii) the Employer
shall pay the Executive (A) the Executive’s Base Salary due through the Date of Termination, (B) a
cash lump sum in an amount equal to a pro rata portion (based upon the number of days the Executive
was employed during the calendar year in which the Date of Termination occurs) of the average
amount of the annual bonuses, if any, that were earned by the Executive for the two calendar years
immediately preceding the year of the Date of Termination, (C) all Accrued Benefits, if any, to
which the Executive is entitled as of the Date of Termination, in each case at the time such
payments are due and (D) a cash lump sum in an amount equal to the greater of (x) two times the sum
of the Executive’s Base Salary and the average of the annual bonuses earned by the Executive for
the two calendar years immediately preceding the year of the Date of Termination, if any, and (y)
$1.8 million; (iii) (A) all deferred compensation credited on the Executive’s behalf and all equity
or equity-related awards held by, or credited to, the Executive (including, without limitation, the
equity awards required to be granted pursuant to




11









 







clause (i) of this Section 9(d), stock options, stock appreciation rights, restricted stock awards,
dividend equivalent rights, restricted stock units or deferred stock awards) shall immediately vest
and, if applicable, become exercisable, (B) all stock options, stock appreciation rights or other
similar rights held by the Executive shall remain exercisable for the remainder of their originally
scheduled terms, and (C) all deferred compensation or other equity or equity-related awards will,
to the extent applicable, be transferred or distributed to the Executive within 10 days of the
Executive’s Date of Termination; and (iii) the Executive and his covered dependents shall be
entitled to continued participation on the same terms and conditions as applicable immediately
prior to the Executive’s Date of Termination for the greater of (A) 24 months or (B) the balance of
the Employment Period in such medical, dental, hospitalization and life insurance coverages in
which the Executive and his eligible dependents were participating immediately prior to the Date of
Termination; provided that if such continued coverage is not permitted under the terms of such
benefit plans, the Employer shall pay Executive an additional amount that, on an after-tax basis,
is equal to the cost of comparable coverage obtained by Executive.




          (e) Change in Control. This Section 9(e) shall apply if there is (i) a termination of
the Executive’s employment by the Employer other than for Cause or Disability pursuant to Section
8(a) or by the Executive for Good Reason in the two-year period after a Change in Control; or (ii)
a termination of the Executive’s employment by the Employer prior to a Change in Control, if the
termination was at the request of a third party or otherwise arose in anticipation of a Change in
Control. If any such termination occurs, the Executive shall receive benefits set forth in Section
9(d), except that (A) in lieu of the lump-sum payment under Section 9(d)(i)(D), the Executive shall
receive in a lump sum after the termination of his employment an amount equal to three multiplied
by the sum of (x) the Executive’s Base Salary and (y) the greater of the average of the annual
bonuses earned by the Executive for the two calendar years immediately preceding the year of the
Date of Termination, if any, and the minimum cash bonus required to be paid by the Employer under
Section 5(b) for the year of his termination and (B) the benefits described in Section 9(d)(iii)
shall be continued for the greater of 36 months or the balance of the Employment Period.
Notwithstanding anything to the contrary herein, this Section 9(e) shall not apply upon the
Executive’s death.




          (f) Liquidated Damages. The parties acknowledge and agree that damages which will
result to the Executive for termination by the Employer of the Executive’s employment without Cause
or by the Executive for Good Reason shall be extremely difficult or impossible to establish or
prove, and agree that the amounts payable to the Executive under Section 9(d) or 9(e) (the
“Severance Payments”) shall constitute liquidated damages for any such termination. The Executive
agrees that, except for such other payments and benefits to which the Executive may be entitled as
expressly provided by the terms of this Agreement or any other applicable benefit plan, such
liquidated damages shall be in lieu of all other claims that the Executive may make by reason of
any such termination of his employment and that, as a condition to receiving the Severance
Payments, the Executive will execute a release of claims substantially in the form of one of the
two releases (whichever is appropriate) attached hereto as Exhibit B. Within two business days of
the Date of Termination, the Employer shall deliver to the Executive the appropriate form of
release of claims for the Executive to execute. The




12









 







Severance Payments shall be made within three business days of Employer’s receipt of the release of
claims if the Executive is under 40 years old on the date on which such release is signed, or
within three business days of the expiration of the revocation period without the release being
revoked if the Executive is 40 years old or older on the date on which such release is signed. In
addition, the Employer will execute a release of claims substantially in the form of the release
attached hereto as Exhibit C and will deliver such release to the Executive along with the
Severance Payments.




          (g) No Offset. In the event of termination of his employment, the Executive shall be
under no obligation to seek other employment and there shall be no offset against amounts due to
him on account of any remuneration or benefits provided by any subsequent employment he may obtain.
The Employer’s obligation to make any payment pursuant to, and otherwise to perform its
obligations under, this Agreement shall not be affected by any offset, counterclaim or other right
that the Employer or its affiliates may have against him for any reason.




          (h) Section 409A. To the extent the Executive would be subject to the additional 20%
tax imposed on certain deferred compensation arrangements pursuant to Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”), as a result of any provision of this Agreement, such
provision shall be deemed amended to the minimum extent necessary to avoid application of such tax
and the parties shall promptly execute any amendment reasonably necessary to implement this Section
9(h).




     10. Certain Additional Payments by the Employer.



          (a) If it shall be determined that any benefit provided to the Executive or payment or
distribution by or for the account of the Employer to or for the benefit of the Executive, whether
provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code,
or any interest or penalties are incurred by the Executive with respect to such excise tax
resulting from any action or inaction by the Employer (such excise tax, together with any such
interest and penalties, collectively, the “Excise Tax”), then the Executive shall be entitled to
receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the
Executive of the Excise Tax and all other income, employment, excise and other taxes that are
imposed on the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to
the sum of (A) the Excise Tax imposed upon the Payments and (B) the product of any deductions
disallowed because of the inclusion of the Gross-up Payment in the Executive’s adjusted gross
income and the highest applicable marginal rate of federal income taxation for the calendar year in
which the Gross-Up Payment is to be made.




          (b) Subject to the provisions of Section 10(d), all determinations required to be made under
this Section 10, including whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be
made by the Employer’s independent, certified public accounting firm or




13









 







such other certified public accounting firm as may be designated by the Executive and shall be
reasonably acceptable to the Employer (the “Accounting Firm”) which shall provide detailed
supporting calculations both to the Employer and the Executive within 15 business days of the
receipt of notice from the Executive that there has been a Payment, or such earlier time as is
requested by the Employer. If the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting a change in the ownership or effective control (as defined
for purposes of Section 280G of the Code) of the Employer, the Executive shall appoint another
nationally recognized accounting firm which is reasonably acceptable to the Employer to make the
determinations required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by
the Employer. Any Gross-Up Payment, as determined pursuant to this Section 10, shall be paid by
the Employer to the Executive within five days of the receipt of the Accounting Firm’s
determination. Any determination by the Accounting Firm shall be binding upon the Employer and the
Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder, it is possible that additional
Gross-Up Payments shall be required to be made to compensate the Executive for amounts of Excise
Tax later determined to be due, consistent with the calculations required to be made hereunder (an
“Underpayment”). If the Employer exhausts its remedies pursuant to Section 10(c) and the Executive
is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of
the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Employer
to or for the benefit of the Executive.




          (c) The Executive shall notify the Employer in writing of any claim by the Internal Revenue
Service that, if successful, would require the payment by the Employer of the Gross-Up Payment.
Such notification shall be given as soon as practicable but no later than 10 business days after
the Executive is informed in writing of such claim and shall apprise the Employer of the nature of
such claim and the date on which such claim is requested to be paid. The Executive shall not pay
such claim prior to the expiration of the 30-day period following the date on which it gives such
notice to the Employer (or such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If the Employer notifies the Executive in writing prior to the
expiration of such period that they desire to contest such claim, the Executive shall:




               (i) give the Employer any information reasonably requested by the Employer relating to such
claim;



               (ii) take such action in connection with contesting such claim as the Employer shall
reasonably request in writing from time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney reasonably selected by the Employer;



               (iii) cooperate with the Employer in good faith effectively to contest such claim; and



14









 





               (iv) permit the Employer to participate in any proceedings relating to such claim; provided,
however, that the Employer shall bear and pay directly all costs and expenses (including additional
interest and penalties incurred in connection with such contest) and shall indemnify and hold the
Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and payment of costs and
expenses.



     11. Indemnification. During the Employment Period and thereafter, the Employer agrees
to indemnify and hold the Executive and the Executive’s heirs and representatives harmless, to the
maximum extent permitted by law, against any and all damages, costs, liabilities, losses and
expenses (including reasonable attorneys’ fees) as a result of any claim or proceeding (whether
civil, criminal, administrative or investigative), or any threatened claim or proceeding (whether
civil, criminal, administrative or investigative), against the Executive that arises out of or
relates to the Executive’s service as an officer, director or employee, as the case may be, of the
Employer, or the Executive’s service in any such capacity or similar capacity with an affiliate of
the Employer or other entity at the request of the Employer, both prior to and after the Effective
Date, and to promptly advance to the Executive or the Executive’s heirs or representatives such
expenses upon written request with appropriate documentation of such expense upon receipt of an
undertaking by the Executive or on the Executive’s behalf to repay such amount if it shall
ultimately be determined that the Executive is not entitled to be indemnified by the Employer.
During the Employment Period and thereafter, the Employer also shall provide the Executive with
coverage under its current directors’ and officers’ liability policy to the same extent that it
provides such coverage to its other executive officers. If the Executive has any knowledge of any
actual or threatened action, suit or proceeding, whether civil, criminal, administrative or
investigative, as to which the Executive may request indemnity under this provision, the Executive
will give the Employer prompt written notice thereof; provided that the failure to give such notice
shall not affect the Executive’s right to indemnification. The Employer shall be entitled to
assume the defense of any such proceeding and the Executive will use reasonable efforts to
cooperate with such defense. To the extent that the Executive in good faith determines that there
is an actual or potential conflict of interest between the Employer and the Executive in connection
with the defense of a proceeding, the Executive shall so notify the Employer and shall be entitled
to separate representation at the Employer’s expense by counsel selected by the Executive (provided
that the Employer may reasonably object to the selection of counsel within ten (10) business days
after notification thereof) which counsel shall cooperate, and coordinate the defense, with the
Employer’s counsel and minimize the expense of such separate representation to the extent
consistent with the Executive’s separate defense. This Section 11 shall continue in effect after
the termination of the Executive’s employment or the termination of this Agreement.



     12. Attorney’s Fees. The Employer shall advance the Executive (and his beneficiaries)
any and all costs and expenses (including without limitation attorneys’ fees and other charges of
counsel) incurred by the Executive (or any of his beneficiaries) in resolving any controversy,
dispute or claim arising out of or relating to this Agreement, any other agreement or



15









 




arrangement between the Executive and the Employer, the Executive’s employment with the Employer,
or the termination thereof; provided that the Executive shall reimburse the Employer any advances
on a net after-tax basis to cover expenses incurred by the Executive for claims (a) brought by the
Employer on account of the Executive’s alleged breach of Section 7 of this Agreement, breach of the
Executive’s fiduciary duty of loyalty, or fraud or material misconduct, if it is judicially
determined that the Employer is the prevailing party, or (b) brought by the Executive that are
judicially determined to be frivolous or advanced in bad faith. Pending the resolution of any such
claim, the Executive (and his beneficiaries) shall continue to receive all payments and benefits
described in Section 5 of this Agreement. This Section 12 shall continue in effect after the
termination of the Executive’s employment or the termination of this Agreement.




     13. Notices. All notices, demands, requests, or other communications which may be or
are required to be given or made by any party to any other party pursuant to this Agreement shall
be in writing and shall be hand delivered, mailed by first-class registered or certified mail,
return receipt requested, postage prepaid, delivered by overnight air courier, or transmitted by
facsimile transmission addressed as follows:



          (i) If to the Employer:




	 	 	 
	 

	 	CapitalSource Finance LLC
	 

	 	4445 Willard Avenue
	 

	 	12th Floor
	 

	 	Chevy Chase, Maryland 20815
	 

	 	Attn: Chief Legal Officer
	 

	 	Facsimile Number: 301-841-2380






          (ii) If to the Executive:




	 	 	 
	 

	 	Dean C. Graham
	 

	 	Address last shown on the Employer’s Records






          Each party may designate by notice in writing a new address to which any notice, demand,
request or communication may thereafter be so given, served or sent. Each notice, demand, request,
or communication that shall be given or made in the manner described above shall be deemed
sufficiently given or made for all purposes at such time as it is delivered to the addressee (with
the return receipt, the delivery receipt, confirmation of facsimile transmission or the affidavit
of messenger being deemed conclusive but not exclusive evidence of such delivery) or at such time
as delivery is refused by the addressee upon presentation.




     14. Severability. The invalidity or unenforceability of any one or more provisions of
this Agreement shall not affect the validity or enforceability of the other provisions of this
Agreement, which shall remain in full force and effect.



16









 





     15. Effect on Other Agreements. The provisions of this Agreement shall supersede the
terms of any plan, policy, agreement, award or other arrangement of the Employer (whether entered
into before or after the Effective Date) to the extent application of the terms of this Agreement
is more favorable to the Executive.



     16. Survival. It is the express intention and agreement of the parties hereto that
the provisions of Sections 7, 9, 10, 11, 12, 13, 15, 17, 18, 19, 21, 22 and 24 hereof and this
Section 16 shall survive the termination of employment of the Executive. In addition, all
obligations of the Employer to make payments hereunder shall survive any termination of this
Agreement on the terms and conditions set forth herein.



     17. Assignment. The rights and obligations of the parties to this Agreement shall not
be assignable or delegable, except that (i) in the event of the Executive’s death, the personal
representative or legatees or distributees of the Executive’s estate, as the case may be, shall
have the right to receive any amount owing and unpaid to the Executive hereunder and (ii) the
rights and obligations of the Employer hereunder shall be assignable and delegable in connection
with any subsequent merger, consolidation, sale of all or substantially all of the assets or equity
interests of the Employer or similar transaction involving the Employer or a successor corporation.
The Employer shall require any successor to the Employer to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Employer would be required to
perform it if no such succession had taken place.



     18. Binding Effect. Subject to any provisions hereof restricting assignment, this
Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties
and their respective heirs, devisees, executors, administrators, legal representatives, successors
and assigns.



     19. Amendment; Waiver. This Agreement shall not be amended, altered or modified
except by an instrument in writing duly executed by the party against whom enforcement is sought.
Neither the waiver by either of the parties hereto of a breach of or a default under any of the
provisions of this Agreement, nor the failure of either of the parties, on one or more occasions,
to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder,
shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature,
or as a waiver of any such provisions, rights or privileges hereunder.



     20. Headings. Section and subsection headings contained in this Agreement are
inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for
any purpose, and shall not in any way define or affect the meaning, construction or scope of any of
the provisions hereof.



     21. Governing Law. This Agreement, the rights and obligations of the parties hereto,
and any claims or disputes relating thereto, shall be governed by and construed in accordance with
the laws of the State of Maryland (but not including any choice of law rule thereof that would
cause the laws of another jurisdiction to apply).



17









 





     22. Entire Agreement. This Agreement constitutes the entire agreement between the
parties respecting the employment of the Executive, there being no representations, warranties or
commitments except as set forth herein.



     23. Counterparts. This Agreement may be executed in two counterparts, each of which
shall be an original and all of which shall be deemed to constitute one and the same instrument.



     24. Withholding. The Employer may withhold from any benefit payment under this
Agreement all federal, state, city or other taxes as shall be required pursuant to any law or
governmental regulation or ruling; provided that any withholding obligation arising in connection
with the exercise of a stock option or the transfer of stock or other property shall be satisfied
through withholding an appropriate number of shares of stock or appropriate amount of such other
property.



     25. Definitions.



          “Accrued Benefits” means (i) any compensation deferred by the Executive prior to the Date of
Termination and not paid by the Employer or otherwise specifically addressed by this Agreement;
(ii) any amounts or benefits owing to the Executive or to the Executive’s beneficiaries under the
then applicable benefit plans of the Employer; (iii) any amounts owing to the Executive for
reimbursement of expenses properly incurred by the Executive prior to the Date of Termination and
which are reimbursable in accordance with Section 6; and (iv) any other benefits or amounts due and
owing to the Executive under the terms of any plan, program or arrangement of the Employer.




          “Cause” shall be limited to the following events (i) the Executive’s conviction of, or plea of
nolo contendere to, a felony (other than in connection with a traffic violation) under any state or
federal law; (ii) the Executive’s willful and continued failure to substantially perform his
essential job functions hereunder after receipt of written notice from the Employer that
specifically identifies the manner in which the Executive has substantially failed to perform his
essential job functions and specifying the manner in which the Executive may substantially perform
his essential job functions in the future; (iii) a material act of fraud or willful and material
misconduct with respect, in each case, to the Employer, by the Executive; (iv) a willful and
material breach of Section 4 or Section 7(d)(i)(B) or (C); or (v) the hiring of any person who was
an employee of the Employer within 180 days prior to such hiring, other than to perform services
for the benefit of the Employer. For purposes of this provision, no act or failure to act, on the
part of the Executive, shall be considered “willful” unless it is done, or omitted to be done, by
the Executive in bad faith or without reasonable belief that the Executive’s action or omission was
in the best interests of the Employer. Anything herein to the contrary notwithstanding, the
Executive shall not be terminated for “Cause” hereunder unless (A) written notice stating the basis
for the termination is provided to the Executive, (B) as to clauses (ii), (iii) or (iv) of this
paragraph, he is given 30 days to cure the neglect or conduct that is the basis of such claim (it




18









 








being understood that any errors in expense reimbursement may be cured by repayment), (C) if he
fails to cure such neglect or conduct, the Executive has an opportunity to be heard with counsel of
his choosing before the full Board prior to any vote regarding the existence of Cause and (D) there
is a vote of a majority of the members of the Board to terminate him for Cause.




          “Change in Control” means the occurrence of one or more of the following events: (i) any
“person” (as such terms is used in Sections 3(a)(9) and 13(d) of the Securities Exchange Act of
1934 as amended (the “Act”)) or “group” (as such term is used in Section 14(d)(d) of the Act) is or
becomes a “beneficial owner” (as such term is used in Rule 13d-3 promulgated under the Act) of more
than 30% of the voting Stock of the Employer; (ii) the majority of the Board of Directors of the
Employer (the “Board”) consists of individuals other than Incumbent Directors, which term means the
members of the Board on the Effective Date; provided that any person becoming a director subsequent
to such date whose election or nomination for election was supported by two-thirds of the directors
who then comprised the Incumbent Directors shall be considered to be an Incumbent Director; (iii)
the Employer adopts any plan of liquidation providing for the distribution of all or substantially
all of its assets; (iv) the Employer transfers all or substantially all of its assets or business
(unless the shareholders of the Employer immediately prior to such transaction beneficially own,
directly or indirectly, in substantially the same proportion as they owned the Voting Stock of the
Employer, all of the Voting Stock or other ownership interests of the entity or entities, if any,
that succeed to the business of the Employer); or (v) any merger, reorganization, consolidation or
similar transaction unless, immediately after consummation of such transaction, the shareholders of
the Employer immediately prior to the transaction hold, directly or indirectly, more than 50% of
the Voting Stock of the Employer or the Employer’s ultimate parent company if the Employer is a
subsidiary of another corporation (there being excluded from the number of shares held by such
shareholders, but not from the Voting Stock of the combined company, any shares received by
Affiliates of such other company in exchange for stock of such other company). For purposes of
this Change in Control definition, the “Employer” shall include any entity that succeeds to all or
substantially all of the business of the Employer and “Voting Stock” shall mean securities of any
class or classes having general voting power under ordinary circumstances, in the absence of
contingencies, to elect the directors of a corporation.




          “Company Affiliate” means any entity controlled by, in control of, or under common control
with, the Employer.




          “Company Confidential Information” means information known to the Executive to constitute
trade secrets or proprietary information belonging to the Employer or other confidential financial
information, operating budgets, strategic plans or research methods, personnel data, projects or
plans, or non-public information regarding the terms of any existing or pending lending transaction
between Employer and an existing or pending client or customer (as the phrase “client or customer”
is defined in Section 7(d)(i) hereof), in each case, received by the Executive in the course of his
employment by the Employer or in connection with his duties with the Employer. Notwithstanding
anything to the contrary contained herein, the general skills, knowledge and experience gained
during the Executive’s employment with the Employer,




19









 







information publicly available or generally known within the industry or trade in which the
Employer competes and information or knowledge possessed by the Executive prior to his employment
by the Employer, shall not be considered Company Confidential Information.




          “Date of Termination” means (i) if the Executive’s employment is terminated by the Executive’s
death, the date of the Executive’s death; (ii) if the Executive’s employment is terminated because
of the Executive’s Disability pursuant to Section 8(a)(ii)(A), 30 days after Notice of Termination,
provided that the Executive shall not have returned to the performance of the Executive’s duties on
a full-time basis during such 30-day period; (iii) if the Executive’s employment is terminated by
the Employer pursuant to Section 8(a)(ii)(B) or by the Executive pursuant to Section 8(a)(iii), the
date specified in the Notice of Termination; or (iv) if the Executive’s employment is terminated
during the Employment Period other than pursuant to Section 8(a), the date on which Notice of
Termination is given.




          “Extended Term” shall have the meaning set forth in Section 2.




          “Good Reason” means, unless otherwise agreed to in writing by the Executive, (i) any
diminution or adverse change prior to a Change in Control in the Executive’s title; (ii) reduction
in the Executive’s Base Salary or, after a Change in Control, the annual bonus payable to the
Executive under Section 5(b); (iii) prior to a Change in Control a requirement that the Executive
report to someone other than the Employer’s Chief Executive Officer and, in a dual reporting role,
President (provided, however that Executive acknowledges and agrees that during the Employment
Period an increasing amount of the day-to-day supervision of his work may be undertaken by the
President); (iv) a material diminution in the Executive’s authority, responsibilities or duties or
material interference with the Executive’s carrying out his duties; (v) the assignment of duties
inconsistent with the Executive’s position or status with the Employer as of the date hereof; (vi)
a relocation of the Executive’s primary place of employment to a location more than 25 miles
further from the Executive’s primary residence than the current location of the Employer’s offices;
(vii) any other material breach of the terms of this Agreement or any other agreement that breach
is not cured within ten days after the Executive’s delivery of a written notice of such breach to
the Employer; (viii) any purported termination of the Executive’s employment by the Employer that
is not effected in accordance with the applicable provisions of this Agreement; (ix) the failure of
the Employer to obtain the assumption in writing of its obligations under this Agreement by any
successor to all or substantially all of the assets of the Employer within 15 days after a merger,
consolidation, sale or similar transaction; or (x) the delivery of a notice of Non-Renewal by the
Employer at any time up to and including April 4, 2023. In order to invoke a termination for Good
Reason, the Executive must terminate his employment, if at all, within 30 days of the occurrence of
any event of “Good Reason”. Notwithstanding anything to the contrary herein, (A) Good Reason shall
not, by itself, include removal of the Executive’s authority and/or responsibility for any aspect
of loan management, and (B) after a Change in Control, Good Reason shall not, by itself, include
(i) the removal of the Executive from the Credit Committee; (ii) the assignment to the Executive of
a different title that is, within the organization of the successor entity, equivalent to the
Executive’s title with the Employer immediately prior to the Change in Control; or (iii) requiring
the Executive to report to




20









 







the person within a successor entity with management authority for the Executive’s business unit.




          “Non-Compete Period” means the period commencing on the Effective Date and ending twelve
months after the earlier of the expiration of the Employment Period or the Executive’s Date of
Termination, provided that if a Change in Control occurs after 2005, the Non-Compete Period shall
end six months after the earlier of the expiration of the Employment Period or the Executive’s Date
of Termination.




     IN WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement, or have
caused this Agreement to be duly executed and delivered on their behalf.



	 	 	 	 	 	 	 
	 	 	CAPITALSOURCE INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	   /s/ John K. Delaney	 	 
	 

	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Name: John K. Delaney

Title:   Chairman of the Board and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	EXECUTIVE	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ Dean C. Graham	 	 
	 	 	 	 	 
	 	 	Dean C. Graham	 	 






21









 






EXHIBIT A




Schedule I




Summary of Grants of CapitalSource Common Stock

to Dean C. Graham Provided for in Section 5(e) of Employment Agreement




	 	 	 	 	 
	Date	 	Number of Shares Granted	 	Number of Granted Shares Vesting
	April 4, 2005
	 	65,000	 	33,000
	April 4, 2006
	 	65,000	 	41,000
	April 4, 2007
	 	65,000	 	49,000
	April 4, 2008
	 	65,000	 	57,000
	April 4, 2009
	 	 	 	40,000
	April 4, 2010
	 	40,000	 	80,000






Schedule II



As contemplated by Section 5(e), the grants of Stock described in Section 5(e) shall be subject to
the following additional terms and conditions:



1. The Executive shall have all the rights of a shareholder with respect to all Stock actually
granted under Section 5(e), including the right to vote and to receive dividends.



2. The number of shares of Stock contemplated by Section 5(e) shall be equitably adjusted to
prevent the unintended dilution or enlargement of benefits provided thereby to take into account
any Stock split, consolidation or other similar event.



3. The Executive may direct the Employer to withhold shares of Stock to satisfy federal, state and
local tax withholding obligations imposed in connection with the grant or vesting of Stock granted
pursuant to Section 5(e). The value of shares of Stock shall be determined reasonably and in good
faith.



4. Shares of Stock granted pursuant to Section 5(e) shall have been registered for issuance on Form
S-8 under the Securities Act of 1933, as amended (the “Securities Act”), or a successor form, and
they shall be freely transferable by the Executive in compliance with Rule 144 under the Securities
Act (subject to any vesting requirement imposed under Section 5(e) and subject to compliance with
the Employer’s insider trading policy).



5. The terms of the Agreement and this Exhibit A set forth the parties’ complete agreement with
respect to the grants of Stock described in Section 5(e).




 









 








****Certain information in this agreement has been omitted and submitted separately to the Securities

and Exchange Commission. Confidential treatment has been requested with respect to the

omitted portions.****




Schedule III



In the event of any Change in Control involving (i) [*********] or an affiliate of [*********] or
(ii) involving [*********] or an affiliate of [*********] if the Executive reasonably determines
that, after such transaction, the Executive shall be required to directly or indirectly report to
[*********], the following provision shall apply to the Executive:



(1) Section 5(f)(1)(b) and Section 5(f)(2) shall not apply to the Executive. Instead, immediately
prior to the Change in Control, (i) the Employer shall grant (to the extent not already granted)
all equity awards described in Section 5(e) and (ii) (A) all equity or equity-related awards held
by, or credited to, the Executive (including without limitation, the equity awards required to be
granted pursuant to the preceding clause (i), stock options, stock appreciation rights, restricted
stock awards, dividend equivalent rights, restricted stock units or deferred stock awards) shall
immediately vest and, if applicable, become exercisable, (B) all stock options, stock appreciation
rights or other similar rights held by the Executive shall remain exercisable for the remainder of
their originally scheduled terms, and (C) all other equity or equity-related awards will, to the
extent applicable, be transferred or distributed to the Executive immediately prior to such Change
in Control.





 









 








EXHIBIT B




General Release of Claims If Executive Is 40 Years-Old or Older on the Date of Execution




          Consistent with Section 9(f) of the Employment Agreement dated April 4, 2005 between me and
CapitalSource Inc. (the “Employment Agreement”) and in consideration for and contingent upon my
receipt of the Severance Payments set forth in Section 9 of the Employment Agreement, I, for
myself, my attorneys, heirs, executors, administrators, successors, and assigns, do hereby fully
and forever release and discharge CapitalSource and its affiliated entities, as well as their
predecessors, successors, assigns, and their current or former directors, officers, partners,
agents, employees, attorneys, and administrators from all suits, causes of action, and/or claims,
demands or entitlements of any nature whatsoever, whether known, unknown, or unforeseen, which I
have or may have against any of them arising out of or in connection with my employment by
CapitalSource, the Employment Agreement, the termination of my employment with CapitalSource, or
any event, transaction, or matter occurring or existing on or before the date of my signing of this
General Release, except that I am not releasing any claims arising under Sections 5(f), 10, 11, or
12 of the Employment Agreement, any other right to indemnification that I may otherwise have, or
any claims arising after the date of my signing this General Release. I agree not to file or
otherwise institute any claim, demand or lawsuit seeking damages or other relief and not to
otherwise assert any claims, demands or entitlements that are lawfully released herein. I further
hereby irrevocably and unconditionally waive any and all rights to recover any relief or damages
concerning the claims, demands or entitlements that are lawfully released herein. I represent and
warrant that I have not previously filed or joined in any such claims, demands or entitlements
against CapitalSource or the other persons released herein and that I will indemnify and hold them
harmless from all liabilities, claims, demands, costs, expenses and/or attorneys’ fees incurred as
a result of any such claims, demands or lawsuits.




          This General Release specifically includes, but is not limited to, all claims of breach of
contract, employment discrimination (including any claims coming within the scope of Title VII of
the Civil Rights Act, the Age Discrimination in Employment Act, the Older Workers Benefit
Protection Act, the Equal Pay Act, the Americans with Disabilities Act, the Family and Medical
Leave Act, and Article 49B of the Maryland Code, all as amended, or any other applicable federal,
state, or local law), claims under the Employee Retirement Income Security Act, as amended, claims
under the Fair Labor Standards Act, as amended (or any other applicable federal, state or local
statute relating to payment of wages), claims concerning recruitment, hiring, termination, salary
rate, severance pay, stock options, wages or benefits due, sick leave, holiday pay, vacation pay,
life insurance, group medical insurance, any other fringe benefits, worker’s compensation,
termination, employment status, libel, slander, defamation, intentional or negligent
misrepresentation and/or infliction of emotional distress, together with any and all tort,
contract, or other claims which might have been asserted by me or on my behalf in any suit, charge
of discrimination, or claim against CapitalSource or the persons released herein.




          I acknowledge that I have been given an opportunity of twenty-one (21) days to consider this
General Release and that I have been encouraged by CapitalSource to discuss fully the terms of this
General Release with legal counsel of my own choosing. Moreover, for a period of seven (7) days
following my execution of this General Release, I shall have the right to




 









 







revoke the waiver of claims arising under the Age Discrimination in Employment Act, a federal
statute that prohibits employers from discriminating against employees who are age 40 or over. If
I elect to revoke this General Release within this seven-day period, I must inform CapitalSource by
delivering a written notice of revocation to CapitalSource’s Director of Human Resources, 4445
Willard Avenue, 12th Floor, Chevy Chase, Maryland 20815, no later than 11:59 p.m. on
the seventh calendar day after I sign this General Release. I understand that, if I elect to
exercise this revocation right, this General Release shall be voided in its entirety at the
election of CapitalSource and CapitalSource shall be relieved of all obligations to make the
Severance Payments described in Section 9 of the Employment Agreement. I may, if I wish, elect to
sign this General Release prior to the expiration of the 21-day consideration period, and I agree
that if I elect to do so, my election is made freely and voluntarily and after having an
opportunity to consult counsel.




	 	 	 	 	 	 	 
	 

	 	AGREED:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 

	 	Dean C. Graham
	 	 	Date	 







 









 








EXHIBIT B




General Release of Claims if the Executive is Under 40 Years-Old on the Date of Execution




          Consistent with Section 9(f) of the Employment Agreement dated April 4, 2005 between me and
CapitalSource Inc. (the “Employment Agreement”) and in consideration for and contingent upon my
receipt of the Severance Payments set forth in Section 9 of the Employment Agreement, I, for
myself, my attorneys, heirs, executors, administrators, successors, and assigns, do hereby fully
and forever release and discharge CapitalSource and its affiliated entities, as well as their
predecessors, successors, assigns, and their current or former directors, officers, partners,
agents, employees, attorneys, and administrators from all suits, causes of action, and/or claims,
demands or entitlements of any nature whatsoever, whether known, unknown, or unforeseen, which I
have or may have against any of them arising out of or in connection with my employment by
CapitalSource, the Employment Agreement, the termination of my employment with CapitalSource, or
any event, transaction, or matter occurring or existing on or before the date of my signing of this
General Release, except that I am not releasing any claims arising under Sections 5(f), 10, 11, or
12 of the Employment Agreement, any other right to indemnification that I may otherwise have, or
any claims arising after the date of my signing this General Release. I agree not to file or
otherwise institute any claim, demand or lawsuit seeking damages or other relief and not to
otherwise assert any claims, demands or entitlements that are lawfully released herein. I further
hereby irrevocably and unconditionally waive any and all rights to recover any relief or damages
concerning the claims, demands or entitlements that are lawfully released herein. I represent and
warrant that I have not previously filed or joined in any such claims, demands or entitlements
against CapitalSource or the other persons released herein and that I will indemnify and hold them
harmless from all liabilities, claims, demands, costs, expenses and/or attorneys’ fees incurred as
a result of any such claims, demands or lawsuits.




          This General Release specifically includes, but is not limited to, all claims of breach of
contract, employment discrimination (including any claims coming within the scope of Title VII of
the Civil Rights Act, the Equal Pay Act, the Americans with Disabilities Act, the Family and
Medical Leave Act, and Article 49B of the Maryland Code, all as amended, or any other applicable
federal, state, or local law), claims under the Employee Retirement Income Security Act, as
amended, claims under the Fair Labor Standards Act, as amended (or any other applicable federal,
state or local statute relating to payment of wages), claims concerning recruitment, hiring,
termination, salary rate, severance pay, stock options, wages or benefits due, sick leave, holiday
pay, vacation pay, life insurance, group medical insurance, any other fringe benefits, worker’s
compensation, termination, employment status, libel, slander, defamation, intentional or negligent
misrepresentation and/or infliction of emotional distress, together with any and all tort,
contract, or other claims which might have been asserted by me or on my behalf in any suit, charge
of discrimination, or claim against CapitalSource or the persons released herein.




          I acknowledge and agree that I have been given a more than sufficient period of time to
consider this General Release and that I have been encouraged by CapitalSource to discuss fully the
terms of this General Release with legal counsel of my own choosing. I further




 









 







acknowledge and agree that my execution of this General Release is made freely and voluntarily and
not under duress or coercion of any kind.




	 	 	 	 	 	 	 
	 

	 	AGREED:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 

	 	Dean C. Graham
	 	 	Date	 






 









 






EXHIBIT C




General Release of Claims by CapitalSource




          Consistent with Section 9(f) of the Employment Agreement dated April 4, 2005 between
CapitalSource Inc. and Dean C. Graham (the “Employment Agreement”) and in consideration for and
contingent upon Executive’s execution of a general release of claims in favor of CapitalSource in
the form required by the Employment Agreement (and provided that he does not revoke it in the event
that it is revocable), CapitalSource, for itself and its affiliated entities, as well as their
predecessors, successors, assigns, and their current or former directors, officers, partners,
agents, employees, attorneys, and administrators do hereby fully and forever release and discharge
Executive and his attorneys, heirs, executors, administrators, successors, and assigns, from all
suits, causes of action, and/or claims, demands or entitlements of any nature whatsoever which
CapitalSource has or may have against any of them which are known to it as of the date of its
executing this General Release and arising out of or in connection with Executive’s employment by
CapitalSource, the Employment Agreement, the termination of Executive’s employment with
CapitalSource, or any event, transaction, or matter occurring or existing on or before the date of
CapitalSource’s signing of this General Release. CapitalSource agrees not to file or otherwise
institute any claim, demand or lawsuit seeking damages or other relief and not to otherwise assert
any claims, demands or entitlements that are lawfully released herein. CapitalSource further
hereby irrevocably and unconditionally waives any and all rights to recover any relief or damages
concerning the claims, demands or entitlements that are lawfully released herein. CapitalSource
represents and warrants that it has not previously filed or joined in any such claims, demands or
entitlements against Executive or the other persons released herein and that it will indemnify and
hold them harmless from all liabilities, claims, demands, costs, expenses and/or attorneys’ fees
incurred as a result of any such claims, demands or lawsuits.





          This General Release specifically includes, but is not limited to, all known claims of breach
of contract, tortious conduct, or breach of fiduciary duty, together with any and all known tort,
contract, or other known claims which might have been asserted by CapitalSource or on its behalf in
any suit or claim against Executive or the persons released herein.




          CapitalSource acknowledges and agrees that it has been given a more than sufficient period of
time to consider this General Release and that it have been encouraged by Executive to discuss
fully the terms of this General Release with legal counsel of its own




 









 







choosing. CapitalSource further acknowledges and agrees that its execution of this General Release
is made freely and voluntarily and not under duress or coercion of any kind.




	 	 	 	 	 	 	 	 	 
	 	 	AGREED:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	CapitalSource	 	 	 	Date
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	,	 	 
	 

	 	 	 	 
	 	 	 	 
	 

	 	 	 	Name
	 	 	 	Title