UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): February 18, 2016
CYS Investments, Inc.
(Exact name of registrant as specified in its charter)
Maryland | 001-33740 | 20-4072657 | ||
(State or other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
890 Winter Street, Suite 200
Waltham, Massachusetts 02451
(Address of principal executive offices) (Zip Code)
Registrants telephone number, including area code: (617) 639-0440
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On February 18, 2016, CYS Investments, Inc. (the Company) announced that Frances R. Spark, the Companys Chief Financial Officer and Treasurer, will retire from her positions with the Company, effective as of the close of business on May 31, 2016. Ms. Spark will continue her employment with the Company through February 28, 2017 to transition her duties and responsibilities and assist with various strategic projects. The Company also announced that Jack DeCicco will join the Company on March 7, 2016, and will become the Companys Chief Financial Officer and Treasurer, effective as of June 1, 2016.
Ms. Spark, 57, has served as the Companys Chief Financial Officer (CFO) and Treasurer since August 2009. From February 2006 until September 2009, Ms. Spark served as a member of the Companys Board of Directors (the Board), and from March 2007 until September 2009, Ms. Spark served as Chair of the Companys Audit Committee.
Mr. Grant, the Companys Founder, Chief Executive Officer, Chief Investment Officer and President noted, CYS has experienced a lot of success and growth since its inception in early 2006. Frances has been an integral part of that success and a member of the team from its beginning. Frances served as a strong leader on our Board during the Companys early years. After we completed our Initial Public Offering, she successfully made the transition to become a key member of our executive management team. Mr. Grant added, I, Frances fellow executive officers, the Board, and the entire team at CYS express our heartfelt appreciation for all of her efforts to build and maintain a successful, well-managed business with a unique and engaging work environment. Mr. Grant concluded, We are very pleased that Frances will actively assist with a thoughtful and smooth transition of the CFO and Treasurer roles to Jack, and will continue to be a part of the CYS team through the end of February 2017, which will allow us to continue to tap into her expertise, institutional history and knowledge of the Company. We wish Frances the very best in the years ahead, and she will be missed.
In connection with Ms. Sparks retirement, the Company and Ms. Spark entered into an executive retirement agreement (the Retirement Agreement), which provides for, among other things:
(1) | Ms. Spark to be paid her same base salary and be entitled to the same benefits through February 28, 2017; |
(2) | Ms. Spark to remain an employee of the Company through February 28, 2017, and to be eligible for incentive compensation pursuant to the Companys 2016 Incentive Compensation Plan (the 2016 Plan) up to a maximum amount of 150% of her base salary, in accordance with the Retirement Agreement; provided, however, that any incentive compensation that may be paid to Ms. Spark under the 2016 Plan will be paid all in cash; and |
(3) | Ms. Spark agreeing (a) to similar non-competition, non-solicitation, confidentiality, work product and non-disparagement provisions as those contained in her employment agreement, and (b) to a release of claims (i) upon the date of the Retirement Agreement in return for the continued vesting of her restricted stock following her retirement as Chief Financial Officer and Treasurer and other consideration and (ii) upon the end of her employment in return for the Company vesting of any and all unvested shares of the Companys common stock held by Ms. Spark as of February 28, 2017. |
The foregoing summary of the Retirement Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Retirement Agreement with Ms. Spark, a copy of which is attached hereto as Exhibit 10.1, and is incorporated herein by reference.
Since May 2013, Mr. DeCicco, 40, has served as the Chief Financial Officer of Annaly Commercial Real Estate Group, Inc., the commercial real estate business of Annaly Capital Management, Inc. (Annaly), which was previously CreXus Investment Corp. (CreXus), where Mr. DeCicco was appointed as Chief Financial Officer in April 2013. He was most recently appointed to serve as Chief Accounting Officer of Annaly effective December 2015. In addition, Mr. DeCicco served as the Chief Financial Officer and Secretary of Annalys wholly-owned captive insurance company since its inception in January 2014. From March 2012 until April 2013, Mr. DeCicco served as the Chief Accounting Officer of CreXus and Chimera Investment Corporation. From September 2002 to March 2012, Mr. DeCicco served in various roles of increasing responsibility within Ernst & Young LLPs New York office Assurance practice. Most recently at Ernst & Young LLP, Mr. DeCicco was a Senior Manager where he served in a dual capacity role as both a financial statement auditor, serving publicly traded companies (primarily mortgage REITs) and private companies, and as the technical accounting subject matter resident in Ernst & Young LLPs Global Real Estate Center. None of Mr. DeCiccos past employers are affiliated with the Company. Mr. DeCicco does not otherwise have any direct or indirect material interests in any transaction
with the Company or in any currently proposed transaction to which the Company is a party. There is no arrangement or understanding between Mr. DeCicco and any other person pursuant to which Mr. DeCicco was hired or will be appointed as Chief Financial Officer or Treasurer of the Company, and there are no family relationships between Mr. DeCicco and any director or executive officer of the Company. Mr. DeCicco is a Certified Public Accountant and holds a B.S. degree from The Pennsylvania State University.
In connection with his employment, the Company and Mr. DeCicco entered into an employment agreement (the Employment Agreement), which provides, among other things, that Mr. DeCicco will be entitled to receive an annual base salary of $500,000, to participate in the Companys 2016 Incentive Compensation Plan (the 2016 Plan) and receive an incentive compensation award up to 150% of his base salary, in accordance with the Employment Agreement, and to serve as the Companys Chief Financial Officer and Treasurer under terms and conditions that are substantially similar to those contained in Ms. Sparks employment agreement. For the fiscal year ending December 31, 2016, the Company will pay Mr. DeCicco a bonus award under the 2016 Plan of at least $400,000, which will be payable 50% in cash and 50% in restricted common stock in accordance with the 2016 Plan. Upon Mr. DeCiccos commencement of employment on March 7, 2016, he received (i) a one-time discretionary cash bonus payment in the amount of $150,000 (which amount is intended to cover, among other things, relocation costs and expenses and travel, lodging and related costs and expenses) and (ii) a grant of 50,000 shares of the Companys restricted common stock, which grant is governed by the Companys 2013 Equity Incentive Plan and will be subject to a restricted stock award agreement in the form previously filed with the Securities and Exchange Commission (the SEC), with vesting of such restricted common stock to occur ratably over a five year period beginning on the first anniversary of the commencement of Mr. DeCiccos employment. Mr. DeCicco will also be eligible to participate in the same benefits programs as all other employees of the Company. In addition, Mr. DeCicco will enter into the Companys form of indemnification agreement in connection with his appointment as the Chief Financial Officer and Treasurer, a copy of which has been filed with the SEC.
The foregoing summary of the Employment Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Employment Agreement with Mr. DeCicco, a copy of which is attached hereto as Exhibit 10.2, and is incorporated herein by reference.
Mr. Grant noted, Jack brings impressive financial experience to the position of CFO, as well as excellent knowledge of the mortgage-REIT space. We welcome Jack as a valuable addition to the CYS team, and we look forward to benefitting from Jacks extensive skills and talent in this new position as a key member of the executive team and leader of the Companys finance team going forward.
Item 7.01. Regulation FD Disclosure.
On February 18, 2016, the Company issued a press release relating to the retirement of Ms. Spark as the Chief Financial Officer and Treasurer of the Company and the employment of Mr. DeCicco as the successor Chief Financial Officer and Treasurer of the Company. A copy of the press release is being furnished as Exhibit 99.1 to this Current Report on Form 8-K and shall not be deemed filed for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities under that Section. Furthermore, Exhibit 99.1 furnished pursuant to Item 9.01 shall not be deemed to be incorporated by reference into the filings of the Company under the Securities Act of 1933, as amended.
Item 9.01. Financial Statements and Exhibits.
(d) | Exhibits. |
Exhibit No. |
Description | |
10.1 | Executive Retirement Agreement, effective as of February 18, 2016, by and between CYS Investments, Inc. and Frances R. Spark. | |
10.2 | Employment Agreement, effective as of March 7, 2016, by and between CYS Investments, Inc. and Jack DeCicco. | |
99.1 | CYS Investments, Inc. Press Release, dated February 18, 2016. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.
CYS INVESTMENTS, INC. | ||||||
Date: February 18, 2016 | By: | /s/ Thomas A. Rosenbloom | ||||
Name: | Thomas A. Rosenbloom | |||||
Title: | Secretary |
EXHIBIT INDEX
Exhibit No. |
Description | |
10.1 | Executive Retirement Agreement, effective as of February 18, 2016, by and between CYS Investments, Inc. and Frances R. Spark. | |
10.2 | Employment Agreement, effective as of March 7, 2016, by and between CYS Investments, Inc. and Jack DeCicco. | |
99.1 | CYS Investments, Inc. Press Release, dated February 18, 2016. |
Exhibit 10.1
EXECUTIVE RETIREMENT AGREEMENT
This EXECUTIVE RETIREMENT AGREEMENT (this Agreement) is entered into by CYS Investments, Inc., a Maryland corporation (the Company), and Frances R. Spark, an individual (the Executive), on February 10, 2016, to be effective on the Effective Date (as defined below), in order to recite the agreed terms relative to Executives decision to voluntarily retire from her employment with the Company. Each of the Company and the Executive is referred to herein as a Party and they collectively are referred to herein as the Parties.
WHEREAS, the Executive currently serves as the Chief Financial Officer and Treasurer of the Company and has indicated her desire to voluntarily retire from her employment with the Company; and
WHEREAS, in order to permit an orderly retirement and transfer of duties to her successor, the Company and the Executive desire to establish the terms and conditions of the Executives retirement as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements herein made and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties agree as follows:
1. Retirement.
(a) The Executive hereby agrees that she will (i) continue to serve as the Chief Financial Officer and Treasurer of the Company pursuant to her Employment Agreement, dated as of September 1, 2011 (the Employment Agreement), from the date hereof until the close of business on May 31, 2016, (ii) voluntarily resign as Chief Financial Officer and Treasurer of the Company and any other offices she holds with the Company and its subsidiaries on June 1, 2016 (the Resignation Date), (iii) continue her employment with the Company from June 1, 2016 until February 28, 2017, and (iv) retire from all active employment with the Company at the close of business on February 28, 2017 (the Retirement Date). The period from the Resignation Date through and including the Retirement Date is hereby referred to as the Transition Period.
(b) During the Transition Period, the Executives duties, responsibilities and performance expectations shall be set by, and report to, the Companys Chief Executive Officer, and her employment shall be conditioned on her compliance with all rules, policies, guidelines, and other standards of conduct applicable to employees of the Company, including without limitation the Companys Employee Handbook, Insider Trading Policy, Regulation FD and Disclosure Policies, Disclosure Controls and Procedures Policy, Related Persons Transaction Policy, and Code of Business Conduct and Ethics.
2. Termination of Employment Agreement. Executive and the Company hereby agree to terminate the Employment Agreement with such termination effective as of the Resignation Date.
3. Compensation.
(a) From the date hereof until the close of business on the Retirement Date, the Company will pay the Executive, and the Executive agrees to accept from the Company, in payment for her services to the Company, the following amounts:
(i) a base salary equal to a per annum amount of $500,000 (the Base Salary), payable in equal monthly installments in accordance with the Companys payroll practices; and
(ii) the Executive will be eligible to receive a discretionary incentive compensation bonus (the 2016 Bonus) pursuant to the Companys 2016 Incentive Compensation Plan (the 2016 Plan) of up to 150% of her Base Salary, subject to the approval of the Compensation Committee with such 2016 Bonus paid in accordance with the terms of the 2016 Plan; provided, however, that any such 2016 Bonus shall be payable all in cash.
(b) The Executive acknowledges and agrees that (i) for the period from January 1, 2017 until the Retirement Date, the Executive will not be eligible to receive an incentive compensation bonus under any incentive compensation plans of the Company or other equity awards, and (ii) following the Retirement Date, she will not be entitled to any compensation, bonuses, or other such sums from the Company.
(c) The Executive expressly acknowledges and agrees that the Companys agreement to permit her to remain employed after the Resignation Date and, in turn, allow her the opportunity to receive the Base Salary, an opportunity to earn the 2016 Bonus, employee benefits and continued vesting of her restricted stock awards during the Transition Period constitutes sufficient and valuable consideration for the release of claims and other promises and agreements she is providing and agreeing to provide under this Agreement.
4. Fringe Benefits. From the date hereof until the close of business on the Retirement Date, the Executive shall be entitled to (a) participate in any benefit plans relating to life insurance, medical coverage or other employee benefits available to other senior executive employees of the Company, subject to any restrictions (including waiting periods) specified in such plans, and (b) such number of weeks of paid vacation on a prorated basis consistent with the number of weeks of paid vacation to which she was entitled during the fiscal year ended December 31, 2015. The Executive understands and acknowledges that the Company will not provide any of these or any other benefits (except as required by applicable law) to the Executive after the Retirement Date.
5. Restricted Stock Awards. In exchange for the release of claims and other promises provided by Executive in this Agreement, the Company has agreed that any shares of restricted common stock granted pursuant to restricted stock award agreements (the Award Agreements) by and between the Company and the Executive will continue to vest and become nonforfeitable pursuant to the terms of the applicable Award Agreements so long as the Executive is employed by the Company. The Executive expressly acknowledges that the opportunity to have such shares of restricted common stock vest constitutes sufficient and valuable consideration for the release of claims and other promises and agreements the Executive is providing under this Agreement.
6. Release and Waiver. In consideration of the Companys agreement to continue to provide the Executive with certain benefits through the Retirement Date, including the vesting of the restricted common stock under the Award Agreements pursuant to Section 5, and the other consideration provided in this Agreement, the sufficiency of which is hereby acknowledged, the Executive, for herself, her agents, personal representatives, heirs and assigns, hereby unconditionally releases and forever discharges the Company and any and all of its subsidiaries, as well as their respective current and former officers, directors, partners, owners, employees, agents, representatives, financial advisors, predecessors and successors, whether in their individual or representative capacities (collectively, the Released Parties), from any and all liability of every kind and nature whatsoever that Executive or anyone on her
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behalf or for her benefit has or might claim to have against the Released Parties for any and all injuries, harm, damages (actual and punitive), penalties, costs, losses, expenses, attorneys fees, and liabilities or other detriment, if any, whatsoever and whenever incurred or suffered by Executive arising out of, relating to, or in connection with any transaction or occurrence which transpired on or before the date Executive executes this Agreement, including claims related to the Executives employment with the Company; provided, however, that this release shall not relate to any claims, demands, suits, actions or causes of actions for breach or enforcement of this Agreement. This release specifically includes, but is not limited to, a knowing and voluntary waiver and release of all claims under the Age Discrimination in Employment Act, as amended (ADEA), and the Employment Agreement, including the termination of the Employment Agreement. The Executive acknowledges and represents to the Company that neither she, nor any counsel representing the Executive, has filed any charges, complaints, actions, or lawsuits, or commenced any proceedings against the Company or its affiliates, in any court or before any governmental agency. Notwithstanding anything herein to the contrary, this release shall not impact or release any rights that the Executive may have under the bylaws of the Company, indemnification agreements, applicable insurance policies of the Company (including but not limited to the Companys existing director and officer liability insurance policy) and/or under applicable law to indemnification with respect to liabilities, costs, losses and claims arising from or related to the Executives service as an officer, director or employee of the Company, any parent, subsidiary or affiliate of the Company, or any of the Released Parties or any rights Executive has under the terms of any Company employee benefit plans (as defined in Section 3(3) of Employee Income Security Act of 1974, as amended).
7. Acknowledgment of Waiver of Claims under ADEA. The Executive understands and acknowledges that she is waiving and releasing any rights she may have under the ADEA, and that this waiver and release is knowing and voluntary. The Executive understands and agrees that this waiver and release does not apply to any rights or claims that may arise under the ADEA after the date she signs this Agreement. The Executive understands and acknowledges that the consideration given for this waiver and release is in addition to anything of value to which the Executive was already entitled. The Executive further understands and acknowledges that she has been advised by this writing that: (a) she should consult with an attorney prior to executing this Agreement; (b) she has twenty-one (21) days within which to consider this Agreement; (c) she has seven (7) days following her execution of this Agreement to revoke this Agreement (the Revocation Period) by delivering written notification during the Revocation Period to the Chief Executive Officer of the Company; and (d) this Agreement shall not be effective until after the Revocation Period has expired (the Effective Date). In the event the Executive chooses to sign this Agreement in less than the 21-day consideration period identified above, the Executive hereby acknowledges that she has freely and voluntarily chosen to waive the time period allotted for considering this Agreement. Moreover, should the Executive exercise her right to revoke this Agreement before expiration of the Revocation Period, the entire Agreement shall become null and void, and neither she, nor the Company, will have any rights or obligations under it. In the event that the Executive does not exercise her right to revoke this Agreement during the Revocation Period, this Agreement will become effective upon the expiration of the Revocation Period (the Effective Date).
8. EEOC/MCAD Charges. This release prohibits the Executive from filing a lawsuit concerning claims covered by this release but does not prohibit the Executive from lodging a complaint with or participating in a proceeding before the Equal Employment Opportunity Commission (the EEOC) or the Massachusetts Commission Against Discrimination (MCAD) in connection with any claim she believes she may have against the Released Parties. However, by executing this Agreement, the Executive hereby waives the right to recover damages or injunctive relief in any proceeding that the Executive may bring before the EEOC, MCAD or any state human rights commission or in any proceeding brought by the EEOC, MCAD or any state human rights commission on the Executives behalf.
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9. Accelerated Vesting of Restricted Common Stock; Separate Waiver and Release of Claims. Subject to the other provisions of this Agreement, if the Executive complies with this Agreement, if the Executive is employed by the Company on the Retirement Date and resigns her employment on the Retirement Date, if the Executive executes and returns to the Company a general waiver and release of claims in the form attached hereto as Exhibit A (the Release Agreement) within 22 days after the Retirement Date, and if the Release Agreement becomes effective and irrevocable pursuant to its terms, the Company will cause all shares of restricted common stock granted pursuant to Award Agreements that have not previously vested to vest and become nonforfeitable (the Restricted Stock Vesting). The Executive acknowledges and understands that the Executives entitlement to the Restricted Stock Vesting is contingent upon her execution and delivery of a separate Release Agreement within 22 days after the Retirement Date that becomes effective pursuant to its terms. The Restricted Stock Vesting will occur upon the effective date of the separate Release Agreement. The provisions of this subsection shall constitute an amendment to any existing Award Agreement by and between the Company and the Executive as of the effective date of the Release Agreement.
10. Termination upon a Change of Control. If Executives employment is terminated by the Company or its successor other than for Cause (as defined below) prior to the Retirement Date following the execution of an agreement pursuant to which, or the completion of, a Change of Control (as defined in the Employment Agreement) would occur if completed, then the Company, or its successor, shall pay, and the Executive shall be entitled to receive, the following amounts and benefits:
(a) Payment of Unpaid Base Salary and Performance Bonus. The Company shall pay the Executive, in a single cash payment, any unpaid Base Salary and either (i) the 2016 Bonus, if any, that was earned for the fiscal year ended December 31, 2016 if the Executives termination of employment with the Company occurs after December 31, 2016 but before the 2016 Bonus has been paid, or (ii) the pro-rata 2016 Bonus that she would have been eligible to have received but for the termination of her employment if the Executives termination of employment with the Company occurs prior to December 31, 2016.
(b) Severance Payment. The Company shall pay the Executive an amount equal to one (1) times the average of the Executives (i) Base Salary plus (ii) the Performance Bonus (as defined in the Employment Agreement) earned during the three (3) fiscal years immediately preceding the year in which the termination of the Executives employment occurs. Fifty percent (50%) of this payment will be paid by the later of (A) 30 days after the date the Executives employment is terminated by the Company or its successor other than Cause or (B) five (5) Business Days after the effectiveness of the Release Agreement. The remaining fifty percent (50%) of this payment shall be paid on or before March 15 of the year following the year in which the Executives employment is terminated or, if sooner, in three (3) equal monthly installments beginning on the first business day of the month following the month of such termination.
(c) Immediate Vesting of Restricted Stock Grants. The Company shall take all appropriate action such that all shares subject to forfeiture under any Award Agreement shall become fully vested, and no longer subject to forfeiture in accordance with the terms of such Award Agreements. The provisions of this subsection shall constitute an amendment to any existing Award Agreement by and between the Company and the Executive as of the termination date of Executives employment with the Company.
(d) Maximization of Payment in the Event of a Change of Control. The Company shall make the payments and provide the benefits to be paid and provided under this Agreement in the event of termination of employment following a Change of Control; provided, however,
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that if all or any portion of the payments and benefits provided under this Agreement, either alone or together with other payments and benefits which the Executive receives or is then entitled to receive from the Company or otherwise, would constitute a parachute payment within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the Code) (or a similar or successor provision), the Company shall reduce such payments hereunder and such other payments to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code (or a similar or successor provision); but only if, by reason of such reduction, the net after-tax benefit to the Executive shall exceed the net after-tax benefit if such reduction were not made. The payments or benefits shall be reduced by first reducing payment or benefits that are not subject to Section 409A of the Code and thereafter, if necessary, reducing payments or benefits that are subject to Section 409A of the Code in the manner and order determined by the Company. The determination of whether the payments shall be reduced as provided in this subsection and the amount of such reduction shall be made at the Companys expense by a public accounting firm retained by the Company at the time the calculation is to be performed, or one selected by the Company from among the four (4) largest public accounting firms in the United States (the Accounting Firm). The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation to the Company and the Executive within 20 Business Days of the payment of the initial installment of the amounts paid pursuant to this Section 10. The Executive may review these calculations for a period of 20 days and may retain another accounting firm (at his own expense) for such review and submit objections during such 20-day review period.
(e) Continuation of Medical Benefits. In the event of a termination of Executives employment covered by this Section 10, the Company shall reimburse the Executive for the amount of premiums paid by the Executive to continue coverage for the Executive and her eligible dependents under the Companys health plan during the period that the Executive and her eligible dependents are eligible to participate in the Companys health plan under the terms of the plan and the insurance policy that insures the plans benefits, not to exceed 12 months after termination. If the Executive and her eligible dependents are unable to continue participation in the Companys health plan for at least 12 months after a termination covered by this Section 10, the Company shall reimburse the Executive for the amount of premiums paid by the Executive to continue coverage for the Executive and her eligible dependents under COBRA or any similar state law for the period that such continuation coverage is required.
(f) General Release. The obligations of the Company to make any payments to Executive required under this Section 10 (except for the salary payment in Section 10(a)(i)) will be conditioned on the execution and delivery by the Company and the Executive of, and the effectiveness of, the Release Agreement.
11. Termination by the Company without Cause. If Executive is terminated without Cause during the Transition Period in a situation other than as set forth in Section 10, the Executive will be entitled to receive all of the unpaid consideration and benefits pursuant to Sections 3 and 9 upon the execution and delivery by the Company and the Executive of, and the effectiveness of, the Release Agreement. For the avoidance of doubt, the Executive will be entitled to the full amount of the 2016 Bonus that was, or would have been, earned but for Executives termination, with such 2016 Bonus payable in a single cash payment within five business days of the date of on which the 2016 Bonus is approved by the Companys Compensation Committee of the Board of Directors (the Board) and the Board, less withholdings for applicable taxes.
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12. Termination by the Company for Cause.
(a) The Company, by action of the Board, may at any time during the Transition Period terminate the Executives employment for Cause. For purposes of this Agreement, Cause means (i) acts or omissions constituting gross or willful misconduct on the part of the Executive in connection with the performance of her duties to the Company, (ii) a material breach by the Executive of the terms of this Agreement, (iii) the failure of the Executive to adhere to the lawful directions of the Chief Executive Officer or the Board that are reasonably consistent with the Executives duties, or (iv) the Executives conviction or plea of guilty or nolo contendre for fraud, misappropriation or embezzlement in connection with the assets of the Company, or to a felony. In the event that the Company believes that the Executive has taken such an action, or omitted to take such an action that constitutes Cause as defined by clause (i), (ii), or (iii) above, it shall be a condition precedent to the Companys right to terminate the Executives employment for Cause that (1) the Company shall first have given the Executive written notice (the Cause Notice) stating with specificity the Companys belief that the Agreement can be terminated for Cause (the asserted breach) at least 30 days before a meeting (the Determination Meeting) of the Board called to make such determination (the Cause Determination), (2) at or prior to the Determination Meeting, the Executive and her counsel shall be given the opportunity to answer the Companys reasons for termination for Cause and the existence of the asserted breach, at a hearing and/or in writing (the Opportunity to be Heard); provided, any such written response shall be delivered to the Chairman and the Lead Independent Director of the Board, at least five (5) business days prior to the Determination Meeting, and (3) before the Determination Meeting, if such asserted breach is capable of cure or remedy, a period of 30 days from and after the giving of the Cause Notice shall have elapsed without the Executive having effectively cured or remedied such asserted breach to the reasonable satisfaction of the Board during such 30-day period (unless such asserted breach is of the type that cannot be cured or remedied within 30-days, in which case the period for remedy or cure shall be extended for a reasonable time (not to exceed an additional 15 days), provided the Executive has made and continues to make a diligent effort to effect such remedy or cure).
(b) Upon the Companys delivery of a Cause Notice to the Executive, the Companys obligations to pay the 2016 Bonus, or to permit the vesting of any outstanding shares of restricted common stock under this Agreement shall cease until the Cause Determination is made.
(c) If the Cause Notice is delivered on or after January 30, 2017, then the Executive and the Company agree that the Opportunity to be Heard, the Determination Meeting, and the Cause Determination shall be completed and made on or before March 17, 2017.
(d) In the event that the Executives employment is not terminated for Cause upon the Cause Determination, then the Executive shall retain all rights under this Agreement and any compensation payable under this Agreement that she has not received prior to the date of termination, including the 2016 Bonus and the vesting of her shares of restricted common stock, and the Companys obligations to pay the 2016 Bonus, or to permit the vesting of any outstanding shares of restricted common stock under this Agreement shall be reinstated.
(e) The Executive acknowledges and agrees that in the event she is terminated for Cause, she will forfeit all rights under this Agreement and any compensation payable under this Agreement that she has not received prior to the date of termination, including the 2016 Bonus and the vesting of her shares of restricted common stock.
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(f) For the avoidance of doubt, in the event that Cause as defined in Section 12(a)(iv) above has occurred, the Company may immediately upon such occurrence terminate the Executives employment hereunder, and the Executive acknowledges and agrees upon such termination she forfeits all rights under this Agreement and any compensation or benefits payable under this Agreement that she has not received prior to the date of termination, including the 2016 Bonus and the vesting of her shares of restricted common stock.
13. Termination of Employment due to Death. If the Executive dies during the Transition Period, her employment shall immediately terminate. The Companys obligation to pay the Executives Base Salary shall cease as of the date of Executives death, except that (a) any earned but unpaid Base Salary, (b) the 2016 Bonus (either the full amount if her death occurs after December 31, 2016 or the pro-rated amount if her death occurs before such date) shall be paid to the Executives estate as soon as practicable after her death, and (c) any outstanding shares of restricted common stock shall vest in accordance with the terms of the applicable Award Agreements.
14. Termination of Employment due to Disability. If, as a result of the Executives incapacity due to physical or mental illness (Disability), Executive shall have been absent from the full-time performance of her duties with the Company for six (6) consecutive months, and, within 30 days after written notice is provided to her by the Company, the Executive shall not have returned to the full-time performance of her duties, the Executives employment under this Agreement may be terminated by the Company due to the Executives Disability. With respect to the period beginning when the Executive is first absent from the full-time performance of her duties with the Company due to Disability and ending upon the later of (a) the date she is terminated from employment in accordance with the foregoing sentence, or (b) the date she begins receiving long-term disability payments under the Companys long term disability plan (Salary Continuation Period), the Company shall continue to pay the Executive her Base Salary at the rate in effect at the commencement of such period of Disability; provided, however, that in no event shall Executive receive her Base Salary beyond the Retirement Date. Upon a termination of the Executives employment by reason of Disability, the Company shall pay to the Executive (i) the 2016 Bonus (either the full amount if her termination by reason of Disability occurs after December 31, 2016 or the pro-rated amount if such termination occurs before such date) with such 2016 Bonus paid to the Executive at the same time and in the same manner as the 2016 Bonus would have been paid had the Executive not been terminated by reason of Disability, (ii) any outstanding shares of restricted common stock shall vest in accordance with the terms of the applicable Award Agreements, and (iii) the Company shall reimburse the Executive for the amount of premiums paid by the Executive to continue coverage for the Executive and her eligible dependents under the Companys health plan during the period that the Executive and her eligible dependents are eligible to participate in the Companys health plan under the terms of the plan and the insurance policy that insures the plans benefits, not to exceed the Retirement Date. If the Executive and her eligible dependents are unable to continue participation in the Companys health plan until the Retirement Date, the Company shall reimburse the Executive for the amount of premiums paid by the Executive to continue coverage for the Executive and her eligible dependents under COBRA or any similar State law for the period from the date of termination by reason of Disability up to and including the Retirement Date. The obligations of the Company to make any payments to Executive required under this Section 14 (except for the Base Salary payments) shall be conditioned on the execution and delivery by the Company and the Executive of, and the effectiveness of, the Release Agreement.
15. Non-Solicitation. The Executive agrees that during her employment with the Company and for a period of one (1) year following the termination of her employment for any reason, she shall not, without the Companys prior written consent, directly or indirectly, solicit or encourage to leave the employment or other service of the Company, or its subsidiaries, any current employee or independent contractor thereof. Moreover, for the same time period, the Executive shall not, whether for her own
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account or the account of any other person, firm, corporation or other business organization, intentionally interfere with the Companys relationships with any other person or entity who is a shareholder, director, officer, or investor of the Company.
16. Nondisparagement. The Executive agrees that she will not say, publish or do anything that casts the Company, its subsidiaries or the Released Parties in an unfavorable light, or disparage or injure the goodwill, business reputation or relationship of the Company, its subsidiaries or the Released Parties with existing or potential creditors, counterparties, bankers, analysts, investors, employees or the financial community in general, or the goodwill or business reputation of the Released Parties.
17. Agreement Not-to-Compete. The Executive agrees that during her employment with the Company and for a period of two (2) years following the termination of her employment for any reason, the Executive shall not have a financial interest in, direct business to, cause business to be done on behalf of, or serve as a principal, stockholder, member, partner, director, officer, agent, employee, contractor, or consultant for any business primarily engaged in acquiring and holding Agency-RMBS (as defined in the Companys filings with the Securities and Exchange Commission) or similar financial assets (Prohibited Business), unless the Company provides prior written consent. Notwithstanding the foregoing, this provision (a) will not apply to the Executives service as a director for Reverse Mortgage Investment Trust Inc. and (b) shall only prohibit the Executive from performing services in a consulting, executive, sales or technical capacity for, or serving as a principal, stockholder, member, partner, director or officer of, a Prohibited Business. Notwithstanding anything in this section to the contrary, nothing in this provision shall prevent the Executives purchase or ownership of not more than 3% of the securities of any class of any public corporation, whether or not such corporation is engaged in a Prohibited Business. It is further expressly agreed that the Company will or would suffer irreparable injury in violation of this Section 15 and that the Company would by reason of such competition be entitled to seek injunctive relief in a court of appropriate jurisdiction, and the Executive further consents and stipulates to the entry of such injunctive relief, without posting of a bond, in such a court prohibiting the Executive from competing with the Company or any subsidiary or affiliate of the Company, in the Business set forth above, in violation of this Agreement.
18. Access to Confidential Information and Non-Disclosure Agreement. The Executive will be provided with and will have access to certain Confidential Information (as defined in the Employment Agreement) during her employment with the Company. The Executive further agrees that Executive will not, except as the Company may otherwise consent or direct in writing or as may otherwise be required by law or legal process, reveal or disclose, sell, use, lecture upon, publish or otherwise disclose to any third party any Confidential Information, or authorize anyone else to do these things at any time either during or subsequent to his employment with the Company. This Section shall continue in full force and effect after the Retirement Date or the termination of the Executives employment for any reason. The Executives obligations under this Section 16 of this Agreement with respect to any specific Confidential Information shall cease when that specific portion of the Confidential Information becomes publicly known, other than as a result of disclosure by the Executive or any representatives of the Executive in violation of this Agreement, in its entirety and without combining portions of such information obtained separately. It is understood that such Confidential Information includes matters that the Executive conceives or develops, as well as matters the Executive learns from other employees of the Company during the term of her employment. The Executive agrees that she will immediately notify the Company if he receives a subpoena, order from a court or administrative agency or other legal process that seeks to require disclosure of Confidential Information. The nondisclosure obligation set forth in this Section 16 is in addition to any fiduciary duties of the Executive to maintain the confidentiality of the Confidential Information and, to the extent not otherwise provided herein, the trade secrets of the Company.
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19. Work Product. The Executive acknowledges that all ideas, discoveries, programs, systems, methods, techniques, formulas, concepts, works of authorship, interfaces, protocols, databases, creations, artwork, articles, programming, processes, designs, inventions or improvements thereof, whether or not capable of being protected by patent, copyright, trade secret or other intellectual property right (the Work Product), conceived by the Executive while employed by, serving as an officer of, or consulting with the Company, or any Affiliate, whether formally or informally, compensated or uncompensated, or whether during regular working hours, or while the Executive is an officer or director of the Company, provided such Work Product is related in some manner to the business (present and/or contemplated) of the Company, or any Affiliate, shall be owned and belong exclusively to the Company, or any Affiliate, as the case may be, and that the Executive shall have no personal interest in or right to use the Work Product. The Executive shall, unless the Executive otherwise agrees in writing, and without additional compensation: (a) promptly disclose to the Company all Work Product, and business opportunities related to the present and/or contemplated business of the Company, or any Affiliate (Business Opportunities); (b) assign to the Company, and comply with all reasonable instructions of the Company regarding assigning, upon request, the entire rights to all Work Product and Business Opportunities; (c) give an affidavit and live testimony (as may be necessary or desirable in the sole and absolute discretion of the Company) in support of his inventorship or creation in any appropriate case; and (d) execute such other documents and take such other action as may be required to protect the rights of the Company in any such Work Product and Business Opportunities, including without limitation, such patent, trademark and copyright applications, as may be necessary or desirable in the sole and absolute discretion of the Company to obtain, maintain, protect or vest in the Company the entire right, title and interest in and to the Work Product and Business Opportunities. The Executive agrees that all Work Product, all derivatives thereof, and the Executives contributions thereto shall be considered works made for hire as contemplated in the U.S. Copyright Act, and shall automatically be owned by the Company. If any portion of the Work Product is not ruled to be a work made for hire, the Executive hereby assigns and transfers to the Company, or its successors and assigns, absolutely and forever all right, title and interest in and to such Work Product, including, without limitation, the right to use same in any and all versions of the Work Product and in any other works in any media published or licensed by the Company and the right to recover for past or future infringements thereof. This provision shall not apply to Work Product for which no equipment, supplies, facility or Confidential Information was used and which was developed entirely on the Executives own time, and (a) which does not relate to the business of the Company, or (b) which does not result from any work performed by Executive for the Company.
20. Conflicts of Interest. The Executive agrees that prior to the Retirement Date or an earlier termination of employment, the Executive will not, without the Companys prior written consent, engage, either directly or indirectly, in any activity which might reasonably be expected to adversely affect the Company (a Conflict of Interest) including, but not limited to, (a) ownership of a material interest in any entity with which the Company does business; or (b) being engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with the Executives duties and responsibilities as an employee of the Company, or as an officer of the Company. The foregoing limitations shall not be construed as prohibiting the Executive from making personal investments in such form or manner as will neither require the Executives services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms of this Agreement. The Executive also agrees that she will not accept any payment, service, loan, gift, trip, entertainment or other favor valued in excess of One Hundred Dollars ($100.00) from an entity with which the Company does business and that the Executive will promptly inform an officer of the Company as to each offer received by the Executive to engage in any such activity. The Executive further agrees to disclose to the Company any other facts of which the Executive becomes aware which might reasonably be expected to involve or give rise to a Conflict of Interest or potential Conflict of Interest.
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21. Covenant to Cooperate in Legal Proceedings. The Executive agrees to reasonably cooperate in good faith with and provide reasonable assistance to the Company, upon its reasonable request, with respect to the defense or prosecution of any litigation, investigation or other legal proceeding involving the Company.
22. Indemnification; Directors and Officers Insurance. The Company shall indemnify and hold the Executive harmless to the maximum extent permitted by Section 2-418 of the Maryland General Corporations Law or its successor statute. From the date hereof, and for six (6) years following the Resignation Date, the Company (or any successor thereto) shall provide the Executive with comprehensive coverage under the Companys officers and directors insurance policy (or policies) on substantially the same terms and levels that it provides to its senior executive officers, at the Companys sole cost.
23. Property Return. The Executive hereby represents and agrees that all files, records, correspondence, memoranda, notes or other documents (including, without limitation, those in computer-readable form) or property relating or belonging to the Company or its affiliates, whether prepared by the Executive or otherwise coming into her possession in the course of her employment with the Company, are the exclusive property of the Company, and will be returned to the Company and not retained by the Executive (including, without limitations, any copies thereof) upon the termination of her employment for any reason or upon the request of the Company, whichever occurs first. If after either of these dates Executive discovers that any such property remains in her possession, she will promptly return it upon discovery.
24. No Admission. The Executive agrees that this Agreement shall not be construed as an admission by the Company or any of the Released Parties of a violation of any federal, state, or local statute, regulation, judicial doctrine, or any other law, or a violation of any right, or breach of any duty, obligation, or contract of Executive or any other person.
25. No Representations. Each Party represents that it has carefully read and understands the scope and effect of the provisions of this Agreement. Neither Party has relied upon any representations or statements made by the other Party which are not specifically set forth in this Agreement.
26. Severability. The Parties understand and agree that every Section, and each subpart, sub-section or provision therein, of this Agreement is separable, severable and divisible from the rest of this Agreement. If any Section, subpart, sub-section or provision herein is ruled invalid, illegal, unenforceable or void by any arbitrator, regulatory agency or court of competent jurisdiction, the Parties understand and agree that the remainder of this Agreement shall continue to be enforceable to the fullest extent permitted by law.
27. No Waiver. The Parties acknowledge and agree that the failure to enforce at any time any of the provisions of this Agreement or to require at any time performance by any party of any of the provisions hereto shall in no way be construed as a waiver of such provision or affect the validity of this Agreement or any part thereof, or the right of each party thereafter to enforce each and every provision in accordance with the terms of this Agreement.
28. Assignability. This Agreement is not assignable by the Executive but is assignable by the Company. This Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns. The Company agrees to cause its successors and assigns to assume the Companys liabilities and obligations set forth in this Agreement.
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29. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts without giving effect to any choice of law or conflict of law provisions or rules that would cause the application of the laws of any jurisdiction other than the Commonwealth of Massachusetts.
30. Entire Agreement. Other than the Employment Agreement, this Agreement constitutes the entire agreement between the parties regarding the termination of the Executives employment with the Company. It fully supersedes any and all prior oral or written representations, communications or agreements between the parties pertaining to its subject matter. The Parties acknowledge that no written or oral representations inconsistent with or additional to the terms and conditions of this Agreement have been made or reached. Except as provided herein, the parties further agree that no modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless made in writing, specifically referring to this Agreement, and signed by the Executive and the Company.
31. Counterparts. This Agreement may be executed in counterparts, and each counterpart shall have the same force and effect as an original and shall constitute an effective, binding agreement on the part of each of the undersigned.
32. Voluntary Execution of Agreement. This Agreement is executed voluntarily and without any duress or undue influence on the part or behalf of the Parties, with the full intent of releasing all claims. Each of the Parties acknowledges and agrees that (a) the Party has read this Agreement; (b) the Party has obtained legal counsel in the preparation, negotiation, and execution of this Agreement by legal counsel of such Partys own choice or that such Party has voluntarily declined to seek such counsel; (c) the Party understands the terms and consequences of this Agreement and of the releases it contains; and (d) the Party is fully aware of the legal and binding effect of this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written below.
CYS INVESTMENTS, INC. | ||
By: | /s/ Kevin E. Grant | |
Kevin E. Grant, Chief Executive Officer | ||
Date: | February 10, 2016 | |
/s/ Frances R. Spark | ||
Frances R. Spark | ||
Date: | February 10, 2016 |
Signature page to Executive Retirement Agreement by and between
CYS Investments, Inc. and Frances R. Spark
EXHIBIT A
GENERAL WAIVER AND RELEASE OF CLAIMS
This General Waiver and Release of Claims (this Agreement) is given by Frances R. Spark, an individual (the Employee), and dated as of February 28, 2017. All terms capitalized herein and not otherwise defined shall have the meanings ascribed to them in the Retirement Agreement (as defined below).
WHEREAS, the Employee and CYS Investments, Inc. (the Company) are parties to that certain Executive Retirement Agreement, effective as of February 18, 2016 (the Retirement Agreement); and
WHEREAS, the Employees employment with the Company ended effective February 28, 2017 (the Retirement Date); and
WHEREAS, the Retirement Agreement provides for the Company to cause the Restricted Stock Vesting described in Section 9 of the Retirement Agreement in exchange for Employees execution, and non-revocation, of this Agreement; and
WHEREAS, the Restricted Stock Vesting described in Section 9 of the Retirement Agreement constitutes additional compensation that Employee is not entitled to receive unless Employee executes and does not revoke this Agreement.
NOW THEREFORE, in consideration of the Company causing the Restricted Stock Vesting in accordance with, and subject to the terms of, the Retirement Agreement, and the other good and valuable consideration provided by the Company in the Retirement Agreement, the sufficiency of which is agreed and acknowledged by the Employee, the Employee agrees as follows:
1. The Employees Covenants and Acknowledgements. In exchange for the Company causing the Restricted Stock Vesting, the Employee covenants and agrees as follows:
a. Release and Waiver by the Employee. The Employee, for herself, her agents, personal representatives, heirs and assigns, hereby unconditionally releases and forever discharges the Company and any and all of its affiliated entities and subsidiaries, as well as their respective current and former officers, directors, partners, owners, employees, agents, representatives, financial advisors, predecessors and successors, whether in their individual or representative capacities (collectively Released Parties), from any and all liability of every kind and nature whatsoever that Employee or anyone on her behalf or for her benefit has or might claim to have against the Released Parties for any and all injuries, harm, damages (actual and punitive), penalties, costs, losses, expenses, attorneys fees, and liabilities or other detriment, if any, whatsoever and whenever incurred or suffered by Employee arising out of, relating to, or in connection with any transaction or occurrence which transpired on or before the date Employee executes this Agreement, including but not limited to claims related to the Employees employment with the Company and the retirement of that employment. This release includes a knowing and voluntary waiver of rights under the Age Discrimination in Employment Act, as amended (ADEA), and rights and claims under the Employment Agreement, including the termination of the Employment Agreement. The Employee acknowledges and represents to the Company that neither she, nor any counsel representing the Employee has filed any charges, complaints, actions, or lawsuits, or commenced any proceedings against the Company or its affiliates, in any court or before any governmental agency. Notwithstanding anything herein to
the contrary, this Agreement shall not impact or release any rights that the Employee may have, under the bylaws of the Company, indemnification agreements, applicable insurance policies of the Company, including but not limited to the Companys existing director and officer liability insurance policy, and/or under applicable law, to indemnification with respect to liabilities, costs, losses and claims arising from or related to the Employees service as an officer, director or employee of the Company, any parent, subsidiary or affiliate of the Company, or any of the Released Parties or any rights Executive has under the terms of any Company employee benefit plans (as defined in Section 3(3) of Employee Income Security Act of 1974, as amended). However, by signing this Agreement, the Employee represents and warrants that she has no such indemnification claim.
b. Acknowledgment of Waiver of Claims under ADEA. The Employee understands and acknowledges that she is waiving and releasing any rights she may have under the ADEA, and that this waiver and release is knowing and voluntary. The Employee understands and agrees that this waiver and release does not apply to any rights or claims that may arise under the ADEA after the date she signs this Agreement. The Employee understands and acknowledges that the consideration given for this waiver and release is in addition to anything of value to which the Employee was already entitled. The Employee further understands and acknowledges that she has been advised by this writing that: (i) she should consult with an attorney prior to executing this Agreement; (ii) she has twenty-one (21) days within which to consider this Agreement; (iii) she has seven (7) days following her execution of this Agreement to revoke this Agreement (the Revocation Period) by delivering written notification during the Revocation Period to the Designated Officers; and (iv) this Agreement shall not be effective until after the Revocation Period has expired (the Effective Date). In the event the Employee chooses to sign this Agreement in less than the 21-day consideration period identified above, the Employee hereby acknowledges that she has freely and voluntarily chosen to waive the time period allotted for considering this Agreement. Moreover, should the Employee exercise her right to revoke this Agreement before expiration of the Revocation Period, the entire Agreement shall become null and void; neither she, nor the Company, will have any rights or obligations under it; and the Company will not have any obligations to cause the Restricted Stock Vesting under the Retirement Agreement.
c. Covenant Not to Sue and Indemnification. The Employee hereby specifically covenants and agrees that the Employee will not initiate, or cause to be initiated, any action or cause of action against the Company or any of the other Released Parties in the future asserting any claim covered by this Agreement. The Employee further agrees to indemnify the Company and all other Released Parties for any of the Companys or other Released Parties legal fees, costs, and expenses associated therewith, on account of the Employee bringing or allowing to be brought on the Employees behalf any legal action based directly or indirectly upon the claims covered by this Agreement. In addition, the Employee agrees not to voluntarily aid, assist or cooperate with any claimant or plaintiff or their attorneys or agents in any claim or lawsuit commenced against the Released Parties.
d. EEOC/MCAD Charges. This General Waiver and Release of Claims prohibits the Employee from filing a lawsuit concerning claims covered by this Agreement, but does not prohibit the Employee from lodging a complaint with or participating in a proceeding before the Equal Employment Opportunity Commission (the EEOC) or the Massachusetts Commission Against Discrimination (the MCAD) in connection with any claim she believes she may have against the Released Parties. However, by executing this Agreement, the Employee hereby waives the right to recover damages or injunctive relief in any proceeding that the Employee may bring before the EEOC, MCAD, or any state human rights commission or in any proceeding brought by the EEOC, MCAD, or any state human rights commission on the Employees behalf.
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e. Acknowledgement. The Employee acknowledges and agrees that the Restricted Stock Vesting constitutes fair and adequate consideration for the execution of this Agreement.
2. No Admission. The Employee agrees that this Agreement shall not be construed as an admission by the Company or any of the Released Parties of a violation of any federal, state, or local statute, regulation, judicial doctrine, or any other law, or a violation of any right, or breach of any duty, obligation, or contract of the Employee or any other person.
3. Severability. Should any provision of this Agreement other than Section 1 hereto be found unenforceable, the remainder of this Agreement, in its modified form, shall nonetheless be fully enforceable.
4. Binding Effect. This Agreement and the terms, covenants, conditions, provisions, obligations, undertakings, rights and benefits hereof shall be binding upon, and shall inure to the benefit of, the Employee and the Company and their respective heirs, executors, administrators, representatives, officers, directors, shareholders, predecessors, successors, parents, subsidiaries, affiliated entities, spouses, agents, attorneys, servants, employees, principals, partners, whether limited or general, and assigns, if any.
5. Choice of Law. This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts without giving effect to any choice of law or conflict of law provisions or rules that would cause the application of the laws of any jurisdiction other than the Commonwealth of Massachusetts.
6. Voluntary Execution of this Agreement. This Agreement is executed voluntarily and without any duress or undue influence on the part or behalf of the Parties, with the full intent of releasing all claims. Each of Parties acknowledges and agrees that (a) the Party has read this Agreement; (b) the Party has obtained legal counsel in the preparation, negotiation, and execution of this Agreement by legal counsel of such Partys own choice or that such Party has voluntarily declined to seek such counsel; (c) the Party understands the terms and consequences of this Agreement and of the releases it contains; and (d) the Party is fully aware of the legal and binding effect of this Agreement.
7. Effect on Retirement Agreement. Nothing in this Agreement supersedes or amends the terms of the Retirement Agreement. The Retirement Agreement shall continue in full force and effect according to its terms.
8. Acceptance. To accept, the Employee must sign the Agreement on or after the Retirement Date.
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IN WITNESS WHEREOF, the Employee and the Company have executed this General Waiver and Release of Claims as of the date first written below.
CYS INVESTMENTS, INC. | ||
By: |
| |
Kevin E. Grant, Chief Executive Officer | ||
Date: | February 28, 2017 | |
| ||
Frances R. Spark | ||
Date: | February 28, 2017 |
Signature page to General Waiver and Release of Claims by and between
CYS Investments, Inc. and Frances R. Spark
Exhibit 10.2
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the Agreement), is entered into on February 18, 2016, and will become effective on March 7, 2016 (the Effective Date), by and between Jack DeCicco (the Executive) and CYS Investments, Inc., a Maryland corporation (the Company).
WHEREAS, the Company desires to hire the Executive as an employee of the Company, and effective on June 1, 2016 Executive shall become and serve as the Companys Chief Financial Officer and Treasurer; and
WHEREAS, the Company desires to establish its right to the continued services of the Executive beginning on the Effective Date, in the capacity described below, on the terms and conditions and subject to the rights of termination hereinafter set forth, and the Executive is willing to accept such employment in such capacity and on such terms and conditions.
NOW, THEREFORE, in consideration of the mutual promises and agreements herein made and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties agree as follows:
1. Definitions. The following capitalized terms used in this Agreement shall have the respective meanings assigned to them below:
1.1 Act means the Securities Exchange Act of 1934, as amended, or any successor thereto.
1.2 Affiliate or Affiliated Entity means any entity that controls, is controlled by, or is under common control with the Company;
1.3 Board means the Board of Directors of the Company.
1.4 Beneficial Owner means a beneficial owner as such term is used for purposes of Sections 13(d) and 14(d) of the Act (or any successor section thereto).
1.5 Business Day means Monday through Friday of each week, except a legal holiday recognized as such by the U.S. Government or any day on which banking institutions in the State of New York are authorized or obligated by law to close.
1.6 Change of Control means the occurrence of any one of the following events:
a. stockholder approval of the complete liquidation or dissolution of the Company; or
b. the sale or disposition, in one or a series of related transactions, of all or substantially all of the assets of the Company to any Person or Group; or
c. any Person or Group is or becomes the Beneficial Owner, directly or indirectly, of more than 50% of the voting shares of the Company; or
d. a merger, consolidation or statutory share exchange where the Companys stockholders immediately prior to such event hold less than 50% of the voting power of the surviving or resulting entity; or
e. during any period of two (2) consecutive years, individuals who, as of the Effective Date, constitute the Board (the Incumbent Directors) cease for any reason, including, without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to constitute at least a majority of the Board, provided that any person becoming a member of the Board subsequent to the Effective Date whose election or nomination for election was approved by a vote of at least a majority of the Incumbent Directors shall, for purposes of this Agreement, be considered an Incumbent Director; or
f. the Board adopts a resolution to the effect that, in its judgment, as a consequence of any transaction or event, or a series thereof, a Change of Control has effectively occurred.
If a Change of Control constitutes a payment event with respect to any benefit or payment that provides for the deferral of compensation that is subject to Section 409A of the Code, no payment will be made of that benefit or payment on account of a Change of Control unless the event or transaction that constitutes a Change of Control also constitutes a change in control event under Treasury Regulation Section 1.409A-3(i)(5).
1.7 Code shall mean the Internal Revenue Code of 1986, as amended.
1.8 Compensation Committee shall mean the Compensation Committee of the Board.
1.9 Confidential Information means information, knowledge or data disclosed to or known by Executive as a consequence of or through his employment with the Company that relates to any aspect of the Company or its business and assets. Confidential Information includes, but is not limited to, any and all confidential information (whether recorded in documentary form or by electronic or other means) relating to the Companys assets, business methods, investment strategies, hedging strategies, liability management strategies, corporate plans, business plans, strategic plans, employee information (including compensation, qualifications, and utilization), management systems, finances, and existing or developing business opportunities. Confidential Information also includes any other information in respect of which the Company owes an obligation of confidentiality to any third party, knowledge of which the Executive acquired at any time during his employment by the Company and which is not readily ascertainable to persons not connected with the Company, either at all or without significant expenditure of labor, skill or money.
1.10 Copyright Works are materials for which copyright protection may be obtained including, but not limited to literary works (including all written material), computer programs, artistic and graphic works (including designs, graphs, drawings, blueprints, and other works), recordings, models, photographs, slides, motion pictures, and audio-visual works, regardless of the form or manner in which documented or recorded.
1.11 Good Reason shall mean the occurrence of one or more of the following without the Executives written consent: (i) the failure of the Company to pay any amounts due under this Agreement in a timely manner, (ii) the Executive is not elected by the Board to serve as the Companys Chief Financial Officer and Treasurer effective as of June 1, 2016, (iii) after his election to serve as the Companys Chief Financial Officer and Treasurer on June 1, 2016, a material diminution in the Executives duties, authorities or responsibilities; provided, however, that the removal by the Board of the title of Treasurer from the Executive shall not be deemed Good Reason for purposes of this Section 1.11 so long as the Executive retains the title of Chief Financial Officer of the Company, (iv) a reduction of the Executives Base Salary (defined below) below $500,000, (v) the relocation of the Executives principal place of employment more than 50 miles from Waltham, Massachusetts, except for a relocation of the Executives principal place of employment that is approved by a majority of the independent
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directors after making a determination that such relocation is in the best interests of the Company, (vi) a material breach of this Agreement by the Company (other than those items set forth in items (i), (ii) or (iii) above), or (vii) the failure of the Company to obtain the assumption in writing of its obligations to perform this Agreement by any successor to the Company following a Change of Control, if any. The Executives termination of employment shall not be on account of Good Reason unless the Executive gives the Company written notice within 90 days of the initial existence of the grounds that the Executive asserts constitute Good Reason, the Company has not cured such grounds within 30 days after the Executives notice and the Executive terminates employment within 90 days after the Executives notice.
1.12 Group shall mean a group as such term is used in Sections 13(d) and 14(d) of the Act (or any successor section thereto), acting in concert.
1.13 Lead Independent Director means the independent director who has been designated by the Board to serve as the lead independent director of the Company.
1.14 Person shall mean a person as such term is used for purposes of Sections 13(d) and 14(d) of the Act (or any successor section thereto).
2. Employment as Chief Financial Officer and Treasurer of the Company. As of the Effective Date until the termination of this Agreement, the Company shall hereby employ the Executive. The Executive does hereby accept and agree to such employment. From the Effective Date until May 31, 2016, the Executive shall report primarily to the Companys Chief Executive Officer and Chief Financial Officer, with the Executives duties, responsibilities and performance expectations primarily being set by the Companys Chief Executive Officer. Effective as of June 1, 2016, the Executive shall serve as the Companys Chief Financial Officer and Treasurer of the Company. The Executives duties as Chief Financial Officer and Treasurer shall be such duties typically required of a chief financial officer and treasurer, and as shall from time to time be agreed upon by the Executive and the Board. Beginning as of June 1, 2016, the Executive shall report solely and directly to the Chief Executive Officer of the Company. Except for periods of Disability (as defined below), during the Term the Executive shall devote substantially all of his business time and attention to perform his duties under this Agreement. The Executive may undertake business activities outside of the duties under this Agreement; provided, however, that (i) such activities do not prevent the Executive from devoting substantially all of his business time and attention to perform his duties under this Agreement and (ii) such activities are first approved by the Board.
3. Term of Agreement. The initial term (the Initial Term) of this Agreement shall commence as of the Effective Date and shall continue through the third anniversary of the Effective Date. From and after such third anniversary and upon each anniversary thereafter, the Initial Term shall automatically be extended for successive one-year periods (each such successive one-year period, together with the Initial Term, being the Term) unless, not later than 90 days prior to such third anniversary or any subsequent anniversary, as applicable, either party shall have given written notice to the other that it does not wish to extend the Term of this Agreement.
4. Compensation.
4.1 Base Salary. The Company shall pay the Executive, and the Executive agrees to accept from the Company, in payment for his services to the Company, a gross base salary equal to a per annum amount of $500,000 (the Base Salary), payable in equal monthly installments in accordance with the Companys payroll practices. The Base Salary may be adjusted at any time by the Compensation Committee. The Base Salary as adjusted shall be deemed to be the Base Salary for all purposes under this Agreement.
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4.2 Performance Bonus.
a. The Executive shall be eligible to participate in, and be paid a performance bonus (the Performance Bonus) in accordance with the terms of an incentive compensation plan approved by the Compensation Committee for the Companys Executives and other eligible employees (the Incentive Compensation Plan) each year during the Term.
b. Pursuant to the Companys 2016 Incentive Compensation Plan (the 2016 Plan), the Executive shall be eligible to receive a discretionary incentive compensation bonus (the 2016 Bonus) of up to 150% of his base salary for the fiscal year ended December 31, 2016 (Fiscal 2016), subject to the approval of the Compensation Committee; provided, however, that the 2016 Bonus shall in any event be at least $400,000, which shall be payable 50% in cash and 50% in restricted common stock that shall vest ratably over a five year period beginning on the one year anniversary of the date of grant in accordance with the 2016 Plan.
c. The amount of the benefit that may be earned by the Executive under the Incentive Compensation Plan, the form of Performance Bonus awards made to the Executive and the timing of the payment of such Performance Bonus awards shall each be determined in accordance with the terms of the Incentive Compensation Plan, with such terms to be set annually by the Compensation Committee.
4.3 Annual Review; Discretion to Adjust Compensation. The Compensation Committee shall at least once each fiscal year review the Executives compensation package to determine if the package should be adjusted in order for it to continue to meet the Companys compensation objectives. If the Compensation Committee determines that the Executives compensation package should be adjusted pursuant to this Section 4.3, then the Compensation Committee shall recommend such adjustment to the Board. The Executives compensation package shall only be adjusted pursuant to this Section 4.3 if approved by the Board. Nothing in this Agreement shall be interpreted to imply that this Agreement guarantees that the Executives compensation package will be increased. In addition, nothing in this Agreement shall preclude the Board from adjusting, or the Board and the Compensation Committee from considering adjusting, the Executives compensation during the Term of this Agreement. The Base Salary as adjusted shall be the Base Salary for all purposes of this Agreement.
5. Fringe Benefits. The Executive shall be entitled to participate in any benefit programs adopted from time to time by the Company for the benefit of the Companys executives and/or the Companys employees generally, and the Executive shall be entitled to receive such other fringe benefits as may be granted to him from time to time by the Compensation Committee.
5.1 Benefit Plans. The Executive shall be entitled to participate in any benefit plans relating to stock options, stock purchases, awards, pension, thrift, profit sharing, life insurance, medical coverage, education, or other retirement or employee benefits available to other senior executive employees of the Company, subject to any restrictions (including waiting periods) specified in such plans.
5.2 Vacation and ESG Paid Time Off. The Executive shall be entitled to such number of weeks of paid vacation per calendar year, including time off to undertake and participate in activities that are charitable or philanthropic in nature in accordance with the Companys applicable policies regarding environmental, social responsibility and corporate governance, as determined by the Board after review of industry standards, but shall in no event be entitled to fewer than six (6) weeks of paid vacation per calendar year.
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6. Business Expenses. The Company shall reimburse the Executive for any and all necessary, customary and usual expenses incurred by Executive on behalf of the Company in accordance with Company policies.
7. Termination of Executives Employment.
7.1 Death. If the Executive dies while employed by the Company, his employment shall immediately terminate. The Companys obligation to pay the Executives Base Salary shall cease as of the date of Executives death, except that any earned but unpaid Base Salary and Performance Bonus for any performance period that ended before the Executives death shall be paid to the Executives estate as soon as practicable after his death. In addition, the Executives estate shall receive the Performance Bonus for the year of the Executives death on a pro-rated basis and the Performance Bonus, if any, shall be paid to the Executives estate at the same time and in the same manner as such Performance Bonus would have been paid to the Executive had the Executives employment not been terminated by reason of death.
7.2 Disability. If, as a result of the Executives incapacity due to physical or mental illness (Disability), Executive is incapable of performing the essential functions of his job or shall have been absent from the full-time performance of his duties with the Company for a period of at least six (6) consecutive months, and, within 30 days after written notice is provided to him by the Company, the Executive is incapable of performing the essential functions of his job or shall not have returned to the full-time performance of his duties, the Executives employment under this Agreement may be terminated by the Company due to the Executives Disability. With respect to the period beginning when the Executive is first absent from the full-time performance of his duties with the Company due to Disability and ending upon the later of (i) the date he is terminated from employment in accordance with the foregoing sentence, or (ii) the date he begins receiving long-term disability payments under the Companys long term disability plan (Salary Continuation Period), the Company shall continue to pay the Executive his Base Salary at the rate in effect at the commencement of such period of Disability. Upon a termination of the Executives employment by reason of Disability, the Company shall pay to the Executive the severance detailed in Section 8.2 below.
7.3 Termination by the Company for Cause. The Company, by action of the Board, may terminate the Executives employment under this Agreement for Cause, at any time prior to expiration of the Term of this Agreement, only in the event of (i) acts or omissions constituting gross or willful misconduct on the part of the Executive in connection with the performance of his duties to the Company, (ii) a material breach by the Executive of the terms of this Agreement, (iii) the failure of the Executive to adhere to the lawful directions of the Board that are reasonably consistent with the Executives duties and positions or (iv) the Executives conviction or plea of guilty or nolo contendre for fraud, misappropriation or embezzlement in connection with the assets of the Company, or to a felony. In the case of clauses (i), (ii) or (iii) only, it shall also be a condition precedent to the Companys right to terminate the Executives employment for Cause that (1) the Company shall first have given the Executive written notice stating with specificity the reason for the termination (asserted breach) at least 60 days before the meeting of the Board called to make such determination and the Executive and his counsel are given the opportunity to answer such grounds for termination in person, at a hearing or in writing, at the Executives discretion, delivered to the Lead Independent Director of the Board before a vote by the Board on the existence of Cause; and (2) if such asserted breach is capable of cure or remedy, a period of 60 days from and after the giving of the notice described in (1) shall have elapsed without the Executive having effectively cured or remedied such asserted breach to the reasonable satisfaction of the Board during such 60-day period, unless such asserted breach is of the type that cannot be cured or remedied within 60 days, in which case the period for remedy or cure shall be extended for a reasonable time (not to exceed an additional 30 days), provided the Executive has made and continues to make a diligent effort to effect such remedy or
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cure. In the case of clause (iv) above, the Executives employment under this Agreement may be terminated immediately without any advance written notice. Upon a determination that grounds exist for a termination for Cause by the Board and that the asserted breach cannot be cured, or immediately in the case of clause (iv) above, the Companys obligation to pay the Executives Base Salary, any Performance Bonus and benefits shall immediately cease, except to the extent any Base Salary or Performance Bonus for a performance period that ended before such date and has been earned but has not yet been paid. Additionally, equity awards granted to the Executive which have not yet vested as of the termination date of Executives employment with the Company shall be forfeited.
7.4 Termination without Cause. The Company may at any time during the Term of this Agreement terminate the Executives employment without Cause by giving the Executive notice in writing not less than 30 days in advance of such termination. In addition, if the Company chooses not to renew this Agreement at any time pursuant to Section 3.1 hereto and the Executive remains employed by the Company until the end of the Term, then such non-renewal shall be deemed a termination without Cause under this Section 7.4. Except as provided in this Agreement, the Executive shall have no further obligations to the Company after the effective date of any termination without Cause, as set forth in the notice. In the event of a termination of the Executives employment under this Section 7.4, the Company will pay to the Executive the severance detailed in Section 8.1 below.
7.5 Termination by the Executive. The Executive may at any time during the Term of this Agreement terminate his employment hereunder without Good Reason by giving the Company notice in writing not less 90 days in advance of such termination. Except as set forth in Section 9 of this Agreement, the Executive shall have no further obligations to the Company after the effective date of his termination, as set forth in the notice. In the event of a termination by the Executive under this Section 7.5, the Company will only pay any unpaid Base Salary that was earned but had not yet been paid prior to the termination date of Executives employment with the Company. Additionally, equity awards granted to the Executive which have not yet vested as of the termination date of Executives employment with the Company shall be forfeited.
7.6 Termination by the Executive for Good Reason. The Executive at any time may terminate his employment for Good Reason. If the Executive terminates his employment for Good Reason, the notice period in Section 7.5 above shall not apply and the Company will pay to the Executive the severance detailed in Section 8.1 below.
8. Termination Payments.
8.1 Compensation upon Termination by the Company other than for Cause or upon Termination by the Executive for Good Reason or upon a Change in Control. If the Executives employment shall be terminated by (i) the Company, or its successor, (A) other than for Cause or (B) other than for Cause within 24 months after a Change of Control, or (ii) the Executive (A) for Good Reason at any time or (B) for Good Reason within 12 months following a Change in Control, then the Company, or its successor, shall pay, and the Executive shall be entitled to receive, the following amounts and benefits:
a. Payment of Unpaid Base Salary and Performance Bonus. The Company shall pay the Executive, in a single cash payment, (i) any unpaid Base Salary, (ii) any Performance Bonus that was earned for performance periods that ended prior to the termination date of Executives employment with the Company and has not been paid and (iii) the pro rata Performance Bonus for the year of the Executives termination of employment with the Company.
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b. Severance Payment.
(i) if such termination occurs during Fiscal 2016, then the Company shall pay the Executive an amount equal to $2,250,000.00; such amount being (A) the sum of the Executives (1) Base Salary plus (2) $625,000, multiplied by (B) 2. In addition, Executive shall receive this payment in the event that an agreement is executed during Fiscal 2016 pursuant to which a Change of Control would occur if completed, such Change of Control transaction is completed during the year ended December 31, 2017, and either the Executive terminates his employment for Good Reason within 12 months following such Change of Control or the Executives employment is terminated by the Company or its successor other than for Cause within 24 months after such Change of Control.
(ii) if such termination occurs during the fiscal year ending December 31, 2017, then the Company shall pay the Executive an amount equal to (A) the sum of the average of the Executives (1) Base Salary plus (2) the Performance Bonus earned during the period of time beginning on the date of this Agreement and ending on the termination date of Executives employment with the Company, multiplied by (B) 1.5.
(iii) thereafter, the Company shall pay the Executive an amount equal to (A) the sum of the average of the Executives (1) Base Salary plus (2) the Performance Bonus earned during the shorter of (i) the three (3) fiscal years immediately preceding the year in which the termination of the Executives employment occurs or (ii) the period of time beginning on the date of this Agreement and ending on the termination date of Executives employment with the Company, multiplied by (B) 1.
(iv) Any payment pursuant to this Section 8.1(b) shall be referred to as the Severance Amount. Fifty percent (50%) of the Severance Amount shall be paid by the later of (i) 30 days after the date the Executive terminates for Good Reason or is terminated by the Company for any reason other than Cause or (ii) five (5) Business Days after the effectiveness of the Executives Release (defined below), and the remaining fifty percent (50%) of the Severance Amount shall be paid on or before March 15 of the year following the year in which the Executive terminates for Good Reason or is terminated by the Company for any reason other than Cause or, if sooner, in three (3) equal monthly installments beginning on the first business day of the month following the month of such termination.
c. Immediate Vesting of Stock Options. The Company shall take all appropriate action such that all stock options on the Companys stock owned by the Executive as of the termination date of Executives employment with the Company, and which have not vested prior to the termination date of the Executives employment with the Company shall immediately vest. The provisions of this Section 8.1(c) shall constitute an amendment to any existing stock option agreements (including award certificates) of the Company as of the termination date of Executives employment with the Company.
d. Immediate Vesting of Restricted Stock Grants. The Company shall take all appropriate action such that all shares subject to forfeiture under any restricted stock award agreement (an RSA) shall become fully vested, and no longer subject to forfeiture in accordance with the terms of such RSAs. The provisions of this Section 8.1(d) shall constitute an amendment to any existing RSAs by and between the Company and the Executive as of the termination date of Executives employment with the Company.
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e. Maximization of Payment in the Event of a Change in Control. The Company shall make the payments and provide the benefits to be paid and provided under this Agreement; provided, however, that if all or any portion of the payments and benefits provided under this Agreement, either alone or together with other payments and benefits which the Executive receives or is then entitled to receive from the Company or otherwise, would constitute a parachute payment within the meaning of Section 280G of the Code (or a similar or successor provision), the Company shall reduce such payments hereunder and such other payments to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code (or a similar or successor provision); but only if, by reason of such reduction, the net after-tax benefit to the Executive shall exceed the net after-tax benefit if such reduction were not made. The payments or benefits shall be reduced by first reducing payment or benefits that are not subject to Section 409A of the Code and thereafter, if necessary, reducing payments or benefits that are subject to Section 409A of the Code in the manner and order determined by the Company. The determination of whether the payments shall be reduced as provided in this Section 8(e) and the amount of such reduction shall be made at the Companys expense by a public accounting firm retained by the Company at the time the calculation is to be performed, or one selected by the Company from among the four (4) largest public accounting firms in the United States (the Accounting Firm). The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation to the Company and the Executive within 20 Business Days of the payment of the initial installment of the Severance Amount. The Executive may review these calculations for a period of 20 days and may retain another accounting firm (at his own expense) for such review and submit objections during such 20-day review period.
f. Continuation of Medical Benefits. The Company shall reimburse the Executive for the amount of premiums paid by the Executive to continue coverage for the Executive and his eligible dependents under the Companys health plan during the period that the Executive and his eligible dependents are eligible to participate in the Companys health plan under the terms of the plan and the insurance policy that insures the plans benefits, not to exceed 12 months after termination. If the Executive and his eligible dependents are unable to continue participation in the Companys health plan for at least 12 months after termination, the Company shall reimburse the Executive for the amount of premiums paid by the Executive to continue coverage for the Executive and his eligible dependents under COBRA or any similar State law for the period that such continuation coverage is required.
g. General Release. The obligations of the Company to make any payments to Executive required under Section 8.1 hereof shall be conditioned on the execution and delivery by the Company and the Executive of, and the effectiveness of, a general mutual release of claims in form and substance reasonably satisfactory to the Company and the Executive.
8.2 Compensation upon Termination by the Company for Disability. If the Executives employment shall be terminated by the Company for Disability, then the Company shall pay, and the Executive shall be entitled to receive, the following amounts and benefits in addition to those amounts set forth in Section 7.2:
a. Performance Bonus. The Company shall pay to the Executive (i) the unpaid Performance Bonus for any performance period that ended before the termination date of the Executives employment with the Company and (ii) the pro rata Performance Bonus for the year of the Executives termination of employment with the Company. The Performance Bonus shall be paid to the Executive at the same time and in the same manner as such Performance Bonus would have been paid had the Executive not been terminated by reason of Disability.
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b. Severance Amount. The Company shall pay the Executive an amount (the Disability Severance Amount) equal to three-quarters (0.75) times the average amount of the Executives Base Salary during the shorter of (A) three (3) fiscal years immediately preceding the year in which the termination of the Executives employment occurs or (B) the period of time beginning on the date of this Agreement and ending on the termination date of Executives employment with the Company. The Disability Severance Amount shall be payable in 12 equal monthly installments, commencing with the month immediately following the termination of the Executives employment by reason of Disability.
c. Immediate Vesting of Stock Options. The Company shall take all appropriate action such that all stock options on the Companys stock owned by the Executive as of the termination date of Executives employment with the Company, and which have not vested prior to the termination date of the Executives employment with the Company shall immediately vest. The provisions of this Section 8.3(c) shall constitute an amendment to any existing stock option agreements (including award certificates) of the Company as of the termination date of Executives employment with the Company.
d. Immediate Vesting of Restricted Stock Grants. The Company shall take all appropriate action such that all shares subject to forfeiture under any RSAs shall become fully vested, and no longer subject to forfeiture in accordance with the terms of such RSAs. The provisions of this Section 8.3(d) shall constitute an amendment to any existing RSAs by and between the Company and the Executive as of the termination date of Executives employment with the Company.
e. Continuation of Medical Benefits. The Company shall reimburse the Executive for the amount of premiums paid by the Executive to continue coverage for the Executive and his eligible dependents under the Companys health plan during the period that the Executive and his eligible dependents are eligible to participate in the Companys health plan under the terms of the plan and the insurance policy that insures the plans benefits, not to exceed 12 months after termination. If the Executive and his eligible dependents are unable to continue participation in the Companys health plan for at least 12 months after termination, the Company shall reimburse the Executive for the amount of premiums paid by the Executive to continue coverage for the Executive and his eligible dependents under COBRA or any similar State law for the period that such continuation coverage is required.
f. General Release. The obligations of the Company to make any payments to Executive required under Section 8.2 hereof shall be conditioned on the execution and delivery by the Company and the Executive of, and the effectiveness of, a general mutual release of claims in form and substance reasonably satisfactory to the Company and the Executive.
9. Noncompetition, Confidentiality and Non-Disparagement Provisions.
9.1 Noncompetition. The Executive agrees that during the Term of employment under this Agreement prior to any termination of his employment hereunder and, in the event the Executives employment shall be terminated by the Company other than for Cause or by the Executive for Good Reason, then for a period of one (1) year following such termination, the Executive will not, directly or indirectly, without the prior written consent of the Company, manage, operate, join, control, participate in, as an officer, employee or otherwise, of any real estate investment trust or other investment vehicle whose business strategy is based on or who engages primarily in the trading, sales or management of residential mortgage-backed securities (the Business) in any geographical region in which the
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Company engages in the Business (a Competitor). It is further expressly agreed that the Company will or would suffer irreparable injury in violation of the preceding sentence of this Agreement and that the Company would by reason of such competition be entitled to seek monetary damages and injunctive relief in a court of appropriate jurisdiction, and the Executive further consents and stipulates to the entry of such injunctive relief, without the need for posting of a bond, in such a court prohibiting the Executive from competing with the Company or any subsidiary or affiliate of the Company, in the Business set forth above, in violation of this Agreement.
9.2 Access to Confidential Information and Non-Disclosure Agreement. Upon execution of this Agreement, the Executive will be provided with and will have access to certain Confidential Information. The Executive further agrees that Executive will not, except as the Company may otherwise consent or direct in writing or as may otherwise be required by law or legal process, reveal or disclose, sell, use, lecture upon, publish or otherwise disclose to any third party any Confidential Information, or authorize anyone else to do these things at any time either during or subsequent to his employment with the Company. This Section shall continue in full force and effect after termination of the Executives employment for any reason. The Executives obligations under this Section 9.2 of this Agreement with respect to any specific Confidential Information shall cease when that specific portion of the Confidential Information becomes publicly known, other than as a result of disclosure by the Executive or any representatives of the Executive in violation of this Agreement, in its entirety and without combining portions of such information obtained separately. It is understood that such Confidential Information includes matters that the Executive conceives or develops, as well as matters the Executive learns from other employees of the Executive. The Executive agrees that he will immediately notify the Company if he receives a subpoena, order from a court or administrative agency or other legal process that seeks to require disclosure of Confidential Information. The nondisclosure obligation set forth in this Section 9.2 is in addition to any fiduciary duties of the Executive to maintain the confidentiality of the Confidential Information and, to the extent not otherwise provided herein, the trade secrets of the Company.
9.3 Work Product. The Executive acknowledges that all ideas, discoveries, programs, systems, methods, techniques, formulas, concepts, works of authorship, interfaces, protocols, databases, creations, artwork, articles, programming, processes, designs, inventions or improvements thereof, whether or not capable of being protected by patent, copyright, trade secret or other intellectual property right (the Work Product), conceived by the Executive while employed by, serving as an officer of, or consulting with the Company, or any Affiliate, whether formally or informally, compensated or uncompensated, or whether during regular working hours, or while the Executive is an officer or director of the Company, or any Affiliate, provided such Work Product is related in some manner to the business (present and/or contemplated) of the Company, or any Affiliate, shall be owned and belong exclusively to the Company, or any Affiliate, as the case may be, and that the Executive shall have no personal interest in or right to use the Work Product. The Executive shall, unless the Executive otherwise agrees in writing, and without additional compensation: (i) promptly disclose to the Company all Work Product, and business opportunities related to the present and/or contemplated business of the Company, or any Affiliate (Business Opportunities); (ii) assign to the Company, and comply with all reasonable instructions of the Company regarding assigning, upon request, the entire rights to all Work Product and Business Opportunities; (iii) give an affidavit and live testimony (as may be necessary or desirable in the sole and absolute discretion of the Company) in support of his inventorship or creation in any appropriate case; and (iv) execute such other documents and take such other action as may be required to protect the rights of the Company, or any Affiliate in any such Work Product and Business Opportunities, including without limitation, such patent, trademark and copyright applications, as may be necessary or desirable in the sole and absolute discretion of the Company to obtain, maintain, protect or vest in the Company, or any Affiliate, the entire right, title and interest in and to the Work Product and Business Opportunities. The Executive agrees that all Work Product, all derivatives thereof, and the Executives contributions thereto shall be considered works made for hire as contemplated in the U.S. Copyright Act, and shall
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automatically be owned by the Company, or and/or any applicable Affiliated Entity. If any portion of the Work Product is not ruled to be a work made for hire, the Executive hereby assigns and transfers to the Company, or its successors and assigns, absolutely and forever all right, title and interest in and to such Work Product, including, without limitation, the right to use same in any and all versions of the Work Product and in any other works in any media published or licensed by the Company, or any Affiliate and the right to recover for past or future infringements thereof. This provision shall not apply to Work Product for which no equipment, supplies, facility or Confidential Information was used and which was developed entirely on the Executives own time, and (a) which does not relate to the business of the Company, or (b) which does not result from any work performed by Executive for the Company.
9.4 Return of Property. The Executive acknowledges that all Work Product and other writings, records and other documents and things comprising, containing, describing, discussing, explaining or evidencing any Confidential Information and all letters, notes, notebooks, computer data and programs, lists, books, records of any kind and any other written or other materials relating to Work Product and/or Confidential Information and all other property belonging to the Company in the Executives custody or possession that has been obtained or prepared in the course of the Executives employment with the Company shall be the exclusive property of the Company, shall not be copied and/or removed from the premises of the Company, except in pursuit of the business of the Company, and with express authorization from the Company, and shall be delivered to the Company, along with all copies or reproductions of same, upon notification of the termination of the Executives employment or at any other time requested by the Company. The Company shall have the right to retain, access, and inspect all property of any kind in the Executives office, work area and on the premises of the Company upon termination of the Executives employment and at any time during the Executives employment, to ensure compliance with the terms of this Agreement.
9.5 Conflicts of Interest. The Executive agrees that during the Term, the Executive will not, without the Companys prior written consent, engage, either directly or indirectly, in any activity which might reasonably be expected to adversely affect the Company, or any Affiliated Entity (a Conflict of Interest) including, but not limited to, (i) ownership of a material interest in any entity with which the Company does business; or (ii) being engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with the Executives duties and responsibilities as an employee of the Company, or as an officer of the Company. The foregoing limitations shall not be construed as prohibiting the Executive from making personal investments in such form or manner as will neither require the Executives services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms of this Agreement. The Executive also agrees that he will not accept any payment, service, loan, gift, trip, entertainment or other favor valued in excess of One Hundred Dollars ($100.00) from an entity with which the Company, or any Affiliated Entity, does business and that the Executive will promptly inform an officer of the Company as to each offer received by the Executive to engage in any such activity. The Executive further agrees to disclose to the Company any other facts of which the Executive becomes aware which might reasonably be expected to involve or give rise to a Conflict of Interest or potential Conflict of Interest.
9.6 Non-Solicitation of Employees. The Executive agrees that for the Term, and for a period of one (1) year following termination of the Executives employment with the Company for any reason, he will not either directly or indirectly, on his own behalf or on behalf of others: (i) induce or attempt to induce any employee or officer of the Company, or any employee or officer of an Affiliated Entity to terminate such employees employment with the Company or service to the Company or any Affiliated Entity; (ii) induce or attempt to induce any consultant or independent contractor to the Company, or any Affiliated Entity to terminate his or its consultancy or contractual relationship with the Company, or any Affiliated Entity; and/or (iii) employ or retain, or attempt to employ or retain, any employee of the Company, or any Affiliated Entity.
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9.7 Non-disparagement. Following the termination of the Executives employment with the Company for any reason, the Executive shall not say, publish or do anything that casts the Company, or any Affiliated Entity, or any officer or director of the Company, or any Affiliated Entity, in an unfavorable light, or disparage or injure the goodwill, business reputation or relationship of the Company, or any Affiliated Entity, with existing or potential creditors, counterparties, bankers, analysts, investors, employees or the financial community in general, or the goodwill or business reputation of the employees, directors and/or contractors of the Company, or any Affiliated Entity.
9.8 Acknowledgment of Need for Restrictive Covenants. The Executive acknowledges the necessity of the restrictive covenants set forth herein to protect the Companys legitimate interests in the Confidential Information, Work Product, business and the goodwill with creditors, counterparties, bankers, analysts, investors, employees and the financial community in general that the Company has established at its substantial investment; and protect the Company as a result of providing the Executive with trade secrets, Confidential Information and other specialized and valuable knowledge, training, and insight regarding the Companys business and operations. The Executive further agrees and acknowledges that the restrictive covenants are a reasonable limitation as to time, geographic area and scope of activities to be restricted and that such promises do not impose a greater restraint on the Executive than is necessary to protect the goodwill, Confidential Information, Work Product and other legitimate business interests of the Company.
9.9 Reaffirmation of Obligations. Upon termination of his employment with the Company, the Executive, if requested by the Company, shall reaffirm in writing the Executives recognition of the importance of maintaining the confidentiality of the Confidential Information, and reaffirm any other obligations set forth in this Agreement that survive the termination of the Executives employment with the Company.
9.10 Prior Disclosure. The Executive represents and warrants that he has not used or disclosed any Confidential Information, trade secret, copyright or any other intellectual property he may have obtained from the Company prior to signing this Agreement, in any way inconsistent with the provisions of this Agreement.
9.11 Previously Accessed Confidential Information. The Executive will not, except as the Company may otherwise consent in writing, use any Confidential Information the Executive may have obtained from the Company prior to execution of this Agreement, whether such information is in the Executives memory or embodied in a writing or other physical form.
10. Compliance With Section 409A. This Agreement and the amounts payable and other benefits provided under this Agreement are intended to comply with, or otherwise be exempt from, Section 409A of the Code, after giving effect to the exemptions in Treasury Regulation Section 1.409A-1(b)(3) through (b)(12). This Agreement shall be administered, interpreted and construed in a manner consistent with Section 409A of the Code. If any provision of this Agreement is found not to comply with, or otherwise not be exempt from, the provisions of Section 409A of the Code, it shall be modified and given effect, in the sole discretion of the Compensation Committee and without requiring the Executives consent, in such manner as the Compensation Committee determines to be necessary or appropriate to comply with, or to effectuate an exemption from, Section 409A of the Code; provided, however, that in exercising its discretion under this Section 10, the Compensation Committee shall modify this Agreement or any amount payable or other benefits provided under this Agreement, in the least restrictive manner necessary. If this Agreement or any amount payable or other benefit provided under this Agreement shall be deemed not to comply with Section 409A of the Code or any related regulations or other guidance, then neither the Company, any Affiliate, the Compensation Committee or any of their designees or agents shall be liable to the Executive or other person for actions, decisions or determinations made in good faith.
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If a payment or benefit obligation under this Agreement arises on account of the Executives termination of employment and such payment or benefit obligation constitutes deferred compensation (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation Section 1.409A-1(b)(3) through (b)(12)), it shall be payable only after the Executives separation from service (as defined in Treasury Regulation Section 1.409A-1(h)); provided, however, that if the Executive is a specified employee (as defined in Treasury Regulation Section 1.409A-1(i)), any payment that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and shall be paid on the date that is six (6) months after such separation from service or, in the case of a payment or benefit obligation payable in installments, on the first day of the seventh month beginning after the date of the Executives separation from service or, if earlier, within fifteen days after the Executives death (and the payment on the first day of the seventh month beginning after the date of the Executives separation from service shall include any installments that would have been paid during such period after the separation from service if the Executive was not a specified employee.
With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, the Executive as provided in this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following limitations: (i) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one (1) taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year, except for any medical reimbursement arrangements providing for the reimbursement of expenses referred to in Section 105(b) of the Code; (ii) the reimbursement of an eligible expense shall be made as specified in this Agreement and in no event later than the end of the year in which such expense was incurred; and (iii) the right to reimbursement or in-kind benefit shall not be subject to liquidation or exchange for another benefit.
11. Notices. All notices and other communications under this Agreement shall be in writing and shall be given by fax or first class mail, certified or registered with return receipt requested, and shall be deemed to have been duly given three (3) days after mailing or 24 hours after transmission of a fax or email to the respective persons named below:
If to the Company: | Compensation Committee of the Board of Directors | |||||
c/o CYS Investments, Inc. | ||||||
890 Winter Street, Suite 200 | ||||||
Waltham, Massachusetts 02451 | ||||||
Phone: (617) 639-0400 | ||||||
Fax: (617) 507-6439 | ||||||
Email: thomas.rosenbloom@cysinv.com | ||||||
If to the Executive: | Jack DeCicco | |||||
to the address of the Executive as most recently listed in the Companys | ||||||
corporate records | ||||||
Phone: [●] | ||||||
Fax: [●] | ||||||
Email: [●] |
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A copy of any notice pursuant to this Agreement shall be sent to Hunton & Williams LLP, Riverfront Plaza East, 951 East Byrd Street, Richmond, Virginia 23219 Attention: S. Gregory Cope, Esquire. Either party may change such partys address for notices by notice duly given pursuant hereto.
12. No Mitigation or Offset. The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise. The Company shall not be entitled to set off against the amounts payable to the Executive under this Agreement any amounts earned by the Executive in other employment after termination of employment with the Company, or any amounts which might have been earned by the Executive in other employment had such other employment been sought.
13. Termination of Prior Agreements. This Agreement terminates and supersedes any and all prior agreements and understandings between the parties with respect to employment or with respect to the compensation of the Executive by the Company.
14. Assignment; Successors. This Agreement is personal in its nature and neither of the parties hereto shall, without the consent of the other, assign or transfer this Agreement or any rights or obligations hereunder; provided that, in the event of the merger, consolidation, transfer, or sale of all or substantially all of the assets of the Company with or to any other individual or entity, this Agreement shall, subject to the provisions hereof, be binding upon and inure to the benefit of such successor and the Company shall ensure that such successor agrees to discharge and perform all the promises, covenants, duties, and obligations of the Company hereunder.
15. Governing Law. This Agreement and the legal relations thus created between the parties hereto shall be governed by and construed under and in accordance with the laws of the Commonwealth of Massachusetts, applicable to agreements made and to be performed entirely therein, without regard to conflict of laws provisions thereof that would apply the law of any other jurisdiction.
16. Entire Agreement; Headings. This Agreement embodies the entire agreement of the parties respecting the matters within its scope and may be modified only in writing. Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.
17. Waiver; Modification. Failure to insist upon strict compliance with any of the terms, covenants, or conditions hereof shall not be deemed a waiver of such term, covenant, or condition, nor shall any waiver or relinquishment of, or failure to insist upon strict compliance with, any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times. This Agreement shall not be modified in any respect except by a writing executed by each party hereto.
18. Severability. In the event that a court of competent jurisdiction determines that any portion of this Agreement is in violation of any statute or public policy, only the portions of this Agreement that violate such statute or public policy shall be stricken. All portions of this Agreement that do not violate any statute or public policy shall continue in full force and effect. Further, any court order striking any portion of this Agreement shall modify the stricken terms as narrowly as possible to give as much effect as possible to the intentions of the parties under this Agreement.
19. Indemnification; Directors and Officers Insurance. The Company shall indemnify and hold Executive harmless to the maximum extent permitted by Section 2-418 of the Maryland General Corporations Law or its successor statute. During the Term and for six (6) years following the date of the Executives termination as an officer of the Company, the Company (or any successor thereto) shall
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provide the Executive with comprehensive coverage under the Companys officers and directors insurance policy (or policies) on substantially the same terms and levels that it provides to its senior executive officers, at the Companys sole cost.
20. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.
21. Authority of the Company. The Company represents and warrants that it is fully authorized and empowered to enter into this Agreement and that its entering into this Agreement and the performance of its obligations under this Agreement will not violate any agreement between the Company and any other person, firm or organization or any law or governmental regulation.
22. Successor Sections. References herein to sections, rules or regulations of the Act, Code or other applicable law shall be deemed to include any successor sections, rules or regulations.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer, and the Executive has hereunto signed this Agreement, as of the date first above written.
CYS INVESTMENTS, INC. | ||
By: | /s/ Kevin E. Grant | |
Kevin E. Grant, Chief Executive Officer | ||
EXECUTIVE | ||
/s/ Jack DeCicco | ||
Jack DeCicco |
Signature Page to Employment Agreement by and between
CYS Investments, Inc. and Jack DeCicco
Exhibit 99.1
CYS Investments, Inc. Announces Retirement of Frances R. Spark as Chief Financial Officer and Hiring of Jack DeCicco as Successor
NEW YORK(BUSINESS WIRE)On February 18, 2016, CYS Investments, Inc. (the Company) announced that Frances R. Spark, the Companys Chief Financial Officer and Treasurer, will retire from her positions with the Company, effective as of the close of business on May 31, 2016. Ms. Spark will continue her employment with the Company through February 28, 2017 to transition her duties and responsibilities and assist with various strategic projects.
Ms. Spark, 57, has served as the Companys Chief Financial Officer (CFO) and Treasurer since August 2009. From February 2006 until September 2009, Ms. Spark served as a member of the Companys Board of Directors (the Board) and from March 2007 until September 2009, Ms. Spark served as Chair of the Companys Audit Committee.
Mr. Grant, the Companys Founder, Chief Executive Officer, Chief Investment Officer and President noted, CYS has experienced a lot of success and growth since its inception in early 2006. Frances has been an integral part of that success and a member of the team from its beginning. Frances served as a strong leader on our Board during the Companys early years. After we completed our Initial Public Offering, she successfully made the transition to become a key member of our executive management team. Mr. Grant added, I, Frances fellow executive officers, the Board, and the entire team at CYS express our heartfelt appreciation for all of her efforts to build and maintain a successful, well-managed business with a unique and engaging work environment. Mr. Grant concluded, We are very pleased that Frances will actively assist with a thoughtful and smooth transition of the CFO and Treasurer roles to Jack, and will continue to be a part of the CYS team through the end of February 2017, which will allow us to continue to tap into her expertise, institutional history, and knowledge of the Company. We wish Frances the very best in the years ahead, and she will be missed.
The Company also announced that Jack DeCicco will join the Company on March 7, 2016, and will become the Companys Chief Financial Officer and Treasurer, effective as of June 1, 2016. Since May 2013, Mr. DeCicco, 40, has served as the Chief Financial Officer of Annaly Commercial Real Estate Group, Inc., the commercial real estate business of Annaly Capital Management, Inc. (Annaly), which was previously CreXus Investment Corp. (CreXus), where Mr. DeCicco was appointed as Chief Financial Officer in April 2013. He was most recently appointed to serve as Chief Accounting Officer of Annaly effective December 2015. In addition, Mr. DeCicco served as the Chief Financial Officer and Secretary of Annalys wholly-owned captive insurance company since its inception in January 2014. From March 2012 until April 2013, Mr. DeCicco served as the Chief Accounting Officer of CreXus and Chimera Investment Corporation. From September 2002 to March 2012, Mr. DeCicco served in various roles of increasing responsibility within Ernst & Young LLPs New York office Assurance practice. Most recently at Ernst & Young LLP, Mr. DeCicco was a Senior Manager where he served in a dual capacity role as both a financial statement auditor, serving publicly traded companies (primarily mortgage REITs) and private companies, and as the technical accounting subject matter resident in Ernst & Young LLPs Global Real Estate Center. Mr. DeCicco is a Certified Public Accountant and holds a B.S. degree from The Pennsylvania State University.
Mr. Grant noted, Jack brings impressive financial experience to the position of CFO, as well as excellent knowledge of the mortgage-REIT space. We welcome Jack as a valuable addition to the CYS team, and we look forward to benefitting from Jacks extensive skills and talent in this new position as a key member of the executive team and leader of the Companys finance team going forward.
About CYS Investments, Inc.
CYS Investments, Inc. is a specialty finance company that invests on a leveraged basis primarily in residential mortgage pass-through certificates for which the principal and interest payments are guaranteed by Fannie Mae, Freddie Mac or Ginnie Mae. The Company refers to these securities as Agency RMBS. The Company has elected to be taxed as a real estate investment trust for federal income tax purposes.
Contacts
CYS Investments, Inc.
Richard E. Cleary, (617) 639-0440
Chief Operating Officer