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FILED : NEW YORK

COUNTY

CLERK

1 2 /14 / 20111

INDEX NO.
653453/2011 RECEIVED

NYSCEF DOC. NO. 1

NYSCEF: 12/14/2011

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK

-------- --------------------------- ------------- ------- - - -----------}{

In the Matter of Arbitration Of Certain Controversies between, :

Index No. -----

ANDREW SUTTON,
Petitioner,

-and -

PETITION
TO CONFIRM
ARBITRATION
AWARD

LAMBDASTAR
INFRASTRUCTURE
PARTNERS, LLC, JACOB FRYDMAN,
Individually,
Individually,

and

LEONARD

SHAYKIN,

Respondents.

----------- --------------- --------------------------------------- -------- x


Petitioner, ANDREW SUTTON ("Sutton" or "Petitioner"), for his petition by his
attorneys, Sack & Sack, Esqs., respectfully shows and alleges:

1.

That at all times hereinafter mentioned, Respondents, LambdaStar Infrastructure Partners,


LLC. ("Respondent") was and still is a corporation licensed to do business in New York,
with offices in New York County.

2.

That heretofore from November 2008 to July 2010, Petitioner was employed by
Respondent pursuant to an Employment Agreement, whose term commenced on June 14,
2010. (Exhibit "A")

3.

Pursuant to the Employment Agreement, Petitioner and Respondents agreed that any
action or proceeding arising out of Petitioner's employment shall be brought before an

arbitrator selected and conducted by the American Arbitration

Association.
4.

Following Petitioner's termination from employment on or about July 9, 2010, a dispute


arose as to Petitioner' s entitlements to certain compensation and perquisites arising out of
his employment with, and thereafter termination of employment from, Petitioner as set
forth in the Employment Agreement.

5.

That thereafter and on December 7, 2010 the aforesaid parties submitted to the American
Arbitration Association under Case Number 13 116 03031 10, for its adjudication and
award of all matters in dispute between them in accordance with

the rules of the

American Arbitration Association.


6.

That on September 15, 2011, Abritrator Martin S. Tackel, Esq., after having taken
the oath prescribed by law and after the parties had duly appeared before them and
submitted their proofs, completed his investigation and study of all the facts,
circumstances, elements, and proofs entering into the controversy so submitted to them as
aforesaid and having fully considered all of the evidence and arguments submitted by the
parties and having come to a decision, duly made his award in writing, signed and
affirmed

on

September

15, 2011,

whereby

he determined

that

"Lambdastar

breached the Agreement in ceasing to fulfill certain of its payment obligations


to Claimant thereunder to which Claimant was entitled..." The Abritrator therefore
awarded that there is due from Respondent to Petitioner, the net sum of Two Hundred
Seventy Eight Thousand Seven Hundred Thirty One Dollars and Seventy Six Cents
($278,731.76). A true copy of the award is annexed hereto as Exhibit B.
7.

A copy of the aforesaid award was delivered to Petitioner and to

Respondent by email from Linda Cook, Case Administrator at the American Arbitration
Association on behalf of the Arbitrator, on or about September 21, 2011, pursuant to
CPLR 7507.
8.

This petition is brought within one (1) year after the aforesaid delivery of the award to
Petitioner and the award has not been vacated or modified upon any ground specified in
CPLR 7509.
WHEREFORE, Petitioner demands that a judgment be entered herein confirming the
aforesaid award and that judgment be rendered thereon in this court.
Dated: New York, New York
December 13, 2011

ANDREW SUTTON
110 East 59th Street, 19th Floor
New York, New York 10022 Tel.:
(212) 702-9000
Fax: (212) 702-9702
orneys for Petitioner

Execution Version
LAMBDASTAR INFRASTRUCTURE PARTNERS, LLC
885 Second Avenue, 34th Floor
New York, NY 10017
June 14, 2010

Mr. Andrew Sutton


12 Tarry-a-Bit Drive
Waccabuc, New York 10597
Dear Mr. Sutton:
We are very pleased to confirm the terms on which you will continue to be employed
with us as Chief Financial Officer of LambdaStar Infrastructure Partners, LLC (the "Company").
Upon payment to you of $150,000.00, less any required withholdings pursuant to
Section 2 below (the "Current Payment"), this letter agreement (this "Agreement") shall
amend and restate your previous employment letter with the Company and supersede any and
all prior agreements or understandings between you and the Company. This Agreement
(other than payment of any portion of a Profits Interest, as addressed below) will commence
upon the date of your receipt of the Current Payment (the "Effective Date"). One of the
responsibilities of the Company shall be the provision of certain management and advisory
services to LambdaStar Infrastructure Partners, L.P. (fornerly known as North American
Strategic Infrastructure
Partners I, L.P.) (the "Fund'), an investment fund to be formed to invest in North American
infrastructure assets. The Current Payment shall be paid to you by the Company by certified
cashier's check in an amount equal to the Current Payment simultaneously with your delivery of
an executed copy of this Agreement to the Company.
1.

Duties; Annual Salary.

(a) As Chief Financial Officer of the Company, you shall serve at the reasonable direction of Leonard
Shaykin (the performance of such service, the "Company
Duties"). In consideration for
your performance of the Company Duties, from the Effective Date until September 30,
2010 (the "Contract Period"), you shall receive the following:
(i)

a base salary (a "Base Salary") at a rate of $187,500.00 per annum. For the purposes of this
Agreement, Base Salary shall be payable in accordance with the Company's normal payroll
procedures;

(ii) the Company shall, so long as you continue to be employed by the Company, from time to time
beginning on the Effective Date and ending on December 31, 2010, pay the cost of premium
payments and expenses in order for you to obtain a policy of life and disability insurance that
insures you against the loss of the unvested portion of Your Profits Interest (as defined below) in
the case of your death or disability pursuant to Section 5<a){ii)(C), below, provided that (i) such
payments shall not exceed $6,000 in 2010 and (ii) the Company

K&.E 16852409

may require reasonable evidence of any such costs or expenses incurred by you prior to
paying any reimbursement pursuant to this paragraph;
(iii) a bonus (the "Success Bonus") equal to $62,500 multiplied by a fraction,

the numerator of which is the number of days in the Contract Period and the denominator of
which is three hundred and sixty-five (365), payable within ten (10) days of the first to occur
of
(A) the date on which a third party limited partner is first accepted as a limited partner of the
Fund, (B) the closing of a transaction by the Fund, the Company or an affiliate of the Company
at which the Fund, the Company or such affiliate obtains the right to finance, operate, maintain,
develop or otherwise exploit a concession and lease for public parking in Harrisburg,
Pennsylvania (the "Harrisburg Transaction' ') or {C) the closing of a transaction by the Fund,
the Company or an affiliate of the Company at which the Fund, the Company or such
affiliate obtains the right to finance, operate, maintain, develop or otherwise exploit a
concession and lease for public parking in Pittsburgh, Pennsylvania (the "Pittsburgh
Transaction") (each of (A),
(B) and (C), a "Success Event") so long as a Success Event occurs prior to December 31, 2012;
and
(iv)
subject to the provisions of Section 4, Section 5 and Section 6 below,
the receipt of Your Profits Interest
(b)

From and after September 30, 2010, for so long as you are an employee of the Company (the
"Post Contract Period'1, in consideration for your services to the Company for the Post
Contract Period you shall be entitled to the following:
(i)

Base Salary at a rate of $250,000.00 per annum; and

subject to the provisions of Section 4, Section 5 and Section 6 below,


the receipt of Your Profits Interest.
(ii)

(c)

For purposes of this Agreement, the "LambdaStar Net Fee Income" means, for any period,
the film1 of:
(i)

(A) all management fees received in cash by the Company and


its affiliates from the Fund during such period and (B) all breakup fees, litigation proceeds, closing fees, consulting fees,
directors fees and all other fees and compensation actually
received in cash by the Company and its affiliates during such
period, in each case net of the out-of-pocket, third party costs
directly attributable to the receipt of such fees and
compensation (put not including
(1) income earned or allocated with respect to the capital
contributions of LambdaStar Infrastructure Partners GP, LP, a
Delaware limited partnership (formerly known as North
American Strategic Infrastructure Partners GP I, L.P.), and/or its
affiliates (in any such case, the "Fund GP") to the Fund,
(2) the incentive distributions that the Fund GP receives from
the Fund on account of the Fund GP's profits interest from the
Fund ("Fund Incentive Distributions'') or (3) any amount of
distributions to the Company

on account of a profits interest in the Fund received in exchange


for waiving a portion of any management fees (the "Fee Waiver
Distributions "),
(ii)

(A) a pro rata portion of the Annual Expense Limit (as defined
below) for any such period (based on the number of days in such
period) and (B) any management fee or other amounts payable to
the Fund's Strategic Advisory Board or to NASI Seed Investors I,
L.P. during such period.
For the purposes of this Agreement, "Annual Expense Limit"
shall mean, for each fiscal year of the Company, the greater of
(i) two million five-hundred thousand dollars ($2,500,000) and (ii)
one third of one percent (0.333333%) of the aggregate capital
commitments to the Fund, in each case, increasing 3% annually.

2.

Taxes and Benefits. All payments to you are subject to withholding for all required taxes, whether
Federal, state or local in nature, including but not limited to income taxes, Social Security taxes
and Federal Unemployment Compensation taxes that are required to be paid by you pursuant to
any applicable law. The Company shall have the right to withhold from the sums payable to
you hereunder such amounts, if any, as may be required by the Internal Revenue Code of the
United States or any other like statute which is, or may become applicable to the payment of
such sums. All expenses or other reimbursements under this Agreement shall be made on or
prior to the last day of the taxable year following the taxable year in which such expenses
were incurred by you (provided that if any such reimbursements constitute taxable income to
you, such reimbursements shall be paid no later than March 15th of the calendar year following
the calendar year in which the expenses to be reimbursed were incurred), and no such
reimbursement or expenses eligible for reimbursement in any taxable year shall in any way effect
the expenses eligible for reimbursement in any other taxable year. While you are an employee of
the Company, you will also be entitled to participate in the general benefits package of the
Company. In your case, such benefits shall include twenty (20) business days of paid vacation,
annually, to be utilized at your discretion in compliance with such reasonable policies regarding
vacation time as the Company may from time to time establish.

3.

Cause. For purposes hereof, the term "Cause" shall mean (a) the commission by you of any felony
or a crime involving moral turpitude or fraud or effecting the Company, the Fund, the Fund GP,
NASI Partners, the general partner of NASI Partners, LambdaStar, LLC or any of their affiliates
(collectively, the "Group") or property of any member of the Group, (b) the commission by you
of an act of material dishonesty or fraud involving personal profit or a breach of fiduciary duty in
connection with the performance of your Company Duties, (c) the commission by you of a
willful act of material misconduct or gross neglect in the conduct of your Company Duties, (d)
your material breach of any of the representations, warranties or covenants contained in Section 9
of this Agreement (which breaches, if curable, are not cured within ten (IO) days after written
notice thereof is provided to you by the Company), and (e) excessive absenteeism, chronic
alcoholism or any other form of addiction that prevents you from performing the essential
functions of your position with a reasonable accommodation.

4.

Restrictions on Your Profits Interest.

Your right to receive Your Profits Interest shall be subject to the following terms and
conditions in all cases:
(a) Your Profits Interest shall be subject to all applicable claw-backs, indemnification give-backs,
and/or escrow holdbacks contained in the definitive documents (the "Definitive Documents")
governing members of NASI Partners and the Fund GP generally, provided that any such
obligations imposed on you shall be limited to the after-tax portion of Your Profits Interest to the
extent provided in the Definitive Documents. The Group intends that the Definitive Documents
shall provide for tax distributions or advances to the limited partners of NASI Partners at the
discretion of the general partner of NASI Partners. The terms upon which any such tax
distributions or advances are made shall be no less favorable to you than those granted to any
other partner of NASI Partners or the Fund GP.
(b) The timing of Fund Incentive Distributions will be determined by the general partner of NASI
Partners (in its capacity as the ultimate general partner of the Fund) in its sole discretion. You
understand and accept the risk that no Fund Incentive Distributions may ever be paid to the Fund
GP, and as a result, you may not receive any value from Your Incentive Distributions. You further
understand that the general partner of NASI Partners will (subject in each case to any required tax
distributions) withhold a percentage of Your Incentive Distributions (such percentage to be no
more than the lowest similar percentage being withheld on behalf of any other direct or indirect
holder (other than the Fund's Strategic Advisory Board members and certain principals of
William Blair & Company) of an interest in Fund Incentive Distributions, but not in excess of
50% of Your Incentive Distributions, subject to advances to allow for the payment of taxes as
described in the Definitive Documents) until liquidation of the Fund, as security for the payment
of your portion of any claw back and/or indemnification give back obligations of NASI Partners
to the Fund GP and/or the Fund (and any of Your Profits Interest actually paid to you shall be
subject to such obligations and be supported by an undertaking executed by you to such effect).
Subject to the foregoing limitations, the general partner of NASI Partners shall withhold only
such portions of Your Incentive Distributions as it determines, in its reasonable discretion, are
necessary to fund any claw-back or indemnification give back obligations of NASI Partners and
the Fund GP to the Fund GP or the Fund.
5.

Your Profits Interest: Vesting.

(a)
Closing''):

If you are employed by the Company at the initial closing of the Fund (the "Initial

(i)
Subject at all times to the provisions of Section 4 above, the remainder of
this Section 5 and Section 6, you shall be entitled to (A) 5% ("Your Incentive Distributions") of
the Fund Incentive Distributions, (B) 5% of the Lambdastar Net Fee Income ("Your
Fee Income") and (C) 5% of any Fee Waiver Distributions ("Your Waiver Distributions"
and, together with Your Incentive Distributions and Your Fee Income, collectively ("Your
Profits Interest"), in each case, pursuant to a limited partnership interest in NASI Partners
I, L.P. ("NASI Partners''), a Delaware limited partnership and the general partner of the Fund GP
and the operating agreement of the Company;
4

(ii)

Your Profits Interest shall be subject to vesting and Your Profits Interest shall vest as follows:

(A) Twenty percent (20%) of Your Profits Interest shall vest on the date of the Initial Closing (as
defined below) and the remaining eighty percent (80%) of Your Profits Interest shall vest over
the Fund's Investment Period (as defined in the Definitive Documents), based on the
percentage (the "Contributed Percentage") of the aggregate capital commitments made to the
Fund which have been contributed to the Fund as of any date such determination is being
made. Subject to the restrictions contained in the remainder of this Section 5, in the event
your employment with the Company is terminated for any reason after the Initial Closing, but
prior to the end of the Fund's Investment Period, the amount of Your Profits
Interest that is vested at such time shall equal the Contributed Percentage multiplied by eighty
percent (80%) of Your Profits Interest, plus the initial twenty percent (200/o) of Your Profits
Interest that vested on the date of the Initial Closing. For example, if total commitments to the
Fund are $1 billion, your employment with the Company is terminated after the Initial Closing,
but prior to the end of the Fund's Investment Period and, at such time, the Fund bas called and
received contributions of $500 million from its partners, the vested portion of Your Profits
Interest at such time shall equal 3%. You shall not be entitled to receive any distributions on
account of the unvested portion of Your Profits Interest. Such distributions shall be held in
escrow by the Company or NASI Partners and shall be paid within ten (10) days of the date that
such portion of Your Profits Interest becomes vested as described in this Section 5. If the Initial
Closing has occurred, one hundred percent ( l 00%) of Your Profits Interest shall vest if you are
employed by the Company at the end of the Fund's Investment Period.
(B) In the event you cease to perform your Company Duties on account of a termination of your
employment for Cause (1) you shall automatically forfeit any unvested portion of Your Profits
Interest; (2) the general partner of NASI Partners (or its designated affiliate or affiliates) shall
have the option to purchase all or any portion of Your Profits Interest that is vested for an amount
equal to fifty percent (50%) of the amount such vested portion of Your Profits Interest would
be worth in the event the assets of the Fund were sold for an amount equal to their then fair
market value (as reasonably determined in good faith by the Fund GP) and any resulting net
proceeds distributed pursuant to the terms of the limited partnership agreement of the Fund; and
(3) any amounts of Your Profits Interest that are being held in escrow pursuant to this
Agreement may be used to satisfy the purchase price for the purchase option addressed in clause
(2) immediately above, and any amounts so held in escrow in excess of such purchase price (in
the event such purchase option is exercised) shall be automatically forfeited.
(C) In the event you cease to perform your Company Duties on account of (1) death, (2) disability, (3)
the conviction of one of Leonard Shaykin or Jacob Frydman (the "Principals") of a felony
involving moral turpitude, (4) any repeated willful acts of misconduct by any of the Principals
causing any of the Fund, Fund GP or the Company substantial public disgrace or disrepute or
substantial economic harm (the events in clauses (3)
and (4) immediately above, each a "Good Reason") (5) your voluntary termination without
Good
Reason or (6) a termination without Cause, (I) you shall automatically forfeit any unvested
portion of Your Profits Interest; and (II) you shall retain any vested portion of Your Profits
5

Interest, provided that your interest in the vested portion of Your Profits Interest shall be a purely
passive interest, and you shall have no further obligations with respect to your Company Duties.
(b)

If you are not employed by the Company at the time of Initial Closing, Harrisburg Approval
(as defined below) or Pittsburgh Approval (as defined below) (the effective date of the
termination of your employment with the Company being referred to herein as the
"Termination Date"):
(i)
In the event (A) the Company terminated your employment for Cause or
(B) you voluntarily terminated your employment without Good Reason during _the Contract
Period, you shall not be entitled to Your Profits Interest, Your Harrisburg Income (as defined
below) or Your Pittsburgh Income (as defined below) at any time.

(ii)

In the event that (A) your employment was terminated for any reason other than Cause or a
voluntary termination without Good Reason during the Contract Period and
(B) the Initial Closing occurs on or before the later of (y) December 31, 2010 and (z) three (3)
months following the Termination Date, subject at all times to the provisions of Section 4 above
and the remainder of this Section 5, (I) Your Profits Interest shall equal 1% (that is, Your
Incentive Distributions shall equal 1% of the Fund Incentive Distributions, Your Fee Income
shall equal I % of the Lambdastar Net Fee Income and Your Waiver Distributions shall equal 1%
of the Fee Waiver Distributions) and (II) Your Incentive Distributions and Your Fee Income shall
be fully vested upon receipt.

(iii)
In the event that (A) your employment was terminated for any reason
other than Cause or a voluntary termination without Good Reason during the Contract Period and
(B) the Harrisburg Approval (as defined below) occurs on or before the later of (y) December 31,
2010 and (z) three (3) months following the Termination Date, you shall be entitled to 1% of the
closing fees ("Your Harrisburg Income") payable to the Company and its affiliates
in
connection with the Harrisburg Transaction, payable to you within ten ( I 0) days of the
receipt by the Company or such affiliates of such closing fees, provided that, (I) if the Fund
will undertake the Harrisburg Transaction and you have received Your Profits Interest
pursuant to the foregoing Section S(b)(ii}, you shall only be entitled to Your Profits Interest
and you shall not additionally be entitled to Your Harrisburg Income and (II) to the extent
any such payment to you would constitute "non-qualified deferred compensation" under
Code 409A, you shall only receive such payments to the extent that the Company or such
affiliates receive such closing fees prior to December 31, 2011.
(iv)

In the event that (A) your employment was terminated for any reason other than Cause or a
voluntary termination without Good Reason during the Contract Period and
(B) the Pittsburgh Approval (as defined below) occurs on or before the later of (y) March 31,
2011 and (z) three (3) months following the Termination Date, you shall be entitled to 1% of the
closing fees ("Your Pittsburgh Income") payable to the Company and its affiliates in connection
with the Pittsburgh Transaction, payable to you within ten (10) days of the receipt by the
Company or such affiliates of such closing fees, provided that, (I) if the Fund will undertake the
Pittsburgh Transaction and you have received Your Profits Interest pursuant to the foregoing
Section 5(b)(ii), you shall only be entitled to Your Profits Interest and you shall not additionally
be entitled to Your Pittsburgh Income and (II) to the extent any such payment to you would

constitute "non-qualified deferred compensation" under Code 409A, you shall only receive
such payments to the extent that the Company or such affiliates receive such closing fees
prior to December 31, 2011.
(v) In the event the Company breaches its obligations under Section 9lb) at any time, you shall,
from and after the date of such breach, be entitled to 1% of the Fund Incentive
Distributions, 1% of the Lambdastar Net Fee Income, Your Harrisburg Income and Your
Pittsburgh Income (each a "Profits Interest" and, collectively the "Profits Interests"). Such
entitlement to a portion of the Profits Interests shall be in addition to any other entitlement to
a Profits Interest you may have under Sections 5lb)(ii), 5(b)(iii} or S(b)(iv). The provisions of
this Section 5(b)(v) shall be in addition to any other rights or remedies you may have against
the Company in respect of such breach.
(vi) In the event you breach your obligations under Section 9 at any time, from and after the date of
such breach, notwithstanding any provision of this Agreement to the contrary, you shall not
be entitled to any portion of Your Profits Interest, Your Harrisburg Income or Your Pittsburgh
Income at any time and you shall immediately forfeit any entitlement you may have already
received to Your Profits Interest, Your Harrisburg Income or Your Pittsburgh Income at
such time. The provisions of this Section 5(b)(vi) shall be in addition to any other rights or
remedies the Company may have against you in respect of such breach.
(vii) "Harrisburg Approval" means the approval of the mayor, city council and parking authority of
the city of Harrisburg, Pennsylvania of a concession agreement pursuant to which the Fund,
the Company or their affiliates shall undertake the Harrisburg Transaction.
(viii)"Pittsburgh Approval" means the approval of the county executive and the board of Allegheny
County, Pennsylvania of a concession agreement pursuant to which the Fund, the Company
or their affiliates shall undertake the Pittsburgh Transaction.
(c) In all cases, in order to obtain Your Profits Interest, you shall become a limited partner of NASI
Partners, a limited partner of the Fund GP, and a non-managing member of the Company and
subscribe for a limited partner interest in NASI Partners and a non-managing membership
interest in the Company that (i) entitles you to Your Profits Interest on the terms and
conditions stated herein and therein; and (ii) obligates you to make a capital commitment to
the Fund pursuant to Section 6 ("Your Capital Commitment") and fund Your Capital
Commitment as and to the extent that the Fund GP is required to make a capital contribution
to the Fund.
6.

Terms of Your Capital Commitment.

(a) If you are employed by the Company at the Initial Closing:


(i)

Your Capital Commitment shall equal five percent (5%) of the Fund GP's capital commitment
to the Fund. It is currently anticipated that the maximum amount that the Fund GP shall
commit to the Fund is ten million dollars ($10,000,000.00). In the event that your
employment with the Company is terminated for any reason, your obligation to fund the
unfunded portion of Your Capital Commitment at such time shall terminate unless the
Company agrees to make (or continue to make, as applicable) Company Advances (as
defined below) pursuant to the Contribution Note (as defined below) to fund the remainder
of Your Capital
7

Commitment. You shall remain entitled to your pro rata portion (based on the amount of Your
Capital Commitment actually funded, whether directly by you or pursuant to the Contribution
Note) of returns on and of the capital funded by the Fund GP ("Fund GP Capital") in respect
of its capital commitment to the Fund; provided, however, that certain principals of William
Blair
& Company are entitled to certain priority distributions with respect to a portion of such returns
on and of the Fund GP Capital (including your pro rata portion thereof), all on terms reflected in
the Definitive Documents governing the Fund GP. Your Capital Commitment shall be funded
by you from time to time when called by the general partner of NASI Partners (as and to the
extent that the Fund GP's capital commitment to the Fund becomes due) or, at your election, the
Company (or its affiliates) shall advance such funds when so due (any such advance, a
"Company Advance0) on your behalf. Any and all Company Advances shall be secured by an
interest-only note ("Contribution Note") which you will be required to execute that will accrue
interest at a rate (subject to the next sentence) equal to the lesser of (i) prime rate plus two
percent (2%) and (ii) the actual, annually compounded rate of return you earn on your investment
in the Fund on account of Your Capital Commitment Notwithstanding the foregoing sentence,
in no event shall the interest rate under the Contribution Note with respect to any Company
Advance be less than the applicable federal rate (AFR) as in effect under Code 1274(d) on the
date any such Company Advance is made. At your option, the accrued interest on the
Contribution Note shall be added to the principal amount of the Contribution Note in lieu of
being paid; provided, however, that any cash distribution or return of capital to you with respect
to the Fund GP and the Fund, subject to tax distributions to the extent provided in the Definitive
Documents, shall be applied to the payment first of accrued interest and thereafter of principal
due under the Contribution Note. The full principal amount of the Contribution Note and all
accrued but unpaid interest shall be due in all cases on the date that is sixty (60) days following
the liquidation of the Fund, and may otherwise be pre-paid without penalty, in whole or in part.
The Company shall be entitled to offset all or any portion of Your Profits Interest (including any
portion withheld in escrow), Base Salary, bonus payments (if any), or other amounts owed to you
by the Company or its affiliates against any amounts past due on the Contribution Note, provided
that in no event shall the Company offset any amounts that constitute "deferred compensation"
for purposes of Section 409A of the Internal Revenue Code of 1986, as amended, and the
regulations promulgated under such Section 409A. In the event that you elect for the Company
to provide a Company Advance, the Company shall offset from your Base Salary and bonus
payments (if any), the lesser of (x) interest currently due and payable under the Contribution
Note and (y) ten percent (100/o) of the after-tax amount of your Base Salary in each calendar year
to be applied to the payment of accrued interest due under the Contribution Note. Amounts
funded pursuant to Your Capital Commitment will entitle you to your pro rata portion of returns
on and of the Fund GP Capital; provided, however, that certain principals of William Blair &
Company are entitled to certain priority distributions with respect to a portion of such returns on
and of the Fund GP Capital (including your pro rata portion thereof), all on terms reflected in the
Definitive Documents governing the Fund GP. In the event that you do not elect to receive a
Company Advance to fund Your Capital Commitment, the Company shall use commercially
reasonable efforts to assist you in obtaining third party financing to fund Your Capital
Commitment. The rights acquired with respect to your pro rata portion of the Fund GP Capital
upon funding of Your Capital Commitment shall be no less favorable to you than the rights
accorded to any other limited partner of the Fund GP other than the Principals, the principals of

William Blair & Company referred to above and the members of the Fund's Strategic Advisory
Board.
(b) If you are not employed by the Company at the Initial Closing and you are entitled to Your
Profits Interest pursuant to Section 5(b)<ii), Your Capital Commitment shall equal twentyfive thousand dollars ($25.000). You shall be entitled to your pro rata portion (based on the
amount of Your Capital Commitment actually funded) of returns on and of the Fund GP Capital
in respect of its capital commitment to the FW1d; provided, however, that certain principals of
William Blair & Company are entitled to certain priority distributions with respect to a portion
of such returns on and of the Fund GP Capital (including your pro rata portion thereof), all on
terms reflected in the Definitive Documents governing the Fund GP. Your Capital Commitment
shall be funded by you from time to time when called by the general partner of NASI Partners
(as and to the extent that the Fund GP's capital commitment to the Fund becomes due).
(c)

If you are not employed by the Company at the Initial Closing and you are not entitled to Your
Profits Interest pursuant to Section S(b)(ii}, you shall not have any right or obligation to make
Your Capital Commitment.
7.

Definitive Documents.

The Definitive Documents will reflect the foregoing terms and such other terms as may
be agreed by the Company, the Fund, the Fund GP, the Investors, the general partner of NASI
Partners and any other member of the Group that, as applied to you, are consistent with the terms
of this Agreement. If you are entitled to Your Profits Interest and required to make Your Capital
Commitment, at the Initial Closing pursuant to the terms of this Agreement, you shall become a
party to such Definitive Documents as reasonably requested by the Company to give effect to the
foregoing, in each case in the form provided by the Company that is reasonably acceptable to
you. For the avoidance of doubt, the Definitive Documents shall include, without limitation, (i)
the Agreement of Limited Partnership of NASI Partners, (ii) an escrow agreement
for
withholding certain distributions on account of Your Profits Interest as addressed more
specifically above, (iii) an undertaking or guaranty from you to pay any shortfalls in your portion
of claw-back and/or indemnification give-back obligations and any amounts past due under the
Contribution Note and other restrictions contained in other Definitive Documents (but not
inconsistent with the terms of this Agreement), (iv) an offset agreement, which will allow for the
offset of Your Profits Interest or Salary or any bonus payment by any amounts due under clause
(iii) of this paragraph and any other amounts owed by you to any member of the Group (provided that
in no event shall the Company offset any amounts that constitute "deferred compensation" for
purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), and
the regulations promulgated under such Section 409A), and (v) at the Company's option, a
spousal consent from any spouse (or, in the event of a marriage or re marriage, from a future
spouse upon such an event) subjecting any economic interest in NASI Partners (including any
community or marital property interest therein) to certain restrictions on transfer, options to
purchase and forfeiture provisions in certain events. The terms contained in the Definitive
Documents shall not be materially inconsistent with the terms of this Agreement. In particular,
the limited partnership agreement of NASI Partners shall
9

provide that you shall not be responsible for more than your pro rata share of any claw-back
or indemnification give-back obligations of the Fund GP based on your pro rata share of
distributions on account of the Fund GP Capital and/or distributions on account of Your
Profits Interest.
8.

Severance Payments.

Subject to all withholding and offset rights of the Group with respect to the Contribution
Note, Your Profits Interest or as otherwise described herein and your and the Company's
execution and non-revocation of the release substantially in the form attached hereto as
Exhibit A, which release must be executed and no longer subject to revocation within sixty
(60) days of your termination of employment (the "Effective Release Date"), if, during the
Contract Period, (i) you voluntarily terminate your employment with Good Reason, (ii) the
Company terminates your employment without Cause or (iii) the Company breaches any
payment obligation to you under this Agreement, then the Company shall pay an amount in
readily available funds (the "Severance Amount") equal to the sum of (i) the amount of your
Base Salary, and other benefits that the Company would have paid to you from the
Termination Date through the end of the Contract Period, (ii) the Success Bonus and (iii) two
hundred thousand dollars ($200,000). The Company shall pay the Severance Amount in a
lump sum within three (3) days of the Effective Release Date, provided that, to the extent
such amounts constitute "non-qualified deferred compensation" for purposes of Code
409A, such amounts shall not be paid until the sixtieth (60th) day following the Termination
Date. For the avoidance of doubt, if your employment with the Company is terminated for
any reason after the end of the Contract Period, you shall not be entitled to the Severance
Amount upon such termination.
9.

Representations, Warranties and Covenants.

You hereby represent, warrant and covenant and agree that your execution of this
Agreement and the performance of your duties hereunder does not and will not violate or be
a breach of any agreement with a former employer, client or any other person or entity.
Further, you agree to indemnify the Group for, and hold the Group harmless from, and
against, all claims, including, but not limited to, attorneys' fees and expenses of investigation,
by any such third party that such third party may now have or may hereafter come to have
against the Company based upon or arising out of any non competition or non solicitation
agreement or confidentiality agreement between you and such third party which was in
existence as of the date of this Agreement and not disclosed to us in writing.
You hereby represent and warrant that you have received and read the copies of the
Amended and Restated Agreement of Limited Partnership of NASI Seed Investors I, L.P. and
the Confidential Private Placement Memorandum of the Fund, dated September 2009
attached hereto as Exhibit B.
The Company represents and warrants that: (i) it is fully authorized by action of its
members (and of any other person or entity whose action is required) to enter into this
Agreement and to perform its obligations; (ii) the execution, delivery and performance of this
Agreement does not violate any applicable law, regulation, order, judgment or decree or any
agreement, arrangement, plan or governance document to which it is a party or by which it is
10

bound; and (iii) upon the execution and delivery of this Agreement by the parties hereto, this
Agreement shall be a valid and binding obligation of the Company.
You agree that, during the term of your employment with the Company, you will not
engage in any other employment, occupation, consulting or other business activity, or engage in
any other activities, that conflict with your Company Duties, provided, that: (i) you shall be able
to spend no more than twenty (20) hours per year providing services to Impact Venture Partners;
(ii) you shall also be able to devote occasional business time to charitable and community activities,
so long as such charitable and community activities do not interfere with the discharge of your
Company Duties; and (iii) you shall be able to devote such time to continuing professional
education as is necessary to remain licensed as a Certified Public Accountant. In furtherance of
the foregoing, you agree that, during the term of your employment with the Company, in no event
will you own an active interest in, or manage, operate or act in a managerial capacity for or on
behalf of any company or entity engaged in any business or investment activity other than the
Company. For purposes of the previous sentence an "active interest'' means an equity or debt
interest in an entity that, whether due to relative size or special rights of the holder of such
interest, causes the holder to participate in the management and operations of such entity or have
the right or power to participate in the direction of the management and operations of such entity.
Nothing in the prior two sentences shall be deemed to prohibit you from owning one percent
(1%) or less of the outstanding stock of any class of any corporation or other entity whose shares
or units are publicly traded, or any indirect interest in a Portfolio Company (as defined below)
which you may have by virtue of any of Your Profits Interest. In addition, you agree to follow
such internal conflict policies and procedures (including, without limitation, policies designed to
prohibit insider trading) as adopted and amended from time to time by the Company, and to
certify from time to time that you are following such policies and procedures if so requested by
the Company.
In addition, in consideration of your Base Salary, your right to Your Profits Interest, and
any other rights and benefits provided to you in this Agreement, you agree as follows:
(a)

From and after the date hereof until December 31, 2012, you will not, without the prior written
consent of the Company, directly or indirectly:

(i)

solicit, induce or influence any actual or pending portfolio company (a "Portfolio Company") of
the Fund, or lender or any other person which has a business relationship with the
Group to discontinue or reduce the extent of such relationship
in a manner in any way
detrimental to the Group,

(ii)

recruit, solicit or otherwise induce or influence any employee, consultant or advisor of the Group,
or any Portfolio Company, to discontinue such person's relationship with the Group or with any
Portfolio Company,
(iii) with the intention of harming the Group, (A) solicit, induce or influence
any actual or pending investor in the Fund during the time of your employment with the
Company (an "Investor") to discontinue or reduce the extent of such Investor's relationship with
the Group in a manner in any way detrimental to the Group or (B) recruit, solicit or otherwise

11

'

induce or influence any employee, consultant or advisor of any Investor, to discontinue such
person's relationship with the Group or with any Portfolio Company,
(iv)

communicate with the Portfolio Companies or, for a period of three (3) months after the date of
the termination of your employment with the Company, Investors, except in your capacity as a
Chief Financial Officer of the Company,

(v)

divulge to anyone (except as required by law), use, retain copies of or seek to benefit personally
from any confidential information, Trade Secret (as defined below) or intellectual property of the
Group, including but not limited to:

(A)

all business or financial information, track records, investment performance records or terms,
plans, processes, procedures and strategies, market research and analyses, projections, financing
arrangements, consulting and sales methods and techniques, expansion plans, forecasts and
forecast assumptions, business practices, operations and procedures, marketing and
merchandising information and strategy, distribution techniques, customer information and other
business information, including records, designs, business plans, financial statements, manuals,
memoranda, lists and other documentation respecting the Group or any Portfolio Company or
Investor, or

(B)

any information and materials which are proprietary and confidential to a third party and which
have been provided to the Group by such third party for the Group's use, or

(C)

any information derived from the information contained in Sections 9(A)(v}CA} or 9(a}(v}CBl,
or

(D)

any ideas, designs, creations, inventions, discoveries, improvements, devices, practices,


processes, methods or products, whether or not patented or patentable,
in each case directly or indirectly relating to or useful in or potentially useful in any
aspect of the business of the Group, any Portfolio Company or any Investor and as to which
you are, or at any time during the term of your employment with the Company shall
become, informed and which shall not be generally known to the public or recognized as
standard practice (collectively, "Confidential Information''). For purposes hereof, the term
"Trade Secret" shall have the meaning given in the Delaware enactment of the Uniform
Trade Secrets Act, and shall include, without limitation the whole or any portion or phase of
any scientific or technical information, design, process, formula, concept, data
organization, manual, other system documentation, or any improvement of any thereof, in
any case that is valuable and secret (in the sense that it is not generally known to the Group's
competitors); or

(vi)

claim to have any right, title or interest of any kind or nature whatsoever in or to any products,
methods, practices, processes, discoveries, ideas, design, Confidential Information (including,
without limitation, and for the avoidance of doubt, the Company's track record and investment
performance records), improvements, devices, creations or inventions in each case directly or
indirectly relating to or useful in any aspect of the business of the Group,
12

.. t

any Portfolio Company or any Investor, whether created, developed or invented by any of
them or you during the term of your employment with the Company.
(b)

From and after the date hereof, you agree that you will not disparage the Group in any
communications, whether in writing or orally, in a manner that could reasonably be expected
to in any way injure the Group's or any Portfolio Company's business or reputation. From
and after the date hereof, the Company agrees that it will not disparage you in any
communications, whether in writing or orally, in a manner that could reasonably be
expected to in any way injure your business or reputation.

(c)

In the event of a breach or a threatened breach of any of the covenants contained in Sections
9(a) or 2(Q) (the "Covenants"), you and the Group shall, in addition to any remedies you or it
may have at law, have the right and remedy to have such Covenants specifically enforced by
any court having equity jurisdiction, it being acknowledged and agreed that any breach of
any of such Covenants will cause irreparable injury to you or the Group and that money
damages will not provide an adequate remedy to you or the Group. You acknowledge and
agree that the Covenants are reasonable and valid in geographical and temporal scope and in
all other respects. If any court determines that any of such Covenants, or any parts thereof,
are invalid or unenforceable, the other provisions and the remainder of any of the Covenants
so impaired shall not thereby be affected and shall be given full effect, without regard to the
invalid portions. If any court determines that any of the Covenants, or any parts thereof, are
unenforceable because of the duration or geographic scope thereof, such court shall have the
power to reduce the duration or geographic scope, as the case may be, of such Covenants
and, in such reduced form, such Covenants shall then be enforceable. If any court holds
any of the Covenants unenforceable by reason of its breadth of geographical scope or
otherwise, it is the intention of the parties that such determination not bar or in any way
affect the Group's right to the relief provided above or in the courts of any other jurisdiction
as to breaches of any of such Covenants in such other jurisdictions, each of the Covenants as
the relate to each jurisdiction being severable into diverse and independent Covenants.
10.

Miscellaneous.

This Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties hereto and their respective heirs, legal representatives, successors and assigns.
You understand that you have been selected by us on the basis of your personal
qualifications, experience and skills. You agree, therefore, that you cannot assign all or any
portion of your performance under this Agreement. Nothing contained in this Agreement
shall be to the benefit of or enforceable by any person that is not a party hereto, provided that
in the event of your death or incapacity references in this Agreement to you shall be deemed,
where applicable, to refer to your beneficiary, estate or other legal representative.
This Agreement shall be governed by and construed and interpreted in accordance
with the internal laws of the State of New York. Subject to Section 9(c), in the event of any
dispute or claim relating to or arising out of this Agreement or any other agreement between
the parties, or your employment or termination of employment with the Company, all parties
to this Agreement agree that all such disputes shall be fully and finally resolved by binding
arbitration conducted by the American Arbitration Association in New York, New York
under its Commercial
13

Arbitration Rules. Judgment upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof. All fees, costs and expenses, including reasonable attorneys'
fees, court costs and costs of appeal, incurred by the prevailing party in any such litigation,
action, arbitration or proceeding shall be reimbursed by the non-prevailing party; provided, that
if a party to any such litigation, action, arbitration or proceeding prevails in part, and loses in
part, the court, arbitrator or other adjudicator presiding over such litigation, action, arbitration or
proceeding shall award a reimbursement of the fees, costs and expenses incurred by such party
on an equitable basis.
This Agreement supersedes any prior representations or agreements, whether written or
oral between you and us in relation to the terms addressed herein. This Agreement does not
contain all terms to be addressed in the Definitive Documents, but the Definitive Documents
shall not (i) contain any terms, conditions or restrictions that are less favorable to you than the
terms, conditions and restrictions that are set forth in this Agreement and (ii) the timing of
distributions made to you on account of Your Profits Interest that is vested shall not be less
favorable to you than to any other party to the Definitive Documents (other than the Fund's
Strategic Advisory Board members and certain principals of William Blair & Company). This
Agreement may not be modified or amended except by a written agreement, signed by all
parties hereto, that expressly refers to the provision being amended.

14

' I I

To indicate your acceptance of the terms contained in this Agreement, please sign
and date this Agreement in the space provided below and return it to us at your earliest
opportunity.
Sincerely,
LAMBDASTAR INFRASTRUCTURE PARTNERS, LLC

By:

Name: Leonard Shaykin


Title: Managing Partner

By:
Name: Jacob Frydman
Title: Managing Partner

Accepted and agreed:


Date: June
, 2010

Name: Andrew Sutton

.. '
EXHIBIT A
RELEASE
I, Andrew Sutton, in consideration of and subject to the performance by Lambdastar Infrastructure
Partners, LLC, a Delaware limited liability company (the "Company"), of its obligations under
Section 8 of the Employment Agreement, dated as of June
, 2010 (the "Agreement''),
do hereby release and forever discharge as of the date hereof the Company and its respective
affiliates and subsidiaries and all present, former and future managers, directors,
officers, agents, representatives, employees, successors and assigns of the Company and/or its
respective affiliates and subsidiaries and direct or indirect owners (collectively, the "Released
Parties") to the extent provided herein (this "Release,,). The Released Parties are intended thirdparty beneficiaries of this Release, and this Release may be enforced by each of them in
accordance with the terms hereof in respect of the rights granted to such Released Parties
hereunder. Terms used herein but not otherwise defined shall have the meanings given to them in
the Agreement.
1. I understand that any payments or benefits paid or granted to me under Section 8 of the
Agreement represent, in part, consideration for signing this Release. I understand and agree
that I will not receive the payments and benefits specified in Section 8 of the Agreement unless
I execute this Release and do not revoke this Release within the time period permitted hereafter
or breach this Release. Such payments and benefits will not be considered compensation for
purposes of any employee benefit plan, program, policy or arrangement maintained or hereafter
established by the Company or its affiliates.
2. Except as provided in paragraph 4 below and except for the provisions of the Agreement which
expressly survive the termination of my employment with the Company, I knowingly and
voluntarily (for myself, my heirs, executors, administrators and assigns) release and forever
discharge the Company and the other Released Parties from any and all claims, suits,
controversies, actions, causes of action, cross-claims, counter-claims, demands, debts,
compensatory damages, liquidated damages, punitive or exemplary damages, other damages,
claims for costs and attorneys' fees, or liabilities of any nature whatsoever in law and in equity,
both past and present (through the date that this Release becomes effective and enforceable)
and whether known or unknown, suspected, or claimed against the Company and/or any of the
Released Parties which I, my spouse, or any of my heirs, executors, administrators or assigns,
ever had, now have, or hereafter may have, by reason of any matter, cause, or thing
whatsoever, from the beginning of my initial dealings with the Company to the date of this
Release, and particularly, but without limitation of the foregoing general terms, any claims
arising from or relating in any way to my employment relationship with Company, the terms
and conditions of that employment relationship, and the termination of that employment
relationship (including, but not limited to, any allegation, claim or violation, arising under:
Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age
Discrimination in Employment Act of 1967, as amended (including the Older Workers Benefit
Protection Act); the Equal Pay Act of 1963, as amended; the Americans with Disabilities Act
of 1990; the Family and Medical Leave Act of 1993; the Worker Adjustment Retraining and
Notification Act; the Employee Retirement Income Security Act of 1974; any applicable
Executive Order Programs; the Fair Labor Standards Act; or their state or local counterparts; or
A-1

under any other federal, state or local civil or human rights Jaw, or under any other local, state,
or federal law, regulation or ordinance; or under any public policy, contract or tort, or under
common law; or arising under any policies, practices or procedures of the Company; or any
claim for wrongful discharge, breach of contract, infliction of emotional distress, defamation;
or any claim for costs, fees, or other expenses, including attorneys' fees incurred in these
matters) (all of the foregoing collectively referred to herein as the " Claims,,). I understand and
intend that, except as otherwise expressly provided in paragraph 4, this Release constitutes a
general release of all claims and that no reference herein to a specific form of claim, statute or
type of relief is intended to limit the scope of this Release.
3. I represent that I have made no assignment or transfer of any right, claim, demand, cause of
action, or other matter covered by paragraph 2 above.
4. I agree that this Release does not waive or release any rights or claims that I may have under
the Age Discrimination in Employment Act of 1967 which arise after the date I execute this
Release. I acknowledge and agree that my separation from employment with the Company in
compliance with the terms of the Agreement shall not serve as the basis for any claim or action
(including, without limitation, any claim under the Age Discrimination in Employment Act of
1967). In addition, notwithstanding anything to the contrary contained in this Release, this
Release shall not release or otherwise in any way modify my right to receive the Success
Bonus pursuant to Section l(a)(iii) of the Agreement or my right to receive any payments or
equity interests pursuant to Section 5(b) of the Agreement, in each case, at the times (if ever)
and on the terms and conditions set forth in such Section l (a)(iii) and such Section 5(b) of the
Agreement.
5. I agree that I hereby waive all rights to sue or obtain equitable, remedial or punitive relief from
any or all Released Parties of any kind whatsoever, including, without
limitation,
reinstatement, back pay, front pay, and any form of injunctive relief. Notwithstanding the
foregoing, I acknowledge that I am not waiving and am not being required to waive any right
that cannot be waived under law, including the right to file an administrative charge or
participate in an administrative investigation or proceeding; provided, however, that I disclaim
and waive any right to share or participate in any monetary award resulting from the
prosecution of such charge or investigation or proceeding.
6. In signing this Release, I acknowledge and intend that it shall be effective as a bar to each and
every one of the Claims hereinabove mentioned or implied. I expressly consent that this
Release shall be given full force and effect according to each and all of its express terms and
provisions, including those relating to unknown and unsuspected Claims (notwithstanding any
state or local statute that expressly limits the effectiveness of a general release of unknown,
unsuspected and unanticipated Claims), if any, as well as those relating to any other Claims
hereinabove mentioned or implied. I acknowledge and agree that this waiver is an essential
and material term of this Release and that without such waiver the Company would not have
agreed to the terms of the Agreement. I further agree that in the event that I should bring a
Claim seeking damages against the Company, or in the event that I should seek to recover
against the Company in any Claim brought by a governmental agency on my behalf, this
Release shall serve as a complete defense to such Claims to the maximum extent permitted by

A-2

law. I further agree that I am not aware of any pending claim, or of any facts that could give
rise to a claim, of the type described in paragraph 2 as of the execution of this Release.
1. I agree that neither this Release, nor the furnishing of the consideration for this Release,
shall be deemed or construed at any time to be an admission by the Company, any Released
Party or myself of any improper or unlawful conduct.
8. I agree that I will forfeit all amounts payable by the Company pursuant to the Agreement if
I challenge the validity of this Release. I also agree that if I violate this Release by suing
the Company or the other Released Parties, I will pay all costs and expenses of defending
against the suit incurred by the Released Parties, including reasonable attorneys' fees, and
return all payments received by me pursuant to the Agreement on or after the
termination of my employment.
9. I agree that this Release and the Agreement are confidential and agree not to disclose any
information regarding the terms of this Release or the Agreement, except to my immediate
family and any ta'4 legal or other counsel that I have consulted regarding the meaning or
effect hereof or as required by law, and I will instruct each of the foregoing not to disclose
the same to anyone. The Company agrees to disclose any such information only to any tax,
legal or other counsel of the Company as required by law.
10. Any non-disclosure provision in this Release does not prohibit or restrict me (or my
attorney) from responding to any inquiry about this Release or its underlying facts and
circumstances by the Securities and Exchange Commission (SEC), the Financial Industry
Regulatory Authority (FINRA), or any other self-regulatory organization or governmental
entity.
11. I hereby acknowledge that Section 9 of the Agreement shall survive my execution of this
Release. By its counter-execution hereof, the Company hereby acknowledges and agrees
that its obligations under Section 9(b) of the Agreement shall survive the execution of this
Release and that its obligations under such Section 9(b) shall survive the termination of the
Agreement.

12. I represent that I am not aware of any Claim by me, and I acknowledge that I may hereafter
discover Claims or facts in addition to or different than those which I now know or believe
to exist with respect to the subject matter of the release set forth in paragraph 2 above and
which, if known or suspected at the time of entering into this Release, may have materially
affected this Release and my decision to enter into it.
13. Notwithstanding anything in this Release to the contrary, this Release shall not relinquish,
diminish, or in any way affect any rights or claims arising out of any breach by the
Company or by any Released Party of the Agreement after the date hereof.
14. Whenever possible, each provision of this Release shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this Release is held to be
invalid, illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision
or any other jurisdiction, but this Release shall be reformed, construed and enforced in
such
A-3
)ti

jurisdiction as if such invalid, illegal or unenforceable provision had


never been contained herein. This Release constitutes the complete and
entire agreement and understanding among the parties, and supersedes
any and all prior or contemporaneous agreements, commitments,
understandings or arrangements, whether written or oral, between or
among any of the parties, in each case concerning the subject matter
hereof.
BY SIGNING THIs RELEASE, I REPRESENT AND AGREE THAT:
1.

I HAVE READ IT CAREFULLY;


2.

3.

I UNDERSTAND ALL OF ITS TERMS AND KNOW


THAT I AM GIVING UP IMPORTANT RIGHTS,
INCLUDING BUT NOT LIMITED TO, RIGHTS
UNDER
THE
AGE
DISCRIMINATION
IN
EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE
VII OF THE CIVIL RIGHTS ACT OF 1964, AS
AMENDED, THE EQUAL PAY ACT OF 1963, THE
AMERICANS WITH DISABILITIES ACT OF 1990,
AND THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED;

I VOLUNTARILY CONSENT TO EVERYTHING IN IT;


4.

I HAVE BEEN ADVISED TO CONSULT WITH AN


ATTORNEY BEFORE EXECUTING IT AND I HAVE
DONE SO OR, AFTER CAREFUL READING AND
CONSIDERATION, I HAVE CHOSEN NOT TO DO SO
OF MY OWN VOLITION;

5.

I HAVE HAD AT LEAST 45 DAYS FROM THE DATE


OF MY RECEIPT OF THIS RELEASE TO CONSIDER
IT AND THE CHANGES MADE SINCE MY RECEIPT
OF TI-IlS RELEASE ARE NOT MATERIAL OR WERE
MADE AT MY REQUEST AND WILL NOT RESTART
THE REQUIRED 45-DAY PERIOD;

6.

I UNDERSTAND THAT I HAVE SEVEN (7) DAYS


AFTER THE EXECUTION OF THIS RELEASE TO
REVOKE IT AND THAT TI-US RELEASE SHALL NOT
BECOME EFFECTIVE OR ENFORCEABLE UNTIL
THE REVOCATION PERIOD HAS EXPIRED;

7. I HAVE SIGNED THIS RELEASE KNOWINGLY AND


VOLUNTARILY AND WITH THE ADVICE OF ANY
COUNSEL RETAINED TO ADVISE ME WITH RESPECT
TO IT; AND

8. I AGREE THAT THE PROVISIONS OF THIS RELEASE

MAY NOT BE AMENDED, WAIVED, CHANGED OR


MODIFIED EXCEPT BY AN INSTRUMENT IN
WRITING
SIGNED
BY
AN
AUTHORIZED
REPRESENTATIVE OF THE COMPANY AND BY ME.
A-4

SIGNED:

DATE:

Acknowledged and agreed solely for purposes of paragraph 11:


LAMBDASTAR INFRASTRUCTURE PARTNERS, LLC

By:

By:

Name: Leonard Shaykin


Title: Managing Partner

Name: Jacob Frydman


Title: Managing Partner

A-5

l.

. !, .

AMERICAN ARBITRATION ASSOCIATION


Commercial Arbitration Tribunal

In the Matter of the Arbitration between:

ANDREW SUTTON.

ag_ainst-

LAMBDASTAR INFRASTRUCTURE PARTNERS,


LLC, JACOB FRYDMAN, individually, and
LEONARD SHAYKIN, Individually.
Case No.:13 116 0303110

AWARD
OFARBITRATOR
I,THE UNDERSIGNEDARBITRATOR, having been designated in
accordance with the .Arbitration Agreement (the 0Agreement dated June 14, 2010
between the claimant, ANDREW SUTTON (Claimant;, and the respondent,
LAMBDASTAR INFRASTRUCTURE PARTNERS, LLC ("Lambdastar"), and having
been duly sworn and having duly heard and considered the proofs, allegations and
submissions of the parties, and the parties having requested a Standard Award, do
hereby DECIDE and AWARD as follows:
Claimant has demonstrated that Lambdastar breached the Agreement In ceasing to
fulfill
certain of Its payment obligations to Claimant thereunder to which Claimant was
entitled, including (i) payment of base salary in the amount of $7211.52 for the
two-week period ending July 9, 201O; {ii) payment of base salary In the amount of
$42,636.99 for the period July 9, 2010 through September 30, 2010; and (Iii)
payment of additional severance compensation in the amount of $200,000.00. Having
considered the proofs, submissions and assertions by each of the parties In this
regard and with regard to an issue as to the delivery of executed Release(s) as a
condition to the performance of certain covenants contained in the Agreement. I find
that Claimant has demonstrated that he was and Is entitled to payment of such
amounts by Lambdastar.
Claimant has failed to demonstrate that Lambdastar breached the Agreement in
falling to pay to Claimant, or that Claimant otherwise was entitled to be paid by
Lambdastar, any monies representing either (i) the A Success Bonus" (as such term
is defined In Section 1(a){iil) of the Agreement), or {i} a cash amount representing
employee benefits that Lambdastar allegedly would have paid to Claimant for the
period July 9, 2011 through September 30, 2010 or otherwise.

Case No::13 116 03031 10


Andrew Sutton v. Lamdastar Infrastructure Partners, LLC,
Jacob Frydman, individually, and Leona Shaykln,
individually Award of Arbitrator

Page 2
Claimant has failed to demonstrate either (i) his entitlement in this proceeding to
recovery of any monetary damages or other relief from or against Jacob Frydman
or Leonard Shaykln In their indivdual capacities. or (ii) that either Jacob Frydman
or Leonard Shaykln, Individually, was a party to the arbitration agreement from which
this arbitration arises, or otherwise Is a proper party to this proceeding on any
equitable or other basis; and thus no monetary portion of this Award rendered in favor
of Claimant Is deemed rendered against either Jacob Frydman or Leonard Shaykin,
Individually.
Accordingly, as and for an AWARD herein:

1. Respondent, Lambdastar Infrastructure Partners, LLC, shall forthwith pay to


Claimant the amount of $249,848.51, plus Interest at the rate of nine percent (9%) per
annum calculated from July 9, 2010 to the date of payment.
2. I find that Claimant prevailed In part, and lost In part, on his claim In this
proceeding and thus, pursuant to Section 10 of the Agreement, Claimant Is
entitled to be awarded a reimbursement by respondent, Lambdastar Infrastructure
Partners, LLC, of the fees, costs and expenses incurred by him in this proceeding
on an equitable basis, that Is, on the basis of having prevailed, I find, to the extent of
85% of his claim.

3. Ifind further that Claimant, In his post-Hearing brief having simply asserted a
claim for attorneys' fees, forum fees and costs in the aggregate amount of $100,000
(without having submitted together therewith any proper proofs or documentation with
respect to such claim), has failed properly and adequately to provide credible
evidence to establish specifically the nature and extent of the attorneys' fees and
costs allegedly incurred by him In this arbitration proceeding (without regard to the
costs of the American Arbitration Association and of the Arbitrator, which are
addressed separately below In this Award). Therefore, based on the foregoing and
on my observation and review of the Hearing, pre Hearing, and post-Hearing
proceedings and written submissions in this case, I find It equitable that Claimant
be awarded a reimbursement from respondent, Lambdastar
Infrastructure Partners, LLC, for attorneys' fees and costs Incurred by him In
this proceeding (without regard to the costs of the American Arbitration Association
and of the Arbitrator, which are separately addressed in this Award) In the amount of
$22,100.00. Accordingly, in addition to the other amounts payable to Claimant
by respondent, Lambdastar Infrastructure Partners, LLC1 pursuant to this
Award, Lambdastar Infrastructure Partners, LLC, shall forthwith pay said amount of
$22,100.00 to Claimant, plus Interest at the rate of nine percent (9%) per annum from
the date 9f this Award to the date of payment.

Case No.:13 116 03031 10


Andrew Sutton v. Lamdastar Infrastructure Partners, LLC.
Jacob Frydman, individually, and Leonard Shaykin, Individually
Award of Arbitrator
Page 3
4. The administrative fees of the American Arbitration Association totaUng $4,550.00,
and the compensation of the Arbitrator totaling $9,045.001 shall be borne 85% by
respondent, Lambdastar Infrastructure Partners, LLC, and 15% by Claimant.
Accordingly, respondent, Lambdastar Infrastructure Partners, LLC. shall reimburse
Claimant the sum of $ 6,783.25, representing that portion of said fees in excess
of the apportioned costs previously Incurred by Claimant
5. This Award is in full and complete settlement and satisfaction of any and all claims,
counterclaims, requests, defenses and off-sets properly submitted to the jurisdiction
of this Arbitration; and any .and all claims, counterclaims, requests, defenses or
off-sets not specifically referenced or granted herein are deemed DENIED.
.

Date

Martin S. Tacket, Esq.


Arbitrator

I, Martin S. Tackel, do hereby affirm uponmy oath as Arbitrator that Iam the
individual described in and who executed this instrument which is my Award.

Martin S.Tackel, Esq.


Arbitrator

Date

FILED: NEW YORK COUNTY CLERK


03/13/20121
NYSCEF DOC. NO. 6

SUPREME COURT OF THE STATE OF


NEW YORK COUNTY OF NEW YORK

ANDREW SUTTON

V.

LAMBDASTAR ETC.

INDEX NO .
653453/2011 RECEIVED
NYSCEF: 03/13/2012

INDIVIDUAL ASSIGNMENT PART

MOTION
CALENDAR NO.
DATE

STIPULATION
INDEX NO.

.3 .

653453/2011

3/13/12

IT IS HEREBY STIPULATED AND AGREED by and between the below-named attorney(s) as follows:
That the motion to confirm the arbitration award is granted
PROVIDED that the caption of the judgment shall read:
ANDREW SUTTON, Petitioner
V.
Lambdastar Infrastructure Partners, LLC
And the names Jacob Frydman and Leonard Shaykin shall not appear
In the caption

Date: 3/13/12

So Ordered.

ENTER: Eileen Brawstein

INDEX NO.
653453/2011 RECEIVED
NYSCEF: 07/15/2013

SUPREME C
YORK

FlLED

STATE OF NEW

COUNTY OF

Plaintiff/Petitioner,
against
-

JUL 1 12013
COUNTY CLERK-S OFFICE
NEW YORK
653453/11
Index No.-----

LAMDASTAR INFRASTRUCTURE PARTNERS,


LLC,
Defendant/Respondent.

------------------------x
CERTIFICATE REQUESTING ENTRY OF
JUDGMENT
INELECTRONICALLY- FILED CASE

To: The County Clerk, County of New York _

Eric Stern
, an attorney admitted to the Bar of the State of New York and
counsel to. Andrew Sutton
in the above-captioned electronically-filed case, does hereby request
that judgment be entered in this case based upon the Order of the Court dated July 23. 2012
and entered on Julv 25, 2012
. Pursuant to CPLR 5017 (a}, I do hereby certify that
the following documents shall constitute the Judgment Roll for this Judgment Each document is
identified by title of the paper, the date filed with the electronic filing system, and the number of the
paper as listed on the E-Filing List of Papers Filed.
Number of Paper On
Title of Document
E-Filing List of Papers
Date Filed
1) Notice of Motion 002
2) Affirmation 002
3) Unfiled Judgment
4) Decision & Order on
Motion 002
5) Petition 001
6) Notice of Petition 001

7) Affid/Affir in opposition 001


8) Stip

No. 7

3/15/2012

No. 8

3/15/2012

No. 9

7/25/2012

No. 10

7/25/2012

No. 1

12/14/11

No. 2

12/14/11

No. 5

1/3/12

No. 6

3/13/12

The documents listed above are available on the electronic filing website and may be downloaded and
printed as needed.
October 10.2012
Dated:

Eric Stern

(Signature)

Sack & Sack

(Name)

110 East 59th Street

(Address)

19th Floor

New York. NY 10022


Attorney for Plaintiff

7127/f17

SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY


PRESENT: Hon. Eileen Branston,Justice
PART 3

-----------------------

In the Matter of Arbitration of Certain Controversies between,


ANDREW SUTTON,
Petitioner,

Index No.:813413111
Motion Date: 7123112

-and
LAMBDASTAR
INFRASTRUCTURE
PARTNERS,LLC,

Motion Seq. No.:001

Respondent.

----.

The followling papers, numbered 1 to 2 were read on this motion to confirm award.
Papers Numbered
Notice of Motion/Order to Show cau.o Affldavltl Extllblbl

Answering Affidavits - Exhibits

Replying Affidavits
Cross Motion: a Yes

x No

Per the attached so-ordered Stipulation, it is ADJUDGED that the

petition to confirm the arbitration award is granted and the award

rendered In favor of petitioner and against respondent la confirmed; and


it is further

ADJUDGED that petitioner Andrew Sutton, having an address at


12 Tarry-a-Bit Drive, Waccabuc, New York 10697, County of Westchester,
do recover from respondent Lambdastar Infrastructure Partners, LLC,
having an address at 40 Fulton Street, Sixth Fl09r, New York, NY 10038,
County of New

Sutton v. Lamdastar

Index No. 863453/11 Page 2 of 2

York, the amount of $271,948.51, plus interest at the rate of 9% per annum
from the date of July 9, 2010, as computed by the Clerk In the amount of
$ 73,627.27 together with $6,783.25 and coats and disbursements in the
amount of $ 590.00 aa taxed by the Clerk, for the total amount of

$352,949.03 and that the petitioner have execution therefor. .

Dated: July 23 2012


Check One:

X FINAL DISPOSITION

Check If 1pproprtete: 0 DO NOT POST

O REFERENCE

O NON.flNAL DISPOSITION
X SETTLESSUBMITORDER/JUDG

FlLED
JUL 11 2013
COUNTY CLERKS OFFICE'
NEW YORK

..

---------------------------------------- x

In the Matter of Arbitration of Certain Controversies between,


:

Index No. 653453/2011 .


BILL OF COSTS

ANDREW SUTTON,

Petitioner,

-and -

LAMBDASTAR
INFRASTRUCTURE
PARTNERS,LLC,
Respondents.

--------------------------------------x
40.00

200.00

IHEREBY CERTIFY THAT IHAVE


ADJUSTED THIS WLL OF COSTS AT $100.00

NOTICE OF
PETITION

f f ,0 0

1 1 20

$210.00

"""
./

$95.00 ./
'45.00

Dated:New York, New York


October 10, 2012
RespectfuJly submitted,
SACK & SACK ESQS.

By: ERIC R. STERN, E=-s q-. -Attorneys for Petitioner


110 East 59th Street, 19th Floor
New York, New York 10022
Tel.: (212) 702-9000
Fax: (212) 702-9702

ATI'ORNEY'S AFFIRMATION
STATE OF NEW YORK
} ss.:
COUNTY OF NEW YORK }
I, ERIC R. STERN, being duly sworn, deposes and says under the penalties of
perjury, as follows:

1.

I am a member of Sack & Sack, Esqs, attorneys for Petitioner, Andrew


Sutton and, as such, am fully familiar with the facts and circumstances stated herein.
2.

The foregoing costs and disbursements are associated with the Notice of Petition and
Proposed Judgment.
3.

The foregoing costs are reasonable pursuant to CPLR 8202 and 8301.

WHEREFORE, I have read the foregoing and state under the pains and penalties
of perjury that the information contained in this affirmation is true and accurate to
the best of my knowledge, information and belief.

Dated: New York, New


York October 10,
2012

Respectfully submitted,

By:

c R. Stem, Esq.

Attorneys for Petitioner


110 East 59th Street, 19th Floor
New York, New York 10022
Tel.: (212) 702-9000
Fax: (212) 702-9702

FI LE D

JUL.112013

COUNTY CLERKS OFFICE

NEW YORK

,
J

,. .

SUPREME COURT OF THE STATE OF NEW YORK . . . . . . . ; : .


,; . .COUNTY OF NEW YORK . . . . . . . . .. . , :. Index No.:,6 53453/11- : .
. .::,/ .-'3_ ..,

....
.

..

'

- -

ANDREW SUTTON,

--

- '----...

. .

, .

...:

.{- .

.,_ _,

-- _ _. . _ ;. ,. _ ._

. ..

--

':

... -;,

_ . Petitioner;

. -

. -against

---:/i; . .

- . ...

LAMBDASTAR INFRASTRUCTURE PARTNERS, LLC


.

Respondent

JUDGMENT

SACK & SACK, ESQS


Attorneys for Plaintiff
110 East 59tb Street, :19th Floor
New York, New York.10022
Tel.:(212) 702-9000
Fax: (212) 702-9702

FILED AND DOCKETED


JUL. 11 2013