Exhibit 10.8
THIRD ADDENDUM TO
EMPLOYMENT AGREEMENT
THIS THIRD ADDENDUM TO EMPLOYMENT AGREEMENT (this "Addendum") is entered
into as of the 15th day of October, 2001 between and among AMERICA FIRST
MORTGAGE ADVISORY CORPORATION, a Maryland corporation with its office at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Company"), AMERICA FIRST
MORTGAGE INVESTMENTS, INC., a Maryland corporation ("MFA"), and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, an individual residing at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(the "Employee").
W I T N E S S E T H :
WHEREAS, the Employee entered into an employment agreement, dated October
23, 1997, with America First Companies LLC, which was assigned to and assumed by
the Company, and amended by an Addendum to Employment Agreement dated July 1,
2000 and a Second Addendum to Employment Agreement dated May 23, 2001 (the
employment agreement as modified by the two addendums hereinafter referred to as
the "Agreement').
WHEREAS, the Company and the Employee now desire to modify further the
terms of the Employee's employment under the Agreement in anticipation of the
merger of the Company with and into MFA.
NOW THEREFORE, the parties hereby covenant and agree as follows:
1. EFFECTIVE DATE. This Addendum shall become effective upon the later to
occur of (i) January 1, 2002, and (ii) the effective date of the merger of the
Company into MFA (the "Merger"). Upon the effective date of the Merger, the
Agreement as amended by this Addendum and all rights and obligations of the
Company thereunder shall be assumed by MFA.
2. SALARY. The Employee's annual base salary shall be Three Hundred
Thousand Dollars ($300,000).
3. ANNUAL BONUS. The Employee's annual bonus shall be that portion of an
aggregate bonus base for the Company's three most senior executives of not less
than $225,000 as shall be determined by the Company's chief executive officer in
his sole discretion.
4. EQUITY RAISE BONUS. The Employee shall be entitled to an "equity raise
bonus" equal to a portion of a bonus pool of .65% of any new net equity raised
by the Company, such portion to be determined by the Company's chief executive
officer in his sole discretion.
5. CHANGE IN CONTROL PAYMENTS. In the event of (a) the termination of
Employee's employment by the Company without Cause that occurs both within two
months before and in anticipation of a change in control as defined in
Attachment I (a "Change in Control"), (b) the resignation of his employment by
Employee for any reason within three months following a Change in Control, or
(c) the termination of Employee's employment by the Company other than for Cause
or the Employee's resignation of his employment for Good Reason within twelve
months following a Change in Control,
(i) the Company shall pay to Employee in a lump sum, within 30 days
following the termination of employment, an amount equal to 300% of the sum of
Employee's then current base salary plus Employee's bonus for the immediately
preceding year;
(ii) all of Employee's outstanding stock options shall immediately
vest in full and become exercisable for a period of one year from the date of
termination but in no event beyond the date on which the option would have
expired had the Employee's employment not terminated.
(iii) Employee shall continue to participate in all health, life
insurance, retirement and other benefit programs at the Company's expense to the
same extent as though the Employee's employment had not terminated.
The Employee, in his sole and absolute discretion, may elect to reduce any
such payment in order to avoid imposition of the excise tax under Section
4999(a) of the Internal Revenue Code of 1986, as amended.
6. NON-COMPETE. Employee will not, without the prior written consent of
the Company, manage, operate, control or be connected as a stockholder (other
than as a holder of shares publicly traded on a stock exchange or the NASDAQ
National Market System, provided that the Employee shall not own more than five
percent of the outstanding shares of any publicly traded company) or partner
with, or as an officer, director, employee or consultant of, any Residential
Mortgage REIT for a period of one year following termination of his employment
with the Company. During such one year period, the Employee shall not solicit
any employees of the Company to work for any Residential Mortgage REIT. The
Employee shall keep confidential all materials, files, reports, correspondence,
records and other documents ("Company Materials") used, prepared or made
available to him in connection with his employment by the Company and which have
not otherwise been made available to the public, and upon termination of his
employment shall return such Company Materials to the Company. The Employee
acknowledges that the Company may seek injunctive relief or other specific
enforcement of its rights under this Paragraph 6.
7. EQUITY RAISE FOR MFA/MAC. In the event that an equity raise for
MFA/MAC is effected subsequent to the date on which the agreement of Merger was
executed and prior to the effective date of this Addendum, and as a consequence
thereof the Employee is entitled to receive a "Performance Bonus for Executing a
Capital Raise for MFA/MAC" pursuant to the Agreement and the schedule entitled
"America First Companies, LLC Annual Incentive Bonus Plan for 2001" attached
thereto (the "Bonus Schedule") or any amendment to or replacement for such Bonus
Schedule, then
(i) the Company shall be responsible for paying a pro rata portion of the
bonus payable to the Employee, of which the numerator is the number of calendar
months, partial or complete, ending following the equity raise but prior to the
effective date of this Addendum, and the denominator is 12; and
(ii) MFA shall be responsible for paying the balance of the bonus in
quarterly installments, such that the bonus is paid in full by the last business
day of the 12th month ending following the equity raise.
8. REMAINING TERMS UNCHANGED. The parties agree that all terms and
conditions of the Agreement not specifically amended by the Addendum shall
remain in full force and effect.
2
IN WITNESS WHEREOF, the Company, MFA and the Employee have executed this
Addendum as of the date first above written:
AMERICA FIRST MORTGAGE ADVISORY CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------------
AMERICA FIRST MORTGAGE INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------------
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
3
Attachment I
CHANGE IN CONTROL. A "Change in Control" shall mean any one or more of the
following:
(i) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended, (the "Exchange Act")), other than
the Employee or an entity controlled, directly or indirectly, by the Employee
alone or in concert with others, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of MFA representing more than thirty percent (30%) of the combined
voting power of the then outstanding securities of MFA; or
(ii) there has been a tender or exchange offer, merger, consolidation or
equivalent combination involving MFA after which either (a) more than fifty
percent (50%) of the voting stock of the surviving entity is held by persons
other than former stockholders of MFA or (b) persons who were directors of MFA
before such event shall cease to constitute a majority of the Board of Directors
of MFA or any successor entity after such event;
(iii) there has been a sale or other disposition of all or substantially
all the assets of MFA.