Exhibit 10.8
CHANGE IN CONTROL
AGREEMENT
AGREEMENT, dated as of July 30,
2008, by and between M.D.C. Holdings, Inc. (the
“Company”), and Michael Touff (the
“Employee”).
WHEREAS, the Employee currently is
employed by the Company as its Senior Vice President and General
Counsel, and the Employee is willing to continue to serve in the
employ of the Company; and
WHEREAS, the Company desires to
provide additional compensation to the Employee in the form of
certain termination benefits, but only in the event of a
“Change in Control” of the Company as hereinafter
provided;
NOW, THEREFORE, in consideration of
the mutual promises and agreements hereinafter set forth, the
Company and the Employee agree as follows:
1. Term . The term of this
Agreement shall begin on August 1, 2008 and shall continue
until the earlier of the date of termination of Employee’s
employment, including pursuant to Section 3 below or
December 31, 2010; provided, however, that, unless either
party otherwise elects by notice in writing delivered to the other
by September 30, 2010, or at least 90 days prior to
December 31 of each subsequent year, such term automatically
shall be renewed for successive one-year terms ending on
December 31 of each successive year, and provided, further,
that if this Agreement has not terminated prior to a Change in
Control, then upon a Change in Control the term of this Agreement
shall automatically extend for a period of two years following such
Change in Control (the “Agreement Term”). The Company
and Employee each acknowledge that the Employee’s employment
by the Company is and shall remain at will, and that this Agreement
shall only govern termination benefits in the event of a Change in
Control.
2. Consideration .
In addition to all compensation and
benefits currently provided or in the future to be provided to the
Employee pursuant to the Employee’s employment by the
Company, upon the occurrence of a “Change in Control”
as defined in Appendix A to this Agreement, the Employee shall be
entitled to receive termination of employment benefits as provided
in Section 3 hereof.
3. Termination Upon Change in
Control .
(a) If a Change in Control occurs,
all options, dividend equivalents and other rights granted to the
Employee under any Company equity incentive plans shall be
accelerated and shall become exercisable immediately prior to the
closing of the Change in Control so as to permit the Employee fully
to exercise all outstanding options and rights. If the Change in
Control is not consummated, the Employee’s election to
exercise such options and rights pursuant hereto shall be of no
effect and the Employee’s options shall remain subject to the
restrictions to which they were originally subject.
(b) If a “Change in Control
Event” (as defined in Appendix A to this Agreement) occurs,
the Employee shall, if the Employee so elects by written notice to
the Company within 90 days after such Change in Control Event, be
entitled to terminate the Employee’s employment, if not
already terminated by the Company, and in either event to receive
an amount equal to the product of two times the sum of
(i) Employee’s annual base salary at the rate in effect
immediately before the Change in Control Event and (ii) an
amount equal to Employee’s last regular annual bonus
(provided that for purposes hereof such regular annual bonus amount
shall not exceed 50% of Employee’s annual base salary at the
rate in effect immediately before the Change in Control
Event).
(c) If a Change in Control Event
occurs, the Employee shall also be entitled to continue to
participate in each of the Company’s employee benefit plans,
policies or arrangements which provide insurance and medical
benefits on the same basis as was provided to the Employee prior to
the Change in Control Event for a period of twelve months after the
date of termination of Employee’s employment.
(d) Change in Control
Payments .
(i) The payments set forth in this
Agreement shall be in addition to any payments that otherwise would
be payable to the Employee pursuant to any agreement, benefit plan,
severance policy or similar plan of the Company.
(ii) Notwithstanding anything to the
contrary herein, if the aggregate amounts payable pursuant to
Sections 3(a), (b) and (c) hereof, either alone or
together with any other payments which the Employee has the right
to receive either directly or indirectly from the Company or any of
its affiliates, would be subject to an excise tax as an
“excess parachute payment” under Section 4999 of
the Internal Revenue Code, the Employee hereby agrees that such
aggregate amounts payable hereunder shall be paid in annual
installments over the shortest period of time over which such
aggregate amounts may be paid and not be treated as “excess
parachute payments” under Section 4999. All
determinations called for in this Section 3(d)(ii) shall be
made by an independent public accounting firm with a national
reputation as shall be selected by the Company. The Company shall
bear all costs associated with obtaining such
determinations.
(iii) The amounts payable pursuant
to this Section 3 shall be paid (or commence to be paid if
payable in installments pursuant to Section 3(d)(ii) above) to
the Employee not later than 10 days after the Employee’s
termination of employment.
4. Miscellaneous .
(a) Governing Law . This
Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware applicable to agreements made and to
be performed in that State.
(b) Notices . Any notice,
consent or other communication made or given in connection with
this Agreement shall be in writing and shall be deemed to have been
duly given when delivered by United States registered or certified
mail, return receipt requested, to the parties at the following
addresses or at such other address as a party may specify by notice
to the other.
-2-
