AMERICA FIRST
APARTMENT INVESTORS, INC.
AMENDED AND
RESTATED
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (this
“Agreement”) is effective as of February 21, 2007,
by and between AMERICA FIRST APARTMENT INVESTORS, INC.,
a Maryland corporation with its principal place of business in
Omaha, Nebraska (the “Company”), and
JOHN H. CASSIDY (“Employee”), a resident of
the State of New York.
WHEREAS, prior to December 30,
2005, the Company was an externally-advised real estate investment
trust and, as a result, its executive officers were employees of
The Burlington Capital Group, L.L.C. (f/k/a America First Companies
L.L.C.) (“Burlington”) which was the parent company of
the Company’s external advisor; and
WHEREAS, on December 30, 2005,
the Company completed its transition from being externally advised
to being self advised through the merger of its external advisor
into the Company and, as a result, persons acting as the executive
officers of the Company became direct employees of the Company and
the Company assumed the employment agreements of these individuals,
including the employment agreement between Burlington and Employee
dated October 1, 2005 (the “Original Agreement”);
and
WHEREAS, the Company continues to
desire to employ Employee as its President and Chief Executive
Officer and Employee desires to be employed by the Company in such
capacity; and
WHEREAS, the Company and the Employee
desire to amend and restate the Original Agreement to reflect the
transition of the Company to an self-advised real estate investment
trust and to incorporate various amendments adopted and approved by
the compensation committee of the Company’s Board of
Directors (the “Committee”) subsequent thereto;
NOW THEREFORE, the Company and
Employee, each intending to be legally bound, agree to the
following terms and conditions:
Section 1. EMPLOYMENT.
(a) The Company hereby agrees to
continue to employ Employee on a full time basis as its President
and Chief Executive Officer.
(b) Employee hereby represents
and warrants to the Company that (i) the execution, delivery
and performance of this Agreement by Employee does not and will not
conflict with, breach, violate or cause a default under any
contract, agreement, instrument, order, judgment or decree to which
Employee is a party or by which he is bound, (ii) Employee is
not a party to or bound by any employment agreement, noncompete
agreement or confidentiality agreement with any other person or
entity and (iii) upon the execution and delivery of this
Agreement by the Company, this Agreement shall be the valid and
binding obligation of Employee, enforceable in accordance with its
terms.
Section 2. TERM. The term of
this Agreement will be indefinite; provided, however, that the
Employee’s employment with the Company will terminate
(i) upon the death of Employee, (ii) upon the expiration
of a continuous period of one hundred eighty (180) days during
which Employee is disabled (as defined in the long-term disability
plan of the Company) (hereinafter “Disabled”),
(iii) upon termination by Employee pursuant to Section 9(b)
hereof, or (iv) termination by the Company pursuant to Section
9(a) hereof.
Section 3. DUTIES;
REPORTING.
(a) During the term hereof,
Employee shall have the normal responsibilities, duties and
authorities of President and Chief Executive Officer of the Company
described in its bylaws and such other reasonable duties as may be
assigned to him by the Board of Directors of the Company (the
“Board”) from time to time.
(b) Employee shall perform
faithfully the executive duties assigned to him to the best of his
ability in a diligent, trustworthy, businesslike and efficient
manner and will devote his full business time and attention to the
business and affairs assigned to him hereunder; provided, however,
that Employee may serve as a director of or a consultant to other
corporations which do not compete with the Company or its
subsidiaries or affiliates, nonprofit corporations, civic
organizations, professional groups and similar entities.
(c) During the term hereof,
Employee shall report to the Board.
Section 4. BASE SALARY. As
compensation for his services hereunder, the Company shall pay to
Employee an annual base salary
(the “Base Salary”) during the term hereof.
The amount of the Employee’s Base Salary shall be determined
by the Committee. Base Salary will be paid in equal
installments on a bi-weekly basis pursuant to the Company’s
regular payroll practices.
Section 5. BONUS. In addition to
the Base Salary, Employee shall be eligible to receive an annual
bonus based on Employee’s performance. The performance goals
and amount of the Employee’s bonus, if any, shall be
determined by the Committee pursuant to its then current
compensation plan. Any bonuses awarded to Employee will be paid
pursuant to the Company’s regular payroll practices.
Section 6. PARTICIPATION IN
EMPLOYEE BENEFIT PLANS. Employee will be entitled to participate in
all Company salaried employee benefit plans and programs, subject
to the terms and conditions of each such employee benefit plan or
program and to the extent commensurate with the position.
Section 7. OTHER BENEFITS.
(a) VACATION. Employee shall
initially be entitled to paid vacation in accordance with the
Company’s vacation policies.
(b) INSURANCE. The Company shall
make available to Employee health and dental insurance (including
dependent coverage), and other benefits which the Company may
provide to all employees from time to time.
Section 8. BUSINESS EXPENSES.
The Company shall reimburse Employee for all reasonable expenses
incurred by him in the course of performing his duties under this
Agreement which are consistent with the Company’s policies in
effect from time to time with respect to travel, entertainment and
other business expenses, subject to the Company’s
requirements with respect to report and documentation of such
expenses.
Section 9. TERMINATION OF
EMPLOYMENT.
(a) TERMINATION BY THE COMPANY.
The Company may terminate this Agreement and discharge Employee
either with or without “Cause” at any time. As used
herein, the term “Cause” shall mean any material and
uncured breach of this Agreement by Employee, including a failure
to perform his duties in a manner consistent with the terms of this
Agreement or the persistent failure or refusal to comply with any
lawful direction of the Board, or any action taken by Employee in
connection with his duties hereunder which is fraudulent or
illegal, violates his duty of loyalty or constitutes gross
negligence. A termination of employment by the Company shall
be deemed to be effective immediately upon notification thereof to
Employee.
(b) TERMINATION BY THE EMPLOYEE.
Any termination of employment by Employee shall be a
“Voluntary Termination” unless it is the result of
(i) Employee’s death, (ii) Employee being Disabled
or (iii) resignation due to a material and uncured breach by
the Company of this Agreement. A Voluntary Termination shall be
deemed to be effective immediately upon notification thereof to the
Company.
(c) CERTAIN EFFECTS OF
TERMINATION OF EMPLOYMENT.
(i) Subject
to Section 9(d) hereof, upon the termination of Employee’s
employment hereunder pursuant to a Voluntary Termination or a
termination for Cause, Employee shall have no further rights or
claims against the Company under this Agreement except to receive a
lump sum payment within thirty (30) days of the date of
termination of (A) the unpaid portion of Employee’s Base
Salary and any unpaid Bonus relating to the year prior to the year
in which the date of termination occurs, and (B) reimbursement
of any reimbursable expenses for which Employee shall not have
theretofore been reimbursed.
(ii) Upon
the termination of Employee’s employment hereunder by reason
of Employee’s death or Employee becoming Disabled, the
Company shall pay to Employee or Employee’s personal
representative or custodian within thirty (30) days of the
date of the termination of Employee’s employment a lump sum
equal to (A) an amount equal to six months of Employee’s
Base Salary at the date of termination, (B) the unpaid portion
of Employee’s Base Salary, any unpaid Bonus relating to the
year prior to the year in which the date of termination occurs, and
any current year Bonus based on year-to-date performance results
through the date of termination (as determined by the Committee but
in no event less than 20% of the threshold Bonus established for
Employee for such current year), and (C) reimbursement of any
reimbursable expenses for which Employee shall not have theretofore
been reimbursed. In addition, Employee or Employee’s personal
representative or custodian will be entitled to any benefits
provided under any plans maintained by the Company in which
Employee is a participant on the date of termination in accordance
with the terms of such benefit plan;
(iii) Subject to Section 9(d) hereof, upon the termination of
Employee’s employment hereunder other than for Cause, death,
Disability or Voluntary Termination, the Company shall pay to
Employee in accordance with the Company’s regular payroll
practices (A) severance payment equal to twelve months of
Employee’s Base Salary at the date of termination,
(B) the unpaid portion of Employee’s Base Salary, any
unpaid Bonus relating to the year prior to the year in which the
date of termination occurs, and any current year Bonus based on
year-to-date performance results through the date of termination
(as determined by the Committee but in no event less than 20% of
the threshold Bonus established for Employee for such current
year), and (C) reimbursement of any reimbursable expenses for
which Employee shall not have theretofore been reimbursed. In
addition, Employee will be entitled to any benefits provided under
any plans maintained by the Company in which Employee is a
participant on the date of termination in accordance with the terms
of such benefit plan.
(d) CHANGE IN CONTROL.
(i) Notwithstanding any other provision of this
Section 9, in the event Employee’s employment hereunder
is terminated by the Company other than for Cause, or there is a
Voluntary Termination for “Good Reason” (defined below)
either in contemplation of, or within twelve months following, a
“Change in Control” (defined below), the Company shall
pay Employee a lump sum cash payment equal:
(A) the
total amount Employee would be entitled to receive upon a
termination described in Section 9(c)(iii) above; plus;
(B)
$1,000,000.
In addition, if any unvested awards
of stock options or other equity-based compensation made to
Employee do not immediately vest by their terms upon a Change in
Control because they have been assumed by a successor entity or
converted into a right to receive securities of a successor entity,
then such unvested awards will become fully vested upon termination
of employment under this Section 9(d).
(ii)
“Change in Control” sha
