AMERICA FIRST COMPANIES
L.L.C.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT
AGREEMENT (this “Agreement”) is effective as of
October 1, 2005, by and between AMERICA FIRST COMPANIES
L.L.C., a Delaware limited liability company 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, the
Company desires to employ Employee with such duties and
responsibilities as the Company shall determine from time to time
and Employee desires to be employed by the Company;
NOW THEREFORE, the
Company and Employee, each intending to be legally bound, agree to
the following terms and conditions:
(a) The
Company hereby agrees to employ Employee on a full time basis in
such capacities as the Company may determine from time to
time.
(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 initial term of the Agreement will be expire on the third
anniversary of the effective date of this Agreement (the
“Employment Period”), but will be automatically renewed
for additional one-year terms as of that date and each anniversary
thereof unless the Company gives Employee at least 60 days
prior written notice that it will not renew the Agreement as of the
next such anniversary date. Notwithstanding the foregoing, 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, or (iv) termination
by the Company for Cause (as hereinafter defined).
Section 3.
DUTIES; REPORTING.
(a) During
the term hereof, Employee shall have such authority, and shall
carry out all responsibilities and duties, as may be reasonably
assigned to Employee by the Company’s Board of
Managers.
(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 Chief Executive
Officer of the Company, or his or her designee.
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
compensation committee of the Company’s Board of Managers.
Base Salary will be paid in equal installments on a semi-monthly
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 compensation committee of the
Company’s Board of Managers. Any bonuses awarded to Employee
will be paid pursuant to the Company’s regular payroll
practices.
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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 for “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 of Managers of the Company, 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
(iii) resignation due to a material and uncured breach by the
Company of this Agreement or (iv) termination of employment by
the Company. A Voluntary Termination shall be deemed to be
effective immediately upon notification thereof to the
Company.
(c) CERTAIN
EFFECTS OF TERMINATION OF EMPLOYMENT.
(i) 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, 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 (such current year Bonus to be not less than 33
1/3% of the budgeted Bonus for the current year), 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 for a
continuous period of one hundred eighty (180) days, 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 (such
current year Bonus to be not less than 33 1/3% of the budgeted
Bonus for the 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
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