EMPLOYMENT AGREEMENT
AGREEMENT, dated December 19th, 1994, by and between M.D.C. Holdings,
Inc. (the "Company"), and Michael Touff (the "Employee").
WHEREAS, the Company desires to employ Employee and Employee is
willing to serve the Company upon the terms and conditions hereinafter provided;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the Company and the Employee agree as follows:
1. EMPLOYMENT AND DUTIES. The Company shall employ the Employee,
and the Employee shall be employed by the Company, as Vice President and General
Counsel, at the Company's headquarters in Denver, Colorado. In this capacity,
the Employee shall devote substantially all of his business time and energies to
the business of the Company and shall perform such services, consistent with his
office, as from time to time shall be assigned to him by the senior executive
officers and Board of Directors of the Company. Employee may engage in outside
activities provided that such activities have been disclosed to and approved by
the Company. The Company shall provide Employee with an office and secretarial
and support services as he may reasonably require for performance of his duties.
2. COMPENSATION AND BENEFITS.
(a) BASE SALARY. Commencing on December 31, 1994 (the
"Commencement Date") and during each calendar year for which Employee is
employed by the Company, the Company shall pay the Employee a base salary at a
rate of $210,000 per year (the "Base Salary"), payable in substantially equal
semi-monthly installments. Employee will be eligible for periodic increases in
Base Salary under the Company's normal policies and procedures for salary
increases. Employee's salary will not be reduced below its current level
without the consent of the Employee.
(b) ANNUAL INCENTIVE COMPENSATION. Employee will be entitled to
performance-based incentive and/or bonus compensation payable in accordance with
the Company's normal policies and procedures.
(c) LONG TERM INCENTIVE COMPENSATION.
(i) As of the Commencement Date, Employee is hereby granted
options to purchase 50,000 shares of the Company's common stock at the closing
price of the Company's common stock on that date. This option shall be
exercisable as to 12,500
shares on the Commencement Date and cumulatively as to 12,500 additional shares
on each of the next three annual anniversaries of the Commencement Date. Except
as otherwise provided herein, the options shall be exercisable and governed by
and the shares registered in accordance with the M.D.C. Holdings, Inc. Employee
Equity Incentive Plan adopted in April, 1993.
(ii) Employee shall be eligible to participate in all
supplementary compensation and incentive plans or programs established by the
Company.
(d) EXPENSE REIMBURSEMENT. The Company promptly shall pay, or
reimburse the Employee for, all ordinary and necessary business expenses
incurred by him in the performance of his duties hereunder, provided that the
Employee properly accounts for them in accordance with Company policy. For
purposes hereof such necessary expenses shall include reasonable expenses
associated with relocation of Employee to the Company, professional memberships
and publications, continuing legal education expenses, and home office equipment
expense.
(e) OTHER BENEFIT PLANS, FRINGE BENEFITS, AND VACATIONS. The
Employee shall be eligible to participate as an Executive in its Executive
Medical Plan and in each of the Company's employee benefit plans, policies or
arrangements including without limitation the following:
(i) Reasonable vacation, scheduled to conform to Employee's
job responsibilities which during the first year shall not exceed two weeks.
(ii) Automobile allowance of $500 per month/and covered
parking privileges at the Employee's place of business.
(iii) The Company shall indemnify Employee for and hold him
harmless from any claims, liabilities or damages and associated expenses
(including attorneys' fees) arising out of his acts or omissions while serving
as an officer, director and/or employee of the Company (including its
subsidiaries and affiliates and/or any other entity for which Employee serves or
has served in such capacity for the benefit of the Company) to the fullest
extent permitted by applicable law. The Company shall maintain insurance
policies which provide coverage for Employee to the same extent and providing
limits of liability, deductibles and exclusions as are provided for the
Company's principal executive officers and outside directors. This covenant
shall survive termination of this Agreement for any reason.
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3. TERMINATION.
(a) DEATH AND DISABILITY OR VOLUNTARY RESIGNATION. The
Employee's employment hereunder shall terminate upon his voluntary resignation,
upon his death or upon his becoming totally disabled, in which case Employee, or
his estate, as the case may be, shall be entitled to payment of his Base Salary
and a pro-rated portion of any incentive compensation through the date of such
termination.
(b) FOR CAUSE. The Employee's employment hereunder may be
terminated for "Cause" which shall mean: (i) Employee's willful refusal to
perform material duties hereunder, (ii) Employee's commission of material acts
of fraud, dishonesty or misrepresentation in the performance of his duties
hereunder, or (iii) an act or acts on the Employee's part constituting a felony
under the laws of the United States or any state thereof. In the event of a
termination for Cause, Employee shall be entitled to payment of his Base Salary
through the date of termination.
(c) WITHOUT CAUSE. If, at any time during the first two years
of Employee's employment hereunder, the Employee's employment is terminated by
the Company without Cause, as soon as practicable (but not later than 30 days)
after such termination, he shall receive a lump sum cash payment equal to
$100,000.
(d) CHANGE IN CONTROL.
(i) If, at any time during the first two years of
Employee's employment hereunder, a "Change of Control" (as defined in the
Company's December 15, 1993 Senior Note Indenture) occurs, followed by a "Change
in Control Event," the Employee shall, if he so elects by written notice to the
Company within 360 days after such "Change in Control Event," be entitled to
terminate his employment, if not already terminated by the Company, and, in
either event receive the amount set forth in paragraph (c) above, as if the
Company had terminated his employment without Cause.
(ii) For purposes hereof a "Change in Control Event" shall
mean a Change of Control followed by:
a. The Company making any material reduction in the
Employee's duties or responsibilities from the position that the Employee
occupied on the date of the Change of Control;
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b. The Company assigning the Employee to another place
of employment which is more than 30 miles from the Company's current executive
offices;
c. The Company reducing the Employee's Base Salary,
annual or long term incentive compensation or benefits; or
d. The Company breaching the terms of this Agreement.
(e) If after the Commencement Date the Company develops a policy
or agreement for its senior executive officers which governs termination without
Cause and/or Change in Control, it is intended that this Agreement should be
modified so as to be consistent with such policy or agreement.
4. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by Delaware
law.
(b) NOTICES. Notices shall be in writing and deemed given when
personally delivered, or three days after deposit in the United States mail,
postage prepaid 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.
TO THE EMPLOYEE:
Michael Touff
85 South Birch Street
Denver, Colorado 80222
TO THE COMPANY:
M.D.C. Holdings, Inc.
3600 South Yosemite Street, Suite 900
Denver, Colorado 85237
Attention: Spencer I. Browne, President
(c) ENTIRE AGREEMENT; AMENDMENT. This Agreement supersedes any
agreements between the Employee and the Company relating to the terms of his
employment. It may not be amended except by a written agreement signed by both
parties.
(d) WAIVER. The failure of a party to insist upon strict
adherence to any term of this Agreement on any
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occasion shall not be considered a waiver thereof or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Agreement.
(e) ASSIGNMENT. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs,
representatives, successors and assigns. This Agreement shall not be assignable
by Company or the Employee without the prior written consent of the other.
(f) ARBITRATION. Any dispute arising under this Agreement which
is not settled by agreement of the parties shall be resolved by binding
arbitration in Denver, Colorado pursuant to the rules and procedures of the
American Arbitration Association then in effect and judgment upon the award
rendered may be entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement.
M.D.C. HOLDINGS, INC.
By:
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Name:
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Title:
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MICHAEL TOUFF
/s/ Michael Touff
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