AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED
AND RESTATED
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is
entered into as of the 1st day of January, 2008, by and between MFA MORTGAGE
INVESTMENTS, INC., a Maryland corporation ("MFA"), and XXXXXX
X.
XXXXXXX, residing at the address set forth on the signature page hereof (the
"Executive").
W
I T N E
S S E T H:
WHEREAS,
MFA and the Executive entered into an employment agreement effective as of
January 1, 2006 (the "Employment Agreement");
WHEREAS,
prior to such time as the Employment Agreement is required to be in documentary
compliance with the requirements of Section 409A of the Code, MFA and the
Executive desire to amend the terms of the Executive's employment and extend
the
period of employment set forth in the Employment Agreement to December 31,
2009 on the terms and conditions set forth in this Agreement; and
WHEREAS,
the Executive wishes to continue serving MFA and MFA wishes to secure the
continued exclusive services of the Executive under the terms and conditions
described below.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual agreements
herein contained, the parties hereto agree to amend and restate the Employment
Agreement in its entirety to read as follows:
1. Term
of
Employment.
(a) MFA
hereby employs the Executive, and the Executive hereby accepts employment with
MFA, in the positions and with the duties and responsibilities as set forth
in
Paragraph 2 below for the Term of Employment, subject to the terms and
conditions of this Agreement.
(b) The
term
of employment (the "Term of Employment")
under this Agreement shall include the Initial Term and each Renewal
Term. The Initial Term shall commence as of January 1, 2008 and
shall continue until December 31, 2009. The Term of Employment
shall automatically renew for a one-year period (each such renewal, a "Renewal
Term") at the end of the Initial Term and each Renewal Term, unless either
party
shall give notice to the other not less than six months prior to the end of
the
Initial Term or any Renewal Term, as the case may be, of her or its intent
not
to renew such Initial Term or Renewal Term, as the case may
be. Notwithstanding the foregoing sentences of this
Paragraph 1(b), the Term of Employment may be terminated before the
expiration of the Initial Term or any Renewal Term in accordance with
Paragraph 5 hereof.
2. Position;
Duties and
Responsibilities.
(a) During
the Term of Employment, the Executive shall be employed as Senior Vice
President, Chief Accounting Officer and Treasurer of MFA, reporting to the
Chief
Financial Officer of MFA (the "CFO"), with
such
duties and day-to-day management responsibilities as are customarily performed
by persons holding such offices at similarly situated mortgage REITs and such
other duties as may be mutually agreed upon between the Executive and the Chief
Executive Officer of MFA (the "CEO") and/or
the
CFO.
(b) During
the Term of Employment, the Executive shall, without additional compensation,
also serve on the board of directors of, serve as an officer of, and/or perform
such executive and consulting services for, or on behalf of, such subsidiaries
or affiliates of MFA as the CEO, the CFO and/or the Board of Directors of MFA
(the "Board of
Directors") may, from time to time, request. MFA and such
subsidiaries and affiliates are hereinafter referred to, collectively, as the
"Company." For
purposes of this Agreement, the term "affiliate" shall have the meaning ascribed
thereto in Rule 12b-2 under the Securities Exchange Act of 1934, as amended
(the "Act").
(c) During
the Term of Employment, the Executive shall serve MFA faithfully, diligently
and
to the best of her ability and shall devote substantially all of her time and
efforts to her employment and the performance of her duties under this
Agreement. Nothing herein shall preclude the Executive from engaging
in charitable and community affairs and managing her personal financial and
legal affairs, so long as such activities do not materially interfere with
her
carrying out her duties and responsibilities under this Agreement.
3. Compensation.
(a) Base
Salary. During the Term of Employment, MFA shall pay to the
Executive a base salary (the "Base Salary") equal
to $250,000 per annum. The Base Salary shall be paid in accordance
with MFA's normal payroll practices.
(b) Performance
Bonus. The Executive shall be eligible to receive an annual
performance bonus in such amount, in such manner and at such time as shall
be
recommended by the CEO and/or the CFO and approved by the Compensation Committee
of the Board of Directors (the "Compensation
Committee") or the Board of Directors, as the case may be.
(c) Equity
Compensation. The Executive shall be eligible to receive such
stock option, restricted stock, phantom share or dividend equivalent rights
("DERs") grants
or other equity awards as the Compensation Committee or the Board of Directors,
as the case may be, shall deem appropriate.
(d) Discretion
to Increase
Compensation. Nothing in this Agreement shall preclude the
Board of Directors or the Compensation Committee from increasing or considering
increasing the Executive's compensation during the Term of
Employment. The Base Salary as adjusted to reflect any increase shall
be the Base Salary for all purposes of this Agreement.
4. Employee
Benefit Programs
and Fringe Benefits.
During
the Term of Employment, the Executive shall be entitled to four weeks of
vacation each calendar year and to participate in all executive incentive and
employee benefit programs of MFA now or hereafter made available to MFA's senior
executives or salaried employees generally, as such programs may be in effect
from time to time. MFA shall reimburse the Executive for any and all
necessary, customary and usual business expenses, properly receipted in
accordance with MFA's policies, incurred by the Executive in connection with
her
employment.
5. Termination
of
Employment.
(a) Termination
Due to Death or
Disability. If the Executive's employment is terminated during
the Term of Employment by reason of the Executive's death or Disability, the
Executive's Term of Employment shall terminate automatically without further
obligations to the Executive, her legal representative or her estate, as the
case may be, under this Agreement except for (i) any compensation earned
but not yet paid, including and without limitation, any amount of Base Salary
accrued or earned but unpaid and any other payments
2
payable
to the Executive pursuant to Paragraph 5(e) below, which amounts shall be
promptly paid in a lump sum to the Executive, her legal representative or her
estate, as the case may be, and (ii) continued payment on a monthly basis
of the Executive's then current Base Salary for a period of one year following
the date of such termination, which shall be paid to the Executive, her legal
representative or her estate, as the case may be. In the event of
such termination due to her Disability, the Executive's health insurance
coverage shall be continued at MFA's expense for the duration of such
Disability; provided, that, if such coverage cannot be provided under MFA's
health insurance policy for the duration of such Disability, such coverage
or
the cost of comparable coverage shall be provided by MFA until the Executive's
attainment of age 65 or such later date through which coverage is permissible
under MFA's health insurance policy.
(b) Termination
Without Cause or
for Good Reason. In the event the Executive's employment is
terminated by MFA without Cause (which shall not include any non-renewal of
this
Agreement by MFA pursuant to Paragraph 1(b)) or by the Executive for Good
Reason, unless any such termination is preceded by the Executive's giving notice
of her determination not to renew the Initial Term or any Renewal Term pursuant
to Paragraph 1(b), the Executive shall be entitled to both continued
payments of her then current Base Salary and continued health insurance coverage
at MFA's expense, until the later to occur of (i) the expiration of the
Term of Employment or (ii) the first anniversary of such termination of
employment, such Base Salary being payable at the same time such amounts would
have been payable to the Executive had her employment not
terminated.
(c) Termination
by MFA for Cause
or Voluntary Termination by the Executive. In the event the
Executive's employment is terminated by MFA for Cause or is terminated by the
Executive on her own initiative for other than a Good Reason (including pursuant
to Paragraph 1(b)), the Executive shall be entitled to any compensation
earned but not yet paid, including and without limitation, any amount of Base
Salary accrued or earned but unpaid and any other payments payable to the
Executive pursuant to Paragraph 5(e) below, as of the date of
termination.
(d) Termination
Related to
Change in Control. In the event of (1) the termination of
the Executive's employment by MFA without Cause (which shall include any
non-renewal of this Agreement by MFA pursuant to Paragraph 1(b)) that occurs
both within two months before a Change in Control and following the occurrence
of a Pre-Change-in-Control Event, (2) the resignation of her employment by
the Executive for any reason within three months following a Change in Control
or (3) the termination of the Executive's employment by MFA other than for
Cause (which shall include any non-renewal of this Agreement by MFA pursuant
to
Paragraph 1(b)) or the Executive's resignation of her employment for Good Reason
within twelve months following a Change in Control:
(i) MFA
shall
pay to Executive in a lump sum, within 30 days following the termination of
employment, an amount equal to 250% of the sum of (a) the Executive's then
current Base Salary and (b) the Executive's highest bonus for the two
preceding years;
(ii) all
of
the Executive's outstanding restricted stock, phantom shares and stock options
shall immediately vest in full and such options shall remain exercisable, and
any dividend equivalents associated therewith shall continue to be payable,
until the earlier of (a) 90 days following the date of such termination and
(b)
the date on which each such option would have expired had the Executive’s
employment not terminated; and
(iii) the
Executive and her immediate family shall continue to participate in all health,
life insurance, retirement and other benefit programs at MFA's expense for
the
balance of the Term of Employment, to the same extent as though the Executive's
employment had not terminated.
3
The
Executive, in her sole and absolute discretion, may elect to reduce any such
payment in order to avoid imposition of the excise tax under Section 4999
of the Code.
(e) Other
Payments. Upon the termination of the Executive's employment,
in addition to the amounts payable under any Paragraph above, the Executive
shall be entitled to receive the following:
(i) any
annual bonus earned during one or more preceding years but not
paid;
(ii) any
vested deferred compensation (including any interest accrued on or appreciation
in value of such deferred amounts);
(iii) reimbursement
for reasonable business expenses incurred but not yet reimbursed by MFA;
and
(iv) any
other
benefits to which the Executive or her legal representative may be entitled
under the 2004 Equity Compensation Plan and under all other applicable plans
and
programs of MFA, as provided in Paragraph 4 above.
(v) upon
the
termination of the Executive's employment pursuant to Paragraphs 5(a) or 5(b)
above, all of the Executive's outstanding restricted stock, phantom shares
and
stock options shall immediately vest in full and such options shall remain
exercisable, and any dividend equivalents associated therewith shall continue
to
be payable until the earlier of (a) 90 days following the date of such
termination and (b) the date on which each such option would have expired had
the Executive's employment not terminated.
(f) No
Mitigation; No
Offset. In the event of any termination of the Executive's
employment under this Agreement, she shall be under no obligation to seek other
employment or otherwise in any way to mitigate the amount of any payment
provided for in this Paragraph 5, and there shall be no offset against
amounts due her under this Agreement on account of any remuneration attributable
to any subsequent employment that she may obtain.
(g) Payments
Subject to
Section 409A. Notwithstanding anything herein to the
contrary, the Executive shall not be entitled to any payment pursuant to this
Paragraph 5 prior to the earliest date permitted under Section 409A of
the Code, and applicable Treasury regulations thereunder. To the
extent any payment pursuant to this Paragraph 5 is required to be delayed
six months pursuant to the special rules of Section 409A related to
"specified employees," each affected payment shall be delayed until six months
after the Executive's termination of employment. Each party to this
Agreement intends and agrees that this Agreement shall be modified in a timely
manner, as mutually agreed by both parties, to comply with Section 409A of
the Code and the regulations thereunder.
(h) Mutual
Release. MFA’s obligation to make any payment or provide any
benefit pursuant to this Paragraph 5 shall be contingent upon, and is the
consideration for, the Executive executing and delivering to MFA a general
release (the “Release”), substantially in the form annexed hereto as Exhibit A,
releasing MFA, and all current and former members, officers and employees of
MFA, from any claims relating to the Executive’s employment hereunder, other
than claims relating to continuing obligations under, or preserved by, (x)
this
4
Agreement
or (y) any compensation or benefit plan, program or arrangement in which the
Executive was participating as of the date of termination of her employment,
and
no such amounts shall be provided until the Executive executes and delivers
to
MFA a letter which provides that the Executive had not revoked such Release
after seven days following the date of the Release. The Release shall
also be executed by MFA and delivered to the Executive as part of the
consideration for the Executive’s execution and delivery of the Release, and,
except as otherwise provided under the terms of the Release, shall release
the
Executive from any and all claims MFA may have against the
Executive.
6. Definitions.
For
purposes of this Agreement, the following terms shall be defined as set forth
below:
(a) Cause. "Cause"
shall mean the Executive's (i) conviction, or entry of a guilty plea or a
plea of nolo contendre with respect to, a felony, a crime of moral turpitude
or
any crime committed against MFA, other than traffic violations;
(ii) engagement in willful misconduct, willful or gross negligence, or
fraud, embezzlement or misappropriation relating to significant amounts, in
each
case in connection with the performance of her duties under this Agreement;
(iii) failure to adhere to the lawful directions of the CEO, the CFO and/or
the Board of Directors that are reasonably consistent with her duties and
position provided for herein; (iv) breach in any material respect of any of
the provisions of Paragraph 7 of this Agreement resulting in material and
demonstrable economic injury to MFA; (v) chronic or persistent substance
abuse that materially and adversely affects her performance of her duties under
this Agreement or (vi) breach in any material respect of the terms and
provisions of this Agreement resulting in material and demonstrable economic
injury to MFA. Notwithstanding the foregoing, (i) the Executive
shall be given written notice of any action or failure to act that is alleged
to
constitute Cause (a "Default"), and an
opportunity for 20 business days from the date of such notice in which to
cure such Default, such period to be subject to extension in the discretion
of
the CEO or, in her absence, the Board of Directors and (ii) regardless of
whether the Executive is able to cure any Default, the Executive shall not
be
deemed to have been terminated for Cause without (x) reasonable prior
written notice to the Executive setting forth the reasons for the decision
to
terminate the Executive for Cause, (y) an opportunity for the Executive,
together with her counsel, to be heard by the CEO or, in her absence, the Board
of Directors and (z) delivery to the Executive of a notice of termination
approved by said CEO or, in her absence, the Board of Directors, stating her
or
its good faith opinion that the Executive has engaged in actions or conduct
described in the preceding sentence, which notice specifies the particulars
of
such action or conduct in reasonable detail; provided, however, MFA may suspend
the Executive with pay until such time as her right to appear before the CEO
or
the Board of Directors, as the case may be, has been exercised, so long as
such
appearance is within two weeks of the date of suspension.
(b) Change
in
Control. A "Change in Control" shall mean the occurrence of
any one of the following events:
(i) any
"person", as such term is used in Sections 13(d) and 14(d) of the Act
(other than MFA, any of its affiliates or any trustee, fiduciary or other person
or entity holding securities under any employee benefit plan or trust of MFA
or
any of its affiliates) together with all affiliates and "associates" (as such
term is defined in Rule 12b-2 under the Act) of such person, shall become
the "beneficial owner" (as such term is defined in Rule 13d-3 under the
Act), directly or indirectly, of securities of MFA representing 30% or more
of
either (A) the combined voting power of MFA's then outstanding securities
having the right to vote in an election of the Board of Directors ("voting securities")
or (B) the then outstanding shares of common stock of MFA ("Shares") (in
either such case other than as a result of an acquisition of securities directly
from MFA); or
5
(ii) persons
who, as of the effective date of this Agreement, constitute MFA's Board of
Directors (the "Incumbent Directors")
cease for any reason, including, without limitation, as a result of a tender
offer, proxy contest, merger or similar transaction, to constitute at least
a
majority of the Board of Directors, provided that any person becoming a Director
of MFA subsequent to the effective date whose election or nomination for
election was approved by a vote of at least a majority of the Incumbent
Directors shall, for purposes of this Agreement, be considered an Incumbent
Director; or
(iii) there
shall occur (A) any consolidation or merger of MFA or any subsidiary where
the stockholders of MFA, immediately prior to the consolidation or merger,
would
not, immediately after the consolidation or merger, beneficially own (as such
term is defined in Rule 13d-3 under the Act), directly or indirectly,
shares representing in the aggregate 60% or more of the voting securities of
the
corporation issuing cash or securities in the consolidation or merger (or of
its
ultimate parent corporation, if any), (B) any sale, lease, exchange or
other transfer (in one transaction or a series of transactions contemplated
or
arranged by any party as a single plan) of all or substantially all of the
assets of MFA or (C) any plan or proposal for the liquidation or
dissolution of MFA.
Notwithstanding
the foregoing, a "Change in Control" shall not be deemed to have occurred for
purposes of the foregoing clause (i) solely as the result of an acquisition
of securities by MFA which, by reducing the number of Shares or other voting
securities outstanding, increases (x) the proportionate number of Shares
beneficially owned by any person to 30% or more of the Shares then outstanding
or (y) the proportionate voting power represented by the voting securities
beneficially owned by any person to 30% or more of the combined voting power
of
all then outstanding voting securities; provided, however, that, if any person
referred to in clause (x) or (y) of this sentence shall thereafter become
the beneficial owner of any additional Shares or other voting securities (other
than pursuant to a stock split, stock dividend, or similar transaction), then
a
"Change in Control" shall be deemed to have occurred for purposes of this
Paragraph 6(b).
(c) Code. “Code”
shall mean the Internal Revenue Code of 1986, as amended.
(d) Disability. "Disability"
shall mean the Executive's inability for a period of six consecutive months,
to
render substantially the services provided for in this Agreement by reason
of
mental or physical disability, whether resulting from illness, accident or
otherwise, other than by reason of chronic or persistent abuse of any substance
(such as narcotics or alcohol).
(e) Good
Reason. "Good Reason" shall mean:
(i) a
material diminution in the Executive's title, duties or
responsibilities;
(ii) relocation
of the Executive's place of employment without her consent outside the New
York
City metropolitan area;
(iii) the
failure of MFA to pay within 30 business days any payment due from
MFA;
(iv) the
failure of MFA to pay within a reasonable period after the date when amounts
are
required to be paid to the Executive under any benefit programs or plans;
or
(v) the
failure by MFA to honor any of its material obligations herein.
6
(f) Pre-Change-in–Control
Event. A "Pre-Change-in-Control Event" shall mean the
occurrence of any one of the following events:
(i) the
Board
shall adopt a resolution to the effect that any person has taken actions which,
if consummated, would result in such person acquiring effective control of
the
business and affairs of MFA;
(ii) there
shall commence a tender offer or proxy contest resulting in any of the
transactions specified in subparagraphs (i)-(iii) of
Paragraph 6(b);
(iii) MFA
shall
make any agreement resulting in any of the transactions specified in
subparagraphs (i)-(iii) of Paragraph 6(b);
(iv) there
shall be a public announcement of a transaction of the kind specified in
subparagraphs (i)-(iii) of Paragraph 6(b); or
(v) any
other
meeting, writing or written communication with, by or to the Board of Directors
or any officer or executive of MFA, that is held, made or undertaken in good
faith in anticipation of a Change in Control.
7. Covenant
Not To
Compete.
In
the
event of the termination of the Executive's employment with MFA other than
upon
nonrenewal of the Term of Employment, the Executive will not, without the prior
written consent of MFA, 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 Executive
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 mortgage REIT for a period of one year following termination of her
employment with MFA. For a period of one year following the
termination of the Executive's employment with MFA for any reason, the Executive
shall not solicit any employees of MFA to work for any mortgage
REIT. Except as otherwise required by law, the Executive shall keep
confidential all materials, files, reports, correspondence, records and other
documents (collectively, the "Company Materials")
used, prepared or made available to her in connection with her employment by
MFA
and which have not otherwise been made available to the public, and upon
termination of her employment shall return such Company Materials to
MFA. The Executive acknowledges that MFA may seek injunctive relief
or other specific enforcement of its rights under this Paragraph.
8. Indemnification.
MFA
shall
indemnify the Executive to the fullest extent permitted by Maryland law as
amended from time to time in connection with the Executive's duties with MFA,
against all costs, expenses, liabilities and losses (including, without
limitation, attorneys' fees, judgments, fines, penalties, ERISA excise taxes
and
amounts paid in settlement) actually and reasonably incurred by the Executive
in
connection with an action, suit or proceeding. During the Term of
Employment and for six years following the date of the Executive's termination
as an officer of MFA, MFA (or any successor thereto) shall provide comprehensive
coverage under its officers and directors insurance policy (or policies) on
substantially the same terms and levels that it provides to its senior executive
officers, at MFA's sole cost.
7
9. Assignability;
Binding
Nature.
This
Agreement shall inure to the benefit of MFA and the Executive and their
respective successors, heirs (in the case of the Executive) and
assigns. No rights or obligations of MFA under this Agreement may be
assigned or transferred by MFA except that any such rights or obligations may
be
assigned or transferred pursuant to a merger or consolidation in which MFA
is
not the continuing entity, or the sale or liquidation of all or substantially
all of the assets of MFA, provided that the assignee or transferee is the
successor to all or substantially all of the assets of MFA and such assignee
or
transferee assumes the liabilities, obligations and duties of MFA, as contained
in this Agreement, either contractually or as a matter of law. This
Agreement shall not be assignable by the Executive.
10. Representation.
MFA
represents and warrants that it is fully authorized and empowered to enter
into
this Agreement and that its entering into this Agreement and the performance
of
its obligations under this Agreement will not violate any agreement between
MFA
and any other person, firm or organization or any law or governmental
regulation.
11. Entire
Agreement.
This
Agreement contains the entire agreement between MFA and the Executive concerning
the subject matter hereof and supersedes all prior agreements, understandings,
discussions, negotiations and undertakings, whether written or oral, between
them with respect thereto.
12. Amendment
or
Waiver.
This
Agreement cannot be changed, modified or amended without the consent in writing
of both the Executive and MFA. No waiver by either MFA or the
Executive at any time of any breach by the other party of any condition or
provision of this Agreement shall be deemed a waiver of a similar or dissimilar
condition or provision at the same or at any prior or subsequent
time. Any waiver must be in writing and signed by the Executive or an
authorized officer of MFA, as the case may be.
13. Severability.
In
the
event that any provision or portion of this Agreement shall be determined to
be
invalid or unenforceable for any reason, in whole or in part, the remaining
provisions of this Agreement shall be unaffected thereby and shall remain in
full force and effect to the fullest extent permitted by law.
14. Reasonableness.
To
the
extent that any provision or portion of this Agreement is determined to be
unenforceable by a court of law or equity, that provision or portion of this
Agreement shall nevertheless be enforceable to the extent that such court
determines is reasonable.
15. Survivorship.
The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations.
8
16. Governing
Law.
This
Agreement and all rights thereunder, and any controversies or disputes arising
with respect thereto, shall be governed by and construed and interpreted in
accordance with the laws of the State of New York, applicable to agreements
made
and to be performed entirely within such State, without regard to conflict
of
laws provisions thereof that would apply the law of any other
jurisdiction.
17. Dispute
Resolution.
In
the
event of any dispute, controversy or claim arising out of or relating to this
Agreement or Executive's employment or termination thereof (other than a
controversy or claim arising under Paragraph 7, to the extent necessary for
MFA
(or its affiliates, where applicable) to enforce the provisions thereof), the
parties hereby agree to settle such dispute, controversy or claim in a binding
arbitration by a single arbitrator in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, which arbitration shall be
conducted in New York, New York. The parties agree that the arbitral
award shall be final and non-appealable and shall be the sole and exclusive
remedy between the parties hereunder. The parties agree that judgment
on the arbitral award may be entered in any court having competent jurisdiction
over the parties or their assets. All reasonable fees and expenses
related to any such arbitration (including reasonable attorneys' fees and
related disbursements) shall be paid by MFA.
18. Legal
Fees.
MFA
shall
pay directly all reasonable legal fees incurred by the Executive in connection
with the negotiation, preparation and execution of this Agreement.
19. Notices.
Any
notice given to either party shall be in writing and shall be deemed to have
been given when delivered personally or sent by certified or registered mail,
postage prepaid, return receipt requested, duly addressed to the party
concerned, if to MFA, at its principal office, and if to the Executive, at
the
address of the Executive shown on MFA's records or at such other address as
such
party may give notice of.
20. Headings.
The
headings of the paragraphs contained in this Agreement are for convenience
only
and shall not be deemed to control or affect the meaning or construction of
any
provision of this Agreement.
21. Counterparts.
This
Agreement may be executed in two or more counterparts.
9
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
| MFA Mortgage Investments, Inc. | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | ||
| Title: |
Chief Financial Officer and Executive Vice President
|
||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxx | |
| Name: | Xxxxxx X. Xxxxxxx | ||
| Title: |
Senior
Vice President, Chief Accounting Officer and
Treasurer
|
||
10
EXHIBIT
A
MUTUAL
RELEASE
This
Mutual Release of Claims (this “Release”) is made
as
of _____________, by and between MFA MORTGAGE INVESTMENTS, INC. (the “Company”) and
_________________ (the “Executive”).
|
|
1.
|
Release
by the
Company.
|
(a)
The Company on behalf of itself, its agents, successors, affiliated entities
and
assigns, in consideration for the Executive’s execution and delivery of this
Release, hereby forever releases and discharges the Executive, and her agents,
heirs, successors, assigns, executors and administrators, from any and all
known
and unknown causes of action, actions, judgments, liens, indebtedness, damages,
losses, claims, liabilities, and demands of whatsoever kind and character in
any
manner whatsoever arising on or prior to the date of this Release, including
but
not limited to (i) any claim for breach of contract, breach of implied
covenant, breach of oral or written promise, defamation, interference with
contract relations or prospective economic advantage, negligence,
misrepresentation; (ii) any and all liability that was or may have been
alleged against or imputed to the Executive by the Company or by anyone acting
on its behalf; (iii) any punitive, compensatory or liquidated damages; and
(iv) all rights to and claims for attorneys’ fees and costs except as
otherwise provided in her employment agreement with the Company dated January
1,
2008 (the “Employment
Agreement”).
(b)
The Company shall not file or cause to be filed any action, suit, claim, charge
or proceeding with any federal, state or local court or agency relating to
any
claim within the scope of this Release. In the event there is presently pending
any action, suit, claim, charge or proceeding within the scope of this Release,
or if such a proceeding is commenced in the future, the Company shall promptly
withdraw it, with prejudice, to the extent it has the power to do so. The
Company represents and warrants that its has not assigned any claim released
herein, or authorized any other person to assert any claim on its
behalf.
(c)
Anything to the contrary notwithstanding in this Release or the Employment
Agreement, this Release shall not apply to claims or damages based on (i) any
right or claim that arises after the date on which the Company executes this
Release, including any right to enforce the Employment Agreement with respect
to
provisions pertaining to matters that arise after the date of the Release and
that survive termination of employment or (ii) any act of willful misconduct,
gross negligence, fraud or misappropriation of funds.
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2.
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Release
by the
Executive.
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(a)
The Executive, on behalf of himself, her agents, heirs, successors, assigns,
executors and administrators, in consideration for the termination payments
and
other consideration provided for under the Employment Agreement, hereby forever
releases and discharges the Company, and its successors, its affiliated
entities, and, in such capacities, its past and present directors, employees,
agents, attorneys, accountants, representatives, plan fiduciaries, successors
and assigns from any and all known and unknown causes of action, actions,
judgments, liens, indebtedness, damages, losses, claims, liabilities, and
demands of whatsoever kind and character in any manner whatsoever arising on
or
prior to the date of this Release, including but not limited to (i) any
claim for breach of contract, breach of implied covenant, breach of oral or
written promise, wrongful termination, intentional infliction of emotional
distress, defamation, interference with contract relations or prospective
economic advantage, negligence, misrepresentation or employment discrimination,
and including without limitation alleged
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violations
of Title VII of the Civil Rights Act of 1964, as amended, prohibiting
discrimination based on race, color, religion, sex or national origin; the
Family and Medical Leave Act; the Americans With Disabilities Act; the Age
Discrimination in Employment Act; other federal, state and local laws,
ordinances and regulations; and any unemployment or workers’ compensation law,
excepting only those obligations of the Company pursuant to Paragraph 5 of
the Employment Agreement or otherwise continuing under the Employment Agreement
and any claims to benefits under any compensation or benefit plan, program
or
arrangement in which the Executive was participating as of the date of
termination of her employment; (ii) any and all liability that was or may
have been alleged against or imputed to the Company by the Executive or by
anyone acting on her behalf; (iii) all claims for wages, monetary or
equitable relief, employment or reemployment with the Company in any position,
and any punitive, compensatory or liquidated damages; and (iv) all rights
to and claims for attorneys’ fees and costs except as otherwise provided in the
Employment Agreement.
(b)
The Executive shall not file or cause to be filed any action, suit, claim,
charge or proceeding with any federal, state or local court or agency relating
to any claim within the scope of this Release. In the event there is presently
pending any action, suit, claim, charge or proceeding within the scope of this
Release, or if such a proceeding is commenced in the future, the Executive
shall
promptly withdraw it, with prejudice, to the extent she has the power to do
so.
The Executive represents and warrants that she has not assigned any claim
released herein, or authorized any other person to assert any claim on her
behalf.
(c)
In the event any action, suit, claim, charge or proceeding within the scope
of
this Release is brought by any government agency, putative class representative
or other third party to vindicate any alleged rights of the Executive,
(i) the Executive shall, except to the extent required or compelled by law,
legal process or subpoena, refrain from participating, testifying or producing
documents therein, and (ii) all damages, inclusive of attorneys’ fees, if
any, required to be paid to the Executive by the Company as a consequence of
such action, suit, claim, charge or proceeding shall be repaid to the Company
by
the Executive within ten (10) days of her receipt thereof.
(d)
BY HER SIGNATURE BELOW, THE EXECUTIVE ACKNOWLEDGES THAT:
(1)
SHE HAS RECEIVED A COPY OF THIS RELEASE AND WAS OFFERED A PERIOD OF TWENTY-ONE
(21) DAYS TO REVIEW AND CONSIDER IT;
(2)
IF SHE SIGNS THIS RELEASE PRIOR TO THE EXPIRATION OF TWENTY-ONE DAYS, SHE
KNOWINGLY AND VOLUNTARILY WAIVES AND GIVES UP THIS RIGHT OF REVIEW;
(3)
SHE HAS THE RIGHT TO REVOKE THIS RELEASE FOR A PERIOD OF SEVEN (7) DAYS
AFTER SHE SIGNS IT BY MAILING OR DELIVERING A WRITTEN NOTICE OF REVOCATION
TO
THE COMPANY’S GENERAL COUNSEL, NO LATER THAN THE CLOSE OF BUSINESS ON THE
SEVENTH DAY AFTER THE DAY ON WHICH SHE SIGNED THIS RELEASE;
(4)
THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE SEVEN DAY
REVOCATION PERIOD HAS EXPIRED WITHOUT THE RELEASE HAVING BEEN REVOKED (THE
“EFFECTIVE
DATE”);
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(5)
THIS RELEASE WILL BE FINAL AND BINDING AFTER THE EXPIRATION OF THE REVOCATION
PERIOD REFERRED TO IN SECTION 2(d)(3). SHE AGREES NOT TO
CHALLENGE ITS ENFORCEABILITY;
(6)
SHE IS AWARE OF HER RIGHT TO CONSULT AN ATTORNEY, HAS BEEN ADVISED IN WRITING
TO
CONSULT WITH AN ATTORNEY, AND HAS HAD THE OPPORTUNITY TO CONSULT WITH AN
ATTORNEY, IF DESIRED, PRIOR TO SIGNING THIS RELEASE;
(7)
NO PROMISE OR INDUCEMENT FOR THIS RELEASE HAS BEEN MADE EXCEPT AS SET FORTH
IN
THIS RELEASE;
(8)
SHE IS LEGALLY COMPETENT TO EXECUTE THIS RELEASE AND ACCEPT FULL RESPONSIBILITY
FOR IT; AND
(9)
SHE HAS CAREFULLY READ THIS RELEASE, ACKNOWLEDGES THAT SHE HAS NOT RELIED ON
ANY
REPRESENTATION OR STATEMENT, WRITTEN OR ORAL, NOT SET FORTH IN THIS DOCUMENT,
AND WARRANTS AND REPRESENTS THAT SHE IS SIGNING THIS RELEASE KNOWINGLY AND
VOLUNTARILY.
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IN
WITNESS WHEREOF, the parties have hereunto set their hands this _____ day of
___________________.
