Exhibit 10.10


EMPLOYMENT AGREEMENT


 


EMPLOYMENT AGREEMENT (“Agreement”), dated this
1st day of April 2004, by and between DOUG W. NAIDUS (the “Executive”),
MORTGAGEIT HOLDINGS, INC. (the “Company”) and MORTGAGEIT, INC. (“MortgageIT”
and, together with the Company, the “Employers”).


WITNESSETH


 


WHEREAS, the Employers desire to
assure themselves of the services of the Executive for the period provided in
this Agreement, and the Executive is willing to serve in the employ of the
Employers for such period, all in accordance with the terms and conditions
contained in this Agreement.


NOW, THEREFORE, in consideration of the
mutual covenants herein set forth, Executive and the Employers do agree to the
terms of employment as follows:


1.             Definitions.  The following words and
terms shall have the meanings set forth below for the purposes of this
Agreement:


(a)           Affiliate.  Affiliate
of any person or entity means any stockholder or person or entity controlling,
controlled by under common control with such person or entity, or any director,
officer or key executive of such entity or any of their respective relatives.
For purposes of this definition, “control,” when used with respect to any
person or entity, means the power to direct the management and policies of such
person or entity, directly or indirectly, whether through ownership of voting
securities, by contracting or otherwise; and the terms “controlling” and
“controlled” have meanings that correspond to the foregoing.


(b)           Base Salary.  “Base
Salary” shall have the meaning set forth in Section 3 (a) hereof.


(c)           Cause.  Termination of the Executive’s employment for “Cause” shall mean
termination because of personal dishonesty or incompetence which has or could
adversely affect the Employers, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties,
willful violation of any law, rule or regulation (other than traffic violations
or other misdemeanor offenses) or final cease-and-desist order or material
breach of any provision of this Agreement.


(d)           Change in Control. 
“Change in Control” shall mean the occurrence of any of the
following events subsequent to the date of this Agreement: (i) an event that
would be required to be reported in response to Item l(a) of Form 8-K or Item
6(e) of Schedule 14A of Regulation 14A pursuant to the Securities Exchange Act
of 1934, as amended (“Exchange Act”), or any successor thereto, whether or not
any class of securities of the Company is registered under the Exchange Act;
(ii) any “person” (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act), other than a trustee or other fiduciary holding securities under
an employee benefit plan of the Company or any Affiliate of the Company, is or
becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of 


 


 


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the Company representing 25% or more of the combined voting power of
the Company’s then outstanding securities; (iii) the sale or other disposition
of all or substantially all of the assets of the Company; or (iv) during any
period of three consecutive years, individuals who at the beginning of such
period constitute the Board of Directors of the Company cease for any reason to
constitute at least a majority thereof unless the election, or the nomination
for election by stockholders, of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were directors at
the beginning of the period.


 (e)          Code.  “Code” shall mean the Internal
Revenue Code of 1986, as amended.


(f)            Competing Business. 
“Competing Business” shall mean any business, enterprise or
other entity that is primarily engaged in the business of mortgage banking or
mortgage brokerage or managing a real estate investment trust.


(g)           Confidential and Proprietary Information. “Confidential
and Proprietary Information” shall mean any and all (i) confidential or
proprietary information or material not in the public domain about or relating
to the business, operations, assets or financial condition of the Company or
any Affiliate of the Company or any of the Company’s or any such Affiliate’s
trade secrets; and (ii) information, documentation or material not in the
public domain by virtue of any action by or on the part of the Executive, the
knowledge of which gives or may give the Company or any Affiliate of the
Company an advantage over any person not possessing such information. For
purposes hereof, the term Confidential and Proprietary Information shall not
include any information or material (i) that is known to the general public
other than due to a breach of this Agreement by the Executive or (ii) was
disclosed to the Executive by a person who the Executive did not reasonably
believe was bound to a confidentiality or similar agreement with the Employers.


(h)           Date of Termination. “Date of Termination”
shall mean (i) if the Executive’s employment is terminated for Cause or for
Disability, the date specified in the Notice of Termination, and (ii) if the
Executive’s employment is terminated for any other reason, the date on which a
Notice of Termination is given or as specified in such Notice.


(i)            Disability. Termination by the Employers of
the Executive’s employment based on “Disability” shall mean termination because
of any physical or mental impairment which qualifies the Executive for
disability benefits under the applicable long-term disability plan maintained
by the Company or MortgageIT or, if no such plan applies, which would qualify
the Executive for disability benefits under the Federal Social Security System.


(j)            Good Reason. Termination by the Executive
of the Executive’s employment for “Good Reason” shall mean termination by the
Executive following a Change in Control based on:


(i)                                     Without the Executive’s
express written consent, a material adverse change made by the Employers which
would reduce the Executive’s functions, duties or responsibilities as Chairman
and/or Chief Executive Officer of the Company and MortgageIT.


 


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(ii)                                  Without the Executive’s
express written consent, a reduction by the Employers in the Executive’s Base
Salary as the same may be increased from time to time;


(iii)                               Without the Executive’s
express written consent, the Employers require the Executive to be based at a
location more than 25 miles from New York City, New York, except for required
travel on business of the Employers to an extent substantially consistent with
the Executive’s present business travel obligations;


(iv)                              Any purported termination of
the Executive’s employment for Disability which is not effected pursuant to a
Notice of Termination satisfying the requirements of paragraph (l) below; or


(v)                                 Without the Executive’s
express written consent, a failure by the Employers to allow the Executive to
participate in and receive the benefits of any cash incentive or bonus plan,
any pension or other retirement benefit plan, profit sharing, stock option,
employee stock ownership, or other plans, benefits and privileges given
generally to employees and executives of the Employers, to the extent
commensurate with his then duties and responsibilities.


(k)           IRS.  IRS
shall mean the Internal Revenue Service.


(l)            Notice of Termination. Any purported
termination of the Executive’s employment by the Employers for any reason,
including without limitation for Cause or Disability, or by the Executive for
any reason, including without limitation for Good Reason, shall be communicated
by written “Notice of Termination” to the other party or parties hereto. For
purposes of this Agreement, a “Notice of Termination” shall mean a dated notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Executive’s employment under the
provision so indicated, (iii) specifies a Date of Termination, which shall be
not less than thirty (30) nor more than ninety (90) days after such Notice of
Termination is given, except in the case of the Company’s termination of
Executive’s employment for Cause, which shall be effective immediately; and
(iv) is given in the manner specified in Section 10 hereof.


2.             Term of
Employment.


(a)           Each of the Company
and MortgageIT hereby employs the Executive as Chairman of the Board and Chief
Executive Officer of the Company and MortgageIT, and the Executive hereby
accepts said employment and agrees to render such services to the Employers, on
the terms and conditions set forth in this Agreement.  The term of employment under this Agreement shall be for a term
of three years, commencing on the date of this Agreement, unless such term is
extended as provided in this Section 2. 
On the first annual anniversary of the date first above written and each
annual anniversary thereafter, the term of this Agreement shall automatically
be extended for an additional one-year, unless the Executive or the Employers
gives written notice to the other party or parties hereto of such party’s or
parties’ election not to 


 


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extend the term, with such notice to be given not less than sixty (60)
days prior to any such anniversary date.  If any party gives timely notice
that the term will not be extended, then this Agreement shall terminate at the
conclusion of its remaining term. References herein to the term of this
Agreement shall refer both to the initial term and successive terms.


(b)           During the term of
this Agreement, the Executive shall perform such executive services for the
Employers as may be consistent with his titles and such executive services
which are from time to time assigned to him by the Employers’ respective Boards
of Directors.


3.             Compensation
and Benefits.


(a)           The Employers shall
compensate and pay the Executive for his services during the term of this
Agreement at a minimum base salary of $450,000 per year (“Base Salary”), which
may be increased from time to time in such amounts as may be determined by the
Board of Directors of the Employers and may not be decreased without the
Executive’s express written consent.  In
addition to his Base Salary, the Executive shall be entitled to receive during
the term of this Agreement such bonus payments as may be determined by the
Boards of Directors of the Employers solely in their discretion.


(b)           During the term of
this Agreement, the Executive shall be entitled to participate in and receive
the benefits of any pension or other retirement benefit plan, profit sharing,
stock option, employee stock ownership, or other plans, benefits and privileges
given to employees and executives of the Employers, to the extent commensurate
with his then duties and responsibilities as fixed by the Boards of Directors
of the Employers.


(c)           During the term of
this Agreement, the Executive shall be entitled to take four (4) weeks of paid
annual vacation in accordance with the Employers’ established policies. The
Executive shall not be entitled to receive any additional compensation from the
Employers for failure to take a vacation, nor shall the Executive be able to
accumulate unused vacation time from one year to the next, except to the extent
authorized by the Board of Directors of the Employers.


(d)           In the event the
Executive’s employment is terminated due to Disability, the Employers shall
provide continued life, medical, dental and disability in an amount and to the
extent consistent with the Employers’ established policies.


(e)           The Employers shall,
during the term of this Agreement, provide the Executive with either (i) an
automobile allowance or (ii) an automobile owned by either the Company or
MortgageIT and provide for its maintenance and upkeep.


4.             Expenses. The Employers
shall reimburse the Executive or otherwise provide for or pay for all
reasonable expenses incurred by the Executive in furtherance of or in
connection with the business of the Employers, including, but not by way of
limitation, traveling expenses, subject to such reasonable documentation and
other limitations as may be established by the Boards of Directors of the
Employers. If such expenses are paid in the first instance by the Executive,
the Employers shall reimburse the Executive therefore.


 


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5.             Termination.


(a)           The Employers shall
have the right, at any time upon prior Notice of Termination, to terminate the
Executive’s employment hereunder for any reason, including, without limitation,
termination for Cause or Disability, and the Executive shall have the right,
upon prior Notice of Termination, to terminate his employment hereunder for any
reason.


(b)           In the event that
(i) the Executive’s employment is terminated by the Employers for Cause or (ii)
the Executive terminates his employment hereunder other than for Disability,
death or Good Reason, the Executive shall have no right pursuant to this
Agreement to compensation or other benefits for any period after the applicable
Date of Termination other than for Base Salary accrued through the Date of
Termination.


(c)           In the event that
the Executive’s employment is terminated as a result of Disability during the
term of this Agreement, the Executive shall receive his Base Salary for the
duration of the term of this Agreement. 
In addition, in the event that the Executive’s employment is terminated
as a result of Disability during the term of this Agreement, the Executive
shall receive the entire unvested portion of his “Deferred Account,” as defined
and set forth in MortgageIT’s Annual Incentive Compensation Plan.  In the event of the Executive’s death during
the term of this Agreement, the Executive’s estate shall receive his Base
Salary through the end of the term of this Agreement.  In addition, in the event of the Executive’s death during the
term of this Agreement, the Executive’s estate shall receive the entire
unvested portion of the Executive’s “Deferred Account,” as defined and set
forth in MortgageIT’s Annual Incentive Compensation Plan.


(d)           In the event that
(i) the Executive’s employment is terminated by the Employers for other than
Cause, Disability, or the Executive’s death or (ii) such employment is
terminated by the Executive (a) due to a material breach of this Agreement by
the Company, which breach has not been cured within fifteen (15) business days
after a written notice of non-compliance has been given by the Executive to the
Company, or (b) for Good Reason, then the Company shall, subject to Section 6
hereof, if applicable:


(A)          pay to the Executive,
a cash severance amount equal to $1.8 million (“Severance Pay”).  Such Severance Pay shall be paid in monthly
installments beginning with the first business day of the month following the
Date of Termination and continuing for  two
(2) years.  The Boards of Directors of
the Employers, in their sole discretion, may elect to pay the Severance Pay to
the Executive on a more accelerated schedule than that set forth in the
immediately preceding sentence.


(B)           maintain and provide
for a period ending at the earlier of (i) the second anniversary of the Date of
Termination or (ii) the date of the Executive’s full-time employment by another
employer, at no cost to the Executive, the Executive’s continued participation
in all group insurance, life insurance, health and accident, disability and
other employee benefit plans, programs and arrangements in which the Executive
was entitled to participate immediately prior to the Date of Termination (other
than any stock option or other stock compensation plans or bonus plans of the
Employers), provided that in the event that Executive’s participation in any
such plan, program or arrangement is barred, the Employers shall arrange to
provide Executive 


 


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with benefits substantially similar to those Executive was entitled to
receive under such plans, programs and arrangements prior to the Date of
Termination.


(C)           pay to the Executive
the entire invested portion of the Executive’s “Deferred Account,” as defined
and set forth in MortgageIT’s Annual Incentive Compensation Plan.


(e)           In receiving any
payments pursuant to this Section 5, the Executive shall not be obligated to
seek other employment or take any other action by way of mitigation of the
amounts payable to the Executive hereunder, and such amounts shall not be
reduced or terminated whether or not the Executive obtains other employment.


6.             Limitation
of Benefits under Certain Circumstances. If the payments and benefits
pursuant to Section 5 hereof, either alone or together with other payments and
benefits which the Executive has the right to receive from the Employers, would
constitute a “parachute payment” under Section 280G of the Code, the payments
and benefits payable by the Employers pursuant to Section 5 hereof shall be
reduced, in the manner determined by the Executive, by the amount, if any,
which is the minimum necessary to result in no portion of the payments and
benefits payable by the Employers under Section 5 being non-deductible to the
Employers pursuant to Section 280G of the Code and subject to the excise tax imposed
under Section 4999 of the Code. The determination of any reduction in the
payments and benefits to be made pursuant to Section 5 shall be based upon the
opinion of independent counsel selected by the Employers’ independent public
accountants and paid by the Employers. Such counsel shall be reasonably
acceptable to the Employers and the Executive; shall promptly prepare the
foregoing opinion, but in no event later than thirty (30) days from the Date of
Termination; and may use such actuaries as such counsel deems necessary or
advisable for the purpose. Nothing contained herein shall result in a reduction
of any payments or benefits to which the Executive may be entitled upon
termination of employment under any circumstances other than as specified in this
Section 6, or a reduction in the payments and benefits specified in Section 5
below zero.


7.             Restrictions
Respecting Competing Businesses, Confidential Information, etc.


(a)           The Executive
acknowledges and agrees that by virtue of the Executive’s position and
involvement with the business and affairs of the Employers, the Executive will
develop substantial expertise and knowledge with respect to all aspects of the
Employers’ business, affairs and operations and will have access to all
significant aspects of the business and operations of the Employers and to
Confidential and Proprietary Information.


(b)           The Executive hereby
covenants and agrees that, during the term of employment and thereafter, unless
otherwise authorized by the Employers in writing, the Executive shall not,
directly or indirectly, under any circumstance: (i) disclose to any other
person or entity (other than in the regular course of business of the
Employers) any Confidential and Proprietary Information, other than pursuant to
applicable law, regulation or subpoena or with the prior written consent of the
Employers; (ii) act or fail to act so as to impair the confidential or
proprietary nature of any Confidential and Proprietary Information; (iii) use
any Confidential and Proprietary Information other than for the sole and
exclusive benefit of the Employers; or (iv) offer or agree to, or cause or
assist in the inception or continuation of, any 


 


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such disclosure, impairment or use of any Confidential and Proprietary
Information. Following the term of employment, the Executive shall return all
documents, records and other items containing any Confidential and Proprietary
Information to the Employers (regardless of the medium in which maintained or
stored).


(c)           The Executive
covenants and agrees that while the Executive is employed by the Employers and
for two (2) years after the Executive ceases to be employed by the Employers
for any reason (provided that the Employers are complying with their
obligations pursuant to the terms of this Agreement during such two (2) year
period), other than the termination of his employment after the Employers have
elected not to renew this Agreement as provided in Section 2(a), the Executive
shall not, directly or indirectly, manage, operate or control, any Competing
Business or, directly or indirectly, induce or influence any customer or other
Person that has a business relationship with the Employers, or any Affiliate of
the Employers, to discontinue or reduce the extent of such relationship;
provided that in the case of a termination of the Executive, the Employers
continue to pay any amounts owing to the Executive pursuant to Section 5(d)
hereof, and provided further that to the extent the Executive is terminated by
the Employers without Cause or by the Executive for Good Reason and to the
extent the Executive agrees to forego all benefits and severance that he is
otherwise entitled to pursuant to Section 5(d) hereof, this Section 7(c) shall
not apply.  For purposes of this
Agreement, the Executive shall be deemed directly or indirectly interested in a
business if he is engaged or interested in that business as a stockholder,
director, officer, or executive, agent, partner, individual proprietor,
consultant, advisor or otherwise, but not if the Executive’s interest is
limited solely to the ownership of not more than 5% of the securities of any
class of equity securities of a corporation or other person whose shares are
listed or admitted to trade on a national securities exchange or are quoted on
the Nasdaq Stock Market or a similar means if the Nasdaq Stock Market is no
longer providing such information.


(d)           While the Executive
is employed by the Employers and for two (2) years after the Executive ceases
to be employed by the Employers, the Executive shall not, directly or
indirectly, solicit to employ for  a
Competing Business any employee of the Employers or any Affiliate of the
Employers as of the date of the termination of the Executive’s employment with
the Employers.


(e)           The parties agree
that nothing in this agreement shall be construed to limit or negate the common
law of torts, confidentiality, trade secrets, fiduciary duty and obligations
where such laws provide the Employers with any broader, further or other remedy
or protection than those provided herein.


(f)            Because the breach
of any of the provisions of this Section 7 will result in immediate and
irreparable injury to the Employers for which the Employers will not have an
adequate remedy at law, the Employers shall be entitled, in addition to all
other rights and remedies, to seek a degree of specific performance of the
restrictive covenants contained in this Section 7 and to a temporary and
permanent injunction enjoining such breach, without posting bond or furnishing
similar security.


8.             Withholding.  All payments required to be
made by the Employers hereunder to the Executive shall be subject to the
withholding of such amounts, if any, relating to tax and 


 


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other payroll deductions as the Employers may reasonably determine
should be withheld pursuant to any applicable law or regulation.


9.             Assignability.  The Employers may assign
this Agreement and its rights and obligations hereunder in whole, but not in
part, to any corporation or other entity with or into which the Employers may
hereafter merge or consolidate or to which the Employers may transfer all or
substantially all of their respective assets, if in any such case said
corporation or other entity shall by operation of law or expressly in writing
assume all obligations of the Employers hereunder as fully as if it had been
originally made a party hereto, but may not otherwise assign this Agreement or
its rights and obligations hereunder. The Executive may not assign or transfer
this Agreement or any rights or obligations hereunder.


10.          Notice.  For the purposes of this Agreement, notices
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when delivered or mailed by
certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the signature page hereto.
Any notice, request, demand or other communication delivered or sent in the
manner aforesaid shall be deemed given or made (as the case may be) upon the
earliest of (a) the date it is actually received, (b) the business day after
the day on which it is delivered by hand, (c) the business day after the day on
which it is properly delivered to Federal Express (or a comparable overnight
delivery service), or (d) the third business day after the day on which it is
deposited in the United States mail. The Employers or the Executive may change
their respective addresses by notifying the other party or parties of the new
addresses in any manner permitted by this Section 10.


11.          Amendment;
Waiver.  No provisions of this
Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by the Executive
and such officer or officers as may be specifically designated by the Boards of
Directors of the Employers to sign on their behalf. No waiver by any party
hereto at any time of any breach by any other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.


12.          Governing
Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the United States where applicable
and otherwise by the substantive laws of the State of Maryland, without regard
to any conflicts of laws provisions thereof.  Each party to this Agreement hereby irrevocably consents to the
jurisdiction of the United States District Court for the Southern District of
New York and the courts of the state of New York located in the City of New
York in any action to enforce, interpret or construe any provision of this
Agreement or of any other agreement or document delivered in connection with
this Agreement, and also hereby irrevocably waiver any defense of improper
venue, forum  non  conveniens or lack of personal
jurisdiction to any such action brought in those courts.  Each party further irrevocably agrees that
any action to enforce, interpret or construe any provision of this Agreement
will be brought only in one of those courts. 
Each party hereby waives its right to trial by jury.


13.          Nature of
Obligations. Nothing contained herein shall create or require the
Employers to create a trust of any kind to fund any benefits which may be
payable hereunder, 


 


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and to the extent that the Executive acquires a right to receive
benefits from the Employers hereunder, such right shall be no greater than the
right of any unsecured general creditor of the Employers.


14.          Headings. The section
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.


15.          Validity. The invalidity,
illegality or unenforceability of any provision of this Agreement, in whole or
in part, shall not affect the validity, legality or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.


16.          Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.


17.          Entire
Agreement. This Agreement embodies the entire agreement between
the Employers and the Executive with respect to the matters agreed to herein.
All prior agreements between the Employers and the Executive with respect to
the matters agreed to herein are hereby superseded and shall have no force or
effect.


 


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IN WITNESS WHEREOF, this Agreement has been
executed as of the date first above written.


 


	
  MORTGAGEIT
  HOLDINGS, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Donald Epstein

  
	
   

  	
   

  	
  Name:

  	
  Donald Epstein

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
  Address:

  	
   

  
	
   

  	
   

  	
  33 Maiden Lane

  
	
   

  	
   

  	
  New York, New York  10038

  



 


 


	
  MORTGAGEIT,
  INC.

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Donald Epstein

  
	
   

  	
   

  	
  Name:

  	
  Donald Epstein

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
  Address:

  	
   

  
	
   

  	
   

  	
  33 Maiden Lane

  
	
   

  	
   

  	
  New York, New York  10038

  



 


 


	
  EXECUTIVE

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Doug W. Naidus

  
	
   

  	
   

  	
  Name:

  	
  Doug W. Naidus

  
	
   

  	
   

  	
   

  	
   

  



 


 


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