Amended and Restated Employment Agreement, effective as of July 28, 2020, between Century Communities, Inc. and Dale Francescon

(a) The Executive shall have such duties and responsibilities as are consistent with the Executive’s position and as may be reasonably assigned by the Company’s Board of Directors (the “Board”) from time to time.  During the Employment Period, the Executive shall be subject to, and shall act in accordance with, all reasonable instructions and directions of the Board and all applicable policies and rules of the Company.

(b) During the Employment Period, excluding any periods of paid time off to which the Executive is entitled, the Executive shall devote substantially his full working time and efforts to the performance of his duties and responsibilities hereunder and shall endeavor to promote the business and best interests of the Company.

(c) During the Employment Period, the Executive shall not engage in any business activity other than on behalf of the Company without the express prior written approval of the Board.  It will not be a violation of this exclusivity provision for the Executive to (i) manage the Executive’s personal, financial and legal affairs, (ii) acquire, invest, manage, construct, develop, and dispose of the Executive’s investments in apartments for-rent, multi-family properties, and non-residential real estate, directly or indirectly in any capacity, provided such activities do not take a material amount of the Executive’s time and do not interfere with the Executive’s duties and obligations to the Company, or (iii) serve on charitable or civic boards or committees.

(d) During the Employment Period, the Executive shall be nominated by the Board for election as a member of the Board at each annual meeting of stockholders of the Company held during the Employment Period.  During the Employment Period, the Executive may also be a member of the board of directors of each principal operating subsidiary of the Company.

(a) The Company shall pay the Executive, pursuant to the Company’s normal and customary payroll procedures, a base salary at the rate of $850,000 per annum (the “Base Salary”).  The Base Salary shall be reviewed at least annually for possible increase (but not decrease) in the Company’s sole discretion, as determined by the Compensation Committee of the Board (the “Compensation Committee”); provided, however, that the Executive shall be entitled to any annual cost-of-living increases in Base Salary that are granted to senior executives of the Company generally.  Any increase in Base Salary shall not serve to limit or reduce any other obligation to the Executive under this Amended Agreement.  The term “Base Salary” as utilized in this Amended Agreement shall refer to Base Salary as so adjusted.

(b) In addition to the Base Salary, the Executive shall be eligible to earn, for each fiscal year of the Company ending during the Employment Period, an annual cash performance bonus (an “Annual Bonus”) under the Company’s bonus plan or plans applicable to senior executives.  The amount of the Annual Bonus and the performance goals applicable to the Annual Bonus for any applicable year during the Employment Period shall be determined in accordance with the terms and conditions of said bonus plan as in effect from time to time with a threshold Annual Bonus opportunity equal to at least 87.5% of Base Salary (the “Threshold Bonus”), a target Annual Bonus opportunity equal to at least 175% of Base Salary (the “Target Bonus”) and a maximum Annual Bonus opportunity equal to at least 350% of Base Salary (the “Maximum Bonus”).  The terms and conditions of any such bonus plan shall be determined by the Compensation Committee in its sole discretion, except that the Threshold Bonus, Target Bonus and Maximum Bonus cannot be decreased from the levels set forth above, although they may be increased.  Any Annual Bonus shall be paid on or before March 15th of each calendar year immediately following the year in which compensation is earned in accordance with the applicable plan.

(c) Pursuant to the Century Communities, Inc. 2017 Omnibus Incentive Plan, as amended from time to time, or such predecessor or successor plan (the “Incentive Plan”), the Company has granted and may in the future grant to the Executive certain equity awards (collectively and including awards substituted therefor covering the securities of a successor company, the “Equity Awards”), including, without limitation, restricted stock units that are to be settled with shares of the Company’s common stock (the “RSUs”) and performance-based awards in the form of performance share units that are to be settled with shares of the Company’s common stock (“PSUs”).  The terms and conditions of the Equity Awards are and shall be set forth in an award agreement(s) entered into by the Company and the Executive in the form adopted by the Board or the Compensation Committee, as applicable, or as documented in minutes of meetings or consents of the Board or Compensation Committee and communicated to the Executive within five (5) days after any such term or condition is adopted (each, an “Equity Agreement,” and collectively, the “Equity Agreements”), as modified by the terms hereof.

(d) During the Employment Period, (i) the Executive shall be eligible to participate in all other incentive plans, practices, policies and programs, and all savings and retirement plans, policies and programs, in each case that are applicable generally to senior executives of the Company; (ii) the Executive and the Executive’s eligible family members and other qualified dependents shall be eligible for participation in the welfare benefit plans, practices, policies and programs (including, if applicable, medical, dental, vision, disability, employee life, group life and accidental death insurance plans and programs) maintained by the Company for its senior executives; (iii) the Company shall reimburse the Executive up to $2,500 per month for premiums paid by or on behalf of the Executive for term life insurance coverage on the Executive’s life; (iv) the Executive shall be entitled to a $2,500 per month automobile and cell phone allowance; and (v) the Executive shall be entitled to such fringe benefits and perquisites as are provided or maintained by the Company to and for its senior executives from time to time, in accordance with the policies, practices, and procedures of the Company.

(e) During the Employment Period, the Executive shall be entitled to personal time off in accordance with the Company’s policies and practices that are applicable to the Company’s senior executives. 

(f) During the Employment Period, the Company shall maintain (i) a directors’ and officers’ liability insurance policy, or an equivalent errors and omissions liability insurance policy, including fiduciary coverage, and (ii) an employment practices liability insurance policy.  Each such policy shall cover the Executive with scope, exclusions, amounts, and deductibles no less favorable to the Executive than those applicable to the Company’s senior executives and directors on the Effective Date, or any more favorable terms as may be available in the future to any other director or senior executive officer of the Company, while the Executive is employed with the Company and thereafter until the sixth (6th) anniversary of the Executive’s Scheduled Termination Date (as defined in Section 4) or other Date of Termination (as defined in Section 5(b)).  Moreover, during the Employment Period and thereafter, the Company shall comply with the terms of its (i) bylaws with respect to indemnification of the Executive, and (ii) that certain indemnification agreement between the Company and the Executive dated as of April 30,

(g) The Company shall reimburse the Executive for all reasonable business expenses upon the presentation of statements of such expenses in accordance with the Company’s policies and procedures now in force or as such policies and procedures may be modified with respect to all senior executives of the Company.

(a) Death.  The Executive’s employment hereunder shall terminate upon his death.

(b) Disability.  The Company shall be entitled to terminate the Executive’s employment hereunder for Disability. For purposes of this Amended Agreement, the term “Disability” shall mean the Executive’s inability by reason of physical or mental illness to fulfill his obligations hereunder for one hundred twenty (120) consecutive days or a total of one hundred eighty (180) days in any twelve (12) month period which, in the reasonable opinion of an independent physician selected by the Company or its insurers and reasonably acceptable to the Executive or the Executive’s legal representative, renders the Executive unable to perform the essential functions of his job, even after reasonable accommodations are made by the Company, and which inability by reason of such physical or mental illness to fulfill his obligations has not been cured, as determined by such physician prior to the Date of Termination.

(c) Cause.  The Company may terminate the Executive’s employment hereunder for Cause.  For purposes of this Amended Agreement, the term “Cause” shall mean:

(i) conviction (or a plea of nolo contendere) by the Executive to a felony;

(ii) acts of fraud, dishonesty or misappropriation committed by the Executive and intended to result in substantial personal enrichment at the expense of the Company;

(iii) willful misconduct by the Executive in the performance of the Executive’s material duties required by this Amended Agreement which is likely

(iv) a material breach of this Amended Agreement by the Executive which is likely to materially damage the financial position or reputation of the Company and which is not cured within thirty (30) days following receipt by the Executive of a Notice of Termination (as defined under Section 5 below) from the Company.

(d) Without Cause.  The Company may terminate the Executive’s employment hereunder during the Employment Period without Cause.  For purposes of this Amended Agreement, a notice of non-renewal given by the Company as provided in Section 4 above shall be treated as a termination of employment by the Company without Cause.

(e) For Good Reason.  The Executive may terminate his employment hereunder for Good Reason.  For purposes of this Amended Agreement, “Good Reason” shall mean:  (i) a material breach of this Amended Agreement by the Company (including the Company’s withholding or failure to pay compensation when due to the Executive, and including a violation of Section 13(i) below); (ii) relocation of the Company’s headquarters or the primary location where the Executive works to a location more than twenty-five (25) miles from the Company’s office in Greenwood Village, Colorado as of the Effective Date; (iii) a material reduction in the Executive’s titles, duties, authority, or responsibilities, or the assignment to the Executive of any duties materially inconsistent with the Executive’s position, authority, duties, or responsibilities without the written consent of the Executive; (iv) a reduction in the Executive’s annual Base Salary or Annual Bonus opportunity or other compensation, as currently in effect or as may be increased from time to time, including, but not limited to, elimination or reduction in the Executive’s participation in

(f) Voluntarily.  The Executive may voluntarily terminate his employment hereunder, without Good Reason, provided that the Executive provides the Company with notice of his intent to terminate his employment at least thirty (30) days in advance of the Date of Termination (as defined in Section 5 below).

(g) Retirement.  The Executive may voluntarily terminate his employment hereunder at any time by reason of Retirement.  For purposes of this Amended Agreement, “Retirement” shall mean the Executive’s voluntary termination of his employment upon satisfaction of the following conditions:  (i) the Executive has reached (or will reach on the Date of Termination) the age of sixty (60) along with at least twenty three (23) years of employment with the Company (for purposes of this Amended Agreement, it is agreed that the Executive’s employment with the Company commenced on November 1, 2000); and (ii) the Executive provides the Company with a Notice of Termination stating his intent to terminate his employment due to Retirement at least ninety (90) days in advance of the Date of Termination (as defined in Section 5 below).

(a) Notice of Termination.  Any termination of the Executive’s employment by the Company or by the Executive during the Employment Period (other than a termination on account of the death of the Executive) shall be communicated by a written “Notice of Termination” to the other party hereto in accordance with Section 13(a) below.

(b) Date of Termination.  “Date of Termination” shall mean: (i) if the Executive’s employment is terminated by his death, the date of his death, (ii) if the Executive’s employment is terminated due to his Disability in accordance with and pursuant to Section 4(b) above, on the date the Executive receives Notice of Termination from the Company, (iii) if the Executive voluntarily terminates his employment (other than for Good Reason), the date specified in the notice given pursuant to Section 4(f) or Section

(a) Without Cause or for Good Reason, Including in Connection with a Change in Control.  In the event the Employment Period terminates under this Amended Agreement as a result of the Company terminating the Executive’s employment without Cause (other than pursuant to Sections 4(a) or 4(b)) or the Executive terminating his employment for Good Reason:

(i) The Company shall pay or deliver, as applicable, to the Executive, upon the Date of Termination (or as otherwise provided below):

(A) (i) the Executive’s unreimbursed business expenses and Base Salary through the Date of Termination (to the extent not theretofore paid) (the “Accrued Benefits”); and (ii) two (2) times the Executive’s Base Salary, in each case payable in a lump sum (the “Base Severance”);

(B) a lump sum amount equal to the greater of:  (i) two (2) times the Executive’s average Annual Bonus for the three (3) completed fiscal years immediately preceding the Date of Termination; or (ii) two (2) times the Executive’s potential Target Bonus for the year in which the Date of Termination occurs (the “Base Incentive”);

(C) in lieu of any Annual Bonus under Section 3(b) for the fiscal year in which the Executive’s employment terminates, a lump sum amount equal to the Annual Bonus that would have become payable in cash to the Executive for that fiscal year if his employment had not terminated, based on performance actually achieved in that year (determined by the Board following completion of the performance year and paid at the time specified in the applicable plan) multiplied by a fraction, the numerator of which is the number of days the Executive was employed in such fiscal year and the denominator of which is the total number of days in such fiscal year;

(D) (i) any fully vested Equity Awards previously granted to the Executive,  if not then already delivered or paid, shall be delivered or paid to the Executive on the Date of Termination; (ii) with regard to Equity Awards held by the Executive as of the Date of Termination not then based on performance, any such unvested Equity Awards will be 100% vested and 

(E) any Annual Bonus(es) that the Executive earned for any fiscal year(s) prior to the fiscal year in which the Executive’s employment terminated to the extent that such Annual Bonus(es) had not yet been paid before the Date of Termination.

(ii) If the Executive timely elects continuation coverage under the Company’s group medical plan for the Executive and his covered dependents pursuant to Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”), and Section 601 of the Employee Retirement Income Security Act of 1974, as amended (which provisions are commonly known as “COBRA”), in accordance with ordinary plan practices, the Company shall pay, for up to eighteen (18) months, that portion of the COBRA premium payable by the Executive that is in excess of the premium payable by the Executive for the level of coverage the Executive and his covered dependents are enrolled in the Company’s group medical

(iii) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any vested benefits and other amounts or benefits required to be paid or provided or which the Executive is eligible to receive as of the Date of Termination under any plan, program, policy, practice, contract, or agreement of the Company and its affiliates (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).

(iv) If the Date of Termination under this Section 6(a) occurs within six (6) months preceding or within twenty-four (24) months following a Change in Control, the Company shall, in lieu of the payment provided for in subsection 6(a)(i)(B) above), pay the Executive an amount equal to the greater of:  (A) three (3) times the Executive’s potential Target Bonus for the year in which the Date of Termination occurs; or (B) three (3) times the Executive’s average Annual Bonus for the three (3) completed fiscal years immediately preceding the Date of Termination.  In addition, the Company shall pay the Executive three (3) times the Executive’s Base Salary in a lump sum in lieu of the payment provided for in subsection 6(a)(i)(A)(ii) above.  For purposes of this Amended Agreement, “Change in Control” shall have the meaning specified on Exhibit A attached hereto.

(v) For the avoidance of doubt, upon a termination of the Employment Period by the Company without Cause or by the Executive for Good Reason, the

(vi) The payments and benefits provided under this Section 6(a), other than the Accrued Benefits described in Section 6(a)(i)(A), the earned Bonus(es) described in Section 6(a)(i)(E), the vested Equity Awards described in Section 6(a)(i)(D)(i) and the Other Benefits under Section 6(a)(iii), are subject to and conditioned upon: (A) the Executive executing a timely and valid release of claims (“Release”) in the form attached hereto as Exhibit B (but reflecting any subsequent changes in applicable law as provided therein) waiving all claims the Executive may have against the Company, its successors, assigns, affiliates, executives, officers and directors; (B) the Executive delivering the executed Release to the Company within twenty-one (21) days following the Date of Termination (the “Release Period”); (C) such Release and the waiver contained therein becoming effective; and (D) the Executive’s compliance with the restrictive covenants contained in Sections 9 and 10 of this Amended Agreement.  In the event that the Release Period spans two of the Executive’s taxable years, the payments and benefits provided under this Section 6(a), other than the Accrued Benefits described in Section 6(a)(i)(A), the earned Bonus(es) described in Section 6(a)(i)(E), the vested Equity Awards described in Section 6(a)(i)(D)(i) and the Other Benefits under Section 6(a)(iii), must be made in the second of the two taxable years.  In the event that payments are made hereunder prior to the execution of the Release and the Executive does not execute the Release in the time and manner set forth herein, the Executive shall promptly pay to the Company, together with interest from the date of payment to the date of repayment at the prime rate, such amounts or the value of such benefits so received.

(a) For Cause or Voluntary Termination by Executive.  If the Executive’s employment is terminated during the Employment Period by the Company for Cause, then the Company shall pay the Executive upon the Date of Termination the Accrued Benefits and the Other Benefits,  and any benefits or compensation provided under the Equity Agreements shall be paid in accordance with such agreements. If the Executive’s employment is terminated during the Employment Period by the Executive other than for Good Reason and other than by reason of Retirement, then the Company shall pay the Executive upon the Date of Termination the Accrued Benefits, the Other Benefits, the earned Bonus(es) described in Section 6(a)(i)(E), the vested Equity Awards described in Section 6(a)(i)(D)(i), and any benefits or compensation provided under the Equity Agreements shall be paid in accordance with such agreements. Except as provided in this Section 6(b) or with respect to any vested benefits under any tax qualified pension plans of the Company and the continuation of health insurance benefits on the terms and to the extent required by COBRA or any other analogous legislation as may be applicable to the

(b) Death, Disability, or Retirement.  If the Executive’s employment is terminated during the Employment Period as a result of the Executive’s death, by the Company for Disability or by the Executive by reason of Retirement, then:

(i) The Company shall pay or deliver, as applicable, to the Executive or the Executive’s estate, as the case may be, within thirty (30) days following the Date of Termination (or otherwise as provided below):

(A) the Accrued Benefits and Other Benefits;

(B) Equity Awards held by the Executive on the Date of Termination shall be vested, delivered and paid in the same manner as provided in Section 6(a)(i)(D)(i), (ii) and (iii), except that in the event of Retirement, the Executive shall continue to vest and be paid for any performance based Equity Awards in accordance with the terms in place for the performance based Equity Awards as if his Retirement had not occurred;

(C) in lieu of any Annual Bonus under Section 3(b) for the fiscal year in which the Executive’s employment terminates, a lump sum amount equal to the Annual Bonus that would have become payable in cash to the Executive for that fiscal year if his employment had not terminated, based on performance actually achieved in that year (determined by the Board following completion of the performance year and paid at the time specified in the applicable plan) multiplied by a fraction, the numerator of which is the number of days the Executive was employed in such fiscal year and the denominator of which is the total number of days in such fiscal year; and

(D) any Annual Bonus(es) that the Executive earned for any fiscal year(s) prior to the fiscal year in which the Executive’s employment terminated to the extent that such Annual Bonus(es) had not yet been paid before the Date of Termination.

(ii) If the Executive or his covered dependents timely elect COBRA continuation coverage under the Company’s group medical plan, in accordance with ordinary plan practices, the Company shall pay that portion of the COBRA

(iii) The Company shall have no additional obligations under this Amended Agreement except as provided in this Section 6(c), or pursuant to the terms of the Equity Agreements, and except for any vested benefits under any tax qualified pension plans of the Company, and continuation of health insurance benefits on the terms and to the extent required by COBRA or any other analogous legislation as may be applicable to the Executive.

(iv) Except in the event of the Executive’s death or a termination by the Company for Disability, the Executive will be required to execute a Release as set forth in Section 6(a)(vi) above to receive the payments, grants, vesting and benefits under this Section 6(c), other than the benefits provided under Section 6(c)(i)(A), and Section 6(a)(i)(D)(i) as referred to in Section 6(c)(i)(B) and Section 6(c)(i)(D).

(c) Mitigation.  In no event shall the Executive be obligated to seek other employment or to take any other action by way of mitigation of the amounts payable to the Executive under the provisions of this Section 6.

(d) Termination from the Board and any Offices Held.  Upon termination of the Executive’s employment for any reason, the Executive agrees that the Executive’s membership on the Board, the board of directors of any of the Company’s subsidiaries or affiliates, any committees of the Board, any committees of the board of directors of any of the Company’s subsidiaries or affiliates and any and all offices held, if applicable, shall be automatically terminated.  The Executive hereby agrees to cooperate with the Company and its subsidiaries and affiliates and to execute any documents reasonably required by them or competent authorities to effect this provision.

(a) Payment Limitation.  Notwithstanding anything contained in this Amended Agreement (or in any other agreement between the Executive and the Company) to the contrary, to the extent that any payments and benefits provided under this Amended Agreement or any other plan or agreement of the Company (such payments or benefits are collectively referred to as the “Payments”) would be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Payments shall be reduced if and to the extent that a reduction in the Payments would result in the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than he would have retained had he been entitled to receive all of the Payments (such reduced amount is hereinafter referred to as the “Limited Payment Amount”).  The Company shall reduce the Payments by first reducing or eliminating payments or benefits which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the date the “Determination” (as defined in Section 7(b) below) is delivered to the Company and the Executive.

(b) Determination and Dispute.  The determination as to whether the Payments shall be reduced to the Limited Payment Amount and the amount of such Limited Payment Amount (the “Determination”) shall be made at the Company’s expense by an accounting or consulting firm selected by the Company and reasonably acceptable to the Executive (the “Firm”).  The Firm shall provide the Determination in writing, together with detailed supporting calculations and documentation, to the Company and the Executive on or prior to the effective date of termination of the Executive’s employment if applicable, or at such other time as requested by the Company or by the Executive.  Within ten (10) days of the delivery of the Determination to the Executive, the Executive shall have the right to dispute the Determination (the “Dispute”) in writing setting forth the precise basis of the Dispute.  If there is no Dispute, the Determination shall be binding, final and conclusive upon the Company and the Executive.

(c) Excise Tax is Obligation of the Executive.  Any Excise Tax with respect to the Executive’s Payments shall be the sole obligation of the Executive, subject to any tax withholding obligation imposed on the Company with respect thereto.

(a) Acknowledgments Regarding “Confidential Information”.  In performing his duties as an executive of the Company, the Executive acknowledges that he will have access to documents, trade secrets, and other confidential and proprietary information which consists of information known by the Executive as a consequence of his employment with the Company (including information originated, discovered and/or developed by the Executive).  The Executive acknowledges: (i) that all of the Confidential Information, as defined in Section 9(b) below, made accessible to the Executive shall be provided only in strict confidence; (ii) that unauthorized disclosure of Confidential Information may damage the Company’s business; (iii) that Confidential Information could be susceptible to immediate competitive application by a competitor of the Company; (vi) that the Company’s business is substantially dependent on access to and the continuing secrecy of Confidential Information; (v) that Confidential Information is novel, unique to the Company and known only to the Executive, the Company and certain key employees and

(b) Definition of Confidential Information.  The term “Confidential Information” means confidential and proprietary information of the Company, including, but not limited to, (i) information not generally known outside the Company such as information which is unique to the Company, (ii) information about the Company’s real estate investments, projects, developments, business plans, financial plans, products, processes and services, research and development activities, client lists, marketing techniques, pricing policies, financial targets, financial information and projections, and (iii) any trade secret information as that term is defined in the Colorado Uniform Trade Secrets Act, C.R.S. § 7-74-101 et seq.  However, the term Confidential Information shall not include information that:  (w) becomes generally available to and known by the public; (x) was available to the Executive on a non-confidential basis prior to its disclosure; (y) becomes available to the Executive from a source other than the Company, provided that the Executive has no knowledge that such source is prohibited from disclosing such information to the Executive by a contractual, legal or fiduciary obligation to the Company; or (z) the Executive has independently developed with no reliance on or access to any of the information provided directly or indirectly by the Company.

(c) The Executive’s Use of Confidential Information.  Except in connection with and in furtherance of the Executive’s work on the Company’s behalf, the Executive shall not, without the Company’s prior written consent, at any time, directly or indirectly:  (i) use any Confidential Information for any purpose; or (ii) disclose or otherwise communicate any Confidential Information to any person or entity; or (iii) accept or participate in any employment, consulting engagement, or other business opportunity that inevitably will result in the disclosure or use of any Confidential Information.

(d) Third-Parties’ Confidential Information.  The Executive acknowledges that the Company has received and in the future will receive from third parties confidential or proprietary information, and that the Company must maintain the confidentiality of such information and use it only for authorized purposes.  The Executive shall not use or disclose any such information except as authorized by the Company or the third party to whom the information belongs.

(e) Ownership of Works.  The Executive agrees to promptly disclose in writing to the Company all inventions, discoveries, developments, improvements, and innovations (collectively referred to as “Inventions”) that the Executive has conceived or made during his employment with the Company; provided, however, that in this context “Inventions” are limited to those which (i) relate in any manner to the existing or contemplated business or research activities of the Company and its affiliates; (ii) are suggested by or result from the Executive’s work at the Company; or (iii) result from the use of the time, materials or facilities of the Company and its affiliates.  All Inventions will be the Company’s property rather than the Executive’s.  Should the Company request it, the Executive agrees to sign

(f) Subsidiaries Included.  For purposes of this Section 9, the term “Company” includes all of the Company’s direct and indirect wholly-owned and majority-owned subsidiaries.

(a) Non-Compete.  The Executive will not, at any time during his employment and for a period of two (2) years following termination of his employment by the Company for Cause, by the Executive without Good Reason, or by the Executive by reason of Retirement, acting alone or in conjunction with others, directly or indirectly, engage (either as owner, investor, partner, stockholder, lender, employer, employee, consultant, advisor, member, or director) in any aspect of a Residential Project (as defined in Section 10(a)(ii) below) in the Geographic Region (as defined in Section 10(a)(iii) below), including, but not limited to, any land acquisition, land development, entitlements or construction, marketing, sale, financing or management of any Residential Project.

(i) The Executive acknowledges that in light of his position, duties and responsibilities with the Company, the Executive will have access to and be familiar with the Company’s Confidential Information and trade secrets for each such Residential Project, and that this two (2) year non-compete provision is narrowly tailored and reasonable to protect the Company’s Confidential Information and trade secrets.

(ii) For purposes of this Section 10, the term “Residential Project” shall mean any residential building project for which the Company has invested resources, performed due diligence, planned land development and/or initiated real estate acquisitions during the Executive’s employment with the Company.

(iii) For purposes of this Section 10, the term “Geographic Region” shall mean (i) any and all counties in any state in which the Company has engaged in any Residential Project in the past or in which it is currently conducting any Residential Project, and (ii) any and all other counties in any state that the Company engages in any Residential Project in the future during the Executive’s employment with the Company.

(iv) It will not be a violation of this Section 10 or of Section 10(c) below for the Executive to own not more than five percent (5%) of the equity securities of any company having securities listed on an exchange or regularly traded in the over-the-counter market.

(v) It will not be a violation of this Section 10 or of Section 10(c) below for the Executive to acquire, invest, manage, construct, develop, or dispose of the

(b) Non-Solicitation of Company Employees.  The Executive agrees that the Company has invested substantial time and effort in assembling and training its present staff of personnel.  Accordingly, the Executive agrees that for a period of two (2) years following termination of employment by the Company for Cause, by the Executive without Good Reason or by the Executive by reason of Retirement, the Executive will not directly or indirectly induce or solicit or seek to induce or solicit on behalf of employee or others any of the Company’s employees to leave employment with the Company.

(c) Non-Solicitation of Clients and Suppliers.  The Executive agrees that the Company’s relationships with its “Clients and Suppliers” (as such term is defined in this Section 10(c)) are solely the assets and property of the Company.  The Executive agrees that for a period of two (2) years following termination of the Executive’s employment by the Company for Cause, by the Executive without Good Reason or by the Executive by reason of Retirement, the Executive shall not directly or through others solicit or attempt to solicit any of the Company’s Clients and/or Suppliers for the purpose of providing products or services competitive to those offered by the Company.  This restriction applies only to those Clients and/or Suppliers with whom the Executive had “material contact” (as such term is defined in this Section 10(c)) on behalf of the Company.  “Material contact” means:  (i) direct personal contact with a Supplier or Client for the purpose of, respectively, purchasing real estate, materials or services for use by the Company or selling the Company’s real estate, products or services to Clients or (ii) any direct supervision of direct personal contacts other employees of the Company may have with Suppliers and/or Clients.  “Clients and Suppliers” are those clients or suppliers with whom the Executive had material contact within one (1) year prior to the termination of the Executive’s employment with the Company.  The terms “Client” and “Supplier” shall also include prospective Clients and Suppliers of the Company.

(d) Acknowledgments.  The Executive acknowledges that the foregoing restriction on competition is fair and reasonable, given the nature and scope of the Company’s business operations and the nature of the Executive’s position with the Company.  The Executive also acknowledges that while employed by the Company, the Executive will have access to information that would be valuable or useful to the Company’s competitors, and therefore acknowledges that the foregoing restrictions on the Executive’s future employment and business activities are fair and reasonable.

(e) Acknowledgments of Law.  The Executive acknowledges the following provisions of Colorado law, set forth in Colorado Revised Statutes § 8-2-113(2):

(f) Subsidiaries Included.  For purposes of this Section 10, the term “Company” includes all of the Company’s direct and indirect wholly-owned and majority‑owned subsidiaries.

(a) Any notice or other communication required or permitted under this Amended Agreement shall be effective only if it is in writing and shall be deemed to be given when delivered personally or four (4) days after it is mailed by registered or certified mail, postage prepaid, return receipt requested or one (1) day after it is sent by a reputable overnight courier service and, in each case, addressed as follows (or if it is sent through any other method agreed upon by the parties):

(b) This Amended Agreement may be amended only by an instrument in writing signed by the parties hereto, and any provision hereof may be waived only by an instrument in writing signed by the party or parties against whom or which enforcement of such waiver is sought.  The failure of any party hereto at any time to require the performance by any other party hereto of any provision hereof shall in no way affect the full right to require such performance at any time thereafter, nor shall the waiver by any party hereto of a breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision or a waiver of the provision itself or a waiver of any other provision of this Amended Agreement.

(c) The parties hereto acknowledge and agree that each party has reviewed and negotiated the terms and provisions of this Amended Agreement and has had the opportunity to contribute to its revision.  Accordingly, the rule of construction to the effect that ambiguities are resolved against the drafting party shall not be employed in the interpretation of this Amended Agreement.  Rather, the terms of this Amended Agreement shall be construed fairly as to both parties hereto and not in favor of or against either party.

(d) The parties hereto hereby represent that they each have the authority to enter into this Amended Agreement, and the Executive hereby represents to the Company that

(e) By entering into this Agreement, the Executive acknowledges and agrees that the Company has given him a full and complete opportunity and sufficient time to consult with counsel and other advisors of his own choosing concerning the terms, enforceability and implications of this Amended Agreement and related documents/matters,  or has made a knowing and voluntary decision to not engage his own counsel and other advisors with respect to the foregoing. The Executive also acknowledges and affirms that the Company has not made any representations or warranties to the Executive concerning the terms, enforceability or implications of this Amended Agreement other than as reflected in this Amended Agreement, and that the Executive has not relied upon the advice of the Company and/or its counsel or advisors as he has negotiated regarding, and decided to enter into, this Amended Agreement.

(f) This Amended Agreement is binding on and is for the benefit of the parties hereto and their respective successors, assigns, heirs, executors, administrators and other legal representatives.  Neither this Amended Agreement nor any right or obligation hereunder may be assigned by the Executive.

(g) The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume this Amended Agreement in the same manner and to the same extent that the Company would have been required to perform it if no such succession had taken place.  As used in the Amended Agreement, the “Company” shall mean both the Company as defined above and any such successor that assumes this Amended Agreement, by operation of law or otherwise.

(h) Any provision of this Amended Agreement (or portion thereof) which is deemed invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction and subject to this Section 13(h), be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions thereof in such jurisdiction or rendering that or any other provisions of this Amended Agreement invalid, illegal, or unenforceable in any other jurisdiction.  If any covenant should be deemed invalid, illegal or unenforceable because its scope is considered excessive, such covenant shall be modified so that the scope of the covenant is reduced only to the minimum extent necessary to render the modified covenant valid, legal and enforceable.

(i) As material obligations of the Company hereunder: the Company shall employ Robert J. Francescon as its Co-Chief Executive Officer and as a member of the Company’s Board of Directors; the Company shall not: (a) terminate the employment of Robert J. Francescon without Cause; or (b) create or permit to exist any circumstance that would constitute “Good Reason” (as such term is defined in Robert J. Francescon’s employment agreement with the Company) which results in Robert J. Francescon

(j) The Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Amended Agreement or the failure to assert any right the Executive or the Company may have hereunder shall not be deemed to be a waiver of such provision or right or any other provision or right of this Amended Agreement.

(k) Notwithstanding anything herein to the contrary, payment of amounts to the Executive under this Amended Agreement will be subject to applicable mandatory forfeiture or repayment provisions under the Sarbanes-Oxley Act of 2002 or any other applicable law, rule or regulation or stock exchange requirement, and the Company’s clawback and forfeiture policy, and if the Executive is required to forfeit or to make any repayment of any compensation or benefit(s) to the Company under the Sarbanes-Oxley Act of 2002, any other law, rule or regulation or any stock exchange requirement, or under the Company’s clawback and forfeiture policy, in each case which is applicable to the Company and the Executive, such forfeiture or repayment shall not constitute Good Reason under this Amended Agreement.

(l) The obligations under this Amended Agreement shall be unfunded.  Payments and benefits payable under this Amended Agreement shall be paid from the general assets of the Company.  The Company shall have no obligation to establish any fund or to set aside any assets to provide benefits under this Amended Agreement.

(m) The Company may withhold from any amounts payable to the Executive hereunder all federal, state, city or other taxes that the Company may reasonably determine are required to be withheld pursuant to any applicable law or regulation (it being understood that the Executive shall be responsible for payment of all taxes in respect of the payments and benefits provided herein).

(n) This Amended Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without reference to its principles of conflicts of law.

(o) This Amended Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.  A facsimile or PDF of a signature shall be deemed to be and have the effect of an original signature.

(p) The headings in this Amended Agreement are inserted for convenience of reference only and shall not be a part of or control or affect the meaning of any provision hereof.

(q) This Amended Agreement shall constitute the entire agreement among the parties hereto with respect to the Executive’s employment hereunder, and supersedes and is in full substitution for any and all prior understandings or agreements (including the Prior Agreement) with respect to the Executive’s employment.

(r) Effective at the Effective Date, the Prior Agreement shall terminate and shall be superseded in its entirety by this Amended Agreement with respect to all aspects of the Executive’s employment with the Company on or after the Effective Date.  The Executive acknowledges and agrees that, as of the Effective Date, no event has occurred which constitutes Good Reason, as that term is defined in the Prior Agreement.  For the avoidance of doubt, the Prior Agreement shall continue to apply after the Effective Date with respect to any compensation or benefits due to the Executive through the Effective Date.

(a) Any transaction or event resulting in the beneficial ownership of voting securities, directly or indirectly, by any “person” or “group” (as those terms are defined in Sections 3(a)(9), 13(d), and 14(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) and the rules thereunder) having “beneficial ownership” (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors (“voting securities”) of the Company that represent greater than 35% of the combined voting power of the Company’s then outstanding voting securities (unless the Executive has beneficial ownership of at least 35% of such voting securities), other than any transaction or event resulting in the beneficial ownership of securities:

(i) by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or

(ii) by the Company or a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or

(iii) pursuant to a transaction described in clause (c) below that would not be a Change in Control under clause (c);

(s) Individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided,  however, that any individual becoming a director subsequent to the date hereof whose election by the Company’s stockholders, or nomination for election by the Board, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an election contest with respect to the election or removal of directors or other solicitation of proxies or consents by or on behalf of a person other than the Board;

(t) The consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (i) a merger, consolidation, reorganization, or business combination, (ii) a sale or other disposition of all or substantially all of the Company’s assets, or (iii) the acquisition of assets or stock of another entity, in each case, other than a transaction:

(i) which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining

(ii) after which no person or group beneficially owns voting securities representing greater than 50% of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (ii) as beneficially owning greater than 50% of the combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or

(u) The approval by the Company’s stockholders of a liquidation or dissolution of the Company.

(a) acknowledges that he has been or by virtue of this Separation Agreement will be paid all compensation and benefits to which he is legally due;

(b) acknowledges the enforceability of Sections 9 and 10 of his Employment Agreement with the Company and promises that he has been, currently is, and will continue

(c) Unconditionally releases, discharges, and holds harmless the Company and the Company’s officers, directors, shareholders, employees, agents, attorneys and contractors, (hereinafter referred to collectively as “Releasees”) from each and every claim, cause of action, right, liability or demand of any kind and nature arising from the Executive’s relationship with the Company as an employee and officer of the Company, and from any claims which may be derived therefrom (collectively referred to as “claims”), that the Executive had, has, or might claim to have against the Company at the time the Executive executes this Separation Agreement, including but not limited to any and all claims:

(i) arising from the Executive’s Employment Agreement with the Company, employment, pay, bonuses, employee benefits, and other terms and conditions of employment or employment practices of the Company;

(ii) relating to the termination of the Executive’s employment with the Company or the surrounding circumstances thereof;

(iii) relating to payment of any attorneys’ fees for the Executive; except for attorneys’ fees that may be provided in connection with a claim covered under the Company’s directors’ and officers’ liability (“D&O”) and employment practice liability (“EPL”) insurance policies for actions by the Executive within the scope of employment and within the coverage of the Company’s D&O and EPL insurance policies, or in connection with any indemnification agreement between the Executive and the Company for actions by the Executive within the scope covered by such agreement.

(iv) based on discrimination on the basis of race, color, religion, sex, pregnancy, national origin, handicap, disability, or any other category protected by law under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, 42 USC § 1981, Executive Order 11246, the Equal Pay Act, the Americans With Disabilities Act, the Rehabilitation Act of 1973, the Consolidated Omnibus Budget Reconciliation Act of 1985, the Family and Medical Leave Act, the Worker Adjustment and Retraining Notification Act, as any of these laws may have been amended or any other similar federal, state or local labor, employment or anti-discrimination laws;

(v) the Age Discrimination in Employment Act and the Older Workers Benefits Protection Act;

(vi) based on any contract, tort, whistleblower, personal injury, or wrongful discharge theory; and

(vii) based on any other federal, state or local constitution, regulation, law (statutory or common), or legal theory.

18. Acknowledgements and Covenants made by the Company for the benefit of the Executive.  In consideration for the undertakings and promises of the Executive as set forth in this Separation Agreement, the Company:  Unconditionally releases, discharges, and holds harmless the Executive from each and every claim, cause of action, right, liability or demand of any kind and nature arising from the Executive’s relationship with the Company as an employee and officer of the Company, and from any claims which may be derived therefrom (collectively referred to as “claims”), that the Company had, has, or might claim to have against the Executive at the time the Executive executes this Separation Agreement, including but not limited to any and all claims:

(a) arising from the Executive’s Employment Agreement with, or activities on behalf of, the Company;

(b) based on any contract, tort, or common law theory; and

(c) based on any other federal, state or local constitution, regulation, law (statutory or common), or legal theory.

(a) The Executive covenants that the Executive shall not undertake any harassing or disparaging conduct directed at the Company or any Releasee and that the

(b) The Company covenants that the Company shall not undertake any harassing or disparaging conduct directed at the Executive and that the Company shall refrain from making any harassing or disparaging statements concerning the Executive to any third party.

(a) the Executive has read and understands this Separation Agreement;

(b) the Executive was given at least twenty-one (21) calendar days from the date this Separation Agreement was initially presented to consider this Separation Agreement before signing this Separation Agreement;

(c) the Executive was advised in writing, via this Separation Agreement, to consult with an attorney before signing this Separation Agreement;

(d) the Executive agrees to its terms knowingly, voluntarily and without intimidation, coercion or pressure.