CONSULTING AGREEMENT
Exhibit 10.6
THIS CONSULTING AGREEMENT (this “Agreement”) is entered into as of September 28, 2007 between
Luminent Mortgage Capital, Inc. (the “Company”), a Maryland corporation, and Xxxxxxx Xxxxxxxx
Xxxxxx, a sole proprietor (the “Consultant”).
Recitals:
The parties hereto desire to enter into this Agreement to set forth the basis on which the
Consultant will perform consulting services for the Company and with respect to certain other
matters in connection with such engagement, all as set forth more fully in this Agreement.
NOW, THEREFORE, in consideration of the premises and covenants set forth herein, and intending
to be legally bound hereby, the parties to this Agreement hereby agree as follows:
1. Engagement. The Company hereby engages the Consultant as a consultant to the
Company, and the Consultant hereby accepts such engagement, in each case on the terms and
conditions set forth in this Agreement.
2. Duties. As a consultant to the Company, the Consultant agrees to perform services
as mutually-agreed upon by the parties. The Consultant will perform her services under this
Agreement at a location of the Consultant’s discretion. The Consultant shall report to such
person(s) as the Company may designate from time to time. All services will be performed in a good
and workmanlike manner, all deliverables will be original works created by Consultant (except to
the extent otherwise mutually agreed) of good and professional quality, and all services and
deliverables will conform with the mutually-agreed specifications or statement of work.
3. Term.
(a) Initial Term. Subject to Sections 5 and 6, the term of the Consultant’s
engagement hereunder shall commence on the date hereof and shall continue until the earlier to
occur of (i) the completion of the Consultant’s duties as set forth in Section 2 or (ii) the
termination of this Agreement by either party pursuant to subsections (b) and (c).
(b) Termination for Cause. Either party, upon written notice to the other, may
terminate this Agreement at any time in the event there has been a material breach of
the terms of this Agreement and such breach has not been cured within ten days after written
notice of such breach by the non-breaching party to the breaching party. In the event of such
termination by the Company, subject to any claim of setoff, the Company will pay the Consultant for
services rendered up to the date of termination, along with unreimbursed expenses, and the
Consultant shall not be entitled to any other or further compensation from the Company.
(c) Termination Without Cause. Either party may terminate this agreement at any time
without cause by providing the other party with ten days’ prior written notice of the date of
termination. In the event of such termination by the Company, subject to any claim of setoff, the
Company will pay the Consultant for services rendered to the date of termination, along with
unreimbursed expenses, and the Consultant shall not be entitled to any other or further
compensation from the Company. Payment for partially completed work performed prior to termination
by Consultant without cause will be subject to the usability of the work product to the Company and
the remaining costs to complete the work, plus the amounts paid to Consultant, not exceeding the
previously agreed price for the work.
4. Compensation.
(a) Consulting Fees. In consideration of the services to be performed hereunder, the
Consultant shall be paid a consulting fee at the rate of $200 per hour, unless otherwise agreed to
by the parties in writing. Within ten business days following the end of each month during the
Term of the Agreement, the Consultant shall submit a detailed monthly invoice to the Company
setting forth the time spent and the services rendered by the Consultant during the prior month.
The Company will pay the invoice within 30 days after receipt. In consideration of entering into
this Agreement, the Company shall pay the Consultant a retainer fee of $2,000. This amount will be
credited toward the payment of future invoices.
(b) Reimbursement of Expenses. The Consultant shall be reimbursed for out-of-pocket
expenses reasonably incurred by her in performing the consulting services contemplated by this
Agreement, provided that such expenses in excess of $100 shall have been approved in advance by the
Company and are documented and submitted in accordance with the reimbursement policies of the
Company as in effect from time to time.
(c) Entire Compensation. Notwithstanding anything to the contrary set forth herein,
the compensation provided for in this Section 4 shall constitute full payment for the services to
be rendered by the Consultant to the Company under this Agreement.
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5. Non-Disclosure and Non-Competition
(a) Non-Disclosure. The Consultant acknowledges that, in the course of performing
services for the Company, the Consultant may obtain knowledge of the Company’s business plans,
processes, software, know-how, trade secrets, methods, models, prototypes, improvements,
disclosures, customer and supplier lists, names and positions of employees and/or other proprietary
and/or confidential information of the Company (collectively, the “Confidential Information”). The
Consultant agrees to keep the Confidential Information secret and confidential and not to publish,
disclose or divulge any Confidential Information to any other person, or use any Confidential
Information for the Consultant’s own benefit or to the detriment of the Company, or for any purpose
other than in connection with the performance of consulting services to the Company, without the
prior written consent of the Company, whether or not such Confidential Information was discovered
or developed by the Consultant. The Consultant also agrees not to divulge, publish or use any
proprietary and/or confidential information of others that the Company is obligated to maintain in
confidence.
(b) Non-Competition. The Consultant agrees that, during the term of the Consultant’s
engagement by the Company under this Agreement and for a period of one year from and after the
termination of this Agreement, neither the Consultant nor any corporation or other entity in which
the Consultant may be interested as a partner, trustee, director, officer, employee, agent,
shareholder, lender of money or guarantor shall, at any time during such period: (a) solicit,
entice, or in any way divert any of Company’s customers to do business with any competitive
business (as herein defined) or (b) solicit, hire, contract for services or otherwise employ,
directly or indirectly, any of the employees of the Company while in the Company’s employ;
provided, however, that nothing herein contained shall be deemed to prevent the Consultant from
investing in or acquiring one per cent or less of any class of securities of any company if such
class of securities is listed on a national securities exchange. For purposes of this Section
5(b), the term “competitive business” shall mean a business that is engaged in the investing in
mortgage-backed securities purchased in the secondary market, the acquisition and securitization of
mortgage loans and investments in residential mortgages that have credit ratings of below AAA.
6. Company Documentation. All deliverables and other works prepared by the Consultant
for the Company hereunder will be works made for hire and all proprietary rights therein, including
any copyrights, trade secrets or other intellectual property rights, will belong to the Company.
To the extent any deliverable or work prepared by the Consultant for the Company hereunder does not
constitute a work made for hire under applicable law, the Consultant hereby irrevocably assigns to
the Company all right, title and interest therein. The Consultant shall hold in a fiduciary
capacity for the benefit of the Company all documentation, programs, data, records, research
materials, drawings,
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manuals, disks, reports, sketches, blueprints, letters, notes, notebooks and all other
writings, electronic data, graphics and tangible information and materials of a secret,
confidential or proprietary information nature relating to the Company or the Company’s business
that are, at any time, in the possession or under the control of the Consultant, including, without
limitation, all deliverables and work in progress on deliverables.
7. Injunctive Relief. The Consultant acknowledges that compliance with the agreements
in Sections 5 and 6 is necessary to protect the good will and other proprietary interests of the
Company and that the Consultant has been and will be entrusted with highly confidential information
regarding the Company and its technology and is conversant with the Company’s affairs, its trade
secrets and other proprietary information. The Consultant acknowledges that a breach of the
agreements in Sections 5 and 6 will result in irreparable and continuing damage to the Company for
which there will be no adequate remedy at law; and the Consultant agrees that, in the event of any
breach of the aforesaid agreements, the Company and its successors and assigns shall be entitled to
injunctive relief and to such other and further relief as may be proper.
8. Representations and Warranties.
(a) Representations of the Company. As an inducement to the Consultant to enter into
this Agreement, the Company represents and warrants to the Consultant as follows:
(i) The Company is a corporation duly organized and validly existing under the laws of the
State of Maryland and has all requisite corporate power to enter into this Agreement.
(ii) Neither the execution and delivery of this Agreement nor the consummation of the
transactions contemplated herein or therein nor compliance by the Company with any of the
provisions hereof or thereof will: (i) violate any order, writ, injunction, decree, law, statute,
rule or regulation applicable to it or (ii) require the consent, approval, permission or other
authorization of, or qualification or filing with or notice to, any court, arbitrator or other
tribunal or any governmental, administrative, regulatory or self-regulatory agency or any other
third party.
(iii) This Agreement has been duly executed and delivered by the Company and constitutes the
legal, valid and binding agreement of the Company, enforceable in accordance with its terms.
(b) Representations of the Consultant. As an inducement to the Company to enter into
this Agreement, the Consultant hereby represents and warrants to the Company as follows:
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(i) The Consultant has all requisite power and authority to enter into this Agreement.
(ii) Neither the execution and delivery of this Agreement nor the consummation of the
transactions contemplated herein nor compliance by the Consultant with any of the provisions hereof
will: (i) violate any order, writ, injunction, decree, law, statute, rule or regulation applicable
in any respect to the Consultant or with respect to the consulting services to be rendered by the
Consultant hereunder or the assignment of the Inventions contemplated hereby or (ii) require the
consent, approval, permission or other authorization of, or qualification or filing with or notice
to, any court, arbitrator or other tribunal or any governmental, administrative, regulatory or
self-regulatory agency or any other third party.
(iii) The Consultant is not a party to or otherwise subject to any agreements or restrictions
that would prohibit her from entering into this Agreement and carrying out the transactions
contemplated by this Agreement in accordance with the terms hereof, and this Agreement and the
transactions contemplated hereby will not infringe or conflict with, and are not inconsistent with,
the rights of any other person or entity.
(iv) This Agreement has been duly executed and delivered by the Consultant and constitutes the
legal, valid and binding agreements of the Consultant enforceable in accordance with its terms.
9. Survival of Representations, Warranties and Covenants. The provisions of Sections
5 (Non-Disclosure and Non-Competition), 6 (Company Documentation), 7 (Injunctive Relief), 8
(Representations and Warranties), 9 (Survival of Representations, Warranties and Covenants) and 11
(Independent Contractor) shall survive the termination of this Agreement.
10. Other Agreements. This Agreement shall not supersede any existing confidentiality
or nondisclosure agreements between the Consultant and the Company.
11. Independent Contractor. The parties intend that the Consultant shall render
services hereunder as an independent contractor, and nothing herein shall be construed to be
inconsistent with this relationship or status. The Consultant shall not be entitled to any
benefits paid by the Company to its employees. The Consultant shall be solely responsible for any
tax consequences applicable to her by reason of this Agreement and the relationship established
hereunder, and the Company shall not be responsible for the payment of any federal, state or local
taxes or contributions imposed under any employment insurance, social security, income tax or other
tax law or regulation with respect to the Consultant’s performance of consulting services
hereunder.
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12. Third-Party Beneficiaries. This Agreement is not intended to create, and does not
create, in any person other than the Company any right against Consultant, whether as a third-party
beneficiary or otherwise.
13. Amendments. Any amendment to this Agreement shall be made in writing and signed
by the parties hereto.
14. Enforceability. If any provision of this Agreement shall be invalid or
unenforceable, in whole or in part, then such provision shall be deemed to be modified or
restricted to the extent and in the manner necessary to render the same valid and enforceable, or
shall be deemed excised from this Agreement, as the case may require, and this Agreement shall be
construed and enforced to the maximum extent permitted by law as if such provision had been
originally incorporated herein as so modified or restricted or as if such provision had not been
originally incorporated herein, as the case may be unless such invalidity or unenforceability would
frustrate the essential purposes of the parties in entering into this Agreement.
15. Construction. This Agreement shall be construed and interpreted in accordance
with the internal laws of the Commonwealth of Pennsylvania.
16. Assignment.
(a) By the Company. The rights and obligations of the Company under this Agreement
shall inure to the benefit of, and shall be binding upon, the successors and assigns of the
Company.
(b) By the Consultant. This Agreement and the obligations created hereunder may not
be assigned by the Consultant.
17. Notices. All notices, requests, consents and other communications hereunder to
any party shall be deemed to be sufficient if contained in a written instrument delivered in person
or duly sent by certified mail, postage prepaid; by an overnight delivery service, charges prepaid;
or by confirmed telecopy; addressed to such party at the address set forth below or such other
address as may hereafter be designated in writing by the addressee to the addressor:
If to the Company:
Luminent Mortgage Capital, Inc.
Xxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: X. Xxxxxxxxx Xxxxx, Jr.
Xxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: X. Xxxxxxxxx Xxxxx, Jr.
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If to the Consultant:
Xxxxxxx Xxxxxxxx Xxxxxx
000 Xxxxx Xxxx
Xxxxxxx, XX 00000
000 Xxxxx Xxxx
Xxxxxxx, XX 00000
Any party may from time to time change its address for the purpose of notices to that party by a
similar notice specifying a new address, but no such change shall be deemed to have been given
until it is actually received by the party sought to be charged with its contents.
18. Waivers. No claim or right arising out of a breach or default under this
Agreement shall be discharged in whole or in part by a waiver of that claim or right unless the
waiver is supported by consideration and is in writing and executed by the aggrieved party hereto
or her or her duly authorized agent. A waiver by any party hereto of a breach or default by the
other party hereto of any provision of this Agreement shall not be deemed a waiver of future
compliance therewith, and such provisions shall remain in full force and effect.
IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the date first above
written.
| LUMINENT MORTGAGE CAPITAL, INC. |
||||
| By: | /s/ X. Xxxxxxxxx Xxxxx, Jr. | |||
| X. Xxxxxxxxx Xxxxx, Jr., CEO | ||||
| /s/ Xxxxxxx Xxxxxxxx Xxxxxx | ||||
| Xxxxxxx Xxxxxxxx Xxxxxx | ||||
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