AMENDMENT NO. 1 to EMPLOYMENT AGREEMENT
EXHIBIT 10.2
THIS AMENDMENT NO. 1 (this “Amendment”) dated as of October 22, 2007 to EMPLOYMENT AGREEMENT
(the “Agreement”) dated as of December 20, 2005 between Luminent Mortgage Capital, Inc., a Maryland
corporation having its principal place of business at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 (the “Employer”) and X. Xxxxxxxxx Xxxxx, Jr., an individual residing at
000 Xxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxx, 00000 (the “Executive”).
WITNESSETH:
WHEREAS, the Employer and the Executive desire to amend the Agreement to comply with the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and to
ratify and confirm the Agreement except as modified by the Retention Agreement dated August 31,
2007 between the Employer and the Executive; and
WHEREAS, the Employer and the Executive are entering into this Amendment to set forth and
confirm their respective rights and obligations with respect to such Section 409A compliance;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained in the
Agreement, the Employer and the Executive, intending to be legally bound hereby, mutually agree as
follows:
1. Paragraph 1(d) of the Agreement is hereby amended so that, as amended, Paragraph 1(d) shall
read in its entirety as follows:
“(d) The Executive shall have the right to terminate his employment under this
Agreement at any time during the Term for Good Reason or without Good Reason as
specified in a written notice thereof to the Employer in accordance with the terms of
this Agreement. As used herein, “Good Reason” shall mean (A) the Executive’s Position
or the scope of the Executive’s authority, duties or responsibilities as described in
this Agreement are materially diminished without the Executive’s written consent,
excluding for this purpose any action that was not taken by the Employer in bad faith
and that is remedied by the Employer promptly following written notice thereof from
the Executive to the Employer or (B) a material breach by Employer of its obligations
to the Executive under this Agreement, which breach is not cured in all material
respects to the reasonable satisfaction of the Executive within 30 days, in each
case
following written notice thereof from the Executive to the Employer, which notice
shall be provided within 90 days of the initial existence of the breach.”
2. Paragraph 1(e) of the Agreement is hereby amended to insert new subparagraphs 1(e)(iii),
(iv) and (v) that shall read in their entirety as follows:
“(iii) It is intended that this Agreement be administered in compliance with
section 409A of the Code, including, but not limited to, any future amendments to Code
section 409A, and any other Internal Revenue Service or other governmental rulings or
interpretations issued pursuant to Section 409A (together, “Section 409A”) so as not
to subject the Executive to payment of interest or any additional tax under Section
409A. The parties intend for any payments under this paragraph 1 either to satisfy
the requirements of Section 409A or to be exempt from the application of Section 409A,
and this Agreement shall be construed and interpreted accordingly. In furtherance
thereof, if payment or provision of any amount or benefit hereunder that is subject to
Section 409A at the time specified herein would subject such amount or benefit to any
additional tax under Section 409A, the payment or provision of such amount or benefit
shall be postponed to the earliest commencement date on which the payment or provision
of such amount or benefit could be made without incurring such additional tax. In
addition, to the extent that any Internal Revenue Service guidance issued under
Section 409A would result in the Executive being subject to the payment of interest or
any additional tax under Section 409A, the parties agree, to the extent reasonably
possible, to amend this Agreement in order to avoid the imposition of any such
interest or additional tax under Section 409A, which amendment shall have the minimum
economic effect necessary and be reasonably determined in good faith by the Employer
and the Executive.
(iv) Notwithstanding any provision in this Agreement to the contrary, in the
event that the Executive is a “specified employee” as defined in Section 409A, any
severance payment, severance benefits or other amounts payable under this Agreement
that would be subject to the special rule regarding payments to “specified employees”
under Section 409A(a)(2)(B) of the Code shall not be paid before the expiration of a
period of six months following the date of the Executive’s termination of employment
or the date of the Executive’s death, if earlier.
(v) To the extent such severance amount exceeds the applicable safe harbor amount
under Section 409A, the excess amount shall be treated as deferred compensation under
Section 409A and as such shall be payable pursuant to the following schedule: (1)
one-third of such excess amount shall be
paid on the first anniversary of the date of termination or earlier death, (2)
one-
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third of such excess amount shall be paid on the second year anniversary of the
date of termination or earlier death and (3) the remaining one-third of such excess
amount shall be paid on the third anniversary of the date of termination or earlier
death.”
3. Paragraph 1(f) of the Agreement is hereby amended to delete the reference to “the Internal
Revenue Code of 1986, as amended (“the Code”)” and replace it with a reference to “the Code”.
4. Paragraph 3(c) of the Agreement is hereby amended to insert a new sentence at the end
thereof to read as follows:
“Notwithstanding the foregoing, all bonuses shall be paid within two and one-half
months of the close of each fiscal year.”
5. Construction. This Amendment shall be governed by and construed in accordance with
the internal laws of the Commonwealth of Pennsylvania, without giving effect to principles of
conflict of laws.
6. The Agreement. With the exception of the provisions of this Amendment, the
remainder of the Agreement is hereby ratified and confirmed and shall remain in full force and
effect, except as expressly modified by the Retention Agreement dated August 31, 2007 between the
Employer and the Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first
written above.
| LUMINENT MORTGAGE CAPITAL, INC. | ||||
| By: | /s/ Xxxxxxxxxxx X. Xxxx | |||
| Xxxxxxxxxxx X. Xxxx, Senior Vice President | ||||
| and Chief Financial Officer | ||||
| /s/ X. Xxxxxxxxx Xxxxx, Jr. | ||||
| X. Xxxxxxxxx Xxxxx, Jr. | ||||
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