EMPLOYMENT AGREEMENT
Exhibit 10.9
EMPLOYMENT AGREEMENT (this “Agreement”) dated as of December 20, 2005 between Luminent
Mortgage Capital, Inc., a Maryland corporation having its principal place of business at One Market
Street, Spear Tower, 30th Floor, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (the “Employer”) and
Xxxxxxxxxxx X. Xxxx, an individual residing at 000 Xxxxxxxx Xxxxxx, #0, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000 (the “Executive”).
WITNESSETH:
WHEREAS, the Employer desires to provide for the continuing employment of the Executive, and
the Executive desires to continue to be employed by the Employer, all in accordance with the terms
and subject to the conditions set forth in this Agreement; and
WHEREAS, the Employer and the Executive are entering into this Agreement to set forth and
confirm their respective rights and obligations with respect to the Executive’s employment by the
Employer;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained in this
Agreement, the Employer and the Executive, intending to be legally bound hereby, mutually agree as
follows:
1. Employment and Term.
(a) Effective as of January 1, 2006 (the “Effective Date”), the Employer shall employ the
Executive, and the Executive shall be employed by the Employer, as the Senior Vice President and
Chief Financial Officer (the “Position”) of the Employer, in accordance with the terms and, subject
to the conditions set forth in this Agreement for a term (the “Term”) that shall commence on the
Effective Date and, as provided in and subject to paragraphs 1(b), 1(c), 1(d) and 1(e), shall
continue for a period of one year.
(b) Unless written notice in accordance with this paragraph 1 terminating the Executive’s
employment under this Agreement is given by either the Employer or the Executive, on each day this
Agreement is in effect the Term shall be automatically extended for one additional day so that at
all times this Agreement shall have a then current one -year Term. Unless otherwise provided in
this Agreement or agreed by the Employer and the Executive, all of the terms and conditions of this
Agreement shall continue in full force and effect throughout the Term and, with respect to those
terms and conditions that apply after the Term, after the Term.
(c) Notwithstanding paragraph 1(b), the Employer, by action of its board of directors (the
“Board”) and effective as specified in a written notice thereof to the Executive in
accordance with the terms of this Agreement, shall have the right to terminate the Executive’s
employment under this Agreement at any time during the Term, for Cause (as defined in this
Agreement) or other than for Cause or on account of the Executive’s death or Permanent Disability
(as defined in this Agreement), subject to the provisions of this paragraph 1.
(i) “Cause” shall mean (A) the Executive’s willful and continued failure substantially to
perform his material duties with the Employer as set forth in this Agreement, or the commission by
the Executive of any activities constituting a violation or breach under any material federal,
state or local law or regulation applicable to the activities of the Employer, in each case, after
written notice thereof from the Employer to the Executive and a reasonable opportunity for the
Executive to cease such failure, breach or violation in all material respects, (B) fraud, breach of
fiduciary duty, dishonesty, misappropriation or other actions that cause intentional material
damage to the property or business of the Employer by the Executive, (C) the Executive’s repeated
absences from work such that he is unable to perform his duties hereunder in all material respects
other than for physical or mental impairment or illness which the Executive fails to cure after
written notice, (D) the Executive’s admission or conviction of, or plea of nolo contendere to, any
felony or any other crime that, in the reasonable judgment of the Board, adversely affects the
Executive’s reputation or the Executive’s ability to carry out his obligations under this Agreement
or (E) the Executive’s non-compliance with the provisions of paragraph 2(b) after notice thereof
from the Employer to the Executive and a reasonable opportunity for the Executive to cure such
non-compliance. Notwithstanding the foregoing, the Employer may not terminate the Executive’s
employment under this Agreement for Cause unless the Executive is given (A) written notice, in
accordance with the by-laws of the Employer, of a special meeting of the Board to consider the
termination of the Executive’s employment under this Agreement for Cause and (B) the opportunity
for the Executive to address such special meeting.
(ii) “Permanent Disability” shall mean a physical or mental disability such that the Executive
is substantially unable to perform those duties that he would otherwise be expected to continue to
perform and the nonperformance of such duties has continued for a period of 240 consecutive days,
provided, however, that in order to terminate the Executive’s employment under this Agreement on
account of the Executive’s Permanent Disability, the Employer must provide the Executive with
written notice of the Board’s good faith determination to terminate the Executive’s employment
under this Agreement for reason of the Executive’s Permanent Disability not less than 30 days prior
to such termination, which notice shall specify the date of termination. Until the specified
effective date of termination by reason of the Executive’s Permanent Disability, the Executive
shall continue to receive compensation at the rates set forth in paragraph 3. No termination of
the Executive’s employment under this Agreement because of the Executive’s Permanent Disability
shall impair any rights of the Executive under any disability insurance policy maintained by the
Employer at the commencement of the aforesaid 240-day period.
-2-
(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; (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 (except in the case of a payment default
for which the cure period shall be 10 days), in each case following written notice thereof from the
Executive to the Employer or (C) any termination of the Executive’s employment under this Agreement
without Cause.
(e) (i) If (A) the Employer terminates the Executive’s employment under this Agreement for any
reason other than for Cause or (B) the Executive terminates his employment under this Agreement for
Good Reason, the Employer shall pay to the Executive promptly after the event giving rise to such
payment occurs an amount equal to the sum of (x) (1) the Executive’s Base Salary (as defined in
this Agreement) accrued through the date the termination of the Executive’s employment under this
Agreement is effective, (2) any Bonus (as defined in this Agreement) required to be paid to the
Executive pursuant to paragraph 3(b) and (3) any amount in respect of excise taxes required to be
paid to the Executive pursuant to paragraph 1(f), with such payments, rights and benefits described
in clauses (x)(1), (x)(2) and (x)(3) being collectively referred to in this Agreement as the
“Accrued Obligations,” (y) an amount equal to the aggregate premiums that would be payable by the
Executive to maintain in effect throughout the period (the “Subsequent Period”) from the date of
the Executive’s termination through the remainder of the Term had the Executive remained employed
(assuming no increase in insurance premium rates) the same medical, health, disability and life
insurance coverage provided to the Executive by the Employer immediately prior to the date of such
termination (the “Benefit Obligations”) and (z) the Employer shall, as a severance payment, pay to
the Executive for the Subsequent Period, the Executive’s annual Base Salary as of the effective
date of termination of the Executive’s employment under this Agreement and (2) the Minimum Bonus
(as defined in this Agreement).
(ii) If (A) the Employer terminate the Executive’s employment under this Agreement for Cause,
(B) the Executive terminates his employment under this Agreement for any reason other than Good
Reason, his death or the Executive’s Permanent Disability or (C) this Agreement is terminated by
the Employer as a result of the death or Permanent Disability of the Executive, the sole obligation
of the Employer shall be to pay the Accrued Obligations to the Executive or his estate.
-3-
(f) In the event that the independent public accountants of the Employer or the Internal
Revenue Service determines that any payment, coverage or benefit provided to the Executive pursuant
to this Agreement is subject to the excise tax imposed by Sections 280G and 4999 of the Internal
Revenue Code of 1986, as amended (the “Code”) or any successor provision thereof or any interest or
penalties incurred by the Executive with respect to such excise tax, the Employer, within 30 days
thereafter, shall pay to the Executive, in addition to any other payment, coverage or benefit due
and owing under this Agreement, an additional amount that will result in the Executive’s net after
tax position, after taking into account any interest, penalties or taxes imposed on the amount
payable under this paragraph 1(f), upon the receipt of the payments provided for by this Agreement
be no less advantageous to the Executive than the net after tax position to the Executive that
would have been obtained had Sections 280G and 4999 of the Code not been applicable to such
payment, coverage or benefits. Except as otherwise provided in this Agreement, all determinations
to be made under this paragraph 1(f) shall be made by tax counsel whose selection shall be
reasonably acceptable to the Executive and the Employer and whose fees and costs shall be paid for
by the Employer.
(g) In the event that the independent public accountants of the Employer or the Internal
Revenue Service determines that any payment, coverage or benefit due or owing to the Executive
pursuant to this Agreement is subject to the excise tax imposed by Section 409A of the Code or any
successor provision thereof or any interest or penalties, including interest imposed under Section
409A(1)(B)(i)(I) of the Code, incurred by the Executive as a result of the application of such
provision, the Employer, within 30 days thereafter, shall pay to the Executive, in addition to any
other payment, coverage or benefit due and owing under this Agreement, an amount that will result
in the Executive’s net after tax position, after taking into account any interest, penalties or
taxes imposed on the amounts paid under this paragraph 1(g), being no less advantageous to the
Executive than the net after tax position to the Executive that would have been obtained had
Section 409A of the Code not been applicable to such payment, coverage or benefits. Except as
otherwise provided in this Agreement, all determinations to be made under this paragraph 1(g) shall
be made by tax counsel whose selection shall be reasonably acceptable to the Executive and the
Employer and whose fees and costs shall be paid for by the Employer.
(h) Any notice of termination of the employment of the Executive under this Agreement by the
Employer to the Executive or by the Executive to the Employer shall be given in accordance with the
provisions of paragraph 10.
(i) The Employer agree to reimburse the Executive for the reasonable fees and expenses of the
Executive’s attorneys and for court and related costs in any proceeding to enforce the provisions
of this Agreement in which the Executive is successful on the merits.
-4-
2. Duties of the Executive.
(a) Subject to the ultimate control and discretion of the Board of the Employer, the Executive
shall serve in the Position and perform all duties and services commensurate with the Position.
Throughout the Term, the Executive shall perform all duties reasonably assigned or delegated to him
under the by-laws of the Employer or from time to time by the Board consistent with the Position.
Except for travel normally incidental and reasonably necessary to the business of the Employer and
the duties of the Executive under this Agreement, the duties of the Executive shall be performed in
the greater San Francisco, California metropolitan area.
(b) The Executive shall devote substantially all of the Executive’s business time and
attention to the performance of the Executive’s duties under this Agreement and, during the term of
his employment under this Agreement, the Executive shall not engage in any other business
enterprise that requires any significant amount of the Executive’s personal time or attention,
unless granted the prior permission of the Board. The foregoing provision shall not prevent the
Executive’s purchase, ownership or sale of any interest in, or the Executive’s engaging, but not to
exceed an average of five hours per week, in, any business that does not compete with the business
of the Employer or the Executive’s involvement in charitable or community activities, provided,
that the time and attention that the Executive devotes to such business and charitable or community
activities does not materially interfere with the performance of his duties under this Agreement
and that such conduct complies in all material respects with applicable policies of the Employer.
(c) The Executive shall be entitled to 30 days of vacation leave during each calendar year
with full compensation, and to be taken at such time or times, as the Executive and the Employer
shall mutually determine. Earned but unused vacation shall be accrued in accordance with the
Employer’s vacation policy.
3. Compensation. For all services to be rendered by the Executive under this
Agreement:
(a) Base Salary. The Employer shall pay the Executive a base salary (the “Base
Salary”) at an annual rate of $250,000, plus such other compensation as may, from time to time, be
determined by the Employer. At the end of each fiscal year of the Employer, the Employer shall
review the amount of the Executive’s Base Salary, and shall increase such Base Salary for the
following year to such amount as the Board may determine in its discretion. Such Base Salary and
other compensation shall be payable in accordance with the Employer’s normal payroll practices as
in effect from time to time.
(b) Annual Bonus. The Employer agrees that the Executive shall receive, in accordance
in all material respects with applicable policies of the Employer relating to incentive
compensation for executive officers, an annual bonus (the “Bonus”) payable in
-5-
cash, at the same time as bonuses are paid to other executive officers of the Employer, in
such amount as may be fixed by the Board in its discretion based upon the performance of the
Employer and the contributions of the Executive to such performance, provided, however, that the
Executive shall receive a Bonus of not less than $125,000 (the “Minimum Bonus”) in respect of the
services to be rendered by the Executive during the Term.
(c) Restricted Stock Award. The Employer agrees that the Executive shall receive, in
accordance in all material respects with applicable policies of the Employer relating to incentive
compensation for the executive officers, an annual restricted stock award (each, an “Award”) as to
such number of shares (the “Shares”) as may be fixed in the Board’s discretion based upon the
performance of the Employer and the contributions of the Executive to such performance. Any such
Award shall be evidenced by a Restricted Stock Award Agreement between the Employer and the
Executive in substantially the form thereof currently in use by the Employer. Each Award and the
Restricted Stock Award Agreement shall have the following other principal terms:
(i) the Shares subject to each Award shall become vested, and remain vested from and after the
Effective Date, in three cumulative installments as follows:
(A) the first installment, consisting of one-third of the Shares subject to each award, shall
become vested from and after the first anniversary of the date of the Award;
(B) the second installment, consisting of an additional one-third of the Shares subject to
each Award, shall become vested from and after the second anniversary of the date of the Award; and
(C) the third installment, consisting of the remaining one-third of the Shares subject to each
Award, shall become vested from and after the third anniversary of the date of the Award;
(ii) the Shares, and any other shares of the Employer’s Common Stock held under prior or
subsequent restricted stock Awards made to the Executive by the Employer, shall become immediately
vested in full and shall remain vested in the event of (A) a Change of Control (as defined herein),
(B) a termination of the employment of the Executive by the Employer under this Agreement without
Cause or (C) a termination of the employment of the Executive under this Agreement by the Executive
for Good Reason;
(iii) any unvested Shares shall revert to the Employer immediately in the event of (A) a
termination of the employment of the Executive under this Agreement by the Employer for Cause or
(B) a termination of the employment of the Executive under this Agreement by the Executive without
Good Reason; and
-6-
(iv) The Executive shall have the right by notice to the Employer to require that the Employer
purchase from the Executive that number of vested shares of the Employer’s Common Stock at a price
per share equal to the average closing price of the Employer’s Common Stock on the New York Stock
Exchange for the 20 days preceding the Executive’s notice of purchase, as is necessary to provide
the Executive with sufficient funds to pay applicable federal and state income taxes resulting from
the vesting of Shares under the Award, subject to the prior approval by the Compensation Committee
of the Employer’s Board of Directors of the price per share at the time of each such purchase.
(d) As used in this paragraph 3, “Change of Control” shall mean (A) the acquisition of shares
of the Employer by any “person” or “group” (as such terms are used in Rule 13d-3 under the
Securities Exchange Act of 1934 as now or hereafter amended) in a transaction or series of
transactions that result in such person or group directly or indirectly becoming the beneficial
owner of 25% or more of the Employer’s Common Stock after the date of this Agreement, (B) the
consummation of a merger or other business combination after which the holders of voting capital
stock of the Employer do not collectively own 60% or more of the voting capital stock of the entity
surviving such merger or other business combination, (C) the sale, lease, exchange or other
transfer in a transaction or series of transactions of all or substantially all of the assets of
the Employer, but excluding therefrom the sale and reinvestment of the Employer’s investment
portfolio or (D) as the result of or in connection with any cash tender offer or exchange offer,
merger or other business combination, sale of assets or contested election of directors or any
combination of the foregoing transactions (a “Transaction”), the persons who constituted a majority
of the members of the Board on the date of this Agreement and persons whose election as members of
the Board was approved by such members then still in office or whose election was previously so
approved after the date of this Agreement, but before the event that constitutes a Change of
Control, no longer constitute such a majority of the members of the Board then in office. A
Transaction constituting a Change in Control shall only be deemed to have occurred upon the closing
of the Transaction.
4. Expenses. The Employer shall promptly reimburse the Executive for (a) all
reasonable expenses paid or incurred by the Executive in connection with the performance of the
Executive’s duties and responsibilities under this Agreement, upon presentation of expense vouchers
or other appropriate documentation therefor and (b) all reasonable professional expenses, such as
licenses and dues and professional educational expenses, paid or incurred by the Executive during
the Term.
5. Indemnification. Notwithstanding anything in the Employer’s certificate of
incorporation or its by-laws to the contrary, the Executive shall at all times during his
employment by the Employer, and thereafter, be indemnified by the Employer to the fullest extent
permitted by applicable law for any matter in any way relating to the Executive’s affiliation with
the Employer and its subsidiaries; provided, however, that if the Executive’s
-7-
employment shall have been terminated by the Employer for Cause, then, to the extent required
by applicable law, the Employer shall have no obligation whatsoever to indemnify the Executive for
any claim arising out of the matter for which his employment shall have been terminated for Cause
or for any conduct of the Executive not within the scope of the Executive’s duties under this
Agreement.
6. Confidential Information. The Executive understands that, in the course of his
employment by the Employer, the Executive will receive confidential information concerning the
business of the Employer and that the Employer desire to protect. The Executive agrees that he
will not at any time during or after the period of his employment by the Employer reveal to anyone
outside the Employer, except as required by law, or use for his own benefit, any such information
that has been designated as confidential by the Employer or understood by the Executive to be
confidential without specific written authorization by the Employer. Upon termination of this
Agreement, and upon the request of the Employer, the Executive shall promptly deliver to the
Employer any and all written materials, records and documents, including all copies thereof, made
by the Executive or coming into his possession during the Term and retained by the Executive
containing or concerning confidential information of the Employer and all other written materials
furnished to and retained by the Executive by the Employer for his use during the Term, including
all copies thereof, whether of a confidential nature or otherwise.
7. Representation and Warranty of the Executive. The Executive represents and
warrants that he is not under any obligation, contractual or otherwise, to any other firm or
corporation, that would prevent his entry into the employ of the Employer or his performance of the
terms of this Agreement.
8. Entire Agreement; Amendment. This Agreement and the Restricted Stock Award
Agreement contain the entire agreement between the Employer and the Executive with respect to the
subject matter hereof, and may not be amended, waived, changed, modified or discharged except by an
instrument in writing executed by the Employer and the Executive. This Agreement supersedes the
Employment Agreement dated as of August 4, 2003 between the Employer and the Executive, except for
the provisions thereof relating to restricted stock awards and stock options granted to the
Executive pursuant thereto.
9. Assignability. The services of the Executive under this Agreement are personal in
nature, and neither this Agreement nor the rights or obligations of the Employer under this
Agreement may be assigned by the Employer, whether by operation of law or otherwise, without the
Executive’s prior written consent. This Agreement shall be binding upon, and inure to the benefit
of, the Employer and its permitted successors and assigns under this Agreement. This Agreement
shall not be assignable by the Executive, but shall inure to the benefit of the Executive’s heirs,
executors, administrators and legal representatives.
-8-
10. Notice. Any notice that may be given under this Agreement shall be in writing and
be deemed given when hand delivered and acknowledged or, if mailed, one day after mailing by
registered or certified mail, return receipt requested, or if delivered by an overnight delivery
service, one day after the notice is delivered to such service, to either the Employer or the
Executive at their respective addresses stated above, or at such other address as the Executive or
the Employer may by similar notice designate.
11. Specific Performance. The Employer and the Executive agree that irreparable
damage would occur in the event that any of the provisions of paragraph 6 were not performed in
accordance with their specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of paragraph 6 and to
enforce specifically the terms and provisions of paragraph 6, this being in addition to any other
remedy to which any party is entitled at law or in equity.
12. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is
intended to confer upon any person or entity other than the parties (and the Executive’s heirs,
executors, administrators and legal representatives and the permitted transferees of the Shares)
any rights or remedies of any nature under or by reason of this Agreement.
13. Successor Liability. The Employer shall require any successor, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or substantially all of the
business or assets of the Employer to assume expressly and agree to perform this Agreement in the
same manner and to the same extent that the Employer would be required to perform it if no such
succession had taken place.
14. Mitigation. The Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise, nor shall the
amount of any payment or benefit provided for in this Agreement be reduced by any compensation
earned by the Executive as the result of employment by another employer or by retirement benefits
payable after the termination of this Agreement, except that the Employer shall not be required to
provide the Executive and his eligible dependents with medical insurance coverage as long as the
Executive and his eligible dependents are receiving comparable medical insurance coverage from
another employer.
15. Waiver of Breach. The failure at any time to enforce or exercise any right under
any of the provisions of this Agreement or to require at any time performance by the other parties
of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or
to affect either the validity of this Agreement or any part hereof, or the right of any party
hereafter to enforce or exercise its rights under each and every provision in accordance with the
terms of this Agreement.
16. No Attachment. Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale, assignment,
-9-
encumbrance, charge, pledge or hypothecation or to execution, attachment, levy or similar
process or assignment by operation of law, and any attempt, voluntary or involuntary, to effect any
such action shall be null, void and of no effect; provided, however, that nothing in this paragraph
17 shall preclude the assumption of such rights by executors, administrators or other legal
representatives of the Executive or his estate and their assigning any rights under this Agreement
to the person or persons entitled hereto.
17. Severability. The invalidity or unenforceability of any term, phrase, clause,
paragraph, restriction, covenant, agreement or other provision hereof shall in no way affect the
validity or enforceability of any other provision, or any part thereof, but this Agreement shall be
construed as if such invalid or unenforceable term, phrase, clause, paragraph, restriction,
covenant, agreement or other provision had never been contained in this Agreement unless the
deletion of such term, phrase, clause, paragraph, restriction, covenant, agreement or other
provision would result in such a material change as to cause the covenants and agreements contained
in this Agreement to be unreasonable or would materially and adversely frustrate the objectives of
the Employer and the Executive as expressed in this Agreement.
18. Survival of Benefits. Any provision of this Agreement that provides a benefit to
the Executive and that by the express terms hereof does not terminate upon the expiration of the
Term shall survive the expiration of the Term and shall remain binding upon the Employer until such
time as such benefits are paid in full to the Executive or his estate.
19. Construction. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of California, without giving effect to principles of conflict
of laws. All headings in this Agreement have been inserted solely for convenience of reference
only, are not to be considered a part of this Agreement and shall not affect the interpretation of
any of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| LUMINENT MORTGAGE CAPITAL, INC. | ||||||
| By: | ||||||
| Xxxx X. Seneca, Chairman | ||||||
| and Chief Executive Officer | ||||||
| Xxxxxxxxxxx X. Xxxx | ||||||
-10-
