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2009 EMPLOYMENT AGREEMENT

Employee Retention Agreement

2009 EMPLOYMENT AGREEMENT | Document Parties: ORIGEN FINANCIAL INC | ORIGEN FINANCIAL LLC You are currently viewing:
This Employee Retention Agreement involves

ORIGEN FINANCIAL INC | ORIGEN FINANCIAL LLC

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Title: 2009 EMPLOYMENT AGREEMENT
Governing Law: Michigan     Date: 5/7/2009
Industry: Real Estate Operations     Sector: Services

2009 EMPLOYMENT AGREEMENT, Parties: origen financial inc , origen financial llc
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Exhibit 10.33

Execution Version

2009 EMPLOYMENT AGREEMENT

     THIS 2009 EMPLOYMENT AGREEMENT (this “Agreement”) by and between ORIGEN FINANCIAL, INC., a Delaware corporation (“Parent”), ORIGEN FINANCIAL L.L.C., a Delaware limited liability company (the “Company”) and RONALD A. KLEIN (“Employee”) is made and entered into on May 1, 2009, and for all purposes shall be effective on April 4, 2009 (the “Effective Date”). Collectively, Parent and Company shall be referred to as “Employers.”

RECITAL:

     A. Employers and Employee are parties to that certain Employment Agreement dated July 14, 2006, as amended on July 1, 2008, (the “Employment Agreement”).

     B. Employers and Employee acknowledge that pursuant to the Company’s Asset Disposition and Management Plan, which was approved by the Company’s shareholders in June, 2008, and subsequently implemented by the Company, the nature of the business of the Company has changed dramatically during 2008, including: (1) the sale of the Company’s unsecuritized loan portfolio; (2) the sale of the Company’s servicing assets and platform; (3) the sale of certain bond assets; (4) the refinancing of the Company’s senior debt; (5) the sale of the Company’s origination platform; and (6) the downsizing of the Company’s workforce from over 300 employees to approximately 23 current employees with the expectation that the employee force will normalize at 8 employees with several consultants by the third quarter of 2009.

     C. In light of the dramatic changes to the Company’s business and consequential changes in its need for management services, Employers and Employee desire to modify Employee’s rights, duties and obligations under the Employment Agreement so that the Employment Agreement shall terminate in its entirety upon the effectiveness of this Agreement. From and after the Effective Date, Employee will be employed as a part-time Employee of Employers, will receive payments accrued and owing under the provisions of the Employment Agreement pursuant to the provisions of this Agreement and will be compensated for services going forward pursuant to the terms of this Agreement. Simultaneously with the Effective Date of this Agreement, Employers and Employee are entering into that certain Success Fee Agreement providing for the payment of fees by Employers to Employee and others upon successful conclusion of certain transactions.

     NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the parties agree as follows:

 

1.

 

Termination of Employment Agreement, Payment of 2008 Bonus, Change of Control Payment, and Capital Accumulation Plan Payment .

          (a) Employers and Employee each hereby agree that the Employment Agreement is terminated and of no further force or effect, effective at the close of business on the day immediately preceding the Effective Date. From the Effective Date forward, all aspects of the employment and compensation agreements between the Company and Employee will be governed by the provisions of this Agreement, with the exception of the payments described in the letter governing “Success Fees for Transaction Services”.

          (b) In recognition of Employee’s performance as CEO in preserving Employers’ assets during the difficult 2008 economic climate, the Board of Directors has granted, and Employers unconditionally agree to pay, to Employee a bonus of $250,000, to be paid on October 5, 2009.

 


 

          (c) The termination of the Employment Agreement and any termination of this Agreement shall not in any way negate or relieve Employers’ unconditional obligation to pay Employee the $2,332,200 change-of-control payment which was earned in 2008 and will be paid to Employee on July 1, 2009.

          (d) The termination of the Employment Agreement and any termination of this Agreement shall not in any way negate or relieve Employers’ unconditional obligation to pay Employee the $280,000 due on November 15, 2011 under the Capital Accumulation Plan.

     2.  Term of Employment .

          (a) Subject to the provisions for termination provided in this Agreement, the term of Employee’s employment under this Agreement (the “Initial Term”) shall commence on the Effective Date and shall continue thereafter until the same date in the twenty-fourth (24 th ) month after the Effective Date.

          (b) Employers and Employee acknowledge and agree that Employee’s employment may be terminated, for any reason or for no reason at all, upon not less than sixty (60) days prior written notice of termination by Employee or Employers.

          (c) The Term of this Agreement shall be extended upon sixty (60) days prior written notice to Employee from Employers for one (1) year beginning (i) at the end of the Initial Term (the “First Extended Term”), (ii) at the end of the First Extended Term (the “Second Extended Term”), and (iii) at the end of the Second Extended Term (the “Third Extended Term”). The last day of the Initial Term, the First Extended Term, the Second Extended Term and the Third Extended Term are each referred to in this Agreement as a “Contract Term Date”.

     3.  Services and Duties .

          (a) Employers agree to employ Employee as CEO of Company and Parent, on a part-time basis, and Employee accepts the employment, on the terms and subject to the conditions set forth below. During the Term, Employee shall perform services (the “Services”) for Employers, and shall do and perform diligently all such Services, acts and things and duties as reasonably may be requested from time to time by the Board of Directors of Company (the “Board”), which duties shall be consistent with Employee’s range of responsibilities as set forth below:

1. While not a regimented program without flexibility, the nature and types of the principal specific functional activities of the Company are administration as set forth in the attached Appendix A (“Administration”) and portfolio management as set forth in the attached Appendix B (“Portfolio Management”). Employee will have general oversight responsibility for all Company activities and will have direct oversight of the Chief Financial Officer for Administration and over employees and consultants of the Company, currently headed by Mark Landschulz, for Portfolio Management. Employee is responsible to make sure that these functions are carried out, supervise their execution and meet with the portfolio team to strategize and deal with issues affecting the Company’s assets as they arise.

2. Employee will provide to the Audit Committee of the Board of Directors of the Company, the information and certifications described in Item 307 — “Disclosure Controls and Procedures” and Item 308 –“Internal Control over Financial Reporting” promulgated under the Sarbanes Oxley Act.

3. Employee will conduct periodic, regular investor communications and meetings with bondholders, shareholders and market makers for the Company’s common stock as reasonably necessary. This will require meetings, regular calls and direct written communications as prudent and necessary.

4. “Eye on the market”— Employee will keep himself informed and will observe and follow

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all material developments in relevant markets that could affect the Company’s business and assets.

5. Employee will maintain relationships for the Company with financing sources, rating agencies and potential buyers of the Company’s assets. This will require meetings, travel, regular calls and direct written communications as prudent and necessary.

6. Employee will seek and promote strategic initiatives-such as replacement or termination of Ambac guarantees, Green Tree servicing performance, sale or refinancing of the Citi bonds, sales of residual interests, a possible sale of the Company, refinancing of debt, managing securitization calls, and other asset preservation or disposition opportunities, and will report on these activities to the Board regularly.

          (b) During the Term, Employee agrees to serve as a manager of the Company and a director of Parent, and Parent agrees to nominate Employee as a director.

          (c) For service as CEO of the Company and Parent, the Company and Parent each hereby indemnifies Employee to the full extent of the indemnities currently provided to officers and directors of the Company and Parent, respectively, under the applicable indemnification provisions of the Certificate of Formation of Company and the Certificate of Incorporation of the Parent, respectively, as each may be amended from time to time, and to the fullest extent permitted under Delaware law. Company agrees that it will seek to maintain liability insurance covering its directors, officers and employees customary for businesses of the type and size operated by the Company to the extent reasonably available and reasonably affordable in the Company’s business, for which Employers will pay the premiums. To the extent available, Employee will be named as an additional insured under Employers’ Directors’ and Officers’, Errors and Omissions and other similar insurance policies.

     4.  Devotion to Employers’ Business . The Employee shall devote his best efforts, knowledge, skill, and such portion of his productive time, ability and attention to the business of Employers during the Term as may be necessary to adequately and professionally discharge his duties and responsibilities under this Agreement; provided, however, nothing in this Agreement shall require Employee to perform services at specific regular times or amounts of time or at a specific place or places, nor prohibit Employee from taking employment or from any other activities, so long as Employee adequately performs his duties and responsibilities under this Agreement and observes his fiduciary duties to the Company, Parent and Parent’s shareholders.

     5.  Compensation . As compensation for the services to be performed by Employee under this Agreement, Employers shall pay to Employee, during the Term, and in accordance with Employers’ usual pay practices (and in any event no less frequently than monthly), the following amounts, which shall be in addition to the amounts owed by Employers to Employee under Sections 1(b), (c) and (d) of this Agreement, which include amounts paid to satisfy payments required by the Employment Agreement:

          (a) One Hundred Fifteen Thousand Eight Hundred Thirty-three and 33/100 Dollars ($115,833.33) per month for the period beginning on the Effective Date and ending on the first anniversary of the Effective Date.

          (b) Twenty-five Thousand Dollars ($25,000.00) per month beginning the 13th month of the Term through and including the end of the Initial Term;

          (c) If, and only if, the Company elects to extend Employee’s employment pursuant to Section 2(c)(i), twenty-five Thousand Dollars ($25,000.00) per month through the First Extended Term ending in 2012;

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          (d) If, and only if, the Company elects to extend Employee’s employment pursuant to Section 2(c)(ii), Thirty Thousand Dollars ($30,000.00) per month for the Second Extended Term ending in 2013; and

          (d) If, and only if, the Company elects to extend Employee’s employment pursuant to Section 2(c)(iii), Thirty-five Thousand Dollars ($35,000.00) per month for the Third Extended Term ending in 2014.

     6.  Reimbursement of Business Expenses . Employers shall reimburse Employee or provide him with an expense allowance during the term of this Agreement for travel, entertainment, business development, data access, telephone and other expenses reasonably and necessarily incurred by Employee in connection with Employers’ business. Employee shall furnish such documentation with respect to reimbursement to be paid hereunder as Employers shall reasonably request. Employers also shall provide and pay for the same or substantially similar coverage to that which currently exists for Employee under its group medical insurance and group disability insurance policies during the Initial Term and any Extended Term.

     7.  Termination of Employment .

          (a) This Agreement and Employee’s employment hereunder may be terminated:

          (i) by either Employee or Employers at any time for any reason whatsoever or for no reason upon not less than sixty (60) days written notice;

          (ii) by Employers at any time for “Cause” without prior notice; and

          (iii) upon Employee’s death or if Employee has been Disabled. “Disabled” or “Disability” shall mean the inability of Employee to perform the duties and responsibilities of his employment with Employers as contemplated in this Agreement by reason of his illness or other physical or mental impairment or condition, if such inability continues for a period of 120 days or more during any twelve-month period.

          (b) For purposes of this Agreement, for “Cause” means (i) a material breach of any provision of this Agreement by Employee (if the breach is curable, it will constitute Cause only if it continues uncured for a period of twenty (20) days after Employee’s receipt of written notice of such breach from Company), (ii) Employee’s failure or refusal, in any material manner, to perform all lawful services required of him pursuant to this Agreement, which failure or refusal continues for more than twenty (20) days after Employee’s receipt of written notice of such deficiency, (iii) Employee’s commission of fraud, embezzlement or theft, or a crime constituting moral turpitude, in any case whether or not involving Company, that in the reasonable good faith judgment of the Board of Parent or the Board of Company, renders Employee’s continued employment harmful to Company, (iv) Employee’s misappropriation of Company assets or property, including, without limitation, obtaining reimbursement through fraudulent vouchers or expense reports, (v) Employee’s conviction or the entry of a plea of guilty or no contest by Employee with respect to any felony or other crime that, in the reasonable good faith judgment of the Board of Parent or the Board of Company, adversely affects Company, Parent and/or either of its reputation or business, or (vi) any breach by Employee of his fiduciary duties under this Agreement or under applicable law.

     8.  Compensation Upon Termination .

     Under no circumstances will any termination of this Agreement at any time by any party for cause, for any reason, for no reason at all, or based on Employee’s death or Disability, excuse

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Employers from their obligation to pay Employee the payments described in paragraphs 1(b)-1(d) of this Agreement, and such amounts shall not be compensation upon termination for the purposes of this Section 8. The following shall govern other compensation due to Employee upon termination of this Agreement:

          (a) If Employers terminate this Agreement during the first year of the Initial Term, for any reason or for no reason at all, or if Employee dies or becomes Disabled, Employee shall be entitled to a total payment (the “Aggregate Severance Payment”) equal to the product of (x) $90,933.33 and (y) the number of full months beginning with the first month following Employee’s termination of employment through and including the month preceding the first anniversary of the Effective Date.

               (i) If Employee is involuntarily terminated by Employers, Employee shall receive monthly payments equal to 2/12 th of the Internal Revenue Code section 401(a)(17) annual compensation limit (in effect for the year of the involuntary termination) commencing on the first month following Employee’s termination and ending with a payment on the first of the month which is six months after the first payment, or April 4, 2010, if sooner. The difference between the Aggregate Severance Payment and the total amount paid pursuant to the preceding sentence shall be paid in three substantially equal monthly payments commencing on the month next subsequent to the month in which the last payment is made pursuant to the preceding sentence.

               (ii) If Employee’s employment is terminated because he is Disabled, Employer shall pay Employee the Aggregate Severance Payment on the date that is the first day after the six-month anniversary of Employee’s termination date.

               (iii) If Employee dies before the first anniversary of the Effective Date, Employer shall pay to Employee’s estate or personal representative the Aggregate Severance Payment on the date that is thirty days after the date of Employee’s death.

     Notwithstanding any other provision of this Agreement to the contrary, except in the case of termination as a result of Employee’s death or Disability, Employers’ obligations under this paragraph 8(a) shall be contingent on Employee executing and delivering to Employers a mutual release of claims, substantially in the form attached hereto as Exhibit A, which Employers shall be obligated to countersign.

          (b) If Employee terminates this Agreement during the first year of the Initial Term, for any reason or for no reason at all, Employee shall be entitled to no further compensation or other benefits under this Agreement, other than any unpaid compensation earned by Employee hereunder for the period up to and including the effective date of such termination and other than all unpaid amounts required by Sections 1(b) through 1(d) (which shall not be considered compensation upon termination under this Section 8).

          (c) After the first year of the Initial Term, if Employers or Employee terminate this Agreement for any reason or for no reason at all, Employee shall be entitled to no further compensation or other benefits under this Agreement, other than any unpaid compensation earned by Employee hereunder for the period up to and including the effective date of such termination.

          (d) Employers shall pay for Employees’ COBRA benefits for one year if Employers terminate Employee or do not renew this Agreement.

          (e) Employee shall not be entitled to any other compensation or benefits under this Agreement upon the termination of his employment with Employers for any reason

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whatsoever.

          (f) Immediately upon the cessation of Employee’s employment with Employers for any reason whatsoever, notwithstanding anything else to the contrary contained in this Agreement or otherwise, Employee will stop serving the functions of his terminated or expired position(s) and shall be without any of the authority or responsibility for such position(s). Upon request, at any time following the cessation of his employment for any reason, Employee shall resign as a manager of Company and as a director of Parent if then a member of either Board.

     9.  Excise Tax Payment .

     If any of the payments or benefits received or to be received by Employee under this Agreement is determined to constitute a “parachute payment” as such term is defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”), Employers shall pay to Employee, prior to the time an excise tax imposed by the Code is payable, an additional amount which, after the imposition of all income and excise taxes thereon, is equal to the excise tax payable. The determination of whether a payment constitutes a parachute payment and, if so, the amount to be paid to Employee and the time of payment shall be made by a nationally recognized United States public accounting firm selected by Employers which has not, during the two years preceding the date of its selection, acted in any way on behalf of Employers or any affiliate thereof.

     10.  Covenant Not To Compete and Confidentiality.

      This Covenant Not To Compete and Confidentiality provision supersedes and replaces in its entirety the Covenant Not to Compete and Confidentiality provision of the Employment Agreement.

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