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.”
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:
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1.
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Termination of Employment Agreement,
Payment of 2008 Bonus, Change of Control Payment, and Capital
Accumulation Plan Payment .
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(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.
(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”.
(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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(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.
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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