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2009 EMPLOYMENT AGREEMENT

Employee Retention Agreement

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

ORIGEN FINANCIAL LLC | ORIGEN FINANCIAL, INC

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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 llc , origen financial  inc
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Exhibit 10.35

Execution Version

2009 EMPLOYMENT AGREEMENT

     THIS 2009 EMPLOYMENT AGREEMENT (this “Agreement”) by and among ORIGEN FINANCIAL, INC., a Delaware corporation (“Parent”), ORIGEN FINANCIAL L.L.C., a Delaware limited liability company (the “Company”) and W. ANDERSON GEATER, JR. (“Executive”) is made and entered into on May 1, 2009 and for all purposes shall be effective on April 4, 2009 (the “Effective Date”).

RECITAL:

     A. Parent, Company and Executive are parties to that certain Employment Agreement dated December 28, 2006 and amended July 1, 2008 (the “2006 Employment Agreement”). The 2006 Employment Agreement is scheduled to expire in accordance with its terms on October 7, 2009.

     B. Parent, Company and Executive acknowledge that pursuant to Parent’s Asset Disposition and Management Plan, which was approved by Parent’s shareholders in June, 2008, and subsequently implemented by Parent and Company, the nature of the business of Parent and 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 Parent’s and 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 Parent’s and Company’s business and consequential changes in its need for management services, Parent, Company and Executive desire to modify Executive’s rights, duties and obligations under the 2006 Employment Agreement so that the 2006 Employment Agreement shall terminate in its entirety upon the effectiveness of this Agreement. From and after the Effective Date Executive will be employed as a full-time employee of Parent and Company, will receive payments accrued and owing under the provisions of the 2006 Employment Agreement pursuant to the provisions of this Agreement and will be compensated for services going forward pursuant to the terms of this Agreement.

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

     1.  Termination of 2006 Employment Agreement and Payments .

          (a) Parent, the Company and Executive each hereby agrees that the 2006 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 among Parent, Company and Executive will be governed by the provisions of this Agreement.

          (b) In recognition of Executive’s performance as Chief Financial Officer in preserving the Company’s and Parent’s assets during the difficult 2008 economic climate, the Board of Directors has granted, and the Company agrees to pay, to Executive a bonus of $150,000, to be paid on the date of execution of this Agreement by Executive and the Company.

          (c) The termination of the 2006 Employment Agreement and any termination of this Agreement shall not in any way negate or relieve the Company’s obligation to pay

 


 

Executive the $825,000 change-of-control payment which was earned in 2008 under the terms of the 2006 Employment Agreement and will be paid to Executive on July 1, 2009.

          (d) The Company shall pay Executive the amounts due him under the Company’s Capital Accumulation Plan in the amount of $280,000 on November 15, 2011.

     2.  Term of Employment .

          (a) Subject to the provisions for termination provided in this Agreement, the term of Executive’s employment under this Agreement (the “Term”) shall commence on the Effective Date and shall continue thereafter until March 31, 2011.

          (b) Company and Executive each acknowledges and agrees that, in accordance with the terms of Section 8 below, Executive’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 Executive or Company, except for termination for cause by the Company, in which case no prior notice is required.

     3.  Services and Duties .

          (a) Company agrees to employ Executive and Executive accepts the employment, on the terms and subject to the conditions set forth below. During the term of employment hereunder, Executive shall serve as the Chief Financial Officer of the Company, and shall do and perform diligently all such services, acts and things as are customarily done and performed by the chief financial officer of companies in similar business and in size to Company, together with such other duties as may reasonably be requested from time to time by the Board of Directors of Parent (the “Board”) and the Company’s Chief Executive Officer, which duties shall be consistent with Executive’s position as set forth above. Executive will report to the Company’s Chief Executive Officer. The Board will define and refine Executive’s job duties and responsibilities from time to time. Executive shall also serve as the Chief Financial Officer of Parent without additional compensation therefor.

          (b) For service as an officer and employee of Parent and Company, Executive shall be entitled to the full protection of the applicable indemnification provisions of the Certificate of Incorporation of Parent, as it may be amended from time to time. Parent agrees that Executive will be named as an additional insured under Parent’s Directors and Officers, Errors and Omissions and other similar insurance policies during the Term.

     4.  Devotion to Company’s and Parent’s Business . The Executive shall devote his best efforts, knowledge, skill, and his entire productive time, ability and attention to the business of the Company and Parent during the term of this Agreement; provided, however, the Executive’s expenditure of reasonable amounts of time to various charitable and other community activities or to the Executive’s own personal investments and projects shall not be deemed a breach of this Agreement so long as the amount of time so devoted does not materially impair, detract or adversely affect the performance of Executive’s duties under this Agreement.

     5.  Compensation .

          (a) General Statement . As compensation for the services to be performed by Executive under this Agreement, Company shall pay to Executive during the Term, and in accordance with Company’s usual pay practices the amounts set forth in this Section 5, which include amounts paid to satisfy payments required by the 2006 Employment Agreement.

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          (b) Base Compensation . As compensation for the services to be performed hereafter, Company shall pay to Executive, during his employment hereunder, an annual base salary (the “Base Salary”) payable in accordance with Company’s usual pay practices (and in any event no less frequently than monthly) at the rate of Two Hundred Seventy-Five Thousand Dollars ($275,000) for the period beginning on the Effective Date and ending at the end of the Term.

          (c) Annual Bonus . Executive shall be paid an annual incentive bonus (each, an “Annual Bonus”) in the amount of $235,000 in the first quarter of each of 2010 and 2011, to be paid on or before March 15 of each of such years.

          (d) Stay Bonus . Subject to the following sentence, Executive shall be paid a bonus (the “Stay Bonus”) in the amount of $555,000 on March 31, 2011. Notwithstanding the foregoing, if Executive terminates this Agreement pursuant to Section 8(a)(i) below without Good Reason, or if Executive’s employment is terminated by the Company for cause pursuant to Section 8(a)(ii) below, Executive shall not be entitled to receive the Stay Bonus.

          (e) Disability . During any period that Executive is Disabled (as defined below) (the “Disability Period”), Executive shall continue to receive his full Base Salary, Annual Bonus and other benefits at the rate in effect for such period until his employment is terminated by Company pursuant to Section 8(a)(iii) hereof; provided, however, that payments so made to Executive during the Disability Period shall be reduced by the sum of the amounts, if any, which were paid to Executive at or prior to the time of any such payment under disability benefit plans of Company. For purposes of this Section 5(e) only, Executive shall be deemed to be “Disabled,” and on a bona fide leave of absence, if he is eligible to receive disability benefits under any disability benefit plan or policy provided by Company to its employees generally or to Executive specifically (a “Company Sponsored Plan”). If Company does not provide coverage to Executive under a Company Sponsored Plan, Executive shall be deemed to be “Disabled” if he is unable to perform the essential functions of his duties hereunder (with or without reasonable accommodation by the Company) as a result of incapacity due to physical or mental illness.

     6.  Benefits .

          (a) Insurance . Company shall provide to Executive life, disability, medical, hospitalization and dental insurance for himself, his spouse and eligible family members as may be determined by the Board to be consistent with Company’s standard policies.

          (b) Benefit Plans . Executive, at his election, may participate, during his employment hereunder, in all retirement plans, 401(K) plans and other benefit plans of Company generally available from time to time to other executive employees of Company, Parent or their subsidiaries (the “Subsidiaries”) and for which Executive qualifies under the terms of the plans (and nothing in this Agreement shall or shall be deemed to in any way affect Executive’s right and benefits under any such plan except as expressly provided herein).

          (c) Annual Vacation . Executive shall be entitled to five (5) weeks of vacation time each year without loss of compensation. In the event that Executive is unable for any reason to take the total amount of vacation time authorized herein during any year, he may accrue such unused time and add it to the vacation time for any following year; provided, however, that no more than twenty (20) business days of accrued vacation time may be carried over at any time (the “Carry-Over Limit”). Upon any termination of this Agreement for any reason whatsoever, accrued and unused vacation time (not to exceed thirty (30) business days) shall be paid to Executive within ten (10) days of such termination based on the Base Salary in effect on the date of such termination.

     7.  Reimbursement of Business Expenses . Company shall reimburse Executive for travel, entertainment, business development, data access, telephone and other expenses

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reasonably and necessarily incurred by Executive in connection with Company’s business. Executive shall furnish such documentation with respect to reimbursement to be paid hereunder as Company shall reasonably request

     8.  Termination of Employment .

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

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

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

          (iii) upon Executive’s death or if Executive is Totally Disabled as defined in Section 8(c) below.

          (b) For purposes of this Agreement, for “Cause” means (i) a material breach of any provision of this Agreement by Executive (if the breach is curable, it will constitute Cause only if it continues uncured for a period of twenty (20) days after Executive’s receipt of written notice of such breach from Company), (ii) Executive’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 Executive’s receipt of written notice of such deficiency, (iii) Executive’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 Executive’s continued employment harmful to Company, (iv) Executive’s misappropriation of Company assets or property, including, without limitation, obtaining reimbursement through fraudulent vouchers or expense reports, or (v) Executive’s conviction or the entry of a plea of guilty or no contest by Executive 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.

     (c) For purposes of this Section 8 and payment of compensation and benefits pursuant to Section 9(c), Executive shall be considered “Totally Disabled” if, by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, (i) he is unable to engage in any substantial gainful activity, or (ii) he is receiving income replacement benefits for a period of not less than 3 months under an accident and health plan covering employees of the Company.

     9.  Compensation Upon Termination .

          (a) If Company terminates this Agreement without Cause pursuant to Section 8(a)(i) hereof, if Company terminates this Agreement pursuant to Section 8(a)(iii) hereof, or if Executive voluntarily terminates this Agreement for Good Reason (as defined below) then: (i) Company shall pay to Executive or his estate, if applicable, unpaid amounts required by Sections 1(b) through 1(d) (which shall not be deemed payments on termination of employment under this Section 9), (ii) Company shall pay to Executive or his estate, if applicable, the unpaid Base Salary in the manner and at the times specified in Section 5(b), through and including the Expiration Date; (iii) Company shall pay to Executive or his estate, if applicable, the unpaid Annual Bonus in the manner and at the times specified in Section 5(c), through and including the Expiration Date, (iv) Company shall pay to Executive or his estate, if applicable, the Stay Bonus in the manner and at the times specified in Section 5(c), and (v) if applicable, through and including the Expiration

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Date, Company shall pay Executive’s COBRA premiums for medical insurance benefits in effect on the date of termination (provided that such payments will not exceed the 18-month statutory COBRA continuation period), and continue to provide Executive with such other employee benefits for which Executive continues to qualify during the Term, but only if Executive fully complies with Section 10 of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, (A) Company’s obligations under this Section 9(a) shall be contingent on Executive executing and delivering to Company a general release of claims, substantially in the form attached hereto as Exhibit A, and (B) if Executive engages in full-time employment after the termination of this Agreement (whether as an executive or as a self-employed person), any employee benefit and welfare benefits received by Executive in consideration of such employment which are similar in nature to the employee benefit and welfare benefits provided by Company will relieve Company of its obligations under Section 6(b) to provide comparable benefits to the extent of the benefits so provided. For purposes of Section 8 and this Section 9 only, “Good Reason” means the occurrence of any of the following events: (a) a substantial adverse change, not consented to by Executive, in the nature or scope of Executive’s responsibilities, authorities or duties hereunder, (b) a substantial involuntary reduction in Executive’s Base Salary except for an across-the-board salary reduction similarly affecting all or substantially all employees, or (c) the relocation of Executive’s principal place of employment to another location of Company outside a sixty (60) mile radius from the location of Executive’s principal place of employment as of the date hereof.

          (b) If Executive voluntarily terminates this Agreement pursuant to Section 8(a)(i) for any reason other than Good Reason or Company terminates this Agreement pursuant to Section 8(a)(ii), Executive shall be entitled to no further compensation or other benefits under this Agreement, other than any unpaid Base Salary and the Pro Rata Annual Bonus Amount accrued and earned by Executive 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 9).

          (c) Except as otherwise specified in this Section 9, and Sections 1(b) through 1(d) (which shall not be considered compensation upon termination under this Section 9), Executive shall not be entitled to any other compensation or benefits upon the termination of his employment with Company for any reason whatsoever.

          (d) Immediately upon the cessation of Executive’s employment with the Company for any reason whatsoever, notwithstanding anything else to the contrary contained in this Agreement or otherwise, Executive 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, Executive shall resign from the Board if then a member.

          (e) Notwithstanding anything to the contrary in this Section 9, Company’s obligation to pay, and Executive’s right to receive, any compensation under this Section 9, shall terminate upon Executive’s breach of any provision of Section 10 hereof. In addition, Executive shall promptly forfeit any compensation received from Company under this Section 9 upon Executive’s breach of any provision of Section 10 hereof.

     10.  Covenant Not To Compete and Confidentiality.

          (a) Executive acknowledges Company’s and Parent’s reliance and expectation of Executive’s continued commitment to performance of his duties and responsibilities under this Agreement. In light of such reliance and expectation on the part of Company and Parent, Executive, in consideration of the compensation and other payments to be made by Company

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under this Agreement, and without expectation for any additional payments or compensation, agrees to the provisions set forth below.

          (i) Executive shall not compete with Company or Parent, as defined in Section 10(a)(ii) below, for a period commencing on the Effective Date and ending:

(A) if this Agreement terminates upon the Term having run its full course, the date that is 12 months after the termination date,

(B) if this Agreement is terminated by Company under Section 8(a)(ii) or by Executive under Section 8(a)(i), the later to occur of (I) the final day of the Term or (II) the date that is 12 months after the date of termination, or

(C) if Company terminates this Agreement under Section 8(a)(i), the date that is 12 months after the termination date.

          (ii) The phrase “shall not compete with Company or Parent” means that E


 
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