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”).
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.
(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.
(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.
(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.
(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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