Exhibit 10.4
AMENDMENT NO. 1 TO EMPLOYMENT
AGREEMENT
This Amendment No. 1 (“
Amendment ”) to that certain Employment Agreement
between Deerfield Capital Management LLC, a Delaware limited
liability company (“ Deerfield ”), and Jonathan
W. Trutter (“ Employee ”), dated as of
June 26, 2004 (“ Original Employment Agreement
”), is made and entered into as of the 11th day of May,
2009. Any capitalized term not otherwise defined herein shall
have the same meaning given to such term in the Original Employment
Agreement.
W
I T N
E S S E T
H
WHEREAS , the Original Employment Agreement expires
pursuant to its terms on or about June 25, 2009;
WHEREAS , Deerfield wishes to retain the services of
Employee for an additional period, and Employee wishes to provide
services to Deerfield, on amended terms and conditions;
and
WHEREAS , Deerfield and Employee agree that certain
terms and conditions of the Original Employment Agreement must be
amended, with all other terms and conditions to remain in full
force and effect,
NOW, THEREFORE
, in consideration of the covenants
and agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Deerfield and Employee agree that following sections
shall supersede and replace in their entirety the corresponding
sections of the Original Employment Agreement:
1.
Employment .
(a) Term . The
term of Employee’s employment under this Agreement shall
commence on June 25, 2009, and shall conclude on
December 31, 2010, unless sooner terminated according to
Section 3 of this Agreement (the “ Term
”). Except as provided in Section 8(i) of
this Agreement, or as is otherwise agreed in writing between the
parties, this Agreement shall terminate upon expiration of the
Term.
2.
Compensation and Benefits .
(b)
Bonus .
(i)
Guaranteed Bonus . Deerfield shall pay to Employee a
cash bonus for services rendered during fiscal year 2009 in an
amount equal to the cash bonus Employee received from Deerfield for
fiscal year 2008 (which was $783,750). Further, subject to
the terms of this Section 2(b)(i), Deerfield shall pay to
Employee a cash bonus for services rendered during fiscal year 2010
in an amount equal to Fifty Percent
1
(50%) of the cash bonus Employee
received from Deerfield for fiscal year 2008. The bonus for
fiscal year 2009 shall be paid to Employee no later than
March 15, 2010 in accordance with Deerfield’s standard
bonus payment policies, and the bonus for fiscal year 2010 shall be
paid to Employee no later than March 15, 2011 in accordance
with Deerfield’s standard bonus payment policies; provided,
however, that Employee must be an employee of Deerfield at the time
the payment of the respective bonus is due.
Notwithstanding the foregoing, in
the event a Change of Control (as such term is defined as of the
date hereof in Deerfield’s First Amended and Restated Stock
Incentive Plan) occurs during fiscal year 2010, the amount of the
bonus Employee shall be entitled to receive for services rendered
in fiscal year 2010 shall be increased to an amount equal to One
Hundred Percent (100%) of the cash bonus Employee received from
Deerfield for fiscal year 2008 if, following such Change of
Control, Employee is either terminated without Cause or
Employee’s duties and responsibilities are substantially
diminished from his duties and responsibilities in effect as of the
date hereof.
(d)
Intentionally omitted.
3.
Termination .
(a) Termination by
Deerfield without Cause; Termination by Employee for Good
Reason .
(i)
This Agreement and Employee’s employment may be terminated at
any time prior to December 31, 2010, by Deerfield without
“ Cause ” (as defined below) (other than by
reason of Employee’s death or “ Disability
” (as defined below)) following the delivery of a “
Notice of Termination ” (as defined below) to
Employee. In addition, this Agreement and Employee’s
employment hereunder may be terminated at any time prior to
December 31, 2010 by Employee for “ Good Reason
” (as defined below) following the delivery of a Notice of
Termination to Deerfield.
(ii)
If Employee’s employment is terminated by Deerfield without
Cause (other than by reason of Employee’s death or
Disability) or by Employee for Good Reason (A) Employee shall
be entitled to receive any unpaid Guaranteed Bonus payments) for
fiscal year 2009 and fiscal year 2010 as set forth in
Section 2(b)(i) and in accordance with the normal bonus
payment practices of Deerfield, (B) Employee
