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Search Employment Agreement by:
Exhibit 10.13
EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT (this “Agreement”) dated as of December 20, 2005
between Luminent Mortgage Capital, Inc., a Maryland corporation having its
principal place of business at One Market Street, Spear Tower, 30th Floor,
San Francisco, California 94105 (the “Employer”) and S. Trezevant
Moore, Jr., an individual residing at 113 Woods Lane, Radnor, Pennsylvania,
19087 (the “Executive”).
WITNESSETH:
WHEREAS,
the Employer desires to provide for the continuing employment of the Executive,
and the Executive desires to continue to be employed by the Employer, all in
accordance with the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS,
the Employer and the Executive are entering into this Agreement to set forth
and confirm their respective rights and obligations with respect to the
Executive’s employment by the Employer;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
in this Agreement, the Employer and the Executive, intending to be legally
bound hereby, mutually agree as follows:
1. Employment
and Term.
(a) Effective
as of January 1, 2006 (the “Effective Date”), the Employer
shall employ the Executive, and the Executive shall be employed by the
Employer, as the President and Chief Operating Officer (the
“Position”) of the Employer, in accordance with the terms and,
subject to the conditions set forth in this Agreement for a term (the
“Term”) that shall commence on the Effective Date and, as provided
in and subject to paragraphs 1(b), 1(c), 1(d) and 1(e), shall continue for a
period of three years.
(b) Unless
written notice in accordance with this paragraph 1 terminating the
Executive’s employment under this Agreement is given by either the
Employer or the Executive, on each day this Agreement is in effect the Term
shall be automatically extended for one additional day so that at all times
this Agreement shall have a then current three-year Term. Unless otherwise provided
in this Agreement or agreed by the Employer and the Executive, all of the terms
and conditions of this Agreement shall continue in full force and effect
throughout the Term and, with respect to those terms and conditions that apply
after the Term, after the Term.
(c) Notwithstanding
paragraph 1(b), the Employer, by action of its board of directors (the
“Board”) and effective as specified in a written notice thereof to
the Executive in
accordance with the terms of
this Agreement, shall have the right to terminate the Executive’s
employment under this Agreement at any time during the Term, for Cause (as
defined in this Agreement) or other than for Cause or on account of the
Executive’s death or Permanent Disability (as defined in this Agreement),
subject to the provisions of this paragraph 1.
(i) “Cause”
shall mean (A) the Executive’s willful and continued failure
substantially to perform his material duties with the Employer as set forth in
this Agreement, or the commission by the Executive of any activities
constituting a violation or breach under any material federal, state or local
law or regulation applicable to the activities of the Employer, in each case,
after written notice thereof from the Employer to the Executive and a
reasonable opportunity for the Executive to cease such failure, breach or
violation in all material respects, (B) fraud, breach of fiduciary duty,
dishonesty, misappropriation or other actions that cause intentional material
damage to the property or business of the Employer by the Executive,
(C) the Executive’s repeated absences from work such that he is
unable to perform his duties hereunder in all material respects other than for
physical or mental impairment or illness which the Executive fails to cure
after written notice, (D) the Executive’s admission or conviction
of, or plea of nolo contendere to, any felony or any other crime that, in the
reasonable judgment of the Board, adversely affects the Executive’s
reputation or the Executive’s ability to carry out his obligations under
this Agreement or (E) the Executive’s non-compliance with the
provisions of paragraph 2(b) after notice thereof from the Employer to the
Executive and a reasonable opportunity for the Executive to cure such
non-compliance. Notwithstanding the foregoing, the Employer may not terminate
the Executive’s employment under this Agreement for Cause unless the
Executive is given (A) written notice, in accordance with the by-laws of
the Employer, of a special meeting of the Board to consider the termination of
the Executive’s employment under this Agreement for Cause and
(B) the opportunity for the Executive to address such special meeting.
(ii) “Permanent
Disability” shall mean a physical or mental disability such that the
Executive is substantially unable to perform those duties that he would
otherwise be expected to continue to perform and the nonperformance of such
duties has continued for a period of 240 consecutive days, provided, however,
that in order to terminate the Executive’s employment under this
Agreement on account of the Executive’s Permanent Disability, the
Employer must provide the Executive with written notice of the Board’s
good faith determination to terminate the Executive’s employment under
this Agreement for reason of the Executive’s Permanent Disability not
less than 30 days prior to such termination, which notice shall specify
the date of termination. Until the specified effective date of termination by
reason of the Executive’s Permanent Disability, the Executive shall
continue to receive compensation at the rates set forth in paragraph 3. No
termination of the Executive’s employment under this Agreement because of
the Executive’s Permanent Disability shall impair any rights of the
Executive under any disability insurance policy maintained by the Employer at
the commencement of the aforesaid 240-day period.
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(d) The
Executive shall have the right to terminate his employment under this Agreement
at any time during the Term for Good Reason or without Good Reason as specified
in a written notice thereof to the Employer in accordance with the terms of
this Agreement. As used herein, “Good Reason” shall mean
(A) the Executive’s Position or the scope of the Executive’s
authority, duties or responsibilities as described in this Agreement are
materially diminished without the Executive’s written consent, excluding
for this purpose any action that was not taken by the Employer in bad faith and
that is remedied by the Employer promptly following written notice thereof from
the Executive to the Employer; (B) a material breach by Employer of its
obligations to the Executive under this Agreement, which breach is not cured in
all material respects to the reasonable satisfaction of the Executive within
30 days (except in the case of a payment default for which the cure period
shall be 10 days), in each case following written notice thereof from the
Executive to the Employer or (C) any termination of the Executive’s
employment under this Agreement without Cause.
(e)
(i) If (A) the Employer terminates the Executive’s employment
under this Agreement for any reason other than for Cause or (B) the
Executive terminates his employment under this Agreement for Good Reason, the
Employer shall pay to the Executive promptly after the event giving rise to
such payment occurs an amount equal to the sum of (x) (1) the
Executive’s Base Salary (as defined in this Agreement) accrued through
the date the termination of the Executive’s employment under this
Agreement is effective, (2) any Bonus (as defined in this Agreement)
required to be paid to the Executive pursuant to paragraph 3(b) and
(3) any amount in respect of excise taxes required to be paid to the
Executive pursuant to paragraph 1(f), with such payments, rights and benefits
described in clauses (x)(1), (x)(2) and (x)(3) being collectively referred to
in this Agreement as the “Accrued Obligations,” (y) an amount
equal to the aggregate premiums that would be payable by the Executive to
maintain in effect throughout the period (the “Subsequent Period”)
from the date of the Executive’s termination through the remainder of the
Term had the Executive remained employed (assuming no increase in insurance
premium rates) the same medical, health, disability and life insurance coverage
provided to the Executive by the Employer immediately prior to the date of such
termination (the “Benefit Obligations”) and (z) the Employer
shall, as a severance payment, pay to the Executive for the Subsequent Period,
the Executive’s annual Base Salary as of the effective date of
termination of the Executive’s employment under this Agreement and the
Minimum Bonus (as defined in this Agreement).
(ii) If
(A) the Employer terminate the Executive’s employment under this
Agreement for Cause, (B) the Executive terminates his employment under
this Agreement for any reason other than Good Reason, his death or the
Executive’s Permanent Disability or (C) this Agreement is terminated
by the Employer as a result of the death or Permanent Disability of the
Executive, the sole obligation of the Employer shall be to pay the Accrued
Obligations to the Executive or his estate.
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(f) In
the event that the independent public accountants of the Employer or the Internal
Revenue Service determines that any payment, coverage or benefit provided to
the Executive pursuant to this Agreement is subject to the excise tax imposed
by Sections 280G and 4999 of the Internal Revenue Code of 1986, as amended
(the “Code”) or any successor provision thereof or any interest or
penalties incurred by the Executive with respect to such excise tax, the
Employer, within 30 days thereafter, shall pay to the Executive, in
addition to any other payment, coverage or benefit due and owing under this
Agreement, an additional amount that will result in the Executive’s net
after tax position, after taking into account any interest, penalties or taxes
imposed on the amount payable under this paragraph 1(f), upon the receipt of
the payments provided for by this Agreement be no less advantageous to the
Executive than the net after tax position to the Executive that would have been
obtained had Sections 280G and 4999 of the Code not been applicable to
such payment, coverage or benefits. Except as otherwise provided in this
Agreement, all determinations to be made under this paragraph 1(f) shall be
made by tax counsel whose selection shall be reasonably acceptable to the
Executive and the Employer and whose fees and costs shall be paid for by the
Employer.
(g) In
the event that the independent public accountants of the Employer or the
Internal Revenue Service determines that any payment, coverage or benefit due
or owing to the Executive pursuant to this Agreement is subject to the excise
tax imposed by Section 409A of the Code or any successor provision thereof
or any interest or penalties, including interest imposed under Section
409A(1)(B)(i)(I) of the Code, incurred by the Executive as a result of the
application of such provision, the Employer, within 30 days thereafter,
shall pay to the Executive, in addition to any other payment, coverage or
benefit due and owing under this Agreement, an amount that will result in the
Executive’s net after tax position, after taking into account any interest,
penalties or taxes imposed on the amounts paid under this paragraph 1(g), being
no less advantageous to the Executive than the net after tax position to the
Executive that would have been obtained had Section 409A of the Code not
been applicable to such payment, coverage or benefits. Except as otherwise
provided in this Agreement, all determinations to be made under this paragraph
1(g) shall be made by tax counsel whose selection shall be reasonably
acceptable to the Executive and the Employer and whose fees and costs shall be
paid for by the Employer.
(h) Any
notice of termination of the employment of the Executive under this Agreement
by the Employer to the Executive or by the Executive to the Employer shall be
given in accordance with the provisions of paragraph 10.
(i) The
Employer agree to reimburse the Executive for the reasonable fees and expenses
of the Executive’s attorneys and for court and related costs in any
proceeding to enforce the provisions of this Agreement in which the Executive
is successful on the merits.
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2. Duties
of the Executive.
(a) Subject
to the ultimate control and discretion of the Board of the Employer, the
Executive shall serve in the Position and perform all duties and services
commensurate with the Position. Throughout the Term, the Executive shall
perform all duties reasonably assigned or delegated to him under the by-laws of
the Employer or from time to time by the Board consistent with the Position.
Except for travel normally incidental and reasonably necessary to the business
of the Employer and the duties of the Executive under this Agreement, the
duties of the Executive shall be performed in the greater Philadelphia,
Pennsylvania metropolitan area.
(b) The Executive shall devote substantially all of the Executive’s business time and attention to the performance of the Executive’s duties under this Agreement and, during the term of his employment under this Agreement, the Executive shall not engage in any other busin






