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Exhibit 10.14
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 Gail P.
Seneca, whose address is P.O. Box 1018, Inverness, California 94937 (the
“Executive”).
WITNESSETH:
WHEREAS,
the Employer desires to provide for the employment of the Executive, and the
Executive desires 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 Chairman of the Board and Chief Executive 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. From and after January 1, 2008, the term
“Position” as used in this Agreement shall mean the
Executive’s service as Chairman of the Board of the Employer and, in the
sole discretion of the Executive, the Executive’s continued service as
Chief Executive Officer of the Employer.
(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 her 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 she is unable to
perform her 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 ability to carry
out her 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 she 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
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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.
(d) The
Executive shall have the right to terminate her 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 her 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 her employment under
this Agreement for any reason other than Good Reason (it being understood that
commencing with January 1, 2008, the Executive’s service as Chairman
of the Board of the Employer and
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not also as Chief Executive
Officer of the Employer shall not be deemed as the Executive’s
termination of her employment under this Agreement for other than Good Reason),
her 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 her estate.
(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.
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