EXECUTION COPY
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), dated December 31, 2003, and
effective as of the Effective Date, is entered into by and between Jeremy
Diamond (the "Executive") and Annaly Mortgage Management, Inc., a Maryland
corporation (the "Company").
WHEREAS, the Company desires to retain certain employees, including the
Executive, in connection with the transactions (the "Merger") described in that
certain Agreement and Plan of Merger by and Among Annaly Mortgage Management,
Inc., Fixed Income Discount Advisory Corporation, FDC Merger Sub, Inc. and the
Persons Signatory Thereto Dated as of December 31, 2003 ("Merger Agreement");
WHEREAS, the Company desires to establish its right to the services of
the Executive upon the Effective Time (as defined in the Merger Agreement) of
the Merger, in the capacity described below, on the terms and conditions and
subject to the rights of termination hereinafter set forth, and the Executive is
willing to accept such employment on such terms and conditions.
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein made and intending to be legally bound hereby, the parties agree to the
Employment Agreement in its entirety to read as follows:
In consideration of the mutual agreements hereinafter set forth, the
Executive and the Company have agreed and do hereby agree as follows:
1. DEFINITIONS. Capitalized terms used in this Agreement shall have the
respective meanings assigned to them below:
1.1 "Book Value" of the Company shall be equal to the
aggregate amounts reported as Stockholders Equity on the Company's balance sheet
as of the end of each fiscal year determined in accordance with generally
accepted accounting principles (GAAP) but without taking into account any
valuation reserves (i.e., changes in the value of the Company's portfolio of
investments as a result of mark-to-market valuation changes, referred to in the
financial statements as "Accumulated Other Comprehensive Gain or Loss").
1.2 "Code" shall mean the Internal Revenue Code of 1986, as
amended.
1.3 "Compensation Committee" shall mean the Compensation
Committee of the Board of Directors of the Company.
1.4 "Good Reason" shall mean the occurrence of one or more of
the following without the Executive's written consent: (i) a material breach of
this Agreement by the Company, or (ii) a materially significant change in the
Executive's duties, authorities or responsibilities, or (iii) the relocation of
the Executive's principal place of employment more than 60 miles from New York,
New York, or (iv) the failure of the Company to obtain the assumption in writing
of its obligations to perform this Agreement by any successor to all or
substantially all of the assets or business of the Company within fifteen (15)
days upon a merger, consolidation, sale or similar transaction, PROVIDED HOWEVER
that none of the events specified in (i), (ii) or (iii) shall constitute Good
Reason unless the Executive shall have notified the Company in writing
describing the events which constitute Good Reason and the Company shall have
failed to cure such event within a reasonable period, not to exceed thirty (30)
days, after the Company's actual receipt of such written notice.
2. EMPLOYMENT AS EXECUTIVE VICE PRESIDENT, RESEARCH OF THE COMPANY. The
Company hereby employs and engages the Executive as Executive Vice President,
Research of the Company, and the Executive does hereby accept and agree to such
employment and engagement. The Executive's duties as Executive Vice President,
Research shall be such duties typically required of an executive vice president,
research and as shall from time to time be agreed upon by the Executive and the
Board of Directors of the Company. The Executive shall report solely and
directly to the Chief Executive Officer. The Executive's services shall be
performed in the Company's offices in New York, New York or such other location
as the Company and Executive shall agree. Except for periods of Disability (as
defined below), during the Term, the Executive shall devote substantially all of
his business time, attention and energies to the performance of his duties under
this Agreement; PROVIDED, HOWEVER, that the Executive shall be allowed, to the
extent such activities do not substantially interfere with the performance by
the Executive of his duties and responsibilities hereunder, (a) to manage the
Executive's personal, financial and legal affairs, and (b) serve on civic or
charitable boards or committees. Furthermore, the Executive shall exercise due
diligence and care in the performance of his duties to the Company under this
Agreement.
3. TERM OF AGREEMENT.
(a) EFFECTIVE DATE. The term ("Term") of this Agreement shall
commence as of the Closing Date as defined in the Merger Agreement (the
"Effective Date") and shall continue through the second anniversary of the
Effective Date. From and after such second anniversary and upon each anniversary
thereafter, the Term of the Agreement shall automatically be extended for
successive one-year periods unless, not later than three months prior to such
second anniversary or any subsequent anniversary, as applicable, either party
shall have given written notice to the other that it does not wish to extend the
Term of the Agreement.
(b) CONTINGENT UPON THE MERGER AGREEMENT. Notwithstanding
anything in this Agreement to the contrary, the Agreement shall become effective
as of the Effective Date, and then if and only if the Closing contemplated by
the Merger Agreement
actually occurs. In the event that such Closing does not occur, the Agreement is
null and void AB INITIO.
4. COMPENSATION.
(a) BASE SALARY. The Company shall pay the Executive, and the
Executive agrees to accept from the Company, in payment for his services to the
Company, a base salary equal to a per annum amount of $300,000 ("Base Salary"),
payable in equal biweekly installments or at such other time or times as the
Executive and the Company shall agree. The Base Salary can be increased (but not
decreased) at any time by the Compensation Committee or the Board of Directors
of the Company, as the case may be. The Executive's salary as increased shall be
deemed to be the Base Salary for all purposes under this Agreement.
(b) PERFORMANCE BONUS. With respect to each fiscal year, the
Executive shall be eligible to receive an amount equal to the sum of: (A) the
excess, if any, of (i) 0.030% of the Book Value of the Company for such fiscal
year over (ii) the Executive's Base Salary as of the last day of such fiscal
year; PROVIDED, HOWEVER, that the Compensation Committee must approve such
amount, plus (B) additional amounts as may be recommended by management and
approved by the Compensation Committee (such sum being the "Performance Bonus").
(c) ANNUAL REVIEW. The Board of Directors shall, at least
annually, review the Executive's entire compensation package to determine if it
should be increased (but not decreased) in order for it to continue to meet the
Company's compensation objectives.
5. FRINGE BENEFITS. The Executive shall be entitled to participate in
any benefit programs adopted from time to time by the Company for the benefit of
its senior executive employees, and the Executive shall be entitled to receive
such other fringe benefits as may be granted to his from time to time by the
Compensation Committee or the Board of Directors of the Company, as the case may
be.
(a) BENEFIT PLANS. The Executive shall be entitled to
participate in any benefit plans relating to stock options, stock purchases,
awards, pension, thrift, profit sharing, life insurance, medical coverage,
education, or other retirement or employee benefits available to other senior
executive employees of the Company, subject to any restrictions (including
waiting periods) specified in such plans.
(b) VACATION. The Executive shall be entitled to such number
of weeks of paid vacation per calendar year as determined by the Board of
Directors of the Company after review of industry standards, but shall in no
event be entitled to fewer than five weeks of paid vacation per calendar year.
6. BUSINESS EXPENSES. The Company shall reimburse the Executive for any
and all necessary, customary and usual expenses, properly receipted in
accordance with Company policies, incurred by Executive on behalf of the
Company.
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7. TERMINATION OF EXECUTIVE'S EMPLOYMENT.
(a) DEATH. If the Executive dies while employed by the
Company, his employment shall immediately terminate. The Company's obligation to
pay the Executive's Base Salary shall cease as of the date of Executive's death,
except that any earned, but unpaid Base Salary and Performance Bonus shall be
paid to the Executive's beneficiaries as soon as practicable after his death. In
addition, the Executive's beneficiaries shall receive the pro rata portion of
the Performance Bonus for the year of the Executive's death, which shall be
equal to the Performance Bonus (as determined at the end of the year of the
Executive's death) multiplied by a ratio equal to (A) the number of days the
Executive was employed in the year of his death, divided by (B) 365. The
Performance Bonus shall be paid to the Executive's beneficiaries at the same
time and in the same manner as such Performance Bonus would have been paid to
the Executive had the Executive not died or been terminated. Thereafter,
Executive's beneficiaries or his estate shall receive benefits in accordance
with the Company's retirement, insurance and other applicable programs and plans
then in effect.
(b) DISABILITY. If, as a result of the Executive's incapacity
due to physical or mental illness ("Disability"), Executive shall have been
absent from the full-time performance of his duties with the Company for six (6)
consecutive months, and, within thirty (30) days after written notice is
provided to his by the Company, the Executive shall not have returned to the
full-time performance of his duties, the Executive's employment under this
Agreement may be terminated by the Company for Disability. With respect to the
period during which begins when the Executive is first absent from the full-time
performance of his duties with the Company due to Disability and ends upon the
later of (i) the date he is terminated from employment in accordance with the
foregoing sentence, or, (ii) the date he begins receiving long-term disability
payments under the Company's long term disability plan for senior executives
("Salary Continuation Period"), the Company shall continue to pay the Executive
his Base Salary at the rate in effect at the commencement of such period of
Disability. In addition, the Executive shall receive the pro rata portion of the
Performance Bonus for the year of the Executive's termination due to Disability,
which shall be equal to the Performance Bonus (as determined at the end of the
year in which the Executive is terminated by reason of Disability) multiplied by
a ratio equal to (A) the number of days the Executive was employed in the year
of his termination for Disability, divided by (B) 365. The Performance Bonus
shall be paid to the Executive at the same time and in the same manner as such
Performance Bonus would have been paid had the Executive not been terminated by
reason of Disability. Upon the end of the Salary Continuation Period, the
Executive's benefits shall be determined under the Company's retirement,
insurance and other compensation programs then in effect in accordance with the
terms of such programs
(c) TERMINATION BY THE COMPANY FOR CAUSE. The Company may
terminate the Executive's employment under this Agreement for "Cause," at any
time prior to expiration of the Term of the Agreement, only in the event of (i)
the Executive's failure to substantially perform the duties described in this
Agreement, (ii) acts or omissions constituting recklessness or willful
misconduct on the part of the Executive in respect of his fiduciary obligations
to the Company which is materially and demonstrably injurious to the Company, or
(iii) the Executive's conviction for fraud, misappropriation or embezzlement in
connection with the assets of the Company. In the case of clause (i) only, it
shall also be a condition precedent to the Company's right to terminate the
Executive's employment for Cause that (1) the Company shall first have given the
Executive written notice stating with specificity the reason for the termination
("breach") at least 60 days before the meeting of the Board of Directors called
to
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make such determination and the Executive and his counsel are given the
opportunity to answer such grounds for termination in person, at a hearing or in
writing delivered to the Chairman of the Board, in the Executive's discretion,
before a vote by the Board of Directors on the existence of Cause; and (2) if
such breach is susceptible to cure or remedy, a period of 60 days from and after
the giving of the notice described in (1) shall have elapsed without the
Executive having effectively cured or remedied such breach during such 30-day
period, unless such breach cannot be cured or remedied within 60 days, in which
case the period for remedy or cure shall be extended for a reasonable time (not
to exceed an additional 30 days), provided the Executive has made and continues
to make a diligent effort to effect such remedy or cure. In the case of clause
(iii) above, the Executive's employment under this Agreement may be terminated
immediately without any advance written notice. Upon a determination that
grounds exist for a termination for Cause by the Board of Directors and that the
breach cannot be cured, or immediately in the case of clause (iii) above, the
Company's obligation to pay the Executive's Base Salary, any Performance Bonus
and benefits shall immediately cease, except to the extent any Base Salary or
Performance Bonus has been earned but has not yet been paid.
7.2. TERMINATION BY THE EXECUTIVE. The Executive may at any
time during the Term of this Agreement terminate his employment hereunder for
any reason or no reason by giving the Company notice in writing not less 90 days
in advance of such termination. The Executive shall have no further obligations
to the Company after the effective date of his termination, as set forth in the
notice. In the event of a termination by the Executive under this Section, the
Company will pay only the portion of Base Salary or previously awarded
Performance Bonus unpaid as of the termination date. Benefits which have accrued
and/or vested on the termination date will continue in effect according to their
terms, but no additional accrual or vesting will take place. Notwithstanding the
foregoing, if the Executive terminates his employment for Good Reason, the
notice period provided in Section 7.2 above shall not apply and the Executive
will be entitled to the severance detailed in Section 8.
8. COMPENSATION UPON TERMINATION BY THE COMPANY OTHER THAN FOR CAUSE OR
UPON TERMINATION BY THE EXECUTIVE FOR GOOD REASON. If the Executive's employment
shall be terminated by the Company other than for Cause or by the Executive for
Good Reason, the Executive shall be entitled to the following benefits:
(a) PAYMENT OF UNPAID BASE SALARY. The Company shall
immediately pay the Executive any portion of the Executive's Base Salary or
previously awarded Performance Bonus not paid prior to the termination date.
(b) SEVERANCE PAYMENT. The Company shall pay the Executive an
amount (the "Severance Amount") equal to three (3) times the greater of (i) the
Executive's combined Base Salary and actual Performance Bonus for the preceding
fiscal year or (ii) the average for the three preceding years of the Executive's
combined actual Base Salary and Performance Bonus. Fifty percent of the
Severance Amount shall be paid within five (5) days after the date the Executive
terminates for Good Reason or is terminated by the Company for any reason other
than Cause, and the remaining 50% of the Severance Amount shall be paid in three
equal monthly installments beginning on the first business day of the month
following the month of such termination.
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(c) IMMEDIATE VESTING OF STOCK OPTIONS. The Company shall take
all appropriate action to ensure that all stock options on the Company's stock
owned by the Executive as of his termination date, and which have not been
exercised prior to the termination date become immediately exercisable by the
Executive, whether or not the right to exercise such stock options would
otherwise then be vested in the Executive, PROVIDED, HOWEVER, an option that is
an incentive stock option within the meaning of Code Section 422(b) ("ISO")
shall not be exercisable for the first time in a calendar year to the extent
that the aggregate fair market value of stock (as deter mined under Code Section
422(b)(3)) with respect to which ISO's are exercisable by the Executive during
such calendar year exceeds $100,000. The provisions of this Section 7(c) shall
constitute an amendment to any existing stock option agreements (including award
certificates) of the Company as of the termination date.
(d) MAXIMIZATION OF PAYMENT IN THE EVENT OF A CHANGE IN
CONTROL. The Company shall make the payments and provide the benefits to be paid
and provided under this Agreement; PROVIDED, HOWEVER, that if all or any portion
of the payments and benefits provided under this Agreement, either alone or
together with other payments and benefits which the Executive receives or is
then entitled to receive from the Company or otherwise, would constitute a
"parachute payment" within the meaning of Section 280G of the Code (or a similar
or successor provision), the Company shall reduce such payments hereunder and
such other payments to the extent necessary so that no portion thereof shall be
subject to the excise tax imposed by Section 4999 of the Code (or a similar or
successor provision); but only if, by reason of such reduction, the net
after-tax benefit to the Executive shall exceed the net after-tax benefit if
such reduction were not made. The payments or benefits shall be reduced in the
manner and order determined by the Executive, subject to the consent of the
Company, which consent shall not be unreasonably withheld. The determination of
whether the payments shall be reduced as provided in this Section 8(d) and the
amount of such reduction shall be made at the Company's expense by a public
accounting firm retained by the Company at the time the calculation is to be
performed, or one selected by the Company from among the four (4) largest public
accounting firms in the United States (the "Accounting Firm"). The Accounting
Firm shall provide its determination, together with detailed supporting
calculations and documentation to the Company and the Executive within twenty
(20) business days of the payment of the initial installment of the Severance
Amount. The Executive may review these calculations for a period of twenty days
and may retain another accounting firm (at his own expense) for such review and
submit objections during such twenty-day review period.
(e) NO OTHER ENTITLEMENT TO BENEFITS UNDER AGREEMENT. Except
as set forth in Section 7 or Section 8 of this Agreement, following a
termination governed by Section 7 or Section 8, the Executive shall not be
entitled to any other compensation or benefits, except as may be separately
negotiated by the parties and approved by the Board of Directors of the Company
in writing in conjunction with the termination of Executive's employment.
9. NONCOMPETITION PROVISIONS.
(a) NONCOMPETITION. The Executive agrees that during the Term
of employment under this Agreement prior to any termination of his employment
hereunder and, in the event of termination of the Executive's employment by the
Company for Cause or voluntary termination of employment by the Executive (other
than for Good Reason), for a period of one
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year following such termination, the Executive will not, directly or indirectly,
without the prior written consent of the Company, manage, operate, join,
control, participate in, or be connected as a stockholder (other than as a
holder of shares publicly traded on a stock exchange or the NASDAQ National
Market System), partner, or other equity holder with, or as an officer, director
or employee of, any private or public investment firm, broker dealer or real
estate investment trust whose business strategy is based on or who engages in
the trading, sales or management of mortgage-backed securities (the "Business")
in any geographical region in which the Company engages in the Business (a
"Competitor"). It is further expressly agreed that the Company will or would
suffer irreparable injury of the Company in violation of the preceding sentence
of this Agreement and that the Company would by reason of such competition be
entitled to injunctive relief in a court of appropriate jurisdiction, and the
Executive further consents and stipulates to the entry of such injunctive relief
in such a court prohibiting the Executive from competing with the Company or any
subsidiary or affiliate of the Company, in the areas of business set forth
above, in violation of this Agreement.
(b) RIGHT TO COMPANY MATERIALS. The Executive agrees that all
styles, designs, lists, materials, books, files, reports, correspondence,
records, and other documents ("Company Materials") used, prepared, or made
available to the Executive in connection with his employment by the Company
shall be and shall remain the property of the Company. Upon the termination of
employment or the expiration of the Term of employment under this Agreement, all
Company Materials shall be returned immediately to the Company, and the
Executive shall not make or retain any copies thereof.
(c) SOLICITING EXECUTIVES. The Executive promises and agrees
that he will not directly or indirectly solicit any of the Company Executives to
work for any Competitor during the one-year period following his termination of
employment unless such termination is by the Company for reasons other than
Cause or by the Executive for Good Reason.
(d) CONDITION OF MERGER AGREEMENT. The Executive acknowledges
and agrees that it was a condition to the Company's execution of the Merger
Agreement that Executive agree to be bound by the covenants contained in this
Section 9 and that the agreement by the Executive to be so bound is an integral
part of the consideration provided by the Executive as a "Seller" under the
Merger Agreement in exchange for which the Executive is receiving his pro rata
share of the "Merger Consideration" (as defined in the Merger Agreement).
(e) CORPORATE OPPORTUNITIES. The Executive agrees, in
accordance with Maryland law, to first offer to the Company corporate
opportunities learned of solely as a result of his service as an officer and
director of the Company.
10. NOTICES. All notices and other communications under this Agreement
shall be in writing and shall be given by fax or first class mail, certified or
registered with return receipt requested, and shall be deemed to have been duly
given three (3) days after mailing or twenty-four (24) hours after transmission
of a fax to the respective persons named below:
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If to the Company: Michael A. J. Farrell
Chairman and Chief Executive Officer
Annaly Mortgage Management, Inc.
1211 Avenue of the Americas
Suite 2902
New York, NY 10036
Phone: (212) 696-0100
Fax: (212) 696-9809
If to the Executive: Jeremy Diamond
17 East 96th Street
Apt. 9A
New York, NY 10128
Phone: (212) 534-5970
A copy of any notice pursuant to this Agreement shall be sent to McKee Nelson
LLP, 1919 M Street N.W., Washington, DC, 20036 Attention: Nicholas Singh. Either
party may change such party's address for notices by notice duly given pursuant
hereto.
11. ATTORNEYS' FEES. In the event judicial determination or arbitration
(as provided in Section 22) is necessary for any dispute arising as to the
parties' rights and obligations hereunder, the Company shall pay to the
Executive his costs incurred (including attorney's fees) in deciding such
dispute provided that he has substantially prevailed.
12. NO MITIGATION OR OFFSET. The Executive shall not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
other employment or otherwise. The Company shall not be entitled to set off
against the amounts payable to the Executive under this Agreement any amounts
earned by the Executive in other employment after termination of employment with
the Company, or any amounts which might have been earned by the Executive in
other employment had such other employment been sought.
13. TERMINATION OF PRIOR AGREEMENTS. This Agreement terminates and
supersedes any and all prior agreements and understandings between the parties
with respect to employment or with respect to the compensation of the Executive
by the Company; provided, however, that if the Closing described in the Merger
Agreement does not occur, then this Agreement is null and void ab initio and any
prior agreements and understandings between the parties with respect to
employment or with respect to the compensation of the Executive by the Company
shall not be terminated, revoked or superseded by this Agreement and such prior
agreements and understandings shall remain in full force and effect in
accordance with their terms.
14. ASSIGNMENT; SUCCESSORS. This Agreement is personal in its nature
and neither of the parties hereto shall, without the consent of the other,
assign or transfer this Agreement or any rights or obligations hereunder;
provided that, in the event of the merger, consolidation, transfer, or sale of
all or substantially all of the assets of the Company with or to any other
individual or entity, this Agreement shall, subject to the provisions hereof, be
binding upon and inure to the benefit of such successor and such successor shall
discharge and perform all the promises, covenants, duties, and obligations of
the Company hereunder.
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15. GOVERNING LAW. This Agreement and the legal relations thus created
between the parties hereto shall be governed by and construed under and in
accordance with the laws of the State of New York.
16. ENTIRE AGREEMENT; HEADINGS. This Agreement embodies the entire
agreement of the parties respecting the matters within its scope and may be
modified only in writing. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
17. WAIVER; MODIFICATION. Failure to insist upon strict compliance with
any of the terms, covenants, or conditions hereof shall not be deemed a waiver
of such term, covenant, or condition, nor shall any waiver or relinquishment of,
or failure to insist upon strict compliance with, any right or power hereunder
at any one or more times be deemed a waiver or relinquishment of such right or
power at any other time or times. This Agreement shall not be modified in any
respect except by a writing executed by each party hereto.
18. SEVERABILITY. In the event that a court of competent jurisdiction
determines that any portion of this Agreement is in violation of any statute or
public policy, only the portions of this Agreement that violate such statute or
public policy shall be stricken. All portions of this Agreement that do not
violate any statute or public policy shall continue in full force and effect.
Further, any court order striking any portion of this Agreement shall modify the
stricken terms as narrowly as possible to give as much effect as possible to the
intentions of the parties under this Agreement.
19. INDEMNIFICATION; DIRECTORS AND OFFICERS INSURANCE. The Company
shall indemnify and hold Executive harmless to the maximum extent permitted by
Section 2-418 of the Maryland General Corporations Law or its successor statute.
During the Term and for six years following the date of the Executive's
termination as an officer of the Company, the Company (or any successor thereto)
shall provide comprehensive coverage under the Company's officers and directors
insurance policy (or policies) on substantially the same terms and levels that
it provides to its senior executive officers, at the Company's sole cost.
20. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
21. SUCCESSOR SECTIONS. References herein to sections, rules or
regulations of the Code or other applicable law shall be deemed to include any
successor sections, rules or regulations.
22. ARBITRATION. Any dispute, claim or controversy arising out of or in
relation to this Agreement, which the Executive and the Company are unable to
resolve shall be determined by the decision of a board of arbitration consisting
of three (3) members (the "Board of Arbitration") selected by the American
Arbitration Association upon application made to it for such purpose by either
the Company or the Executive. The arbitration proceedings shall take place in
New York, New York or such other place as shall be agreed to by the parties. The
Board of Arbitration shall reach and render a decision in writing. In connection
with rendering
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its decision, the Board of Arbitration shall adopt and follow such rules and
procedures as a majority of the members of the Board of Arbitration deems
necessary or appropriate. Any award shall be rendered on the basis of the
substantive law governing this Agreement and shall be concurred in by a majority
of the arbitrators. To the extent practical, decisions of the arbitrators shall
be rendered no more than thirty (30) calendar days following commencement of the
arbitration proceedings with respect thereto.
Any decision made by the Board of Arbitration (either prior to or after
the expiration of such thirty (30) calendar day period) shall be final, binding
and conclusive on the Executive and the Company and entitled to be enforced to
the fullest extent permitted by law and entered in any court of competent
jurisdiction. The Company shall bear all of the costs of arbitration, except for
the attorneys' fees incurred by the Executive, which fees shall be subject to
Section 11 hereof.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and the Executive has hereunto signed
this Agreement, as of the date first above written.
ANNALY MORTGAGE MANAGEMENT, INC.
By: /s/ Michael A.J. Farrell
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Michael A.J. Farrell
By: /s/ Jeremy Diamond
----------------------------
Jeremy Diamond
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