exv10w4






Exhibit 10.4




FIRST AMENDMENT TO THE

EMPLOYMENT AGREEMENT WITH J. PETER SCHERER




     This First Amendment to the Employment Agreement (this “Amendment”) is made by and between
Origen Financial, Inc, a Delaware corporation (“Parent”), Origen Financial, L.L.C, a Delaware
limited liability company (“Company”), and J. Peter Scherer (“Executive”) on July 1, 2008.
Capitalized terms used but not defined herein shall have the meanings set forth in the Employment
Agreement with Executive effective as of October 8, 2006 (the “Agreement”).



RECITALS:




     A. The Company and Executive entered into that certain Employment Agreement effective as of
October 8, 2006.



     B. The Internal Revenue Service issued final regulations regarding the application of Internal
Revenue Code (“Code”) section 409A to nonqualified deferred compensation, with an effective date of
January 1, 2008.



     C. Because the Agreement provides for certain deferrals of compensation, it is subject to Code
section 409A.



     D. Section 17(k) of the Agreement provides that the Agreement will be timely amended to comply
with the requirements of Code section 409A and published guidance in a manner that will not have a
material adverse impact to either party of the Agreement.



     E. Parent, Company and Executive desire to amend the Agreement to conform to the provisions of
Code section 409A and the accompanying final regulations in compliance with Internal Revenue
Service Notice 2007-86 and generally applicable published guidance.



     F. This Amendment shall supersede the provisions of the Agreement to the extent those
provisions are inconsistent with the provisions of this Amendment.



     Now,
therefore, effective January 1, 2008, the Agreement is hereby amended as follows:



     1. Paragraph 2(a) is amended by the addition of the following sentence at the end of the
paragraph:




 “Base Salary for each successive one-year extension shall be paid on a
bi-weekly basis as services are rendered.”



     2. Paragraph 4(c), entitled “Target Bonus,” is amended by the addition of the following
sentence:



 









 






     “Any Target Bonus to which Executive shall be entitled will be paid to
Executive during the period February 15 through March 15 each year immediately
following the taxable year to which the Target Bonus relates.”



     3. Paragraph 4(e), entitled “Disability,” is amended by replacing the reference to paragraph
7(a)(ii) with a reference to paragraph 7(a)(iii) in the first sentence, and deleting the last two
sentences of Paragraph 4(e) in their entirety and replacing them with the following:




“For purposes of this paragraph 4(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.”



     4. Paragraph 7(a)(iii) is amended by deleting it in its entirety and replacing it with the
following:




“(iii) upon Executive’s death or if Executive is Totally Disabled as defined
in paragraph 7(c) below.”



     5. Paragraph 7, entitled “Termination of Employment,” is amended by the addition of the
following new paragraph 7(c):




     “(c) For purposes of this paragraph 7 and payment of compensation and benefits
pursuant to paragraph 8(d), 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.”



     6. Paragraph 8(a) is amended by the replacement of 8(a)(iii) with the following:



“(iii) if applicable, during the Severance Period, Company shall pay the
premiums to continue those medical care benefits in effect on Executive’s
termination date (provided, that to the extent permitted under applicable
law, the Severance Period will run concurrently with, and not in addition
to, the applicable statutory maximum COBRA continuation period, and provided
further, any change in benefits under the medical plan for active executive
employees will also apply to Executive), and continue to provide Executive
with such other employee benefits for which Executive continues



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	 	 	 	to qualify during the Severance Period, but only if Executive fully complies
with paragraph 10 of this Agreement,
	 
	 	7.	 	Paragraph 8(d) is amended by the replacement of 8(d)(i) with the following:
	 
	 	 	 	“(i) the Company shall pay Executive or his Designated Beneficiary, as
applicable, within thirty (30) days after the effective date of such
termination any unpaid Base Salary, Pro Rata Target Bonus Amount and
benefits accrued and earned by him hereunder up to and including the
effective date of such termination,”
	 
	 	8.	 	Paragraph 8(d) is amended by the replacement of 8(d)(ii) with the following:
	 
	 	 	 	“(ii) in the event the Company terminates this Agreement because of
Executive’s death, Company shall pay within thirty (30) days after the
effective date of such termination, an amount equal to Executive’s Base
Salary on his termination date to Executive’s Designated Beneficiary,”
	 
	 	9.	 	Paragraph 8(d) is amended by the replacement of 8(d)(iii) with the following:
	 
	 	 	 	“(iii) in the event the Company terminates this Agreement because Executive
is Totally Disabled, Company shall pay to Executive, on the day that is six
(6) months after the effective date of such termination, an amount equal to
Executive’s Base Salary on his termination date,”
	 
	 	10.	 	Paragraph 8(d) is further amended by renumbering 8(d)(iv) as 8(d)(v) and adding the
following replacement paragraph 8(d)(iv):









	 	 	 	“(iv) if applicable, during the Severance Period, Company shall pay the
premiums to continue those medical care benefits in effect on Executive’s
termination date (provided, that, to the extent permitted under applicable
law, the Severance Period will run concurrently with, and not in addition
to, the applicable statutory maximum COBRA continuation period, and provided
further, any change in benefits under the medical plan for active executive
employees will also apply to Executive),”
	 
	 	11.	 	Paragraph 9, entitled “Change in Control,” is deleted in its entirety and replaced with
the following paragraph 9:







	 	 	 	“9. Change in Control.






         (a) If there is a Change in Control Event, the Company will pay Executive the
Change in Control Payment upon the first Permissible Payment Event to occur
following the Change in Control Event, subject to any applicable



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six- (6-) month delay required under section 409A of the Internal Revenue Code
of 1986, as amended.




     (b) A ‘Permissible Payment Event’ shall be deemed to have occurred for purposes
of this Agreement upon the first to occur of:




     (i) One- (1-) year anniversary of the
Change in Control Event;




     (ii) Date Executive resigns for Good Reason during the six- (6-) month
period following the Change in Control Event;




     (iii) Date Company terminates Executive’s employment without Cause
during the six- (6-) month period following a Change in Control Event;




     (iv) Date Executive becomes Totally Disabled during the one- (1-) year
period following the Change in Control Event; or




     (v) Date Executive Dies during the one- (1-) year period following the
Change in Control Event.




     (c) In no event will a Change in Control Payment be made to Executive if he is
terminated for Cause or resigns without Good Reason.




     (d) ‘Change in Control Payment’ means an amount equal to the product of to two
(2) times the sum of (i) Executive’s Base Salary as of the Change in Control Event,
plus (ii) fifty (50%) percent of Executive’s Target Bonus.




     (e) ‘Good Reason’ means the occurrence of any of the following events: (a) a
substantial adverse change, not consented to by Executive, in the nature and 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 the
Company outside a sixty (60) mile radius from the location of Executive’s principal
place of employment as of the date hereof. Executive must provide notice to the
Company of the existence of a condition, or conditions, described in this paragraph
9(e) within ninety (90) days of the initial existence of such condition(s). Upon
receipt by the Company of Executive’s notice, the Company will have thirty (30) days
to remedy the condition(s). If the Company remedies the condition(s) of which it
received notice from Executive within thirty (30) days, the Executive may not resign
for Good Reason.




     (f) Any of the following will be deemed the ‘Change in Control Event,’ which
shall serve as a vesting event only:



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     (i) The date on which any ‘person,’ as such term is used in Section
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
‘Exchange Act’) (other than the Parent, any Parent subsidiary, or any
trustee, fiduciary or other person or entity holding securities under any
employee benefit plan or trust of the Parent), together with all
‘affiliates’ and ‘associates’ (as such terms are defined in Rule 12b-2 of
the Exchange Act) of such person, shall become the ‘beneficial owner’
(within the meaning of Rule 13d-3 under the Exchange Act), directly or
indirectly, through an event or series of events, of more than 50% of the
combined voting power of Parent’s then outstanding securities having the
right to vote in an election of Parent’s Board (other than as a result of an
acquisition of securities directly from Parent);




     (ii) The consummation of: (1) any consolidation or merger of Parent in
which the stockholders of Parent immediately prior to the consolidation or
merger would not, immediately after the consolidation or merger,
‘beneficially own’ (as such term is defined in Rule 13d-3 of the Exchange
Act), directly or indirectly, shares representing in the aggregate more than
fifty percent (50%) of the voting shares of the corporation issuing cash or
securities in the consolidation or merger (or of its ultimate parent
corporation, if any), or (2) any sale, lease, exchange or other transfer to
an unrelated party (in one transaction or a series of transactions
contemplated or arranged by any party as a single plan) of all or
substantially all of Parent’s assets;




     (iii) The date Parent’s stockholders approve any plan or proposal for
the liquidation or dissolution of Parent; or




     (iv) Where the persons who, as of the Effective Date, constitute
Parent’s Board of Directors (the ‘Incumbent Directors’) cease for any
reason, including, without limitation, as a result of a tender offer, proxy
contest, merger or similar transaction, to constitute at least a majority of
the Board, provided that any person becoming a director of Parent subsequent
to such date shall be considered an Incumbent Director if such person’s
election was approved by or such person was nominated for election by either
(1) a vote of at least two-thirds of the Incumbent Directors or (2) a vote
of at least a majority of the Incumbent Directors who are members of a
nominating committee of the Board comprised, in the majority, of Incumbent
Directors; provided further, however, that notwithstanding the foregoing,
any director designated by a person or entity that has entered into an
agreement with the Company to effect a transaction described in clauses (i),
(ii) or (iii) above, shall not be deemed to be an Incumbent Director.



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     (g) If a Permissible Payment Event occurs because Executive resigns for Good
Reason, Company terminates Executive’s employment without Cause or Executive becomes
Totally Disabled, the Change in Control Payment will be paid to Executive six (6)
months after the effective date of such termination. Otherwise the Company will pay
Executive the Change in Control Payment within thirty (30) days of the Permissible
Payment Event.




     (h) Anything to the contrary in this Agreement notwithstanding, in no event
shall more than one Change in Control Payment be made to Executive under this
Agreement, regardless of whether more than one Change in Control Event occurs during
the term of this Agreement.




     (i) If Executive is entitled to any payments that vest upon a Change in Control
Event or other substantially similar event pursuant to the Origen Financial, Inc.
Retention Plan or any other plan, program, agreement or arrangement with Parent, the
Company or their subsidiaries, the Company shall not be obligated to make such
payments to Executive under both this Agreement and the other plan, program,
agreement or arrangement. Instead, the Company shall be obligated to pay Executive
only the greater of the amounts payable as determined under this Agreement and such
other plan, program, agreement or arrangement.




     (j) Except as set forth in paragraph 9(h) above, if payable, the Change in
Control Payment shall be in addition to, and not in lieu of, the severance payments
to which Executive may be entitled under paragraph 8 above, the non-compete payments
to which Executive may be entitled under paragraph 10 below or payments from any
other plan, program, agreement or arrangement with Parent, the Company or their
subsidiaries




     (k) Prior to and as a condition of any payment under this paragraph 9,
Executive shall execute and deliver to Company a general release of claims to other
change in control payments in a form acceptable to the Company and, if Executive’s
employment has been terminated, a general release of claims, substantially in the
form attached hereto as Exhibit A.”



     12. Paragraph 11 is amended by deleting it in its entirety and replacing it with the following
paragraph 11:




     “11. Excise Tax Payments. Anything in this Agreement to the contrary
notwithstanding, if any of the payments or benefits received or to be received by
Executive following a Change in Control Event and/or Executive’s termination or
resignation of employment (whether pursuant to the terms of this Agreement or any
other plan, arrangement or agreement with Parent, the Company or their subsidiaries)
(the ‘Aggregate Payment’) is determined to constitute a ‘parachute payment’ as such
term is deemed in Section 280G(b)(2) of the Internal Revenue



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Code of 1986, as amended (the ‘Code’), the Company shall pay to Executive an
additional amount which, after the imposition of all income and excise taxes
thereon, is equal to the excise tax imposed by Section 4999 of the Code with respect
to the Aggregate Payment. The determination of whether the Aggregate Payment
constitutes a parachute payment and, if so, the amount to be paid to Executive shall
be made by a nationally recognized United States public accounting firm selected by
the Company which has not, during the two years preceding the date of its selection,
acted in any way on behalf of Parent, the Company or any affiliate thereof. The
Company shall pay Executive the amount payable to him under this paragraph 11 by the
end of the taxable year in which Executive remits these amounts to the taxing
authority(s).”



     13. Paragraph 17(k) is amended by deleting it in its entirety and replaced with “Intentionally
left blank.”



     14. Paragraph 17, entitled “Miscellaneous,” is amended by the addition of the following new
paragraph 17(n):




     “(n) Executive may, on a form prescribed by the Company, designate a
beneficiary or beneficiaries (his ‘Designated Beneficiary’) to receive the benefits
under this Agreement in the event of his death. If Executive does not designate a
beneficiary, his benefits will be paid first to his spouse, if surviving him, and if
unmarried or if his spouse does not survive him, in equal shares to his children
surviving him, and if neither his spouse nor children survive him, to his estate.”



     15. Unless otherwise modified by this Amendment, all provisions of the Agreement shall remain
in full force and effect. Copies (whether photostatic, facsimile or otherwise) of this Amendment
may be made and relied upon to the same extent as an original.



[Signatures on next page]




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     In witness whereof, the parties have executed this First Amendment to the Amended and Restated
Employment Agreement by and between Origen Financial, Inc, Origen Financial, L.L.C and J. Peter
Scherer on the date first above written.



	 	 	 	 	 	 	 
	 	 	Parent:	 	 
	 	 	Origen Financial, Inc.,	 	 
	 	 	a Delaware corporation:	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ronald A. Klein	 	 
	 

	 	 	 	 	 	 
	 

	 	Its:
	 	CEO	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Company:	 	 
	 	 	Origen Financial, L.L.C.,	 	 
	 	 	a Delaware limited liability company:	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ronald A. Klein	 	 
	 

	 	 	 	 	 	 
	 

	 	Its:
	 	CEO	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Executive:	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ J. Peter Scherer	 	 
	 	 	 	 	 
	 	 	J. Peter Scherer	 	 






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