**Exhibit 10.9**EMPLOYMENT AGREEMENT     EMPLOYMENT AGREEMENT (this “Agreement”) dated as of December 20, 2005 between LuminentMortgage Capital, Inc., a Maryland corporation having its principal place of business at One MarketStreet, Spear Tower, 30th Floor, San Francisco, California 94105 (the “Employer”) andChristopher J. Zyda, an individual residing at 363 Valencia Street, #4, San Francisco, California94103 (the “Executive”).WITNESSETH:     WHEREAS, the Employer desires to provide for the continuing employment of the Executive, andthe Executive desires to continue to be employed by the Employer, all in accordance with the termsand subject to the conditions set forth in this Agreement; and     WHEREAS, the Employer and the Executive are entering into this Agreement to set forth andconfirm their respective rights and obligations with respect to the Executive’s employment by theEmployer;     NOW, THEREFORE, in consideration of the premises and the mutual covenants contained in thisAgreement, the Employer and the Executive, intending to be legally bound hereby, mutually agree asfollows:     1. Employment and Term.          (a) Effective as of January 1, 2006 (the “Effective Date”), the Employer shall employ theExecutive, and the Executive shall be employed by the Employer, as the Senior Vice President andChief Financial Officer (the “Position”) of the Employer, in accordance with the terms and, subjectto the conditions set forth in this Agreement for a term (the “Term”) that shall commence on theEffective Date and, as provided in and subject to paragraphs 1(b), 1(c), 1(d) and 1(e), shallcontinue for a period of one year.          (b) Unless written notice in accordance with this paragraph 1 terminating the Executive’semployment under this Agreement is given by either the Employer or the Executive, on each day thisAgreement is in effect the Term shall be automatically extended for one additional day so that atall times this Agreement shall have a then current one -year Term. Unless otherwise provided inthis Agreement or agreed by the Employer and the Executive, all of the terms and conditions of thisAgreement shall continue in full force and effect throughout the Term and, with respect to thoseterms 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’semployment under this Agreement at any time during the Term, for Cause (as defined in thisAgreement) 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 toperform his material duties with the Employer as set forth in this Agreement, or the commission bythe 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, afterwritten notice thereof from the Employer to the Executive and a reasonable opportunity for theExecutive to cease such failure, breach or violation in all material respects, (B) fraud, breach offiduciary duty, dishonesty, misappropriation or other actions that cause intentional materialdamage to the property or business of the Employer by the Executive, (C) the Executive’s repeatedabsences from work such that he is unable to perform his duties hereunder in all material respectsother than for physical or mental impairment or illness which the Executive fails to cure afterwritten notice, (D) the Executive’s admission or conviction of, or plea of nolo contendere to, anyfelony or any other crime that, in the reasonable judgment of the Board, adversely affects theExecutive’s reputation or the Executive’s ability to carry out his obligations under this Agreementor (E) the Executive’s non-compliance with the provisions of paragraph 2(b) after notice thereoffrom the Employer to the Executive and a reasonable opportunity for the Executive to cure suchnon-compliance. Notwithstanding the foregoing, the Employer may not terminate the Executive’semployment under this Agreement for Cause unless the Executive is given (A) written notice, inaccordance with the by-laws of the Employer, of a special meeting of the Board to consider thetermination of the Executive’s employment under this Agreement for Cause and (B) the opportunityfor the Executive to address such special meeting.               (ii) “Permanent Disability” shall mean a physical or mental disability such that the Executiveis substantially unable to perform those duties that he would otherwise be expected to continue toperform 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 onaccount of the Executive’s Permanent Disability, the Employer must provide the Executive withwritten notice of the Board’s good faith determination to terminate the Executive’s employmentunder this Agreement for reason of the Executive’s Permanent Disability not less than 30 days priorto such termination, which notice shall specify the date of termination. Until the specifiedeffective date of termination by reason of the Executive’s Permanent Disability, the Executiveshall continue to receive compensation at the rates set forth in paragraph 3. No termination ofthe Executive’s employment under this Agreement because of the Executive’s Permanent Disabilityshall impair any rights of the Executive under any disability insurance policy maintained by theEmployer 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 anytime during the Term for Good Reason or without Good Reason as specified in a written noticethereof to the Employer in accordance with the terms of this Agreement. As used herein, “GoodReason” shall mean (A) the Executive’s Position or the scope of the Executive’s authority, dutiesor responsibilities as described in this Agreement are materially diminished without theExecutive’s written consent, excluding for this purpose any action that was not taken by theEmployer in bad faith and that is remedied by the Employer promptly following written noticethereof from the Executive to the Employer; (B) a material breach by Employer of its obligations tothe Executive under this Agreement, which breach is not cured in all material respects to thereasonable satisfaction of the Executive within 30 days (except in the case of a payment defaultfor which the cure period shall be 10 days), in each case following written notice thereof from theExecutive to the Employer or (C) any termination of the Executive’s employment under this Agreementwithout Cause.          (e) (i) If (A) the Employer terminates the Executive’s employment under this Agreement for anyreason other than for Cause or (B) the Executive terminates his employment under this Agreement forGood Reason, the Employer shall pay to the Executive promptly after the event giving rise to suchpayment occurs an amount equal to the sum of (x) (1) the Executive’s Base Salary (as defined inthis Agreement) accrued through the date the termination of the Executive’s employment under thisAgreement is effective, (2) any Bonus (as defined in this Agreement) required to be paid to theExecutive pursuant to paragraph 3(b) and (3) any amount in respect of excise taxes required to bepaid to the Executive pursuant to paragraph 1(f), with such payments, rights and benefits describedin 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 theExecutive to maintain in effect throughout the period (the “Subsequent Period”) from the date ofthe 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 lifeinsurance coverage provided to the Executive by the Employer immediately prior to the date of suchtermination (the “Benefit Obligations”) and (z) the Employer shall, as a severance payment, pay tothe Executive for the Subsequent Period, the Executive’s annual Base Salary as of the effectivedate of termination of the Executive’s employment under this Agreement and (2) 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 GoodReason, his death or the Executive’s Permanent Disability or (C) this Agreement is terminated bythe Employer as a result of the death or Permanent Disability of the Executive, the sole obligationof 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 InternalRevenue Service determines that any payment, coverage or benefit provided to the Executive pursuantto this Agreement is subject to the excise tax imposed by Sections 280G and 4999 of the InternalRevenue Code of 1986, as amended (the “Code”) or any successor provision thereof or any interest orpenalties incurred by the Executive with respect to such excise tax, the Employer, within 30 daysthereafter, shall pay to the Executive, in addition to any other payment, coverage or benefit dueand owing under this Agreement, an additional amount that will result in the Executive’s net aftertax position, after taking into account any interest, penalties or taxes imposed on the amountpayable under this paragraph 1(f), upon the receipt of the payments provided for by this Agreementbe no less advantageous to the Executive than the net after tax position to the Executive thatwould have been obtained had Sections 280G and 4999 of the Code not been applicable to suchpayment, coverage or benefits. Except as otherwise provided in this Agreement, all determinationsto be made under this paragraph 1(f) shall be made by tax counsel whose selection shall bereasonably acceptable to the Executive and the Employer and whose fees and costs shall be paid forby the Employer.          (g) In the event that the independent public accountants of the Employer or the InternalRevenue Service determines that any payment, coverage or benefit due or owing to the Executivepursuant to this Agreement is subject to the excise tax imposed by Section 409A of the Code or anysuccessor provision thereof or any interest or penalties, including interest imposed under Section409A(1)(B)(i)(I) of the Code, incurred by the Executive as a result of the application of suchprovision, the Employer, within 30 days thereafter, shall pay to the Executive, in addition to anyother payment, coverage or benefit due and owing under this Agreement, an amount that will resultin the Executive’s net after tax position, after taking into account any interest, penalties ortaxes imposed on the amounts paid under this paragraph 1(g), being no less advantageous to theExecutive than the net after tax position to the Executive that would have been obtained hadSection 409A of the Code not been applicable to such payment, coverage or benefits. Except asotherwise provided in this Agreement, all determinations to be made under this paragraph 1(g) shallbe made by tax counsel whose selection shall be reasonably acceptable to the Executive and theEmployer 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 theEmployer to the Executive or by the Executive to the Employer shall be given in accordance with theprovisions of paragraph 10.          (i) The Employer agree to reimburse the Executive for the reasonable fees and expenses of theExecutive’s attorneys and for court and related costs in any proceeding to enforce the provisionsof 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 Executiveshall 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 himunder 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 andthe duties of the Executive under this Agreement, the duties of the Executive shall be performed inthe greater San Francisco, California metropolitan area.          (b) The Executive shall devote substantially all of the Executive’s business time andattention to the performance of the Executive’s duties under this Agreement and, during the term ofhis employment under this Agreement, the Executive shall not engage in any other businessenterprise that requires any significant amount of the Executive’s personal time or attention,unless granted the prior permission of the Board. The foregoing provision shall not prevent theExecutive’s purchase, ownership or sale of any interest in, or the Executive’s engaging, but not toexceed an average of five hours per week, in, any business that does not compete with the businessof the Employer or the Executive’s involvement in charitable or community activities, provided,that the time and attention that the Executive devotes to such business and charitable or communityactivities does not materially interfere with the performance of his duties under this Agreementand that such conduct complies in all material respects with applicable policies of the Employer.          (c) The Executive shall be entitled to 30 days of vacation leave during each calendar yearwith full compensation, and to be taken at such time or times, as the Executive and the Employershall mutually determine. Earned but unused vacation shall be accrued in accordance with theEmployer’s vacation policy.     3. Compensation. For all services to be rendered by the Executive under thisAgreement:          (a) Base Salary. The Employer shall pay the Executive a base salary (the “BaseSalary”) at an annual rate of $250,000, plus such other compensation as may, from time to time, bedetermined by the Employer. At the end of each fiscal year of the Employer, the Employer shallreview the amount of the Executive’s Base Salary, and shall increase such Base Salary for thefollowing year to such amount as the Board may determine in its discretion. Such Base Salary andother compensation shall be payable in accordance with the Employer’s normal payroll practices asin effect from time to time.          (b) Annual Bonus. The Employer agrees that the Executive shall receive, in accordancein all material respects with applicable policies of the Employer relating to incentivecompensation for executive officers, an annual bonus (the “Bonus”) payable in
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cash, at the same time as bonuses are paid to other executive officers of the Employer, insuch amount as may be fixed by the Board in its discretion based upon the performance of theEmployer and the contributions of the Executive to such performance, provided, however, that theExecutive shall receive a Bonus of not less than $125,000 (the “Minimum Bonus”) in respect of theservices to be rendered by the Executive during the Term.          (c) Restricted Stock Award. The Employer agrees that the Executive shall receive, inaccordance in all material respects with applicable policies of the Employer relating to incentivecompensation for the executive officers, an annual restricted stock award (each, an “Award”) as tosuch number of shares (the “Shares”) as may be fixed in the Board’s discretion based upon theperformance of the Employer and the contributions of the Executive to such performance. Any suchAward shall be evidenced by a Restricted Stock Award Agreement between the Employer and theExecutive in substantially the form thereof currently in use by the Employer. Each Award and theRestricted Stock Award Agreement shall have the following other principal terms:               (i) the Shares subject to each Award shall become vested, and remain vested from and after theEffective Date, in three cumulative installments as follows:                    (A) the first installment, consisting of one-third of the Shares subject to each award, shallbecome vested from and after the first anniversary of the date of the Award;                    (B) the second installment, consisting of an additional one-third of the Shares subject toeach Award, shall become vested from and after the second anniversary of the date of the Award; and                    (C) the third installment, consisting of the remaining one-third of the Shares subject to eachAward, shall become vested from and after the third anniversary of the date of the Award;               (ii) the Shares, and any other shares of the Employer’s Common Stock held under prior orsubsequent restricted stock Awards made to the Executive by the Employer, shall become immediatelyvested in full and shall remain vested in the event of (A) a Change of Control (as defined herein),(B) a termination of the employment of the Executive by the Employer under this Agreement withoutCause or (C) a termination of the employment of the Executive under this Agreement by the Executivefor Good Reason;               (iii) any unvested Shares shall revert to the Employer immediately in the event of (A) atermination of the employment of the Executive under this Agreement by the Employer for Cause or(B) a termination of the employment of the Executive under this Agreement by the Executive withoutGood Reason; and
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               (iv) The Executive shall have the right by notice to the Employer to require that the Employerpurchase from the Executive that number of vested shares of the Employer’s Common Stock at a priceper share equal to the average closing price of the Employer’s Common Stock on the New York StockExchange for the 20 days preceding the Executive’s notice of purchase, as is necessary to providethe Executive with sufficient funds to pay applicable federal and state income taxes resulting fromthe vesting of Shares under the Award, subject to the prior approval by the Compensation Committeeof the Employer’s Board of Directors of the price per share at the time of each such purchase.          (d) As used in this paragraph 3, “Change of Control” shall mean (A) the acquisition of sharesof the Employer by any “person” or “group” (as such terms are used in Rule 13d-3 under theSecurities Exchange Act of 1934 as now or hereafter amended) in a transaction or series oftransactions that result in such person or group directly or indirectly becoming the beneficialowner of 25% or more of the Employer’s Common Stock after the date of this Agreement, (B) theconsummation of a merger or other business combination after which the holders of voting capitalstock of the Employer do not collectively own 60% or more of the voting capital stock of the entitysurviving such merger or other business combination, (C) the sale, lease, exchange or othertransfer in a transaction or series of transactions of all or substantially all of the assets ofthe Employer, but excluding therefrom the sale and reinvestment of the Employer’s investmentportfolio or (D) as the result of or in connection with any cash tender offer or exchange offer,merger or other business combination, sale of assets or contested election of directors or anycombination of the foregoing transactions (a “Transaction”), the persons who constituted a majorityof the members of the Board on the date of this Agreement and persons whose election as members ofthe Board was approved by such members then still in office or whose election was previously soapproved after the date of this Agreement, but before the event that constitutes a Change ofControl, no longer constitute such a majority of the members of the Board then in office. ATransaction constituting a Change in Control shall only be deemed to have occurred upon the closingof the Transaction.     4. Expenses. The Employer shall promptly reimburse the Executive for (a) allreasonable expenses paid or incurred by the Executive in connection with the performance of theExecutive’s duties and responsibilities under this Agreement, upon presentation of expense vouchersor other appropriate documentation therefor and (b) all reasonable professional expenses, such aslicenses and dues and professional educational expenses, paid or incurred by the Executive duringthe Term.     5. Indemnification. Notwithstanding anything in the Employer’s certificate ofincorporation or its by-laws to the contrary, the Executive shall at all times during hisemployment by the Employer, and thereafter, be indemnified by the Employer to the fullest extentpermitted by applicable law for any matter in any way relating to the Executive’s affiliation withthe Employer and its subsidiaries; provided, however, that if the Executive’s
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employment shall have been terminated by the Employer for Cause, then, to the extent requiredby applicable law, the Employer shall have no obligation whatsoever to indemnify the Executive forany claim arising out of the matter for which his employment shall have been terminated for Causeor for any conduct of the Executive not within the scope of the Executive’s duties under thisAgreement.     6. Confidential Information. The Executive understands that, in the course of hisemployment by the Employer, the Executive will receive confidential information concerning thebusiness of the Employer and that the Employer desire to protect. The Executive agrees that hewill not at any time during or after the period of his employment by the Employer reveal to anyoneoutside the Employer, except as required by law, or use for his own benefit, any such informationthat has been designated as confidential by the Employer or understood by the Executive to beconfidential without specific written authorization by the Employer. Upon termination of thisAgreement, and upon the request of the Employer, the Executive shall promptly deliver to theEmployer any and all written materials, records and documents, including all copies thereof, madeby the Executive or coming into his possession during the Term and retained by the Executivecontaining or concerning confidential information of the Employer and all other written materialsfurnished to and retained by the Executive by the Employer for his use during the Term, includingall copies thereof, whether of a confidential nature or otherwise.     7. Representation and Warranty of the Executive. The Executive represents andwarrants that he is not under any obligation, contractual or otherwise, to any other firm orcorporation, that would prevent his entry into the employ of the Employer or his performance of theterms of this Agreement.     8. Entire Agreement; Amendment. This Agreement and the Restricted Stock AwardAgreement contain the entire agreement between the Employer and the Executive with respect to thesubject matter hereof, and may not be amended, waived, changed, modified or discharged except by aninstrument in writing executed by the Employer and the Executive. This Agreement supersedes theEmployment Agreement dated as of August 4, 2003 between the Employer and the Executive, except forthe provisions thereof relating to restricted stock awards and stock options granted to theExecutive pursuant thereto.     9. Assignability. The services of the Executive under this Agreement are personal innature, and neither this Agreement nor the rights or obligations of the Employer under thisAgreement may be assigned by the Employer, whether by operation of law or otherwise, without theExecutive’s prior written consent. This Agreement shall be binding upon, and inure to the benefitof, the Employer and its permitted successors and assigns under this Agreement. This Agreementshall not be assignable by the Executive, but shall inure to the benefit of the Executive’s heirs,executors, administrators and legal representatives.
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     10. Notice. Any notice that may be given under this Agreement shall be in writing andbe deemed given when hand delivered and acknowledged or, if mailed, one day after mailing byregistered or certified mail, return receipt requested, or if delivered by an overnight deliveryservice, one day after the notice is delivered to such service, to either the Employer or theExecutive at their respective addresses stated above, or at such other address as the Executive orthe Employer may by similar notice designate.     11. Specific Performance. The Employer and the Executive agree that irreparabledamage would occur in the event that any of the provisions of paragraph 6 were not performed inaccordance with their specific terms or were otherwise breached. It is accordingly agreed that theparties shall be entitled to an injunction or injunctions to prevent breaches of paragraph 6 and toenforce specifically the terms and provisions of paragraph 6, this being in addition to any otherremedy to which any party is entitled at law or in equity.     12. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, isintended to confer upon any person or entity other than the parties (and the Executive’s heirs,executors, administrators and legal representatives and the permitted transferees of the Shares)any rights or remedies of any nature under or by reason of this Agreement.     13. Successor Liability. The Employer shall require any successor, whether direct orindirect, by purchase, merger, consolidation or otherwise, to all or substantially all of thebusiness or assets of the Employer to assume expressly and agree to perform this Agreement in thesame manner and to the same extent that the Employer would be required to perform it if no suchsuccession had taken place.     14. Mitigation. The Executive shall not be required to mitigate the amount of anypayment provided for in this Agreement by seeking other employment or otherwise, nor shall theamount of any payment or benefit provided for in this Agreement be reduced by any compensationearned by the Executive as the result of employment by another employer or by retirement benefitspayable after the termination of this Agreement, except that the Employer shall not be required toprovide the Executive and his eligible dependents with medical insurance coverage as long as theExecutive and his eligible dependents are receiving comparable medical insurance coverage fromanother employer.     15. Waiver of Breach. The failure at any time to enforce or exercise any right underany of the provisions of this Agreement or to require at any time performance by the other partiesof any of the provisions hereof shall in no way be construed to be a waiver of such provisions orto affect either the validity of this Agreement or any part hereof, or the right of any partyhereafter to enforce or exercise its rights under each and every provision in accordance with theterms of this Agreement.     16. No Attachment. Except as required by law, no right to receive payments under thisAgreement shall be subject to anticipation, commutation, alienation, sale, assignment,
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encumbrance, charge, pledge or hypothecation or to execution, attachment, levy or similarprocess or assignment by operation of law, and any attempt, voluntary or involuntary, to effect anysuch action shall be null, void and of no effect; provided, however, that nothing in this paragraph17 shall preclude the assumption of such rights by executors, administrators or other legalrepresentatives of the Executive or his estate and their assigning any rights under this Agreementto the person or persons entitled hereto.     17. Severability. The invalidity or unenforceability of any term, phrase, clause,paragraph, restriction, covenant, agreement or other provision hereof shall in no way affect thevalidity or enforceability of any other provision, or any part thereof, but this Agreement shall beconstrued as if such invalid or unenforceable term, phrase, clause, paragraph, restriction,covenant, agreement or other provision had never been contained in this Agreement unless thedeletion of such term, phrase, clause, paragraph, restriction, covenant, agreement or otherprovision would result in such a material change as to cause the covenants and agreements containedin this Agreement to be unreasonable or would materially and adversely frustrate the objectives ofthe Employer and the Executive as expressed in this Agreement.     18. Survival of Benefits. Any provision of this Agreement that provides a benefit tothe Executive and that by the express terms hereof does not terminate upon the expiration of theTerm shall survive the expiration of the Term and shall remain binding upon the Employer until suchtime as such benefits are paid in full to the Executive or his estate.     19. Construction. This Agreement shall be governed by and construed in accordancewith the internal laws of the State of California, without giving effect to principles of conflictof laws. All headings in this Agreement have been inserted solely for convenience of referenceonly, are not to be considered a part of this Agreement and shall not affect the interpretation ofany of the provisions of this Agreement.     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date firstwritten above.         LUMINENT MORTGAGE CAPITAL, INC.         By:               Gail P. Seneca, Chairman      and Chief Executive Officer                Christopher J. Zyda  
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