**Exhibit 10.15**

 

**EMPLOYMENT AGREEMENT**

 

**EMPLOYMENT AGREEMENT**(“Agreement”)dated as of this 30th day of July 2004, by and between DonaldEpstein (the “Executive”), MortgageIT Holdings, Inc. (the “Company”) andMortgageIT, Inc. (“MortgageIT” and, together with the Company, the“Employers”).

 

**WITNESSETH**

 

**WHEREAS,**theEmployers desire to assure themselves of the services of the Executive for theperiod provided in this Agreement, and the Executive is willing to serve in theemploy of the Employers for such period, all in accordance with the terms andconditions contained in this Agreement.

 

**NOW, THEREFORE,**inconsideration of the mutual covenants herein set forth, Executive and theEmployers do agree to the terms of employment as follows:

 

**1.****                                      Definitions. **The following words and terms shall havethe meanings set forth below for the purposes of this Agreement:

 

(a)                                  **Affiliate. **Affiliateof any person or entity means any stockholder or person or entity controlling,controlled by, under common control with such person or entity, or anydirector, officer or key executive of such entity or any of their respectiverelatives. For purposes of this definition, “control,” when used with respectto any person or entity, means the power to direct the management and policies ofsuch person or entity, directly or indirectly, whether through ownership ofvoting securities, by contracting or otherwise; and the terms “controlling” and“controlled” have meanings that correspond to the foregoing.

 

(b)                                 **Base Salary. **“BaseSalary” shall have the meaning set forth in Section 3(a) hereof.

 

(c)                                  **Cause.** Termination of the Executive’s employment for“Cause” shall mean termination because of personal dishonesty or incompetencewhich has adversely affected the Employers, willful misconduct, breach offiduciary duty involving personal profit, intentional failure to perform statedduties, willful violation of any law, rule or regulation (other than trafficviolations or other misdemeanor offenses) or final cease-and-desist order ormaterial breach of any provision of this Agreement.

 

(d)                                 **Change in Control. **“Change in Control” shall mean the occurrence of any of thefollowing events subsequent to the date of this Agreement: (i) an event thatwould be required to be reported in response to Item l(a) of Form 8-K or Item6(e) of Schedule 14A of Regulation 14A pursuant to the Securities Exchange Actof 1934, as amended (“Exchange Act”), or any successor thereto, whether or notany class of securities of the Company is registered under the Exchange Act; (ii)any “person” (as such term is used in Sections 13(d) and 14(d) of the ExchangeAct), other than a trustee or other fiduciary holding securities under anemployee benefit plan of the Company or any Affiliate of the Company, is orbecomes the “beneficial owner” (as defined in Rule 13d-3 under the ExchangeAct), directly or indirectly, of securities of

 

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the Company representing 25% ormore of the combined voting power of the Company’s then outstanding securities;(iii) the sale or other disposition of all or substantially all of the assetsof the Company; or (iv) during any period of three consecutive years,individuals who at the beginning of such period constitute the Board ofDirectors of the Company cease for any reason to constitute at least a majoritythereof unless the election, or the nomination for election by stockholders, ofeach new director was approved by a vote of at least two-thirds of thedirectors then still in office who were directors at the beginning of theperiod.

 

(e)                                  **Code. **“Code”shall mean the Internal Revenue Code of 1986, as amended.

 

(f)                                    **Competing Business. “**Competing Business” shall mean any business, enterprise orother entity that is primarily engaged in the business of mortgage banking ormortgage brokerage or managing a real estate investment trust.

 

(g)                                 **Confidential and Proprietary Information.**“Confidentialand Proprietary Information” shall mean any and all (i) confidential orproprietary information or material not in the public domain about or relatingto the business, operations, assets or financial condition of the Company orany Affiliate of the Company or any of the Company’s or any such Affiliate’strade secrets; and (ii) information, documentation or material not in thepublic domain by virtue of any action by or on the part of the Executive, theknowledge of which gives or may give the Company or any Affiliate of theCompany an advantage over any person not possessing such information. Forpurposes hereof, the term Confidential and Proprietary Information shall notinclude any information or material (i) that is known to the general publicother than due to a breach of this Agreement by the Executive or (ii) wasdisclosed to the Executive by a person who the Executive did not reasonablybelieve was bound to a confidentiality or similar agreement with the Employers.

 

(h)                                 **Date of Termination.**“Date of Termination”shall mean (i) if the Executive’s employment is terminated for Cause or forDisability, the date specified in the Notice of Termination, and (ii) if theExecutive’s employment is terminated for any other reason, the date on which aNotice of Termination is given or as specified in such Notice.

 

(i)                                     **Disability.**Termination by the Employers ofthe Executive’s employment based on “Disability” shall mean termination becauseof any physical or mental impairment which qualifies the Executive fordisability benefits under the applicable long-term disability plan maintainedby the Company or MortgageIT or, if no such plan applies, which would qualifythe Executive for disability benefits under the Federal Social Security System.

 

(j)                                     **Good Reason.**Termination by the Executiveof the Executive’s employment for “Good Reason” shall mean termination by theExecutive following a Change in Control based on:

 

(i)                                     Withoutthe Executive’s express written consent, a material adverse change made by theEmployers which would reduce the Executive’s functions, duties orresponsibilities as Chief Financial

 

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Officer of the Company andMortgageIT.

 

(ii)                                  Withoutthe Executive’s express written consent, a reduction by the Employers in theExecutive’s Base Salary as the same may be increased from time to time;

 

(iii)                               Withoutthe Executive’s express written consent, the Employers require the Executive tobe based at a location outside of Manhattan except for required travel onbusiness of the Employers to an extent substantially consistent with theExecutive’s present business travel obligations;

 

(iv)                              Anypurported termination of the Executive’s employment for Disability which is noteffected pursuant to a Notice of Termination satisfying the requirements ofparagraph (l) below; or

 

(v)                                 Withoutthe Executive’s express written consent, a failure by the Employers to allowthe Executive to participate in and receive the benefits of any cash incentiveor bonus plan, any pension or other retirement benefit plan, profit sharing,stock option, employee stock ownership, or other plans, benefits and privilegesgiven generally to employees and executives of the Employers, to the extentcommensurate with his then duties and responsibilities.

 

(k)                                  **IRS. **IRSshall mean the Internal Revenue Service.

 

(l)                                     **Notice of Termination.**Any purportedtermination of the Executive’s employment by the Employers for any reason,including without limitation for Cause or Disability, or by the Executive forany reason, including without limitation for Good Reason, shall be communicatedby written “Notice of Termination” to the other party or parties hereto. Forpurposes of this Agreement, a “Notice of Termination” shall mean a dated noticewhich (i) indicates the specific termination provision in this Agreement reliedupon, (ii) sets forth in reasonable detail the facts and circumstances claimedto provide a basis for termination of Executive’s employment under theprovision so indicated, (iii) specifies a Date of Termination, which shall benot less than thirty (30) nor more than ninety (90) days after such Notice ofTermination is given, except in the case of the Company’s termination ofExecutive’s employment for Cause, which shall be effective immediately; and(iv) is given in the manner specified in Section 10 hereof.

 

**2.****                                      Termof Employment.**

 

(a)                                  Each of the Companyand MortgageIT hereby employs the Executive as Chief Financial Officer of theCompany and MortgageIT, and the Executive hereby accepts said employment andagrees to render such services to the Employers, on the terms and conditionsset forth in this Agreement.  The term ofemployment under this Agreement shall be for a term of three years, commencingon the date of this Agreement, unless such term is extended as provided

 

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in this Section 2.  On the third annual anniversary of the datefirst above written and each annual anniversary thereafter, the term of thisAgreement shall automatically be extended for an additional one-year, unlessthe Executive or the Employers gives written notice to the other party or partieshereto of such party’s or parties’ election not to extend the term, with suchnotice to be given not less than sixty (60) days prior to any such anniversarydate. ** **Ifany party gives timely notice that the term will not be extended, then thisAgreement shall terminate at the conclusion of its remaining term. Referencesherein to the term of this Agreement shall refer both to the initial term andsuccessive terms.

 

(b)                                 During the term ofthis Agreement, the Executive shall perform such executive services for theEmployers as may be consistent with his titles and such executive serviceswhich are from time to time assigned to him by the Employers’ respective Boardsof Directors.

 

**3.****                                      Compensationand Benefits.**

 

(a)                                  The Employers shallcompensate and pay the Executive for his services during the term of thisAgreement at a minimum base salary of $250,000 per year (“Base Salary”), whichmay be increased from time to time in such amounts as may be determined by theBoard of Directors of the Employers and may not be decreased without theExecutive’s express written consent.  Inaddition to his Base Salary, the Executive shall be entitled to receive duringthe term of this Agreement such bonus payments as may be determined by theBoards of Directors of the Employers solely in their discretion.

 

(b)                                 In addition to thegrant of restricted shares and options referenced in Final Prospectus issued inconnection with the Company’s initial public offering, the Executive, duringthe term of this Agreement, shall be entitled to participate in and receive thebenefits of any pension or other retirement benefit plan, profit sharing, stockoption, employee stock ownership, or other plans, benefits and privileges givento employees and executives of the Employers, including without limitation theCompany’s 2004 Long-term Incentive Plan, to the extent commensurate with histhen duties and responsibilities as fixed by the Boards of Directors of theEmployers.

 

(c)                                  During the term ofthis Agreement, the Executive shall be entitled to take paid annual vacation inaccordance with the Employers’ established policies. The Executive shall not beentitled to receive any additional compensation from the Employers for failureto take a vacation, nor shall the Executive be able to accumulate unusedvacation time from one year to the next, except to the extent authorized by theBoard of Directors of the Employers.

 

(d)                                 In the event theExecutive’s employment is terminated due to Disability, the Employers shallprovide continued life, medical, dental and disability in an amount and to theextent consistent with the Employers’ established policies.

 

**4.****                                      Expenses.**The Employers shall reimburse the Executive or otherwise provide for or pay forall reasonable expenses incurred by the Executive in furtherance of or inconnection with the business of the Employers, including, but not by way oflimitation, traveling expenses,

 

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and continuing educationexpenses subject to such reasonable documentation and other limitations as maybe established by the Boards of Directors of the Employers. If such expensesare paid in the first instance by the Executive, the Employers shall reimbursethe Executive therefor.

 

**5.****                                      Termination.**

 

(a)                                  The Employers shallhave the right, at any time upon prior Notice of Termination, to terminate theExecutive’s employment hereunder for any reason, including, without limitation,termination for Cause or Disability, and the Executive shall have the right,upon prior Notice of Termination, to terminate his employment hereunder for anyreason.

 

(b)                                 In the event that (i)the Executive’s employment is terminated by the Employers for Cause or (ii) theExecutive terminates his employment hereunder other than for Disability, deathor Good Reason, the Executive shall have no right pursuant to this Agreement tocompensation or other benefits for any period after the applicable Date ofTermination other than for Base Salary accrued through the Date of Termination.

 

(c)                                  In the event that theExecutive’s employment is terminated as a result of Disability during the termof this Agreement, the Executive shall receive the lesser of (i) his existingBase Salary as in effect as of the date of termination, multiplied by one yearor (ii) his Base Salary for the duration of the term of this Agreement.  In addition, in the event that theExecutive’s employment is terminated as a result of Disability during the termof this Agreement, the Executive shall receive the entire unvested portion ofhis “Deferred Account,” as defined and set forth in MortgageIT’s AnnualIncentive Compensation Plan.  In theevent of the Executive’s death during the term of this Agreement, theExecutive’s estate shall receive the lesser of (i) his existing Base Salary asin effect as of the date of his death, multiplied by one year or (ii) his BaseSalary through the end of the term of this Agreement.  In addition, in the event of the Executive’sdeath during the term of this Agreement, the Executive’s estate shall receivethe entire unvested portion of the Executive’s “Deferred Account,” as definedand set forth in MortgageIT’s Annual Incentive Compensation Plan.

 

(d)                                 In the event that (i)the Executive’s employment is terminated by the Employers for other than Cause,Disability, or the Executive’s death or (ii) such employment is terminated bythe Executive (a) due to a material breach of this Agreement by the Company,which breach has not been cured within fifteen (15) business days after awritten notice of non-compliance has been given by the Executive to theCompany, or (b) for Good Reason, then the Company shall, subject to Section 6hereof, if applicable:

 

(A)                              pay to the Executive, acash severance amount equal to the Executive’s Base Salary as in effectimmediately prior to the Date of Termination, multiplied by one (1) year(“Severance Pay”).  Such Severance Payshall be paid in monthly installments beginning with the first business day ofthe month following the Date of Termination and continuing for****one (1) year.  The Boards of Directors of the Employers, intheir sole discretion, may elect to pay the Severance Pay to the Executive on amore accelerated schedule than that set forth in the immediately precedingsentence.

 

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(B)                                maintain and providefor a period ending at the earlier of (i) the first anniversary of the Date ofTermination or (ii) the date of the Executive’s full-time employment by anotheremployer, at no cost to the Executive, the Executive’s continued participationin all group insurance, life insurance, health and accident, disability andother employee benefit plans, programs and arrangements in which the Executivewas entitled to participate immediately prior to the Date of Termination (otherthan any stock option or other stock compensation plans or bonus plans of theEmployers), provided that in the event that Executive’s participation in anysuch plan, program or arrangement is barred, the Employers shall arrange toprovide Executive with benefits substantially similar to those Executive wasentitled to receive under such plans, programs and arrangements prior to theDate of Termination.

 

(C)                                pay to the Executivethe entire unvested portion of the Executive’s “Deferred Account,” as definedand set forth in MortgageIT’s Annual Incentive Compensation Plan.

 

(e)                                  In receiving anypayments pursuant to this Section 5, the Executive shall not be obligated toseek other employment or take any other action by way of mitigation of theamounts payable to the Executive hereunder, and such amounts shall not bereduced or terminated whether or not the Executive obtains other employment.

 

**6.****                                      Limitationof Benefits under Certain Circumstances.**If the payments and benefitspursuant to Section 5 hereof, either alone or together with other payments andbenefits which the Executive has the right to receive from the Employers, wouldconstitute a “parachute payment” under Section 280G of the Code, the paymentsand benefits payable by the Employers pursuant to Section 5 hereof shall bereduced, in the manner determined by the Executive, by the amount, if any,which is the minimum necessary to result in no portion of the payments andbenefits payable by the Employers under Section 5 being non-deductible to theEmployers pursuant to Section 280G of the Code and subject to the excise taximposed under Section 4999 of the Code. The determination of any reduction inthe payments and benefits to be made pursuant to Section 5 shall be based uponthe opinion of independent counsel selected by the Employers’ independentpublic accountants and paid by the Employers. Such counsel shall be reasonablyacceptable to the Employers and the Executive; shall promptly prepare theforegoing opinion, but in no event later than thirty (30) days from the Date ofTermination; and may use such actuaries as such counsel deems necessary oradvisable for the purpose. Nothing contained herein shall result in a reductionof any payments or benefits to which the Executive may be entitled upontermination of employment under any circumstances other than as specified inthis Section 6, or a reduction in the payments and benefits specified inSection 5 below zero.

 

**7.****                                      RestrictionsRespecting Competing Businesses, Confidential Information, etc.**

 

(a)                                  The Executiveacknowledges and agrees that by virtue of the Executive’s position andinvolvement with the business and affairs of the Employers, the Executive willdevelop substantial expertise and knowledge with respect to all aspects of theEmployers’ business, affairs and operations and will have access to allsignificant aspects of the business and operations of the Employers and toConfidential and Proprietary Information.

 

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(b)                                 The Executive herebycovenants and agrees that, during the term of employment and thereafter, unlessotherwise authorized by the Employers in writing, the Executive shall not,directly or indirectly, under any circumstance: (i) disclose to any otherperson or entity (other than in the regular course of business of theEmployers) any Confidential and Proprietary Information, other than pursuant toapplicable law, regulation or subpoena or with the prior written consent of theEmployers; (ii) act or fail to act so as to impair the confidential or proprietarynature of any Confidential and Proprietary Information; (iii) use anyConfidential and Proprietary Information other than for the sole and exclusivebenefit of the Employers; or (iv) offer or agree to, or cause or assist in theinception or continuation of, any such disclosure, impairment or use of anyConfidential and Proprietary Information. Following the term of employment, theExecutive shall return all documents, records and other items containing anyConfidential and Proprietary Information to the Employers (regardless of themedium in which maintained or stored).

 

(c)                                  The Executivecovenants and agrees that while the Executive is employed by the Employers andfor one (1) year after the Executive ceases to be employed by the Employers forany reason (provided that the Employers are complying with their obligationspursuant to the terms of this Agreement during such one (1) year period), otherthan the termination of his employment after the Employers have elected not torenew this Agreement as provided in Section 2(a), the Executive shall not,directly or indirectly, manage, operate or control, any Competing Business or,directly or indirectly, induce or influence any customer or other Person thathas a business relationship with the Employers, or any Affiliate of theEmployers, to discontinue or reduce the extent of such relationship; providedthat in the case of a termination of the Executive, the Employers continue topay any amounts owing to the Executive pursuant to Section 5(d) hereof.  For purposes of this Agreement, the Executiveshall be deemed directly or indirectly interested in a business if he isengaged or interested in that business as a stockholder, director, officer, orexecutive, agent, partner, individual proprietor, consultant, advisor orotherwise, but not if the Executive’s interest is limited solely to theownership of not more than 5% of the securities of any class of equitysecurities of a corporation or other person whose shares are listed or admittedto trade on a national securities exchange or are quoted on the Nasdaq StockMarket or a similar means if the Nasdaq Stock Market is no longer providingsuch information.

 

(d)                                 While the Executive isemployed by the Employers and for one (1) year after the Executive ceases to beemployed by the Employers, the Executive shall not, directly or indirectly,solicit to employ for**a CompetingBusiness any employee of the Employers or any Affiliate of the Employers as ofthe date of the termination of the Executive’s employment with the Employers.

 

(e)                                  The parties agreethat nothing in this agreement shall be construed to limit or negate the commonlaw of torts, confidentiality, trade secrets, fiduciary duty and obligationswhere such laws provide the Employers with any broader, further or other remedyor protection than those provided herein.

 

(f)                                    Because the breachof any of the provisions of this Section 7 will result in immediate andirreparable injury to the Employers for which the Employers will not have an

 

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adequate remedy at law, theEmployers shall be entitled, in addition to all other rights and remedies, toseek a degree of specific performance of the restrictive covenants contained inthis Section 7 and to a temporary and permanent injunction enjoining suchbreach, without posting bond or furnishing similar security.

 

**8.****                                      Withholding. **All payments required to be made by theEmployers hereunder to the Executive shall be subject to the withholding ofsuch amounts, if any, relating to tax and other payroll deductions as theEmployers may reasonably determine should be withheld pursuant to anyapplicable law or regulation.

 

**9.****                                      Assignability. **The Employers may assign this Agreementand its rights and obligations hereunder in whole, but not in part, to anycorporation or other entity with or into which the Employers may hereaftermerge or consolidate or to which the Employers may transfer all orsubstantially all of their respective assets, if in any such case saidcorporation or other entity shall by operation of law or expressly in writingassume all obligations of the Employers hereunder as fully as if it had beenoriginally made a party hereto, but may not otherwise assign this Agreement orits rights and obligations hereunder. The Executive may not assign or transferthis Agreement or any rights or obligations hereunder.

 

**10.****                               Notice.**  For the purposes of this Agreement, noticesand all other communications provided for in this Agreement shall be in writingand shall be deemed to have been duly given when delivered or mailed bycertified or registered mail, return receipt requested, postage prepaid,addressed to the respective addresses set forth on the signature page hereto.Any notice, request, demand or other communication delivered or sent in themanner aforesaid shall be deemed given or made (as the case may be) upon theearliest of (a) the date it is actually received, (b) the business day afterthe day on which it is delivered by hand, (c) the business day after the day onwhich it is properly delivered to Federal Express (or a comparable overnightdelivery service), or (d) the third business day after the day on which it isdeposited in the United States mail. The Employers or the Executive may changetheir respective addresses by notifying the other party or parties of the newaddresses in any manner permitted by this Section 10.

 

**11.****                               Amendment;Waiver. **No provisions of thisAgreement may be modified, waived or discharged unless such waiver,modification or discharge is agreed to in writing and signed by the Executiveand such officer or officers as may be specifically designated by the Boards ofDirectors of the Employers to sign on their behalf. No waiver by any partyhereto at any time of any breach by any other party hereto of, or compliancewith, any condition or provision of this Agreement to be performed by suchother party shall be deemed a waiver of similar or dissimilar provisions orconditions at the same or at any prior or subsequent time.

 

**12.****                               GoverningLaw.**The validity, interpretation, construction and performance of thisAgreement shall be governed by the laws of the United States where applicableand otherwise by the substantive laws of the State of Maryland, without regardto any conflicts of laws provisions thereof. Each party to this Agreement hereby irrevocably consents to thejurisdiction of the United States District Court for the Southern District ofNew York and the courts of the state of New York located in the County of NewYork in any action to enforce, interpret or construe any provision of thisAgreement or of any other agreement or document

 

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delivered in connection withthis Agreement, and also hereby irrevocably waives any defense of impropervenue, forumnonconveniens or lack of personaljurisdiction to any such action brought in those courts.  Each party further irrevocably agrees thatany action to enforce, interpret or construe any provision of this Agreementwill be brought only in one of those courts. Each party hereby waives its right to trial by jury.

 

**13.****                               Natureof Obligations.**Nothing contained herein shall create or require theEmployers to create a trust of any kind to fund any benefits which may bepayable hereunder, and to the extent that the Executive acquires a right toreceive benefits from the Employers hereunder, such right shall be no greaterthan the right of any unsecured general creditor of the Employers.

 

**14.****                               Headings.**The section headings contained in this Agreement are for reference purposesonly and shall not affect in any way the meaning or interpretation of thisAgreement.

 

**15.****                               Validity.**The invalidity, illegality or unenforceability of any provision of thisAgreement, in whole or in part, shall not affect the validity, legality orenforceability of any other provisions of this Agreement, which shall remain infull force and effect.

 

**16.****                               Counterparts.**This Agreement may be executed in one or more counterparts, each of whichshall be deemed to be an original but all of which together will constitute oneand the same instrument.

 

**17.****                               EntireAgreement.**This Agreement embodies the entire agreement between theEmployers and the Executive with respect to the matters agreed to herein. Allprior agreements between the Employers and the Executive with respect to thematters agreed to herein are hereby superseded and shall have no force oreffect.

 

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**IN WITNESS WHEREOF,**thisAgreement has been executed as of the date first above written.

 

 
|   | **MORTGAGEIT HOLDINGS, INC.** |
|--------|-------------------------------|
|   |                          |
|   |                          |
|   | By:                           | /s/ DOUG W.  NAIDUS |   |
|   |                          | Name: | Doug W. Naidus |
|   |                          | Title: | Chief Executive Officer |
|   | Address:                      |
|   |                          | 33 Maiden  Lane |
|   |                          | New York,  New York 10038 |
|   |                          |
|   | **MORTGAGEIT, INC.**          |
|   |                          |
|   |                          |
|   | By:                           | /s/ DOUG W.  NAIDUS |   |
|   |                          | Name: | Doug W. Naidus |
|   |                          | Title: | Chief Executive Officer |
|   | Address:                      |
|   |                          | 33 Maiden Lane |
|   |                          | New York, New York 10038 |
|   |                          |
|   | **EXECUTIVE**                 |
|   |                          |
|   |                          |
|   | By:                           | /s/ DONALD  EPSTEIN |   |
|   |                          | Name: | Donald  Epstein |
|        |                               |  |  |  |  |

 

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