RETENTION AND SEPARATION AGREEMENT
EXHIBIT 10.4
THIS RETENTION AND SEPARATION AGREEMENT (the “Agreement”) is made and entered into by and
between Xxx Xxxxx (“Employee”) and Proserpine, LLC (the “Company”) effective as of the date
executed by Employee below.
WHEREAS, Employee’s employment with the Company will be concluded on December 31, 2007 (the
“Separation Date”) on the below terms;
WHEREAS, Employee is its Chief Risk Officer;
WHEREAS, the Company desires to retain the services of Employee as set forth below to manage
and monitor the risk in the portfolios and to assist the Company through these challenging times;
and
WHEREAS, Employee and the Company desire to resolve any and all matters and differences
arising from Employee’s employment and/or separation on mutually satisfactory terms as set forth
herein;
NOW, THEREFORE, for and in consideration of the covenants, promises, and agreements set forth
herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Retention: Employee will continue to fulfill and perform his job duties to the
reasonable satisfaction of the Company and at the Company’s discretion through September 30, 2007.
After September 30, 2007 and through December 31, 2007, Employee must be available to the Company
by phone, email, and/or in person upon its request. During Employee’s previously approved two week
vacation in November 2007, Employee and Company agree that Employee satisfies this Paragraph by
being available to the Company by phone. Also, if Company needs Employee available in person
between December 24, 2007 and December 31, 2007, Company will provide Employee two weeks notice if
reasonably possible to do so. Until December 31, 2007, the Company will answer Employee’s Company
phone and Employee will continue to have access to email. Employee is not required to be in the
Company’s offices and agrees not to be present in the Company’s offices except as requested by the
Company.
2. Separation: Except as otherwise set forth in Paragraph 1 and elsewhere in this
Agreement, Employee will be relieved of his job duties effective as of September 30, 2007.
Employee agrees that after December 31, 2007, Employee will not seek or accept further employment
with the Company or any of its parents, subsidiaries, or affiliates, and Employee waives any claim
for future employment with the Company or any of its parents, subsidiaries, or affiliates.
Employee acknowledges that this Agreement shall constitute a full and final reason for
non-re-employment.
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3. Separation Benefit: For and in consideration of the releases and other obligations of
Employee described in this Agreement, the Company will provide Employee with the following special
separation benefits:
(a) Employee will continue to receive his regular salary on the standard Company paydays
through December 31, 2007. Employee acknowledges and understands that if he fails to abide
by the terms of this Agreement or fails to be available at the request of the Company
through December 31, 2007, the Company may terminate his salary immediately;
(b) Employee will receive a 2007 target bonus of $285,000.00 less applicable withholdings
paid in equal amounts over the remaining six (6) paychecks beginning on October 15, 2007 and
concluding on December 31, 2007. The bonus payment amount in each paycheck will be $47,500,
less applicable withholdings. Employee acknowledges and understands that if he fails to
abide by the terms of this Agreement or fails to be available at the request of the Company
through December 31, 2007, the bonus payments set forth in this Paragraph 3(b) will cease
immediately, and he will forfeit any further payments under this Paragraph 3(b). If
Employee’s employment is terminated for cause (as determined solely by the Company’s Chief
Executive Officer) before September 30, 2007, he will not receive and will forfeit any
further payments under this Agreement; and
(c) Employee will receive his health insurance on the same terms as an active employee
through December 31, 2007. Employee acknowledges and understands that if he fails to abide
by the terms of this Agreement or fails to be available at the request of the Company
through December 31, 2007, the Company may terminate his health insurance immediately.
4. If Employee revokes this Agreement within seven (7) days of executing this Agreement pursuant to
Paragraph 6 below, Employee shall return any special separation payment previously paid to him
within five (5) days of such revocation. Employee benefits not specifically addressed in this
Agreement will be provided in accordance with the terms of the applicable plan(s). Employee
acknowledges that the payment and benefits described in this Agreement constitute a special
separation benefit which the Company is providing in its discretion due to unique circumstances and
that Employee is not otherwise entitled to receive this entire separation benefit from the Company.
Employee further agrees that there are no outstanding or unpaid debts, money, wages, or benefits
owed to Employee by the Company or any of the Releasees as defined in Paragraph 5 below. Nothing
in this Agreement shall be deemed an admission by the Company of a violation of any statute, law,
or right, or of any wrongdoing or liability of any kind.
5. Release: For and in consideration of the payment and benefits set forth above and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Employee hereby releases, acquits, and forever discharges the Company and all of its parents,
subsidiaries, partners, joint venturers, affiliated
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entities, owners, shareholders, benefit plans, fiduciaries, and plan sponsors, and each of their
officers, directors, employees, representatives, and agents, and all successors and assigns thereof
(the “Releasees”), from any and all claims, charges, complaints, demands, liabilities, obligations,
promises, agreements, controversies, damages, actions, causes of action, suits, rights,
entitlements, costs, losses, debts, and expenses (including attorneys’ fees and legal expenses), of
any nature whatsoever, known or unknown, which Employee now has, had, or may hereafter claim to
have had against the Company, of any kind or nature whatsoever, arising from any act, omission,
transaction, occurrence, or event which has occurred or is alleged to have occurred up to the date
this Agreement is executed by Employee. This release includes, but is not limited to, a knowing
and voluntary waiver of all claims relating in any way to Employee’s employment with the Company or
the conclusion of that employment, whether such claims are now known or are later discovered. The
claims knowingly and voluntarily waived by Employee include, but are not limited to, claims under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the Americans with Disabilities Act,
the Family and Medical Leave Act, the Age Discrimination in Employment Act, the Fair Labor
Standards Act or any other federal or state wage and hour law, the Employee Retirement Income
Security Act, breach of contract, infliction of emotional distress, any other federal or state law
pertaining to employment or employment benefits, and any other claims of any kind based on any
contract, tort, ordinance, regulation, statute, or constitution based on any act, omission,
transaction, occurrence, or event which has occurred or is alleged to have occurred up to the date
this Agreement is executed by Employee; provided, however, that nothing in this Agreement shall be
interpreted to release any claims which Employee may have for workers’ compensation benefits. In
addition to the other acknowledgments in this Agreement, Employee acknowledges that this Agreement
may be pled as a complete defense and shall constitute a full and final bar to any claim for
damages or other relief based on any matters released herein. Employee does not waive any claims
which arise from acts occurring after the date that Employee signs this Agreement. As part of the
Agreement and in consideration for the special separation benefits in Paragraph 3, Employee agrees
to execute on December 31, 2007 or within five (5) business days after that date a second general
release attached as Attachment A.
6. ADEA Provisions: Also included among the claims knowingly and voluntarily waived and
released by Employee above are any claims under the Age Discrimination in Employment Act (“ADEA”).
Employee acknowledges that the Company provided Employee with a copy of the Agreement in advance of
his execution of the Agreement and advised him by means of this written Agreement: (a) to consult
with an attorney of Employee’s choosing prior to executing the Agreement; (b) that Employee has a
period of forty-five (45) days to review and consider the Agreement before executing it; (c) that
this Agreement will not become effective or enforceable until the expiration of seven (7) days
after the date Employee executes it, and (d) that Employee may revoke it by providing written
notice personally delivered or deposited in the U.S. Mail, postage prepaid, certified or registered
mail, return receipt requested addressed as follows: Xx. Xxxxxxxxxxx Xxxx, Luminent Mortgage
Capital, Inc., 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000. Unless Employee
provides written notice of such revocation, the Agreement will become effective and irrevocable
upon the expiration of that seven
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(7) day period. Notwithstanding anything contained herein to the contrary, Employee understands
and agrees that, if Employee fails to sign the Agreement on or before the expiration of forty-five
(45) days of the day Employee received it, or if Employee revokes the Agreement before the
expiration of seven (7) days after executing it, the Agreement shall not become effective or
enforceable and Employee will not be entitled to receive any payments or benefits under this
Agreement not otherwise payable absent this Agreement. Employee and the Company agree that,
pursuant to 29 C.F.R. § 1625.22(e)(4), changes made to this Agreement during or after the
expiration of the forty-five (45) day period, whether material or immaterial, do not restart the
running of the forty-five (45) day period.
7. Confidential Information: Employee recognizes the interest of the Company in maintaining
the confidential nature of its proprietary and other business documents, records, and information,
including but not limited to personnel records and information, financial records and information,
and lists of actual or potential customers or suppliers (whether or not constituting a trade secret
under applicable law) which have been disclosed to Employee or of which Employee became aware
through employment with the Company and which has value to the Company and is not generally known
to its competitors (the “Confidential Information”). Employee covenants that, for a period of one
(1) year after his Separation Date, Employee shall not, directly or indirectly, except as expressly
authorized by the Company, use, give, sell, transfer, transmit, or disclose any Confidential
Information for any purpose. These provisions are in addition to, and not in lieu of, the
restrictions afforded trade secrets as defined under applicable law. Nothing in this Agreement
shall authorize the disclosure of trade secrets at any time.
8. Non-Disparagement: Employee covenants and agrees that Employee will not make any
negative or derogatory remarks, comments, representations, or observations about the Company, its
parent, or any Company employee or official. Company covenants and agrees that it will not make
any negative or derogatory remarks, comments, representations, or observations about Employee.
9. Return to Company: Employee warrants, represents, covenants, and agrees that Employee
will return to the Company on or before his Separation Date all Confidential Information and all
other Company documents, records, property, and information in any form, and all embodiments,
copies, or extracts thereof, which Employee has acquired or possessed during Employee’s employment
and that Employee has not made or retained and shall not make or retain any embodiment, copy, or
extract thereof. Employee will not alter or destroy any Company documents, data or records in
Employee’s possession or control, and Employee will abide by document retention procedures that the
Company has put into effect.
10. Cooperation and Non-Interference. Employee covenants and agrees that Employee will
cooperate reasonably and truthfully with the Company to the extent that it so requests in
connection with any legal or business dispute or issue concerning which, during Employee’s
employment with the Company, Employee was involved or had knowledge. In addition to the
obligations set forth in Paragraph 1 of this Agreement, Employee agrees to be available after
December 31, 2007, as reasonably requested by
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the Company or its counsel. The Company will agree to reimburse Employee for reasonable travel and
business expenses approved by the Company in advance and incurred by Employee pursuant to this
provision which are supported by receipts and other documentation as necessary to verify such
expenses. If the Employee is contacted about providing witness statements or testimony in
connection with any legal proceeding in which the Company is a party, Employee may request that the
Company make legal counsel paid by the Company available to advise the Employee about Employee’s
obligations in connection with such proceedings, and Company may, at its sole discretion, consider
such request, provided, however, that nothing herein shall create any new obligation on the part of
the Company to advise, counsel, defend, or otherwise make legal counsel available, except as the
Company in its sole discretion decides. Employee covenants and agrees not to make any intentional
statement, oral or written, or to perform any intentional act or omission for the purpose of
causing, or reasonably expected to cause, any material harm to the Company’s business, business
relationships, operations, goodwill, or reputation. This provision is in addition to, and not in
lieu of, the substantive protections under applicable law relating to defamation, libel, slander,
interference with contractual or business relationships, or other statutory, contractual, or tort
theories.
11. Entire Agreement: This Agreement constitutes the final and entire agreement between the
parties on the subject matter herein, and no other representation, promise, or agreement has been
made to cause Employee to sign this Agreement. Any other agreements regarding the terms of
Employee’s retention with or separation from the Company or the subject matter herein shall be
merged into and superseded by this Agreement except as expressly set forth herein. Notwithstanding
the foregoing, the terms and covenants of prior agreements between the Company and Employee
relating to confidentiality, non-competition, invention assignment and alternative dispute
resolution that are contained in the Confidentiality, Non-Competition and Invention Assignment
Agreement, the Confidentiality Agreement, the Acknowledgement and Agreement to be Bound by the
Alternative Dispute Resolution Program, or any other agreement which contains similar terms and
covenants that survive the separation of Employee’s employment, shall remain in full force and
effect. This Agreement shall be deemed to be made in, and in all respects shall be interpreted,
construed, and governed by and in accordance with the laws of the State of Pennsylvania,
notwithstanding any choice of law provisions otherwise requiring application of other laws. It
shall be interpreted according to the fair meaning of the terms herein and not strictly in favor
of, or against, either party.
12. Severability: The terms, conditions, covenants, restrictions, and other provisions
contained in this Agreement are separate, severable, and divisible. If any term, provision,
covenant, restriction, or condition of this Agreement or part thereof, or the application thereof
to any person, place, or circumstance, shall be held to be invalid, unenforceable, or void, the
remainder of this Agreement and such term, provision, covenant, or condition shall remain in full
force and effect to the greatest extent practicable and permissible by law, and any such invalid,
unenforceable, or void term, provision, covenant, or condition shall be deemed, without further
action on the part of
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the parties hereto, modified, amended, limited, or deleted to the extent necessary to render the
same and the remainder of this Agreement valid, enforceable, and lawful.
13. Acknowledgments: The parties acknowledge that the Company is not undertaking to advise
Employee with respect to any tax or other consequences of this Agreement and that Employee is
solely responsible for determining those consequences. Employee has read this Agreement and
understands its terms. Employee has been provided with a full and fair opportunity to consult with
an attorney of his choosing and to obtain any and all advice deemed appropriate with respect to
this Agreement. Further, the parties acknowledge that, while Employee agrees to maintain the
confidentiality of this Agreement and waives claims for remedies, nothing in this Agreement shall
limit the ability of Employee or the Company (or any of its officers, directors, employees,
representatives, agents, or assigns) to confer with legal counsel, to testify truthfully under
subpoena or court order, or to initiate, provide truthful information for, or cooperate with, an
investigation by a municipal, state, or federal agency for enforcement of laws. This Agreement has
been entered into with the understanding that there are no unresolved claims of any nature which
Employee has against the Company. Employee acknowledges and represents that, except with regard to
the special separation benefits described in Paragraph 3 of this Agreement, all compensation and
benefits due Employee by the Company, whether by contract or by law, have been paid in full, and
employee has been provided all rights and benefits to which Employee is entitled without
interference by the Company, including but not limited to vacation, sick time, paid or unpaid time
off, Family and Medical Leave, accommodation for any disability, or any contractual rights or
privileges, and that Employee has no outstanding claims for any compensation and benefits.
Employee further agrees that the acknowledgments and representations set forth in this paragraph
have been relied upon by the Company and constitute consideration for the Company’s execution of
this Agreement. In light of the foregoing, the parties are satisfied with the terms of this
Agreement and agree that its terms are binding upon them.
THE UNDERSIGNED HAVE CAREFULLY READ THIS AGREEMENT. THEY ACKNOWLEDGE THAT THEY HAVE HAD ACCESS TO
LEGAL COUNSEL OF THEIR OWN CHOOSING AND HAVE OBTAINED ALL LEGAL ADVICE THEY DEEM NECESSARY TO FULLY
UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT. EACH PARTY AGREES TO BE FULLY BOUND BY THIS
AGREEMENT. THE PARTIES ARE ENTERING INTO THIS AGREEMENT FREELY AND VOLUNTARILY WITHOUT DURESS OR
COERCION.
ACCEPTED AND AGREED:
| /s/ Xxx Xxxxx | September 21, 2007 | |||||||||
| Xxx Xxxxx | Date | |||||||||
| AND | ||||||||||
| PROSERPINE, LLC | ||||||||||
By:
|
/s/ X. Xxxxxxxxx Xxxxx, Jr. | September 25, 2007 | ||||||||
| President | Date | |||||||||
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ATTACHMENT A
(Form of General Release Agreement to be executed on December 31, 2007, or within five business
days after that date pursuant to Paragraph 5 of the Agreement)
days after that date pursuant to Paragraph 5 of the Agreement)
GENERAL RELEASE AGREEMENT
For and in consideration of the payment and benefits set forth in the Retention and Separation
Agreement entered into on September ___, 2007, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Xxx Xxxxx (“Employee”) hereby releases,
acquits, and forever discharges Proserpine, LLC (the “Company”) and all of its parents,
subsidiaries, partners, joint venturers, affiliated entities, owners, shareholders, benefit plans,
fiduciaries, and plan sponsors, and each of their officers, directors, employees, representatives,
and agents, and all successors and assigns thereof (the “Releasees”), from any and all claims,
charges, complaints, demands, liabilities, obligations, promises, agreements, controversies,
damages, actions, causes of action, suits, rights, entitlements, costs, losses, debts, and expenses
(including attorneys’ fees and legal expenses), of any nature whatsoever, known or unknown, which
Employee now has, had, or may hereafter claim to have had against the Company, of any kind or
nature whatsoever, arising from any act, omission, transaction, occurrence, or event which has
occurred or is alleged to have occurred up to the date this General Release Agreement is executed
by Employee. This release includes, but is not limited to, a knowing and voluntary waiver of all
claims relating in any way to Employee’s employment with the Company or the conclusion of that
employment, whether such claims are now known or are later discovered. The claims knowingly and
voluntarily waived by Employee include, but are not limited to, claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 1981, the Americans with Disabilities Act, the Family and Medical
Leave Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act or any other
federal or state wage and hour law, the Employee Retirement Income Security Act, breach of
contract, infliction of emotional distress, any other federal or state law pertaining to employment
or employment benefits, and any other claims of any kind based on any contract, tort, ordinance,
regulation, statute, or constitution based on any act, omission, transaction, occurrence, or event
which has occurred or is alleged to have occurred up to the date this General Release Agreement is
executed by Employee; provided, however, that nothing in this General Release Agreement shall be
interpreted to release any claims which Employee may have for workers’ compensation benefits. In
addition to the other acknowledgments in this General Release Agreement, Employee acknowledges that
this General Release Agreement may be pled as a complete defense and shall constitute a full and
final bar to any claim for damages or other relief based on any matters released herein. Employee
does not waive any claims which arise from acts occurring after the date that Employee signs this
General Release Agreement.
Also included among the claims knowingly and voluntarily waived and released by Employee above are
any claims under the Age Discrimination in Employment Act (“ADEA”). Employee acknowledges that the
Company provided Employee with a copy
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of the General Release Agreement in advance of his execution of the General Release Agreement and
advised him by means of this written General Release Agreement: (a) to consult with an attorney of
Employee’s choosing prior to executing the General Release Agreement; (b) that Employee has a
period of forty-five (45) days to review and consider the General Release Agreement before
executing it; (c) that this General Release Agreement will not become effective or enforceable
until the expiration of seven (7) days after the date Employee executes it, and (d) that Employee
may revoke it by providing written notice personally delivered or deposited in the U.S. Mail,
postage prepaid, certified or registered mail, return receipt requested addressed as follows: Xx.
Xxxx Xxxxx, Luminent Mortgage Capital, Inc., Xxx Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxxx, XX
00000-0000. Unless Employee provides written notice of such revocation, this General Release
Agreement will become effective and irrevocable upon the expiration of that seven (7) day period.
ACCEPTED AND AGREED:
CONFIDENTIAL
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