EXHIBIT 10.1
SEPARATION AGREEMENT AND RELEASE OF CLAIMS
This
Separation Agreement and General Release of Claims
(“Agreement”) is made and entered into between
Residential Funding Company, LLC (“RFC” or
“Company”) and Bruce Paradis (“Paradis” or
“you”). This Agreement represents our mutual
understanding and agreement concerning your at-will employment with
RFC, which will terminate effective June 1, 2007
(“Separation Date”).
IT IS
HEREBY AGREED , by and between Paradis and RFC as
follows:
1. Release Consideration
. If you sign this Agreement on or before July 1, 2007 and do
not revoke pursuant to Section 17 of this Agreement, RFC will
provide you with the following consideration as set forth in
Sections 1(a), 1(b), 1(c) and 1 (d).
a. The sum of
$511,271.00 less all applicable federal, state, local, and benefit
withholdings, payable to you within 10 business days following the
15-Day Revocation Period detailed in Section 17 herein. RFC
will issue you an IRS Form W-2 for this sum. This consideration
represents a full and final compromise of any and all of your
claims for compensation and/or damages of any kind as well as any
and all claims for attorney’s fees and costs, and is not
something to which you would be entitled in the event you do not
sign this Agreement.
b. The sum of
$2,019,750.00 less all applicable, federal, state, local and
benefit withholdings, payable to you on or before February 29,
2008, but only if you are in compliance with Section 5
(a) through (d) below on that date. RFC will issue you an
IRS Form W-2 for this sum.
c. RFC will
reimburse you for six months of office rental expenses in an
aggregate amount not to exceed $22,455.00, to be used within a
twelve (12) month period. This reimbursement shall only be for
the actual cost of the office space itself, no additional business
expenses. The reimbursement shall begin effective on the later of
(i) June 1, 2007 or (ii) the commencement of
Paradis’ lease, which will occur no later than
December 1, 2007. RFC will issue you an IRS Form 1099 for
this amount.
d. You will be
provided with full-time administrative support by Marybeth Sayre
beginning on June 1, 2007 and ending on September 28,
2007. Ms. Sayre will remain on the payroll of RFC during this
time period.
2. Release and Waiver of
Claims by You . Except as described in Sections 2.3 and
2.4 below, you WAIVE AND RELEASE any and all claims, whether or not
now known to you, against RFC and its parent companies, current and
former officers, directors, members, investors, employees,
attorneys, agents, predecessors, successors, affiliates,
subsidiaries, assigns and legal representatives (together, the
“Releasees”), arising from or relating to any and all
acts, events and omissions occurring prior to the date you sign
this Agreement.
2.1. Included Claims . The
claims being waived and released include, without limitation,
a. any and all
claims arising from or relating to your recruitment, hire,
employment and termination of employment with RFC;
b. any and all
claims of wrongful discharge, emotional distress, defamation,
misrepresentation, fraud, detrimental reliance, breach of
contractual obligations, promissory estoppel, negligence, assault
and battery, violation of public policy;
c. any and all
claims of unlawful discrimination, harassment and retaliation under
applicable federal, state and local laws and regulations;
d. any and all
claims of violation of any federal, state and local law relating to
recruitment, hiring, terms and conditions of employment, and
termination of employment; and
e. any and all
claims for monetary damages and any other form of personal
relief.
The
claims being waived and released also include claims under the
federal Age Discrimination in Employment Act, as amended
(“ADEA”).
2.2 Unknown Claims . In
waiving and releasing any and all claims against the Company
Releasees, whether or not now known to you, you understand that
this means that, if you later discover facts different, from or in
addition to those facts currently known by you, or believed by you
to be true, the waivers and releases of this Agreement will remain
effective in all respects — ‘despite such different or
additional facts and your later discovery of such facts, even if
yow would not have agreed to this Agreement if you had prior
knowledge of such facts.
2.3. Exceptions . The only
claims that are not being waived and released by you under this
Section 2 are claims you may have for:
a.
unemployment, state disability and/or paid family leave insurance
benefits pursuant to the terms of applicable state law;
b. continuation
of existing participation in Company-sponsored group health benefit
plans, at your full expense, under the federal law known as
“COBRA” and/or under an applicable state counterpart
law;
c. any benefit
entitlements that are vested as of the Separation Date pursuant to
the terms of a Company-sponsored benefit plan governed by the
federal law known as “ERISA;”
d. violation of
any federal, state or local statutory and/or public policy right or
entitlement that, by applicable law, is not waivable; and
e. any wrongful
act or omission occurring after the date you sign this
Agreement.
2.4. Government Agency Claims
Exception . Nothing in this Section 2, or elsewhere in
this Agreement, prevents or prohibits you from filing a claim with
a government agency, such as the U.S. Equal Employment Opportunity
Commission, that is responsible for enforcing a law on behalf of
the government.
3. Release and Waiver of Claims
by Company. The Company waives and releases any and all claims,
whether or not now known to it, against Paradis, arising from or
relating to any and all acts, events and omissions occurring prior
to the date of this Agreement with the exception of claims arising
from Paradis’ criminal conduct, fraud, willful and wanton
misconduct, breach of fiduciary duty and/or claims against Paradis
arising out of loan transactions, if any, between Paradis and the
Company, its parents, subsidiaries or affiliates.
4. Waiver of Rights .
You understand that by executing this Agreement, you are waiving
any rights that you may have with respect to any plan or agreement
between you and the Company and/or its parents in which you may
have eligibility or entitlement to severance or other compensation,
including but not limited to the GMAC Senior Leadership Severance
Plan, the GMAC Long-Term Phantom Interest Plan, the GMAC LLC 2007
Annual Incentive Plan, the GMAC Mortgage Group Phantom Stock Plan
and the GMAC Management LLC Class C. Membership Interests
Plan.
5. Non-Competition and
Non-Solicitation . You acknowledge and recognize the highly
competitive nature of the businesses of Residential Capital, LLC
its affiliates, successors and direct and indirect subsidiaries
(collectively “ResCap”) and accordingly agree
that:
a. for
6 months from the date you execute this Agreement you will not
engage in any activity which is competitive with ResCap, including
without limitation becoming an employee, investor (except for
passive investments of not more than five percent (5%) of the
outstanding shares of, or any other equity holdings of a competitor
of ResCap’s that is traded on the New York Stock Exchange,
Nasdaq or any other over-the-counter securities market), officer,
owner, agent, partner or director of, consultant or contractor or
other participant in, any firm, person or other entity in any
geographic area that either directly or indirectly competes with
ResCap. “Competitive” means any individual or entity
engaged in the business of the origination and/or servicing of
mortgage loans, the securitization of mortgage loans, real estate
finance services, business financing services, including but not
limited to resort finance, residential finance, healthcare finance
or acquisition or development and construction finance.
Notwithstanding the foregoing, nothing in this provision is
intended to prohibit you from engaging in personal investments in
real estate finance services, business financing services,
including but not limited to resort finance, residential finance,
or development and construction finance.. You affirm that from
June 1, 2007 until the date you execute this Agreement that
you have not engaged in the activities described in this paragraph
5(a).
b. for
6 months from the date you execute this Agreement you will not
directly or indirectly assist others in engaging in any of the
activities in which you are prohibited to engage by clause
(a) above. You affirm that from June 1, 2007 until the
date you execute this Agreement that you have not engaged’ in
the activities described in this paragraph 5(b).
c. for
18 months from the date you execute this Agreement you will
not directly or indirectly induce any employee of ResCap to
terminate his/her employment with ResCap or employ or offer
employment to any person
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