EXHIBIT 10.4
RETENTION AND SEPARATION AGREEMENT
THIS RETENTION AND SEPARATION
AGREEMENT (the “Agreement”) is made and entered into by
and between Ron Viera (“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: Mr. Christopher Zyda, Luminent Mortgage
Capital, Inc., 101 California Street, Suite 1350, San
Francisco, CA 94111. 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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