EXHIBIT 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
THIS SEPARATION AGREEMENT AND GENERAL RELEASE ("Agreement"), entered
into between LION, Inc ("LION") and Xxxxxxx X. Xxxxx ("Miles") is made with
respect to the following facts:
A. Miles was employed by LION as its Chief Executive Officer.
B. Miles informed LION he wished to resign for "Cause" pursuant
to his Employment Agreement. A disagreement exists between LION and Miles as to
whether such contractual "Cause" for resignation exists. The parties now desire
to amicably settle all actual and potential differences between them arising out
of Miles's employment with, and resignation from, LION. Therefore, in exchange
for the mutual promises contained in this Agreement, it is agreed:
1. Miles' employment with LION and any positions as an officer or
director with LION shall terminate by voluntary resignation effective upon the
close of business on April 1, 2007. LION shall pay Miles his salary and accrued
vacation through and including April 1, 2007, in accordance with LION's
regularly scheduled payroll practice.
2. In exchange for Miles providing at least six (6) months of
consulting services to LION that are more fully described on attached Exhibit A,
the release of claims, and other promises contained in this Agreement, LION
shall, for a period of six (6) months, provide to Miles: (i) compensation in an
amount equal to Miles final LION salary, payable in equal monthly installments
on or about the 15th of each month; (ii) to the extent approved by each
applicable insurer, all immediately previously LION-paid life insurance premiums
for Miles and family members; and (iii) payment toward COBRA premiums in an
amount equal to previously paid LION contributions, should Miles elect COBRA. In
addition, LION shall
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purchase a new laptop computer for Miles, provided the purchase price does not
exceed two thousand and five hundred dollars ($2,500.00).
3. The payments for consulting services referenced above in 2(i)
shall be without any withholdings and LION shall issue Miles a Form 1099 for
such payments. Miles agrees to indemnify and hold LION harmless from any taxes,
penalties, interest, liens, costs or subrogations imposed and/or found and
determined to be owing by any court or state or federal government agency as a
result of receipt of the payments referenced above.
4. Miles releases and discharges LION, its parents or
subsidiaries, and any and all of its or their officers, board members, agents,
employees, successors, and assigns from any and all claims, known or unknown,
asserted or not, arising from, by reason of, or related to, Miles's employment
with LION, the termination of that employment, and any and all events through
and including the date of this Agreement. This release includes, but is not
limited to, any claim under any federal, state, or local law, or other
authority, including claims arising under any federal or state statutes
pertaining to wages, stock or stock options, ownership of LION, conditions of
employment, or discrimination in employment, including Title VII of the Civil
Rights Act of 1964, the Age Discrimination in Employment Act, the Older Worker
Benefit Protection Act, the Fair Labor Standards Act, RCW 49.60 (the Washington
State Law Against Discrimination), RCW 49.48 and 49.46
(wages/payment/collection), RCW 49.52 (wages/contributions/rebates), all as may
be amended, and all other claims, be they based in statute, contract, tort, or
common law theories. Miles agrees not to seek any personal recovery (of money
damages, injunctive relief or otherwise) for the claims he is releasing herein,
either through any complaint to any governmental agency or otherwise. Miles
further agrees never to start any lawsuit or arbitration asserting any of the
claims he is releasing above.
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LION, releases and discharges Miles from any and all claims, known or
unknown, asserted or not, arising from, by reason of, or related to, Miles's
employment with LION, the termination of that employment, and any and all events
through and including the date of this Agreement. This release includes, but is
not limited to, any claim under any federal, state, or local law, or other
authority, be they based in statute, contract, tort, or common law theories.
LION agrees not to seek any personal recovery (of money damages, injunctive
relief or otherwise) for the claims it is releasing herein, either through any
complaint to any governmental agency or otherwise. LION further agrees never to
start any lawsuit or arbitration asserting any of the claims it is releasing
above.
5. Miles and LION's officers, directors, HR Coordinator, and
their successors and assigns agree not to make any disparaging or defamatory
comments about the other.
6. If requested, Miles agrees to reasonably cooperate with LION,
as a witness or otherwise, including at trial and in pre-trial matters, in
connection with any litigation which may arise in the future involving the time
period, in part or in whole, that he was employed by LION. If any such
cooperation is requested by LION after Miles is no longer providing Consulting
Services to LION pursuant to Exhibit A of this Agreement, Miles and LION shall
meet and confer for purposes of agreeing to a reasonable hourly rate of
compensation for Miles' services pursuant to this Paragraph 6.
7. Miles agrees that the post-employment obligations and
restrictions, including those contained in paragraphs 7 and 8 of his Employment
Agreement shall remain in full force and effect and not be abrogated by this
Agreement or Exhibit A hereto. Miles represents that he has returned to LION all
LION property, including all originals and copies thereof.
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8. Miles agrees that: (1) he has been offered the opportunity to
review and consider this Agreement for a period of up to Twenty-One (21) days;
(2) he has conferred with his attorney concerning the terms of this Agreement,
including the release contained in the Agreement; (3) he has seven (7) days
after signing the Agreement in which he can revoke the Agreement by his written
notice to Xxxxx Xxxxxxx, LION, Inc., 0000 00xx Xxxxxx XX, Xxxxx 000, Xxxxxxx, XX
00000, facsimile # (000) 000-0000; and (4) this Agreement shall not become
effective until the seven day revocation period has expired. Miles represents
that all aspects of this Agreement have been explained to him by his attorney,
and further acknowledges that he has had a reasonable period of time to consider
this Agreement, that he has signed this Agreement only after full reflection and
analysis, and that he understands the significance and consequences of this
Agreement, including the fact that it releases his claims, if any, under any and
all federal or state laws pertaining to employment, including the Age
Discrimination in Employment Act. Miles also acknowledges that his signature on
this Agreement is knowing and voluntary and has not been given as a result of
coercion.
9. This Agreement may be executed via facsimile and counterparts,
each of which shall be deemed an original, but all of which together constitute
one and the same instrument, binding on the parties.
10. If any of the provisions of this Agreement are held to be
invalid or unenforceable, the remaining provisions will nevertheless continue to
be valid and enforceable.
11. This Agreement reflects the entire agreement of the parties
relative to the subject matter hereof and, except as may be specifically
referenced above, supersedes all prior or contemporaneous oral or written
understandings, statements, representations, or promises.
12. This Agreement shall be construed in accordance with, and
governed by, the statutes and common law of the state of Washington. Either
party may maintain an action for
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breach of the Agreement in a court of competent jurisdiction in King County,
Washington. Before making any claim for alleged breach of this Agreement, the
aggrieved party shall give the other party and his or its attorney at least ten
(10) day's written notice in order to provide an opportunity to cure any alleged
breach.
SIGNATURES ON FOLLOWING PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as stated
below.
________________________________ ______________________
XXXXXXX X. XXXXX Date
LION, INC.
By:_______________________________ ______________________
Xxxx Xxxxxxx Date
Interim Chief Executive Officer
and President
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EXHIBIT A - CONSULTING AGREEMENT
This Independent Contractor Agreement ("Agreement") is entered into
effective March 31, 2007, by and between Xxxxxxx X. Xxxxx ("Consultant"), and
LION, Inc. ("the Company").
1. CONSULTANT'S SERVICES. The Company is in need of assistance, as may be
requested by the Company from time to time, in business development and
strategic planning ("Consulting Services"). Consultant has agreed to perform
consulting work for the Company in these activities for the Company.
2. TERM AND CONSIDERATION.
a. TERM. The term of this Agreement shall commence on April 1,
2007, and shall end on September 30, 2007, unless otherwise agreed to in writing
by both parties to extend the Agreement.
b. RATE. In consideration of the Consulting Services to be
performed by Consultant under this Agreement, the Company will compensate
Consultant at a monthly rate of twenty thousand, eight hundred thirty-three and
thirty-three cents ($20,833.33).
c. EXPENSES. The Company shall reimburse Consultant for
reasonable business expenses incurred while performing Consulting Services. For
any such reasonable business expenses over five hundred dollars ($500.00),
Consultant shall use his best efforts to obtain pre-approval from the Company's
Chief Executive Officer or President.
3. INDEPENDENT CONSULTANT. Nothing contained herein or any document
executed in connection herewith, shall be construed to create an
employer-employee, partnership or joint venture relationship between the Company
and Consultant. Consultant is an independent contractor and not an employee or
agent of the Company or any of its subsidiaries or affiliates. Consultant has no
authority to, and will not, enter into contracts, make representations,
warranties or commitments purporting to be binding on the Company or otherwise
act on Company's behalf and shall not take any action that might lead third
parties to believe Consultant has the right to do so. The consideration set
forth in Section 2 shall be the sole consideration due Consultant for the
services rendered hereunder. It is understood that the Company will not withhold
any amounts for payment of taxes from the compensation of Consultant hereunder.
Consultant will not represent to be or hold himself out as an employee of the
Company and Consultant acknowledges that he shall not have any right or
entitlement in or to any benefit program now or hereafter available to the
Company's regular employees as a result of and with respect to the Consulting
Services. Any and all sums subject to deductions, if any, required to be
withheld and/or paid under any applicable state, federal or municipal laws or
union or professional guild regulations shall be Consultant's sole
responsibility and Consultant shall indemnify and hold the Company harmless from
any and all damages, claims and expenses (including, but not limited to,
attorneys' fees and costs) arising out of or resulting from any claims asserted
by any taxing authority as a result of or in connection with said payments. In
the event Consultant is deemed to be an employee, any such employment would be
at-will, terminable for any reason, with or without notice.
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4. OWNERSHIP OF WORK PRODUCT.
All deliverables, materials, information, inventions, designs, works of
authorship, computer program code, audiovisual works, characters, music, sounds
and other expressions or items accumulated, authored, made, conceived, developed
or first reduced to practice by Consultant in its performance of the Consulting
Services (collectively, the "Results"), together with all patent, copyright and
other proprietary rights associated with ownership of such items, shall be the
exclusive property of the Company and shall be promptly disclosed and furnished
to the Company by Consultant. To the full extent permitted by applicable law,
such Results shall be "work made for hire." To the extent any Results are not
"work made for hire", Consultant hereby assigns to the Company, without separate
compensation, all right, title and interest in and to the Results together with
all associated United States and foreign patent, copyright, trade secret and
other proprietary rights including, without limitation, the rights of
registrations and renewal. In addition, Consultant hereby waives and releases
any and all moral rights and rights of restraint that Consultant may possess in
or to any Results.
Consultant shall take, at the Company's expense, all reasonable actions
during or after the performance of the Consulting Services reasonably requested
by the Company for the implementation of this Section 4 or to evidence, perfect
or protect the Company's ownership of the Results and associated proprietary
rights (including, without limitation, the execution, acknowledgment and
delivery of instruments of conveyance, copyright, patent, trademark or other
proprietary right registration applications or other documents).
5. CONFIDENTIAL INFORMATION. Consultant agrees that he will hold secret
and confidential all proprietary information and trade secrets of the Company,
its subsidiaries, affiliates and customers learned by Consultant in any manner
during his previous employment with the Company and the term of this Agreement
including, without limitation, all business plans, market data and information,
reports and analyses, or any other confidential or secret aspects of the
business of the Company or any of its subsidiaries, affiliates or customers.
Consultant agrees to return all data and information provided by the Company and
any and all reports and analyses compiled by Consultant therefrom, to the
Company upon its request, and in any event upon termination of this Agreement,
and to erase all portions thereof from Consultant's computer memory. This
confidentiality provision shall survive termination of this agreement, and if
the parties hereto have previously entered into a separate confidentiality
agreement, the terms and provisions of this Section 5 shall be construed in a
manner consistent with the provisions of such prior agreement, which shall
remain in full force and effect.
6. BUSINESS OPPORTUNITIES. Consultant will promptly disclose to the
Company any business opportunity of which Consultant becomes aware as a result
of his performance of the Consulting Services. Consultant will not take
advantage of or divert any such opportunity for the gain, profit or benefit of
Consultant or any other person or entity without the written consent of the
Company.
7. TIME OF WORK. Consultant shall perform Consulting Services as
reasonably requested by the Company. Consultant shall have control over the
times at which Consultant performs services, provided he meets reasonable
deadlines set by the Company. Consultant shall use reasonable efforts to
complete the Consulting Services by any deadlines imposed by the Company. The
Company shall not require services that unreasonably interfere with
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Consultant's search for employment or his commitments to employment or
consulting with another company.
8. PLACE OF WORK. Consultant may perform the Consulting Services at such
locations as Consultant may choose, provided that Consultant has access to all
necessary equipment and machinery and can transport the same.
9. BUSINESS PERMITS. The Consultant is qualified to perform the agreed
upon services enumerated herein and covenants that it maintains all valid
licenses, permits and registrations required by law to perform same. Consultant
shall be responsible for obtaining any workers' compensation or unemployment
insurance required by law.
10. LIABILITY. The work to be performed under this Agreement will be
performed entirely at Consultant's risk, and Consultant assumes all
responsibility for the condition of equipment and facilities used in the
performance of this agreement. Consultant agrees to indemnify the Company for
any and all liability or loss arising in any way out of the performance of this
agreement, except to the extent caused by the Company's gross negligence or
willful misconduct. The Company agrees to indemnify Consultant for any and all
liability or loss arising in any way out of the performance of this agreement,
except to the extent caused by Consultant's gross negligence or willful
misconduct.
11. COMPETENT WORK. All work will be done in a competent fashion in
accordance with applicable standards of the profession.
12. LEGAL RIGHT. Consultant covenants and warrants that Consultant has the
unlimited legal right to enter into this Agreement and to perform in accordance
with its terms without violating the rights of others or any applicable law and
that he has not and shall not become a party to any other agreement of any kind
which conflicts with this Agreement. Consultant shall indemnify and hold the
Company harmless from any and all damages, claims and expenses (including, but
not limited to attorneys' fees and costs) arising out of or resulting from any
claim that this Agreement violates any such other agreements. Breach of this
Section 16 shall operate to terminate this Agreement automatically without
notice otherwise required by this Agreement.
13. NO WAIVER. Failure to invoke any right, condition, or covenant in this
Agreement by either party shall not be deemed to imply or constitute a waiver of
any rights, condition, or covenant and neither party may rely on such failure.
14. NOTICE. Any notice or communication permitted or required by this
Agreement shall be deemed effective when personally delivered, or sent by
certified or registered mail, properly addressed to the appropriate party at the
address set forth below:
1. Notices as to Consultant: Xxxxxxx X. Xxxxx
At home address on file
with Company
2. Notices to the Company: Xxxxx Xxxxxxx
LION, Inc.
0000 00xx Xxxxxx XX, Xxxxx 000,
Xxxxxxx, XX 00000
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15. NO ASSIGNMENT OR DELEGATION. This Agreement is personal to Consultant
and may not be assigned or delegated by either party, in whole or in part, to
anyone at anytime without the Company's prior written consent. Consultant may
not delegate or assign any Consulting Services to any employee or independent
contractor.
16. ENFORCEABILITY. If any provision of this Agreement or compliance by any
of the parties with any provision of this Agreement constitutes a violation of
any law, or is or becomes unenforceable or void, then such provision, to the
extent only that it is in violation of law, unenforceable or void, shall be
deemed modified to the extent necessary so that it is no longer in violation of
law, unenforceable or void, and such provision will be enforced to the fullest
extent permitted by law. If such modification is not possible, said provision,
to the extent that it is in violation of law, unenforceable or void, shall be
deemed severable from the remaining provisions of this Agreement, which
provisions will remain binding on the parties hereto.
17. NONEXCLUSION. It is understood that Company does not agree to use
Consultant exclusively. Likewise, Consultant is free to work for or contract for
services to be performed for other firms while under contract with Company,
subject to the terms of this Agreement and his post-employment obligations to
the Company contained in his Employment Agreement.
18. RESPONSIBILITIES OF CONSULTANT. Consultant assumes responsibility for
its personnel providing services hereunder and will make all deductions required
of employers by state, federal, and local laws, including deductions for social
security and withholding taxes, and contributions for unemployment compensation
funds, and shall maintain workers compensation and liability insurance for each
of them. Consultant covenants to hold Company harmless from any and all
liability for withholding state or federal income tax, federal or state
industrial accident contributions, and any employer's tax liability now or
subsequently imposed on Consultant. Consultant agrees that all services under
this agreement shall be conducted in full compliance with any and all applicable
laws and governmental rules and regulations, both state and federal. Consultant
assumes and agrees to pay any and all gross receipts, compensating, use,
transaction, sales, or other taxes or assessments of whatever nature or kind
levied or assessed as a consequence of the work to be performed or with respect
to the compensation to be paid under this agreement.
19. MISCELLANEOUS.
a. ENTIRE AGREEMENT AND AMENDMENTS. This Agreement constitutes
the entire agreement of the parties with regard to the subject matter hereof,
and replaces and supersedes all other agreements or understandings, whether
written or oral. No amendment or extension of this Agreement shall be binding
unless in writing and signed by both parties hereto.
b. GOVERNING LAW/VENUE. This Agreement shall be governed by the
laws of the State of Washington. Any dispute must be heard and decided in the
state or federal courts located in Seattle, Washington, where all parties
consent to personal jurisdiction. If legal
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action is required to enforce or interpret the provisions of this agreement, the
prevailing party shall be entitled to reasonable attorney's fees and costs.
c. REVIEW BY COUNSEL. Consultant acknowledges that Consultant has
had the opportunity to have this Agreement reviewed by legal counsel of
Consultant's choice.
d. EXECUTION. This Agreement may be executed via facsimile and in
counterparts, which together shall constitute the single Agreement.
SIGNATURES ON FOLLOWING PAGE
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WHEREFORE, the parties have executed this Agreement as of the date written
above.
COMPANY:
LION, INC.
---------------------------------
By: Xxxxx Xxxxxxx
Its: Interim Chief Executive Officer and President
CONSULTANT:
--------------------------------
By: Xxxxxxx X. Xxxxx
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