SEVERANCE AND GENERAL RELEASE AGREEMENT
Exhibit 10.15
This Severance and General Release Agreement (“Agreement”) is made and entered into by and
between Xxxxx X. Xxxx (“Employee”), an individual, and Xxxxxx.xxx, Inc. (“Youbet”), upon the
following terms and conditions:
RECITALS
WHEREAS, Employee’s employment with Youbet will terminate on March 31, 2009 (the “Separation
Date”);
WHEREAS, Employee will be paid all current salary, all accrued vacation pay, and any benefits
Employee qualifies for under the terms of any group insurance benefit plan or tax-qualified
retirement plan through and concluding on the Separation Date;
WHEREAS, Employee’s rights and obligations under the July 9, 2007 Employment Agreement
(“Employment Agreement”) will end as of the Effective Date (as defined in Section 2 below) and
Employee as of the Effective Date waives and otherwise forfeits any and all rights under the
Employment Agreement;
WHEREAS, Youbet is willing to provide Employee with severance pay and certain other
consideration upon the terms and conditions set forth in this Agreement; and
WHEREAS, Employee has had the opportunity to consult with legal counsel before signing this
Agreement, has read this Agreement and understood its contents, and has signed this Agreement
voluntarily.
NOW, THEREFORE, in consideration of the mutual promises, consideration, covenants, and
conditions provided for in this Agreement, the adequacy and sufficiency of which are hereby
acknowledged, and intending to be legally bound, Youbet and Employee agree as follows:
COVENANTS
1. Recitals. The parties hereto acknowledge the truth and accuracy of the foregoing
recitals.
2. Effective Date. Once signed by both parties, this Agreement shall become binding
upon Youbet and Employee on the later to occur of (a) the date upon which this Agreement has been
signed by Youbet, or (b) eight (8) days after this Agreement has been signed by Employee (such
applicable date being referred to herein as the “Effective Date”).
3. Confidential Information. Employee shall return to Youbet, and shall not take,
copy, utilize or disclose, in any form or manner, confidential customer lists, operations manuals,
budgets and business plans, strategic plans, financial statements and other confidential
financial information concerning Youbet or its customers, and other confidential or proprietary
materials or information.
4. Payments
and Consideration. In consideration for Employee entering into this Agreement and
the release contained herein, Youbet agrees to the following:
A. To assist Employee in his transition to new employment and in consideration for the
promises contained in this Agreement, Youbet shall pay to Employee within ten (10) days after the
later of (i) the Effective Date and (ii) the Separation Date, a lump sum severance payment of One
Hundred and Eighty Thousand Dollars ($180,000.00), less appropriate deductions for federal and
state withholding and other applicable taxes and legally required deductions. Youbet further will
pay Employee’s monthly COBRA health, dental and vision insurance premiums for up to twelve (12)
months following the Separation Date, provided Employee timely and fully completes all COBRA
elections forms. Youbet’s obligation to make such COBRA payments shall cease immediately if
Employee becomes eligible for other health insurance benefits at the expense of a new employer or
otherwise becomes ineligible for COBRA coverage. Finally, as further consideration for the
promises contained in this Agreement, Youbet shall pay to Employee on the earlier of (i) the date
when Youbet executives are paid incentive bonuses and (ii) ten (10) days after the Separation Date,
but in no event prior to the Effective Date, a lump sum bonus payment of One Hundred and Twenty
Thousand Dollars ($120,000.00), less appropriate deductions for federal and state withholding and
other applicable taxes and legally required deductions.
B. Nothing in this Agreement shall be deemed to terminate Youbet’s obligation to reimburse
Employee for all reasonable and documented business expenses incurred by him/her prior to the
Separation Date within 30 days after submission of a written expense report, provided that (a)
Youbet receives the same within 90 days after the Separation Date, and (b) such expenses were
incurred, and the request for reimbursement was submitted, in accordance with Youbet’s policies and
procedures, including attaching all receipts and customary documentation.
C. Subject only to Section 4.A. above, all other wages, compensation, bonuses, 401k
plan eligibility, insurances, club dues, expenses, automobile allowance, financial consulting,
severance and benefits will cease permanently on or before the Separation Date. The parties
acknowledge that no contract other than the Employment Agreement governed any terms and conditions
of Employee’s employment, and Employee hereby waives and otherwise forfeits any rights under the
Employment Agreement.
D. Employee acknowledges that the commitments provided to Employee under this Section 4 exceed
any compensation or benefits which he is otherwise entitled to receive on termination of Employee’s
employment.
E. Employee acknowledges that he shall be required to perform his job duties through and
including the Separation Date.
F. Employee shall retain any and all rights which Employee has acquired under Youbet’s
Stock Option Plan, including the 150,000 options granted Employee therein and the right to exercise
the 37,500 vested options prior to 5:00 PM Pacific Time, June 29, 2009.
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5. Release. Except for the specific obligations set forth in Section 4A of this
Agreement, Employee, on behalf of himself/herself, his/her descendants, ancestors, dependents,
heirs, executors, administrators, assigns and successors, and each of them, hereby irrevocably and
unconditionally fully releases and discharges, Youbet, its subsidiaries and affiliates, past and
present, and each of them, as well as its and their respective partners, directors, officers,
members, agents, attorneys, insurers, employees, stockholders, representatives, ERISA plans,
current and former trustees and administrators of ERISA plans, assigns and successors, past and
present, and each of them (hereinafter collectively referred to as the “Releasees”), with respect
to and from any and all charges, complaints, claims, wages, demands, rights, liens, agreements,
contracts, covenants, actions, suits, causes of action, obligations, debts, costs, expenses,
attorneys’ fees, damages, judgments, orders and liabilities of whatever kind or nature in law,
equity or otherwise, whether now known or unknown, suspected or unsuspected, which he/she now owns
or holds or he/she has at any time heretofore owned or held as against said Releasees, arising out
of or in any way connected with his/her employment relationship and the ending of that employment
relationship with Youbet, the Employment Agreement, or any other transactions, occurrences, acts or
omissions or any loss, damage or injury whatever, known or unknown, suspected or unsuspected,
resulting from any act or omission by or on the part of said Releasees, or any of them, committed
or omitted on or before the date of this Agreement including, without limitation, to the maximum
extent permitted by applicable law, any claim under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000(e), et. seq.; the Age Discrimination in Employment Act, 29 U.S.C. § 623, et. seq.
(“ADEA”); the Americans with Xxxxxxxxxxxx Xxx, 00 X.X.X. § 00000(x), et. seq.; the California Fair
Employment and Housing Act, California Government Code § 12940, et. seq. (which may include claims
for age, race, color, ancestry, national origin, disability, medical condition, marital status,
sexual orientation, gender, gender identity, religious creed, pregnancy, sex discrimination and
harassment); the Employment Retirement Income Security Act of 1974, 29 U.S.C. § 100, et. seq.; the
Worker Adjustment and Retraining Notification Act, 29 U.S.C § 2101, et. seq.; the Pregnancy
Discrimination Act, 42 U.S.C. § 2000e (k); the Family and Medical Leave Act (“FMLA”), the
California Family Rights Act (“CFRA”), the Fair Labor Standards Act (“FLSA”), the Equal Pay Act,
wage and hour law, any and all protections pursuant to any state’s Labor Code (to the extent
waivable), the United States and California Constitutions; and any other federal or state law,
severance pay, bonus, retention payment, sick leave, holiday pay, vacation pay, paid time off, life
insurance, health or medical insurance or any other employee or fringe benefit, breach of contract,
breach of the implied covenant of fair dealing, defamation, slander, workers’ compensation,
disability, personal injury, negligence, discrimination, harassment, retaliation, negligent or
intentional infliction of emotional distress, fraud, misrepresentation or invasion of privacy;
provided, however, that nothing contained herein shall affect Employee’s rights under Youbet’s
Stock Option Plan and the 150,000 options granted to Employee thereunder (including, without
limitation, the right to exercise the 37,500 vested options
prior to 5:00 p.m. Pacific time, June 29, 2009) and nothing contained herein shall affect
claims that cannot be waived under applicable law. Employee further agrees to waive irrevocably
the right to recover under any claim that may be filed by or with the Equal Employment Opportunity
Commission or any other federal, state or local government entity, relating to Employee’s
employment with Youbet or the ending of that employment, to the maximum extent permitted by
applicable law. This release does not cover any rights or claims that may arise after the date
this Agreement is signed.
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Neither this Agreement nor any term herein shall be deemed to be an admission by Youbet, or
shall be admissible in any proceeding as evidence, of any violation of any of Youbet’s policies or
procedures or any federal, state or local laws or regulations.
It is the intention of Employee in executing this Agreement that the foregoing general release
shall be effective as a bar to each and every claim, demand and cause of action specified
hereinabove, to the maximum extent permitted by applicable law. In furtherance of this intention,
Employee hereby expressly waives any and all rights and benefits conferred upon him/her by the
provisions of SECTION 1542 OF THE CALIFORNIA CIVIL CODE, and expressly consents that this Agreement
shall be given full force and effect according to each and all of its express terms and provisions,
including those related to unknown and unsuspected claims, demands and causes of action, if any, as
well as those relating to any other claims, demands and causes of action hereinabove specified.
SECTION 1542 provides:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
Employee acknowledges that he/she may hereafter discover claims or facts in addition to or
different from those which Employee now knows or believes to exist with respect to the subject
matter of this Agreement and which, if known or suspected at the time of executing this Agreement,
may have materially affected the terms of this release. Nevertheless, Employee hereby waives any
right, claim or cause of action that might arise as a result of such different or additional claims
or facts. Employee acknowledges that he/she understands the significance and consequence of the
foregoing release and the specific waiver of SECTION 1542.
6.
Notice re: Waiver of Age Discrimination Claims.
A. Employee understands that this Agreement contains a full release of existing claims,
whether currently known or unknown, including age discrimination or other claims under the ADEA.
Employee has been and is hereby again advised to consult with an attorney prior to executing this
Agreement and, by executing this Agreement, acknowledges that he/she has been afforded at least
twenty-one (21) days to consider this Agreement and to decide whether to enter into this Agreement,
and in the event he/she should decide to execute this Agreement in fewer
than twenty-one (21) days, he/she has done so with the express understanding that he/she has
been given and declined the opportunity to consider this Agreement for a full twenty-one (21) days.
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B. Employee has the right to revoke this Agreement within seven (7) days of signing it. To
revoke this Agreement, Employee must send a written letter by certified mail to:
Xxxxxx.xxx
0000 Xx Xxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
Attention: Legal Department
0000 Xx Xxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
Attention: Legal Department
The letter must be postmarked within seven (7) days of the date that Employee signs this
Agreement, and shall clearly indicate Employee’s intent to revoke.
7. No Lawsuits; Covenant Not to Xxx. Employee represents that, prior to signing this
Agreement, he/she has not filed or pursued any complaints, charges or lawsuits of any kind with any
court, governmental or administrative agency or arbitrator against Youbet or its officers,
directors, agents or employees asserting any claims that are released in this Agreement. To the
extent permitted by law, at no time after the Effective Date will Employee file, maintain, or
execute upon, or cause or permit the filing or maintenance or execution upon, in any state, federal
or foreign court, or before any local, state, federal or foreign administrative agency, or any
other tribunal, any judgment, charge, claim or action of any kind, nature and character whatsoever,
known or unknown, which he/she may now have, has ever had, or may in the future have against
Releasees which is based in whole or in part on any matter covered by paragraph 5 above.
8. No Representations. Employee represents and agrees that no promises, statements or
inducements have been made to him/her which caused him/her to sign this Agreement, other than those
expressly set forth in this Agreement.
9. No Assignment. Employee warrants and represents that he/she has not heretofore
assigned to any person any released matter or any portion thereof, and shall defend, indemnify and
hold harmless Youbet from and against any claim (including the payment of attorneys’ fees and costs
actually incurred, whether or not litigation is commenced) based upon, in connection with or
arising out of any such assignment made, purported or claimed.
10. No Reinstatement. Employee agrees that he/she will not at any future time seek
employment or reemployment with Youbet or any of its subsidiaries for one year after the Separation
Date. Employee further agrees that Releasees shall not be liable for any damages now or in the
future because any Releasee refuses to employ Employee for any reason whatsoever.
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11. Non-Disparagement. Youbet and Employee acknowledge and agree that they have
mutual respect for one another. Accordingly, both parties agree as follows: Employee agrees not
to make any statements, orally or in writing, that are intended to disparage or harm the reputation
of Youbet, or any of its officers, directors, employees, or agents. Youbet agrees that none of its
officers, directors, employees or agents who have knowledge of this Agreement shall make any
statements, orally or in writing, that are intended to disparage or harm the reputation of
Employee. This prohibition shall not apply to intra-company communications with a legitimate
business purpose (including communications between Youbet and its Board members), or as expressly
authorized by law or lawful process.
12. Successors. This Agreement shall be binding upon Employee and upon his/her heirs,
administrators, representatives and executors, and shall inure to the benefit of the Releasees and
their respective heirs, administrators, representatives, executors, successors and assigns.
13. Integration. This Agreement constitutes the entire agreement and understanding
concerning Employee’s employment, his/her separation from the same and the other subject matters
addressed herein, and supersedes and replaces all prior negotiations and all agreements, proposed
or otherwise, whether written or oral, concerning the subject matter hereof.
14. Severability. If any provision of this Agreement or the application thereof to
any situation is held invalid, the invalidity shall not affect the other provisions or applications
of this Agreement which can be given effect without such invalid provisions or applications and, to
this end, the provisions of this Agreement are declared to be severable.
15. Waiver. No waiver of any breach of any term or provision of this Agreement shall
constitute a waiver of any other breach of this Agreement. No waiver shall be binding unless in
writing and signed by the party waiving the breach.
16. Amendments. This Agreement may be modified only by a written instrument signed by
the parties.
17. Governing Law. This Agreement will be governed by and construed in accordance
with the substantive laws of the State of California (i.e., without reference to its conflict of
law rules).
I have read the foregoing Agreement, I accept and agree to the provisions it contains, and I
hereby execute it knowingly and voluntarily with full understanding of its consequences. I declare
that the foregoing statement is true and correct.
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| /s/ Xxxxx Xxxx | Date: | February 27 | , | 2009 | ||||||
| Xxxxx X. Xxxx | ||||||||||
| Accepted and agreed to by: XXXXXX.XXX, INC. |
||||||||||
By: |
/s/ Xxxxxxx Xxxxxxx | |||||||||
Name: |
Xxxxxxx Xxxxxxx | |||||||||
Title: |
Chief Executive Officer | Date: | March 5 | , | 2009 | |||||
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