AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.13
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”) is made and
entered into effective as of October 1, 2008 (“Effective Date”) by and
between LiveDeal, Inc., a Nevada corporation (the “Company”) and Xxxx Xxxxxxxx
(“Executive”).
In
consideration of the mutual promises, covenants and agreements herein contained,
intending to be legally bound, the parties agree as follows:
1.
Employment. The
Company hereby agrees to employ Executive, and Executive hereby agrees to serve,
subject to the provisions of the Agreement, as an employee of the Company in the
position of Chief Executive Officer. Executive will perform all
services and acts reasonably necessary to fulfill the duties and
responsibilities of his position and will render such services on the terms set
forth herein and will report to the Company’s Board of Directors (the “Board”). During the
Term (as defined below), should Executive continue to serve as a member of the
Board, he will not be entitled to receive compensation for his Board
service. In addition, Executive will have such other executive and
managerial powers and duties with respect to the Company as may reasonably be
assigned to him by the Board, to the extent consistent with his position and
status as set forth above. Executive is obligated to devote his full
time, attention and energies to perform the duties assigned hereunder as Chief
Executive Officer, and Executive agrees to perform such duties diligently,
faithfully and to the best of his abilities. Notwithstanding the
foregoing, Company acknowledges and agrees that during the Term, Executive shall
have the right to have a “financial interest” in or serve as a consultant,
officer or director of any non-competing business; provided that Executive
agrees that engaging in such outside activities shall not interfere with the
performance of Executive’s full-time duties hereunder. Executive acknowledges that any such outside activities
that involve an entity other than the Company or its subsidiaries will involve
an entity independent of the Company and any actions or decisions Executive
takes or makes on behalf of such entity will not be imputed to the Company or
its subsidiaries.
2.
Term. This
Agreement is for a three-year period (the “Term”) commencing on the
Effective Date hereof and terminating on the third anniversary of the Effective
Date, or upon the date of termination of employment pursuant to Section 7 of this
Agreement; provided, however, that the Term may be extended as mutually agreed
to by the parties.
3.
Place of
Performance. Executive may perform his duties and conduct his
business on behalf of the Company at either the Company’s offices in Las Vegas,
Nevada or Santa Clara, CA or at remote locations of his choosing by
telecommuting; provided that such practice shall not substantially interfere
with the performance of Executive’s duties hereunder.
4.
Compensation.
(a)
Salary. Executive
shall be paid a salary at the annual rate of $250,000 (the “Salary”), payable in
accordance with the Company’s regular payroll practices.
(b)
Performance
Bonuses. Executive will be entitled to receive up to $60,000
per year of a performance bonus in the event the Company reaches certain
performance measures established by the Compensation Committee of the Board or
the entire Board. All bonuses payable under this Section 4(b) will be
subject to all applicable withholdings, including taxes.
(c)
Stock
Option. The Company will grant to Executive upon execution of
this Agreement and subject to shareholder approval (the “Grant Date”) an option to
purchase from the Company for cash all or any part of an aggregate of 150,000
shares of the Company’s common stock (the “Option”) at the then-current
market price of the Company’s common stock pursuant to the Company’s 2003 Stock
Plan and the Company’s standard form of Non-Qualified Stock Option
Agreement. The Option granted under this Agreement is not intended to be
an “incentive stock option” under Section 422 of the Internal Revenue Code of
1986, as amended. So long as Executive continues to be a service
provider to the Company as an employee in accordance with this Agreement, the
Option will vest and be exercisable according to the following schedule: one
forty eighth (1/48) on each month anniversary of the Grant Date. Notwithstanding
the foregoing, the Option will immediately vest and become exercisable upon the
occurrence of a Change of Control (as defined below) and the termination of
Executive as an employee of the Company, or in the event of a Change of Control
and the retention of Executive as an employee of the Company, the Option will
vest according to the following schedule: (i) one half of the
unvested portion of the Option immediately upon the occurrence of the Change of
Control and (ii) the remainder one forty eighth (1/48) on each subsequent month
anniversary of the occurrence of the Change of Control thereafter. If
any vested portion of the Option is not exercised by Executive within 90 days
following the later of Executive’s termination as CEO, such vested portion,
along with any remaining unvested portion of the Option, will be subject to
immediate forfeiture back to the Company.
(d)
For purposes of this Agreement, “Change of Control” will mean
(i) any merger of the Company in which the Company is not the continuing or
surviving entity, or pursuant to which stock would be converted into cash,
securities, or other property other than a merger of the Company in which the
holders of the Company’s stock immediately prior to the merger have the same
proportionate ownership of beneficial interest of common stock or other voting
securities of the surviving entity immediately after the merger or (ii) any
sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of assets or earning power aggregating more than 50% of
the assets or earning power of the Company or any major subsidiary, other than
pursuant to a sale-leaseback, structured finance or other form of financing
transaction.
5.
Business
Expenses. During the Term, the Company will reimburse
Executive for all reasonable business expenses incurred by him in connection
with his employment and the performance of his duties as provided hereunder,
upon submission by the Executive of receipts and other documentation in
conformance with the Company’s normal procedures for executives of Executive’s
position and status.
6.
Benefits. During
the Term, Executive will be eligible to participate fully in all health and
benefit plans available to senior officers of the Company generally, as the same
may be amended from time to time by the Board.
7.
Termination of
Employment.
(a)
Notwithstanding any provision of this Agreement to
the contrary, the employment of Executive hereunder will terminate on the first
to occur of the following dates:
(i)
the date of Executive’s death;
(ii)
the date on which Executive has experienced a Disability
(as defined below), and the Company gives Executive notice of termination on
account of Disability;
(iii) the
date on which Executive has engaged in conduct that constitutes Cause (as
defined below), and the Company gives notice of termination for
Cause;
(iv) expiration
of the Term; or
(v)
the date on which the Company gives Executive notice of
termination for any reason other than the reasons set forth in Sections 7(a)(i)
through (iv)
above.
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(b)
For purposes of this Agreement, “Disability” will mean an
illness, injury or other incapacitating condition as a result of which Executive
is unable to perform, with reasonable accommodation, the services required to be
performed under this Agreement for 10 consecutive days during the
Term. Executive agrees to submit to such medical examinations as may
be necessary to determine whether a Disability exists, pursuant to such
reasonable requests made by the Company from time to time. Any
determination as to the existence of a Disability will be made by a physician
mutually selected by the Company and Executive.
(c)
For purposes of this Agreement, “Cause” will mean the
occurrence of any of the following events, as reasonably determined by the
Board:
(i)
Executive’s willful and continued refusal to substantially
perform his duties hereunder;
(ii) Executive’s
conviction of a felony, or his guilty plea to or entry of a nolo contendere plea
to a felony charge; or
(iii) Executive’s
breach of any material term of this Agreement or the Company’s written policies
and procedures, as in effect from time to time; provided, however, that with
respect to Sections
7(c)(i) or (iii) above, such
termination for Cause will only be effective if the conduct constituting Cause
is not cured by Executive within 5 days of receipt by Executive of written
notice specifying in reasonable detail the nature of the alleged
breach.
8.
Compensation in Event of
Termination. Upon termination of this Agreement and
Executive’s employment, the Company will have no further obligation to Executive
except to pay the amounts set forth in this Section
8.
(a)
In the event Executive’s employment is terminated
pursuant to Section
7(a)(i), (ii), (iii) or (iv) on or before the
expiration of the Term, Executive will be entitled to payment of any earned but
unpaid Salary through the date of termination. Any bonuses, fees or
payments due to Executive under Section 4(b) above
shall be paid to Executive as set forth therein.
(b)
In the event Executive’s employment is terminated pursuant to Section 7(a)(v) on or
before the expiration of the Term, and provided that Executive (i) resigns from
the Board and (ii) executes a valid release of any and all claims that Executive
may have relating to his employment against the Company and its agents,
including, but not limited to, its officers, directors and employees, in a form
provided by the Company, Executive will be entitled to continue receiving Salary
for a period of three months from the date of termination, subject to all
applicable withholdings and taxes. Any bonuses, fees or payments due
to Executive under Section 4(b) above
shall be paid to Executive as set forth therein.
9.
Confidentiality. Executive
covenants and agrees that he will not at any time during or after the end of the
Term, without written consent of the Company or as may be required by law or
valid legal process, directly or indirectly, use for his own account, or
disclose to any person, firm or corporation, other than authorized officers,
directors, attorneys, accountants and employees of the Company or its
subsidiaries, Confidential Information (as hereinafter defined) of the
Company. As used herein, “Confidential Information” of
the Company means information about the Company of any kind, nature or
description, including but not limited to, any proprietary information, trade
secrets, data, formulae, supplier, client and customer lists or requirements,
price lists or pricing structures, marketing and sales information, business
plans or dealings and financial information and plans as well as papers, resumes
and records (including computer records) that are disclosed to or otherwise
known to Executive as a direct or indirect consequence of Executive’s employment
with the Company or service as a member of the Board, which information is not
generally known to the public or in the businesses in which the Company is
engaged. Confidential Information also includes any information
furnished to the Company by a third party with restrictions on its use or
further disclosure.
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10.
Dispute
Resolution. Except for an action exclusively seeking
injunctive relief, any disagreement, claim or controversy arising under or in
connection with this Agreement, including Executive’s employment or termination
of employment with the Company will be resolved exclusively by arbitration
before a single arbitrator in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association (the
“Rules”), provided that,
the arbitrator will allow for discovery sufficient to adequately arbitrate any
claims, including access to essential documents and witnesses; provided further,
that the Rules will be modified by the arbitrator to the extent necessary to be
consistent with applicable law. The arbitration will take place in
Phoenix, Arizona. The award of the arbitrator with respect to such
disagreement, claim or controversy will be in writing with sufficient
explanation to allow for such meaningful judicial review as permitted by law,
and that such decision will be enforceable in any court of competent
jurisdiction and will be binding on the parties hereto. The remedies
available in arbitration will be identical to those allowed at
law. The arbitrator will be entitled to award reasonable attorneys’
fees to the prevailing party in any arbitration or judicial action under this
Agreement, consistent with applicable law. The Company and Executive
each will pay its or his own attorneys’ fees and costs in any such arbitration,
provided that, the Company will pay for any costs, including the arbitrator’s
fee, that Executive would not have otherwise incurred if the dispute were
adjudicated in a court of law, rather than through arbitration.
11.
Binding
Agreement.
(a)
This Agreement is a personal contract
and the rights and interests of Executive hereunder may not be sold,
transferred, assigned, pledged, encumbered or hypothecated by him, provided that
all rights of the Executive hereunder shall inure to the benefit of, and be
enforceable by Executive’s personal or legal representatives, executors, heirs,
administrators, successors, distributors, devisees and legatees.
(b)
In addition to any obligations imposed by law, any
successor to Company (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the assets of the
Company, is bound by this Agreement in the same manner and to the same extent
that the Company would be required to perform if no such succession had taken
place.
12.
Return of Company
Property. Executive agrees that following the termination of
his employment or service as a member of the Board for any reason, he will
promptly return all property of the Company, its subsidiaries, affiliates and
any divisions thereof he may have managed that is then in or thereafter comes
into his possession, including, but not limited to, documents, contracts,
agreements, plans, photographs, books, notes, electronically stored data and all
copies of the foregoing, as well as any materials or equipment supplied by the
Company to Executive.
13.
Entire
Agreement. This Agreement contains all the understandings
between the parties hereto pertaining to the matters referred to herein, and
supersedes all undertakings and agreements, whether oral or written, previously
entered into by them with respect thereto, including, without limitation, the
employment agreement, dated June 1, 2008, by and between the Company and the
Executive (the “Original
Employment Agreement”) and the amendment to the Original Employment
Agreement dated June 1, 2008. Executive represents that, in executing
this Agreement, he does not rely, and has not relied, on any representation or
statement not set forth herein made by the Company with regard to the subject
matter, bases or effect of this Agreement otherwise.
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14.
Amendment or Modification,
Waiver. No provision of this Agreement may be amended or
waived unless such amendment or waiver is agreed to in writing, signed by
Executive and by a duly authorized officer of the Company. The
failure of either party to this Agreement to enforce any of its terms,
provisions or covenants will not be construed as a waiver of the same or of the
right of such party to enforce the same. Waiver by either party
hereto of any breach or default by the other party of any term or provision of
this Agreement will not operate as a waiver of any other breach or
default.
15.
Notices. Any
notice to be given hereunder will be in writing and will be deemed given when
delivered personally, sent by courier or fax or registered or certified mail,
postage prepaid, return receipt requested, addressed to the party concerned at
the address indicated below or to such other address as such party may
subsequently give notice of hereunder in writing:
To
Executive at:
Xxxx
Xxxxxxxx
___________________
___________________
Phone:
(___) ___-_____
To
the Company at:
LiveDeal,
Inc.
0000
X. Xxxxxx Xx., #000
Xxx
Xxxxx, XX 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
Attention:
CFO
With
a copy (which shall not constitute notice hereunder) to:
Xxxxxx
X. Xxxxxxx, Esq.
Xxxxx
& Xxxxxx L.L.P.
One
Arizona Center
000
Xxxx Xxx Xxxxx Xx., 00xx
Xxxxx
Xxxxxxx,
Xxxxxxx 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
Any
notice delivered personally or by courier under this Section will be deemed
given on the date delivered. Any notice sent by fax or registered or
certified mail, postage prepaid, return receipt requested, will be deemed given
on the date faxed or mailed. Each party may change the address to
which notices are to be sent by giving notice of such change in conformity with
the provisions of this Section.
16.
Severability. In
the event that any one or more of the provisions of this Agreement will be held
to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remainder of the Agreement will not in any way be affected
or impaired thereby. Moreover, if any one or more of the provisions
contained in this Agreement will be held to be excessively broad as to duration,
activity or subject, such provisions will be constructed by limiting and
reducing them so as to be enforceable to the maximum extent allowed by
applicable law.
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17.
Survivorship. The
respective rights and obligations of the parties hereunder will survive any
termination of this Agreement to the extent necessary for the intended
preservation of such rights and obligations.
18.
Each
Party the Drafter. This Agreement and the provisions contained
in it will not be construed or interpreted for or against any party to this
Agreement because that party drafted or caused that party’s legal representative
to draft any of its provisions.
19.
Governing
Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Nevada, without regard to its conflicts
of laws principles.
20.
Headings. All
descriptive headings of sections and paragraphs in this Agreement are intended
solely for convenience, and no provision of this Agreement is to be construed by
reference to the heading of any section or paragraph.
21.
Counterparts. This
Agreement may be executed in counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same
instrument.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
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LIVEDEAL,
INC., a Nevada corporation
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EXECUTIVE
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/s/ Xxxxxx Xxxxx
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/s/ Xxxx Xxxxxxxx
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By:
Xxxxxx Xxxxx
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Xxxx
Xxxxxxxx
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Its:
Chairman of the Board
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[XXXX
XXXXXXXX EMPLOYMENT AGREEMENT]
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