SEPARATION AGREEMENT AND FULL RELEASE OF CLAIMS
Exhibit 10.19
THIS
SEPARATION AGREEMENT AND FULL RELEASE OF CLAIMS (this “Agreement”) is
effective as of November 25, 2009 (the “Effective Date”), by
and between Xxxxxx Xxxxxxxx, an individual (“Xxxxxxxx”), and
LIVEDEAL, INC., a Nevada corporation (the “Company”).
RECITALS
X. Xxxxxxxx
is currently employed as the Chief Financial Officer of the Company pursuant to
that certain Employment Agreement by and between the Company and Xxxxxxxx dated
November 17, 2008 (“Employment
Agreement”).
B. The
parties mutually agree that it is in their respective best interests to bring
their employment relationship to an end on an amicable basis on the Effective
Date and pursuant to the terms of this Agreement.
C. By
entering into this Agreement, the parties mutually and voluntarily agree to
resolve all issues between them and to be legally bound by the terms set forth
below.
AGREEMENTS
In
consideration of the premises and the covenants, agreements, representations,
and warranties contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to
be legally bound hereby, the parties hereto agree as follows:
Section
1. Acknowledgment and
Resignations. By execution of this Agreement, Xxxxxxxx agrees
that as of January 2, 2010 (“Resignation Date”) he
shall be deemed to have resigned as an officer and employee of the Company
without need for any further notice by Xxxxxxxx or
documentation. Additionally, Xxxxxxxx acknowledges that he has
resigned any positions as a director and/or officer of any of the Company’s
subsidiaries and affiliates.
Section
2. Separation
Benefits. In complete and full satisfaction of all
obligations owed to Xxxxxxxx by the Company, including, but not limited to, all
claims for compensation, severance, benefits, or equity from or in the Company
or its successors and assigns (collectively, the “Company Agents”), the
parties agree that so long as Xxxxxxxx does not revoke this Agreement pursuant
to the Limited Right to Revoke contained herein and that Xxxxxxxx has signed the
Company’s Annual Report on Form 10-K for the fiscal year ended September 30,
2009 and all certifications related and requisite thereto, that following the
Resignation Date he shall be entitled to the following:
(a) Severance
Payment. The Company will continue to pay Xxxxxxxx his
existing Salary (as defined in his Employment Agreement) through April 2, 2010,
subject to all applicable taxes and withholdings (“Severance Payment”)
or at Seshadri’s request, pay his salary due through April 2, 2010 as a lump sum
payment on the Resignation Date.
(b) Stock
Options. Xxxxxxxx will be entitled to exercise any stock
options that are vested as of the Effective Date for 180 days from the
Resignation Date. All shares underlying options granted to Xxxxxxxx
that are unvested as of the Effective Date will be immediately forfeited and
cancelled. Xxxxxxxx acknowledges that he remains subject to the
Company’s Xxxxxxx Xxxxxxx Policy, as amended from time to time. As of the
Resignation Date, Xxxxxxxx has options to purchase 28,125 shares of common stock
vested, at an exercise price of $1.45 per share.
(c) Accrued
Benefits. Xxxxxxxx will be entitled to payment of all accrued
benefits including up to four weeks of any accrued but unused vacation and paid
time off hours that is to be carried over from his employment through November
17, 2009 plus earned and accrued and unused vacation and paid time off hours
earned during the period from November 17, 2009 through the Resignation
Date. Additionally, Xxxxxxxx shall be fully vested in all
contributions made to the 401(k)/Safe Harbor Pension Plan by the Company through
the Resignation Date.
(d) Bonus. Xxxxxxxx
shall be paid his bonus of $15,000 applicable to the Company’s fourth fiscal
quarter on the Resignation Date.
(e) Health
Insurance. The Company will pay three months of Seshadri’s
COBRA payments; provided that this obligation shall cease upon Xxxxxxxx
obtaining earlier employment that provides him with similar health insurance
coverage.
(f) The
Company will reimburse Xxxxxxxx for reasonable legal fees incurred in connection
with this Agreement.
Section
3. Waiver of Severance or Continuing
Benefits. Other than as provided for in this Agreement,
Xxxxxxxx waives any right to severance or any
other benefits in connection
with or as a result of the cessation of his
employment and other positions with the Company,
for any reasons, and agrees that he is only entitled to the payments
and other separation benefits provided
herein. Xxxxxxxx waives and acknowledges that he is not entitled to
any future of continuing health or other benefits
(except as may be required by applicable law).
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Section
4. Transition and Consulting Services;
Cooperation. From the Resignation Date until January 31, 2010,
Xxxxxxxx will serve the Company in a consulting capacity in exchange for a
consulting fee of $230 per
hour. Xxxxxxxx will make himself available for consulting services
requested by the Company for a minimum of 16 hours
per week and the use of such consulting services will be at the Company’s sole
discretion. Regardless of whether the Company calls upon Xxxxxxxx for
consulting services, he will be paid for the 16 hours per week that he has made
available. Payments for the Consulting Services shall be made on a
semi-monthly
basis in accordance with invoices submitted by Xxxxxxxx, and shall be
paid by wire transfer on the second day after such
invoices are submitted in an electronic format to the CEO of the Company.
Non-payment of such invoices shall be deemed a termination of such Consulting
Services and the balance of the payments due through January 31, 2010 will be
immediately due and payable. Such consulting services agreement shall be
renewable on a monthly basis on the same terms and conditions subject only to
the agreement of both the Company and Xxxxxxxx. Such consulting
services shall, among other requested services, consist of performing such
services and taking such actions as may be reasonably requested by the Company
to assist the Company in effecting an orderly transition of Seshadri’s duties
and responsibilities and the transfer of any important or material information
concerning the business and business strategies so as to minimize any adverse
impact on the business on account of the departure of the Xxxxxxxx; and to
otherwise cooperate and consult with the officers and management of the Company
concerning issues affecting the Company. At the Company’s request and
discretion, Seshadri’s consulting services will be performed at any of the
Company’s offices or remotely. Xxxxxxxx warrants to the Company that
any consulting services provided by Xxxxxxxx to the Company or its affiliates
under this Agreement will be performed in a professional and workmanlike
manner. Notwithstanding any provision hereof, for all purposes of
this Agreement each party will be and act as an independent contractor and not
as partner, joint venturer, or agent of the other and will not bind nor attempt
to bind the other to any contract. Xxxxxxxx will be an independent
contractor and is solely responsible for all taxes, withholdings, and other
statutory or contractual obligations of any sort. Any travel,
accommodation and out-of-pocket expenses associated with providing requested
consulting services and which are approved in advance by the Company will be
paid for directly by the Company.
Section
5. Release by
Xxxxxxxx. Xxxxxxxx will forever release for himself, his
marital community, and his respective heirs and/or assigns (the “Xxxxxxxx Parties”),
the Company and any and all of its parents, subsidiaries, directors, officers,
employees, equity holders, agents, representatives, attorneys, insurers,
predecessors, successors, and assigns (collectively, the “Company Parties”),
from ANY AND ALL RIGHTS,
CLAIMS, DEMANDS, CAUSES OF ACTION, OBLIGATIONS, DAMAGES, PENALTIES, FEES, COSTS,
EXPENSES, AND LIABILITIES, OF ANY NATURE WHATSOEVER, WHICH XXXXXXXX HAS, HAD, OR
MAY HAVE AGAINST THE COMPANY OR ANY OR ALL OF THE COMPANY PARTIES IN CONNECTION
WITH ANY CAUSE OR MATTER WHATSOEVER, WHETHER KNOWN OR UNKNOWN TO THE PARTIES AT
THE DATE OF THIS AGREEMENT AND INCLUDING, WITHOUT LIMITATION, ALL MATTERS
RELATED TO SESHADRI’S EMPLOYMENT AGREEMENT AND HIS EMPLOYMENT WITH THE COMPANY
AND THE TERMINATION OF HIS EMPLOYMENT.
By
signing this Agreement, Xxxxxxxx agrees to FULLY WAIVE AND RELEASE ALL
CLAIMS arising out of, or relating to, his employment with the Company,
his termination from employment with the Company, or his resignation of any
position as officer of the Company, WITH RESPECT TO, any claim or
other proceeding arising under:
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The
Civil Rights Act of 1866 (“Section
1981”);
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Title
VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of
1991 (“Title VII”);
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The
Americans with Disabilities Act (“ADA”);
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The
Age Discrimination in Employment Act (“ADEA”);
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The
Labor Management Relations Act (“LMRA”);
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The
National Labor Relations Act (“NLRA”);
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The
Fair Labor Standards Act (“FLSA”);
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The
Family and Medical Leave Act of 1993 (“FMLA”);
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The
Nevada Civil Rights Act;
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The
Nevada Employment Protection Act;
and/or
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Any
common law or statutory cause of action arising out of Seshadri’s
employment or termination of employment with the Company;
and/or
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Any
common law or statutory cause of action arising out of Seshadri’s
resignation of any position as an officer of the Company;
and/or
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Any
common law or statutory cause of action arising out of Seshadri’s status
as a shareholder of Company stock.
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This
Agreement may be used to completely bar any action or suit before any court,
arbitral, or administrative body with respect to any claim under federal, state,
local, or other law relating to this Agreement or to Seshadri’s employment
and/or termination of employment with the Company or its predecessors,
subsidiaries, successors, or assigns.
The
foregoing release shall NOT operate to release, waive, or otherwise impair (i)
any right to indemnification by the Company that Xxxxxxxx may have pursuant to
the Company’s current Articles of Incorporation or Bylaws or as otherwise
provided by applicable law; (ii) any right to coverage or protection under any
Directors & Officers Liability Insurance Policy maintained by the Company
relating to the period of Seshadri’s employment and during the provision of
consulting services noted herein; (iii) any claims, rights, or remedies
arising from the obligations of the Company under this
Agreement; (iv) any claims, rights, or remedies that Xxxxxxxx
may have and which may not be released or waived under applicable law (v) any
right to participate in any Equal Employment Opportunity Commission (“EEOC”) or other
federal, state, or local agency investigation, hearing, or proceeding or to file
a charge before the EEOC, but Xxxxxxxx waives any right to recover any sum from
the Company in connection with any such charge, investigation, hearing, or
proceeding; or (vi) any vested benefits to the extent vested as of the
Resignation Date.
Section
6. Confidentiality and
Non-Disclosure. Xxxxxxxx recognizes and acknowledges that the
Company’s trade secrets, proprietary information, and know-how (including,
without limitation, any information, materials, records, financial statements,
or books provided to Xxxxxxxx during the term of his employment), as they may
exist from time to time (“Confidential
Information”), to which he has had access to and knowledge of, are
valuable, special, and unique assets of the Company’s
business. Xxxxxxxx will not, in whole or in part, disclose such
Confidential Information to any party for any reason or purpose whatsoever, at
any time, nor will Xxxxxxxx make use of any such Confidential Information for
his own purposes or for the benefit of any third party under any circumstances;
provided, that these restrictions will not apply to such Confidential
Information which is in the public domain (provided that Xxxxxxxx was not
responsible, directly or indirectly, for such dissemination into the public
domain). Xxxxxxxx will use his best efforts to cause all persons or
entities to whom any Confidential Information may be permissibly disclosed by
him hereunder to observe the terms and conditions set forth herein as though
each such person or entity was bound hereby. This Confidential
Information section shall be valid for a period of one (1) year.
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Section
7. Non-Solicitation. For
a period of 12 months (which time period will be tolled during any breach of
this Section 7)
after the Resignation Date, Xxxxxxxx will not, directly or indirectly, on behalf
of himself or any person or entity, solicit, induce, or encourage (or attempt to
solicit, induce, or encourage) any (i) business relationship to cease doing
business with the Company, or otherwise interfere with any business
relationship; or (ii) person to leave the employ of the Company, whether or not
for purposes of obtaining employment with another person or entity, or otherwise
interfere in any way with the relationship between the Company and any such
person(s).
Section
8. Return of Company
Property. Except for any document or report or other prepared
by or in connection with Xxxxxxxx that Xxxxxxxx must retain for professional
responsibility purposes, or any equipment used by Xxxxxxxx and that is first
presented to the Chief Executive Officer of the Company, Xxxxxxxx hereby agrees
that he will immediately return all property in his possession or control
belonging to the Company and all copies thereof. However, Xxxxxxxx
will not be required to return his Apple computer and related
accessories.
Section
9. Public
Statements. Xxxxxxxx and the Company, by and through its
officers and directors, will refrain from making any public statements or
comments, whether orally, in writing, or transmitted electronically, about,
concerning, or in any way related to the other party that may, directly or
indirectly, have a material adverse effect upon the other party’s business,
prospects, reputation, or goodwill. Without limiting the generality
of the foregoing, Xxxxxxxx agrees not to make any public statements or comments
about the Company or its products or services, whether on or off the record, and
whether orally, in writing, or transmitted electronically, without the prior
approval of the Company’s Chief Executive Officer and the Company agrees not to
make any public statements or comments about Xxxxxxxx or his immediate family,
without the prior approval of Xxxxxxxx. Notwithstanding the
foregoing, these restrictions shall not apply to any information that the
parties are required to disclose in connection with any legal or regulatory
proceedings.
Section
10. Disparaging
Comments. Xxxxxxxx will refrain from making any disparaging
comments, either directly or indirectly, about or in any way related to the
Company or the Company Agents, including, without limitation, the Company’s
business or the Company’s prospects, either publicly or privately provided,
further, these restrictions shall not apply to any information that Xxxxxxxx is
required to disclose in connection with any legal or regulatory
proceedings. Similarly, the Company, by and through its officers and
directors, will refrain from making any disparaging comments, either directly or
indirectly, about or in any way related to Xxxxxxxx or his immediate family,
either publicly or privately.
Section
11. Acknowledgments. The
parties, by their execution of this Agreement, affirm that the following
statements are true:
(a) The
parties have been given the opportunity to, and have, read this entire
Agreement, and have had all questions regarding its meaning answered to their
satisfaction;
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(b) This
Agreement is written in a manner understood by the parties, and they fully
understand its content, and understand that it is a WAIVER AND RELEASE OF CLAIMS,
as specified herein. Xxxxxxxx expressly understands this WAIVER AND RELEASE
OF CLAIMS includes his existing rights or claims under the
ADEA, Section 1981, Title VII, and the Arizona and Nevada Civil Rights
Acts;
(c) Each
party represents and warrants that it/he has thoroughly discussed all aspects of
this Agreement with counsel of his/its choosing, and that he/it has carefully
read and fully understands all of the provisions of this Agreement, including
the fact that he/it is releasing certain claims and potential claims
against the other party and certain additional releases all as more specifically
set forth herein, and that he/it is entering into this Agreement without
coercion and with full knowledge of its significance and the legal consequences
thereof. Xxxxxxxx represents and warrants that as part of this
Agreement, he is releasing and waiving any claims he believes he may have under
the ADEA;
(d) This
Agreement is not to be construed as an admission of liability by any
party;
(e) Except
as provided herein, Xxxxxxxx acknowledges that the Company has paid all wages
and other amounts owed to him as a result of his employment by the Company and
that he is due no additional compensation for services rendered;
and
(f) A
copy of this Agreement was delivered to Xxxxxxxx on November 23,
2009. Xxxxxxxx is advised that he has 21 days from the date he is
presented with this Agreement to consider this Agreement. If Xxxxxxxx
executes this Agreement before the expiration of 21 days, he acknowledges that
he has done so for the purpose of expediting the payment of the consideration
provided for herein, and that he has expressly waived his right to take 21 days
to consider this Agreement.
(g) Xxxxxxxx
acknowledges that he has been further advised that he has the right to revoke
the Agreement within seven (7) calendar days after signing. Xxxxxxxx
understands that any such revocation must be in writing and directed to the
Company at the address for notices given pursuant to this Agreement and must be
received at such address within the seven (7) calendar day period and that,
should Xxxxxxxx so revoke, the Company shall not be required to make the
payments or take the actions described in this Agreement and this Agreement
shall become null and void.
Section
12. Arbitration. Reserving
to the parties the right to seek enforcement of this Agreement, where
appropriate, through injunctive relief, any controversy, dispute, or claim
arising out of or relating to this Agreement or any breach of it (“Claims”), will be
resolved by binding arbitration in San Francisco, California in accordance with
the Employment Dispute Resolution Procedures of the American Arbitration
Association (“AAA”). The
Claims covered by this Agreement include claims for wages and other
compensation, claims for breach of contract (express or implied), tort claims,
claims for discrimination or harassment (including, but not limited to, race,
sex, sexual orientation, religion, national origin, age, material status,
medical condition, and disability), and claims for violation of any federal,
state, or other government law, statute, regulation, or ordinance. If
the parties cannot agree on an arbitrator within 30 days of the demand for
arbitration, the parties will follow the AAA’s arbitrator selection
procedures. Except as otherwise required by law, the decision of the
arbitrator will be binding and conclusive on the parties. Judgment
upon the award rendered by the arbitrator may be entered in any court having
proper jurisdiction. Each of the parties will bear its or his own
attorneys’ fees and costs incurred in connection with the arbitration, except as
may otherwise be required by law and except for any attorneys’ fees or costs
which are awarded by the Arbitrator pursuant to this Agreement or statute that
provides for recovery of such fees and/or costs. AAA’s administrative
expenses will be borne by the Company. The parties each understand
and agree that by using arbitration to resolve any claims between the Company
and Xxxxxxxx they are giving up any right that they may have to a judge or jury
trial with regard to those claims. The parties acknowledge that they
are entering into this Agreement voluntarily and have independently negotiated
and agreed upon this procedure.
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Section
13. Governing Law. The
interpretation, performance, and enforcement of this Agreement will be governed
by the internal laws of the State of California, without giving effect to any
choice of law rule that would cause the application of the laws of any
jurisdiction other than the internal laws of the State of California to the
rights and duties of the parties.
Section
14. Severability. If
any provision of this Agreement or the application thereof is held to be
invalid, void, or unenforceable for any reason, the remaining provisions not so
declared will be construed so as to comply with the law, and will nevertheless
continue in full force and effect without being impaired in any manner
whatsoever.
Section
15.
Headings. The
headings in this Agreement are for reference only and will not affect the
interpretation of this Agreement.
Section
16. Indemnification. In
the event of any litigation or any other legal proceeding, including
arbitration, relating to this Agreement, including, without limitation, any
action to interpret or enforce this Agreement, the prevailing party will be
entitled to reasonable attorneys’ fees and costs of incurred in connection with
any such proceeding.
Section
17. Intent to be
Binding. This Agreement may be executed in any number of
counterparts and by facsimile, and each counterpart and/or facsimile constitutes
an original instrument, but all such separate counterparts and/or facsimiles
constitute one and the same agreement. Neither party to this
Agreement will seek to have any term, provision, covenant, or restriction of
this Agreement be held invalid.
Section
18. Waiver. The failure
of a party to insist upon strict adherence to any obligation of this Agreement
shall not be considered a waiver or deprive that party of the right thereafter
to insist upon strict adherence to that term or any other term of this
Agreement. Any waiver of any provision of this Agreement must be in a
written instrument signed and delivered by the party waiving the
provision.
Section
19.
Entire
Agreement. This Agreement supersedes all prior agreements,
whether written or oral, between the parties with respect to its subject matter
(including, without limitation, the Employment Agreement, any letter of intent,
draft agreement, conceptual agreement, or e-mail communication), and constitutes
a complete and exclusive statement of the terms of the agreement between the
parties with respect to its subject matter. This Agreement may not be
amended, supplemented, or otherwise modified except by a written agreement
executed by the party to be charged with the amendment.
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Section
20. Injunctive Relief Damages and
Forfeiture. Notwithstanding anything to the contrary in this
Agreement, due to the nature of Seshadri’s prior positions with the Company, and
with full realization that a violation of this Agreement will cause the Company
immediate and irreparable injury and damage which is not readily measurable, and
to protect the Company’s interests, Xxxxxxxx understands and agrees that, in
addition to instituting legal proceedings to recover damages resulting from a
breach of this Agreement, the Company may seek to enforce this Agreement with an
action for injunctive relief to cease or prevent any actual or threatened
violation of this Agreement by Xxxxxxxx. Similarly, the Company
agrees that Xxxxxxxx may seek to enforce this Agreement with any action for
injunctive relief to cease or prevent any actual or threatened violation of this
Agreement by the Company.
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IN WITNESS WHEREOF, the
Company has caused this Agreement to be signed by an authorized representative,
and Xxxxxxxx has signed this Agreement in his individual capacity, effective as
of the date first written above.
This is a
Release. Read Before Signing.
LIMITED
RIGHT TO REVOKE
Xxxxxxxx
may revoke this Agreement at any time within seven days following his execution
of the Agreement. Such revocation must be provided in writing and
received during the seven day revocation period. To be effective, the
revocation must be received by the following:
General
Counsel
LiveDeal,
Inc.
With
a copy (which shall not constitute notice) to:
Xxxxxxxx@xxxxx.xxx
Each
party understands that this Agreement will not become effective or enforceable
until the foregoing revocation period has elapsed with no revocation by
Xxxxxxxx.
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LIVEDEAL,
INC.
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/s/ Xxxxxx Xxxxxxxx
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/s/ Xxxxxxx Xxxxxx
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XXXXXX
XXXXXXXX, an individual
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By:
Xxxxxxx Xxxxxx
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Its:
Chief Executive Officer
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