SEPARATION AGREEMENT
EXHIBIT 10.1
This Separation Agreement (“Agreement”), effective as of the 1st day of January 2006 (the
“Effective Date”), is entered into by and between Spark Networks plc, an English public limited
company (the “Company”), with its registered office at 00/00 Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx,
Xxxxxx X0 0XX, XX, and Xxx Xxxxxxx, an individual, residing at [PERSONAL ADDRESS] (the “Director”).
Recitals:
A. Whereas the Company and Director are parties to that certain Employment Agreement,
effective as of March 1, 2005 (the “2005 Employment Agreement”).
B. Whereas, except as expressly set forth herein, the Company and Director each wish to
terminate the 2005 Employment Agreement, in its entirety, and replace it with this Agreement.
C. Whereas the Director wishes to resign from his executive responsibilities at the Company
and remain the Chairman of the Company’s Board of Directors (the “Board”) and the Company desires
the same.
In consideration of the promises and respective covenants and agreements of the parties herein
contained, and intending to be legally bound, the parties hereto agree as follows:
1. Directorship. The Company and Director hereby agree that, effective as of the Effective
Date, Director will serve as a non-executive Chairman of the Board of Directors of the Company, on
the terms and conditions set forth in this Agreement and, except as set forth in Article 8 below,
that the 2005 Employment Agreement and any related employment and/or compensation arrangements that
Executive has with the Company, whether oral or written, shall terminate, in their collective
entirety, on the Effective Date hereof. Director hereby acknowledges that he has received all
salary, compensation and benefits due him pursuant to the terms of the Employment Agreement.
2. Term. Director’s appointment to the Board shall extend until the Company’s next annual
general meeting and shall continue as long as Director is continuously reelected to the Board by
the shareholders of the Company, unless Director resigns or is removed in accordance with the terms
of the Company’s Memorandum and Articles of Association and applicable law.
3. Duties of Director. Director shall fulfill the necessary duties as the Chairman of the
Board. The Board shall determine the Board committee appointments, if any, that are appropriate
for Director. Director is expected to attend at least four (4) Board meetings and, if applicable,
four (4) committee meetings per year in Los Angeles. In addition, Director shall be available on
an as-needed basis for Board meetings by conference call, to execute written resolutions and for
such other matters as the Company may reasonably require.
4. Compensation and Related Matters.
4.1 Cash Compensation: The Company agrees that, within ten (10) days of receipt by
the Company of a duly executed original of this Agreement, the Company shall pay to Director
severance pay in the lump sum amount of $125,000, minus all applicable state and federal
withholdings. In addition, for his services as a director , the Company shall pay Director a
director’s fee at the rate of $30,000 per year, payable in monthly installments of $2,500 each for
each month of service, in arrears, beginning with the fee payable for service as a director for
January 2006. In addition, Director shall receive $1,000 for his in-person attendance at a Board
or committee meeting and $500 for his attendance at a telephonic Board or committee meeting. The
Company shall also reimburse Director for all approved expenses that are incurred in the
performance of his duties.
4.2 COBRA Coverage: The Company shall pay for up to eighteen (18) months of COBRA
insurance coverage for Director, commencing on January 1, 2006 and terminating on June 30, 2007, or
until covered under another plan, which ever occurs first, pursuant to the provisions of COBRA.
4.3 Share Options. Director shall retain all share options previously awarded to
Director and such options shall vest and become exercisable on the terms set forth in any option
certificates relating thereto.
4.4 Return of Company Property Following Termination. Upon termination of Director’s
service on the Board, for whatever reason, Director shall return all books, documents, papers,
materials and any other property which relates to the business of the Company (or any subsidiary,
affiliated, or holding companies) which may be in Director’s possession or under the Director’s
power or control.
5. Use of Office; Email Access.
5.1 From the Effective Date through February 28, 2006, Director shall be permitted reasonable
access to Director’s former office at the Company premises (the “Former Office”); provided,
however, when Director is not present at the Company’s premises and using the Former Office, the
Company may use the Former Office for any purpose that the Company deems appropriate. At all times
while on Company premises, although no longer a Company employee, Director agrees to adhere to the
Company’s policies and procedures, in effect from time to time.
5.2 Through June 30, 2006, Director shall continue to have access to the e-mail address
xxx@xxxxx.xxx., provided that Director continues to serve as a director of the Company. From July
1, 2006 through December 31, 2006, the Company shall forward all e-mail received by Company at the
e-mail address referenced above to the personal e-mail address of Director’s choosing, provided
that Director continues to serve as a director of the Company. Director shall promptly inform and
forward to appropriate personnel at the Company any business related emails for response by the
Company.
6. Indemnification; Insurance. To the fullest extent permitted by the Company’s charter
documents and applicable law, the Company agrees to defend and indemnify Director and hold Director
harmless against any demand, claim, cause of action, action, loss, and/or liability that is made
against Director, and/or that Director incurs, including but not limited to attorneys fees and
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costs, whether arising from or relating to Director’s Employment Agreement, employment with the
Company, service as a director of the Company, or otherwise. The Company agrees to use its best
efforts to purchase and maintain adequate Directors’ and Officers’ liability insurance from a
reputable and financially sound insurer with coverage limits to be determined by the Board and with
provisions that will provide coverage for Director as a director as well as coverage as a former
director following any termination of Director’s services as director.
7. Release of Employment Claims. In exchange for the agreements contained in Paragraph 4,
5, and 6 above, and in consideration of the further agreements set forth below, Director agrees
unconditionally and forever to release and discharge the Company, as defined above, from any and
all employment termination claims, actions, causes of action, demands, rights, or damages of any
kind or nature which he may now have, or ever have, whether known or unknown, including , but not
limited to, any claims for wrongful or unlawful discharge or demotion; violation of public policy;
failure to pay wages, benefits, vacation pay, severance pay, attorneys’ fees, or other compensation
of any sort; discrimination or harassment on the basis of age, race, color, sex, gender, national
origin, ancestry, religion, disability, handicap, medical condition, marital status, sexual
orientation or any other protected category; any claim under Title VII of the Civil Rights Act of
1964, as amended, the Americans with Disabilities Act, the Age Discrimination in Employment Act,
the Older Workers Benefit Protection Act, the California Fair Employment and Housing Act, or
Section 1981 of Title 42 of the United States Code; violation of COBRA; violation of any safety and
health laws, statutes or regulations; violation of ERISA; violation of the Internal Revenue Code;
or any other claim for damages, whether statutory, compensatory or punitive, reinstatement, and/or
other equitable and/or statutory relief for termination of Director’s employment and/or Employment
Agreement and/or separation from the Company (collectively “Employment Claims”)
With respect to the Employment Claims released hereunder, Director further agrees knowingly to
waive the provisions and protections of Section 1542 of the California Civil Code, which reads:
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.
8. Notice. For the purposes of this Agreement, notices, demands and all other
communications provided for in the Agreement shall be in writing and shall be deemed to have been
duly given when delivered or (unless otherwise specified) mailed by registered mail, return receipt
requested, postage prepaid, addressed as set forth above to Director and, if to Company, addressed
to 0000 Xxxxxxxx Xxxx., Xxxxx 000, Xxxxxxx Xxxxx, XX 00000, Attention: General Counsel, or to such
other address as any party may have furnished to the other in writing in accordance herewith,
except that notices of change of address shall be effective only upon receipt.
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9. Release of Age Claims. As a part of this Agreement, Director expressly agrees to
release any rights or claims arising out of the Federal Age Discrimination in Employment Act
(“ADEA”) 29 U.S.C. § 621, et seq., and in connection with such waiver:
(a) Director is hereby advised to consult with an attorney prior to signing this Agreement;
(b) Director shall have a period of twenty-one (21) days from the date of receipt of this
Agreement in which to consider the terms of this Agreement. Director may sign this Agreement at
any time during the 21 day period; and
(c) Director may revoke this Agreement at any time during the first seven (7) days following
his execution of the Agreement, and this Agreement shall not be effective or enforceable until the
(7) day revocation period has expired.
10. Miscellaneous.
10.1 The validity, interpretation, construction and performance of this Agreement shall be
governed by the laws of the State of California, without giving effect to the principles of
conflicts of law.
10.2 This Agreement shall be construed under the laws of the State of California, both
procedural and substantive.
10.3 Sections 8 of the 2005 Employment Agreement (relating to confidentiality) shall remain in
full force and effect and shall survive the termination of the 2005 Employment Agreement and this
Agreement. Similarly, any other agreements related to confidentiality and between Director and the
Company shall remain in full force and effect in accordance with their terms.
10.4 This Agreement constitutes the entire agreement between Director and the Company
concerning the subject matter hereof. Other than as expressly set forth herein, no covenants,
agreements, representations, or warranties of any kind have been made to any party hereto. All
prior discussions and negotiations have been and are merged and integrated into, and are superseded
by, this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date and year first above
written.
By:
|
/s/ Xxxxx Xxxxxxxx | /s/ Xxx X. Xxxxxxx | ||
| Name: Xxxxx Xxxxxxxx | Xxx X. Xxxxxxx | |||
| Title: Chief Executive Officer |
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