SEPARATION AGREEMENT AND FULL RELEASE OF CLAIMS
SEPARATION
AGREEMENT AND FULL RELEASE OF CLAIMS
THIS
SEPARATION AGREEMENT AND FULL RELEASE OF CLAIMS (this “Agreement”) is
effective as of June 30, 2009 (the “Effective Date”), by
and between Xxxx Xxxxxxxx, an individual (“Xxxxxxxx”), and
LIVEDEAL, INC., a Nevada corporation (the “Company”).
RECITALS
X. Xxxxxxxx
was employed as the Chief Executive Officer of the Company pursuant to that
certain Employment Agreement by and between the Company and Xxxxxxxx dated
October 1, 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 hereby
acknowledges that he is no longer an employee of the Company and no longer
serves as the Company’s Chief Executive Officer or as any officer of the Company
or any of its affiliates. Additionally, Xxxxxxxx hereby resigns, as
of the Effective Date, his positions as a member of the Company’s Board of
Directors and as a director and/or officer of any of the Company’s affiliates,
including without limitation, Telco billing, Inc., a Nevada corporation and
LiveDeal, Inc., a California corporation.
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 to the following:
(a) Severance
Payment. Provided Xxxxxxxx does not revoke this Agreement
pursuant to the Limited Right to Revoke contained herein, the Company will wire
transfer to Xxxxxxxx on the eighth day following his execution of
this Agreement a lump sum equal to three months of his existing Salary (as
defined in his Employment Agreement) in the gross amount of $62,500.00, subject
to all applicable taxes and withholdings (“Severance
Payment”).
(b) Stock
Options. Xxxxxxxx will be entitled to exercise any options
that are vested as of the Effective Date under the stock option agreements
between the Company and Xxxxxxxx dated November 5, 2008 and November 10, 2008,
respectively; in each case, pursuant to and in accordance with the terms and
time periods set forth in the applicable stock option
agreement. Xxxxxxxx acknowledges that he remains subject to the
Company’s Xxxxxxx Xxxxxxx Policy, as amended from time to time.
(c) [Vacation Payout and Waiting
Time Penalties. The Company immediately will wire transfer to
Xxxxxxxx (i) the gross amount of $4,807.70, representing one week’s accrued,
unused vacation pay, subject to all applicable taxes and withholdings and (ii)
$8,653.85 as and for nine days of waiting time penalties pursuant to California
Labor Code section 203.][Presumably this can be removed since these payments
have been made.
(d) Expenses. On
the eighth day following Edelhart’s execution of this Agreement, the Company
will reimburse Xxxxxxxx for all expenses that he reasonably incurred in
connection with his employment for the Company and subject to such expenses
having been substantiated according to normal Company policy, including without
limitation $500.00 to cover the cost of one trip to be taken by Xxxxxxxx to Las
Vegas for the purpose of retrieving his personal belongings from the Company,
which costs will also require substantiation in accordance with normal Company
policy.[As a public company, we must document all reimbursements for
expenses]
(e) Attorneys’
Fees. On the eighth day following Edelhart’s execution of this
Agreement, the Company will provide Xxxxxxxx with a payment in the amount of
$1,000.00 as and for his attorneys’ fees incurred in connection with this
matter. This payment shall not be subject to withholding for
taxes.
Section
3. 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 UNKLNOWN TO THE PARTIES AT
THE DATE OF THIS AGREEMENT AND INCLUDING, WITHOUT LIMITATION, ALL MATTERS
RELATED TO EDELHART’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
Arizona or Nevada Civil Rights Act;
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The
Arizona or Nevada Employment Protection Act;
and/or
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Any
common law or statutory cause of action arising out of Edelhart’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 Edelhart’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 Edelhart’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 Edelhart’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 Edelhart’s employment; (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
or (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.
Section
4. 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.
Section
5. Non-Solicitation. For
a period of 24 months (which time period will be tolled during any breach of
this Section 7)
after the Effective 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 (unless previously an affiliate of First30
Services) 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
6.
Return of Company
Property. Except for any document or report prepared by or in
connection with Xxxxxxxx that Xxxxxxxx must retain for professional
responsibility purposes 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.
Section
7. Public
Statements. Xxxxxxxx and the Company 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
8.
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 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
9. 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;
(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 or reimbursement
for expenses incurred; and
(f) A
copy of this Agreement was delivered to Xxxxxxxx on May 20,
2009. Xxxxxxxx was advised that he had 21 days from the date he is
presented with this Agreement to consider this Agreement.
Section
10. 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.
Section
11. Governing Law. The
interpretation, performance, and enforcement of this Agreement will be governed
by the internal laws of the State of Nevada, 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 Nevada to the rights and duties of
the parties.
Section
12. 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
13. Headings. The
headings in this Agreement are for reference only and will not affect the
interpretation of this Agreement.
Section
14. 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
15. 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
16. 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
17. 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.
Section
18. Injunctive Relief Damages and
Forfeiture. Due to the nature of Edelhart’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.
[REMAINER
OF PAGE INTENTIONALLY LEFT BLANK]
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:
Chief
Executive Officer
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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XXXX
XXXXXXXX, an individual
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By:
Xxxxxx Xxxxx
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Its:
Chairman of the
Board
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