SEVERANCE, CONSULTING AND RELEASE AGREEMENT
Exhibit
10.14
This SEVERANCE, CONSULTING AND RELEASE
AGREEMENT (the “Agreement”) is dated as of this 2nd day of February, 2010 by and
among Money4Gold Holdings, Inc.,
a Delaware corporation (the “Company”), Xxxx Xxxxxxx (“Xxxxxxx”) and Xxxx Xxxxxxx Holdings,
LLC (the “Consultant”).
WHEREAS,
Xxxxxxx is employed by the Company as Chief Operating Officer and wishes
to terminate his employment;
WHEREAS,
the Company and Xxxxxxx desire to terminate Xxxxxxx’x employment
agreement with the Company and to provide for severance payments to Xxxxxxx;
WHEREAS,
the Company desires to retain the services of the Consultant and to ensure
the continued availability to the Company of Xxxxxxx’x services, and the
Consultant is willing to accept such service arrangement and render such
services, all upon and subject to the terms and conditions contained in this
Agreement; and
WHEREAS, the Parties desire to
provide for certain releases.
NOW, THEREFORE,
in consideration of the premises and the mutual covenants set forth in this
Agreement, and intending to be legally bound, the Company and the Consultant
agree as follows:
1. Consulting.
(a) Engagement. The Company hereby
engages and retains the Consultant and the Consultant hereby agrees to render
services during the Consulting Term (as defined in Section 2) upon the terms and
conditions hereunder. In addition, Xxxxxxx’x option to purchase
555,556 shares of common stock of the Company, exercisable at the closing price
of the Company’s common stock on December 21, 2009 and originally granted on
December 22, 2009 will become immediately vested and shall remain exercisable
through the close of business on February 1, 2011. This Agreement shall
terminate Xxxxxxx’x Employment Agreement dated May 5, 2009 (the “Employment
Agreement”) effective as of January 31, 2010.
(b) Term. The consulting services
under this
Agreement shall be for a term commencing on February 2, 2010 and ending July 31,
2010 (the “Consulting Term”) unless sooner terminated in accordance with the
provisions of Section 5.
(c) Services. During
the Consulting Term, the Consultant shall provide consulting services,
including, without limitation, those services relating to the Company’s
international expansion with a focus on Japan and Argentina (the
“Services”). All Services provided by the Consultant shall be
performed by Xxxxxxx. The Consultant shall report directly to the
Chief Executive Officer of the Company and shall devote no less than 50 hours
per month. The Consultant shall also respond to, and perform
Services requested by, other executive officers of the Company. The
Consultant shall use its best efforts to perform the Services competently,
carefully and faithfully.
(d) Compensation/Expenses.
(i) In
consideration for the Services to be rendered by the Consultant under this
Agreement, the Company shall pay the Consultant $195,000 (the “Services
Compensation”) payable in six equal installments of $32,500 on the 15th day of
each month commencing February 15, 2010 through July 15, 2010.
(ii) In
addition to any compensation received pursuant to this Agreement, the Company
shall reimburse the Consultant for all reasonable travel, lodging, meals, and
other prior approved out-of-pocket expenses incurred or paid by the Consultant
in connection with the performance of its Services under this Agreement upon the
presentation of itemized statements of such expenses; provided, however, any such
individual expenses (or any series of related expenses) in excess of $500.00
shall be approved by an executive officer of the Company in writing in
advance. All other expenditures shall be the sole responsibility of
the Consultant. Such reimbursement or advances shall be made in
accordance with the policies and procedures of the Company in effect from time
to time relating to reimbursement of expenses to employees.
2. Severance. As
severance in connection with the Company’s termination of the Employment
Agreement, the Company shall pay Xxxxxxx $46,667 (the “Severance Payment”)
payable, less withholding of applicable taxes, in equal installments of
$15,555.67 over three months in accordance with the Company’s regular payroll
practices, commencing with the first payroll period in the month following
August 1, 2010.
3. Release
of Known and Unknown Claims by Xxxxxxx, Consultant and Company. In consideration
for this Agreement, each of Xxxxxxx, Consultant and Company hereby releases and
discharges the other and their respective affiliates, and subsidiaries, as well
as their respective current and former officers, directors, shareholders,
employees, representatives, attorneys and agents (including, without limitation,
Xxxxxx Xxxxxxx , Xxxxxxx Xxxxxxxxx and Hakan Koynucu personally and in their
capacities as officers, directors, shareholders and employees of the Company and
its subsidiaries), from any and all claims, demands, liabilities, suits or
damages, whether known or unknown, of any type or nature including, but not
limited to those claims arising from or in any way related to:
(i) Xxxxxxx’x employment with the Company, (ii) the
termination of Xxxxxxx’x employment; or (iii) that certain Stockholders
Agreement by and among, the Company, Xxxx Xxxxxxx, Xxxxxxx Xxxxxxxxx, Xxxxxx
Xxxxxxx and Xxxxx Xxxxxxx dated May 5, 2009 (the “Stockholders
Agreement”).
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This release specifically includes,
without limitation, all claims for wrongful discharge, breach of express or
implied contract, defamation, fraud, misrepresentation, compensatory and/or
other relief relating or in any way connected with the terms, conditions, and
benefits of employment, discrimination based on race, color, sex, religion,
national origin, age, marital status, handicap and medical condition, and/or all
claims arising under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973, the
Civil Rights Acts of 1866 and 1991, 42 U.S.C. § 2000e et seq., the Americans with
Disabilities Act of 1990, the Employee Retirement Income Security Act of 1974,
the Equal Pay Act of 1963, the Family and Medical Leave Act of 1993, the Fair
Labor Standards Act of 1938, the Older Workers Benefit Protection Act of 1990,
the Occupational Safety and Health Act of 1970, the Worker Adjustment and
Retraining Notification Act of 1989, the Xxxxxxxx-Xxxxx Act of 2002, the Florida
Civil Rights Act of 1992, the Florida Minimum Wage Act, Florida Workers’
Compensation Law, Florida and Federal Whistleblower’s Law, COBRA, as well as any
other federal, state, or local statute, regulation, or common law regarding
employment, employment discrimination, termination, retaliation, equal
opportunity, or wage and hour.
By
entering into this Agreement, the Company does not suggest or admit to any
liability to Xxxxxxx, of any type or nature, or that it violated any law or any
duty or other obligation to Xxxxxxx.
4. Independent
Contractor Relationship.
(a) The
Consultant acknowledges that it is an independent contractor and not an employee
of the Company, and that it is not the legal representative or agent of, nor
does it have the power to obligate the Company for any purpose other than
specifically provided in this Agreement. The Consultant further
acknowledges that the scope of his engagement hereunder does not include any
supervisory responsibilities with respect to the Company’s personnel. The
Consultant expressly acknowledges that the relationship intended to be created
by this Agreement is a business relationship based entirely on, and
circumscribed by, the express provisions of this Agreement and that no
partnership, joint venture, agency, fiduciary or employment relationship is
intended or created by reason of this Agreement.
(b) The
Company shall carry no worker’s compensation insurance or any health or accident
insurance to cover the Consultant or its employees. The Company shall
not pay contributions to social security, unemployment insurance, federal or
state withholding taxes, nor provide any other contributions or benefits, which
might be expected in an employer-employee relationship. Neither the
Consultant nor its employees shall be entitled to medical coverage, life
insurance or to participation in any current or future Company pension
plan.
(c) The
Company shall issue the Consultant a Form 1099 for all payments made
hereunder. All taxes, withholding and the like on any and all amounts
paid under this Agreement shall be the Consultant’s responsibility. The
Consultant agrees that he shall indemnify and hold the Company, its affiliates,
and agents, harmless from and against any judgments, fines, costs, or fees
associated with such payments hereunder.
5. Termination.
(a) In
the event of a material default under this Agreement by any party, including the
failure of Xxxxxxx to perform the Services on behalf of the Consultant, the
other party(ies) may terminate this Agreement if such default is not cured
within ten (10) days following delivery of written notice of such
default. Notwithstanding the preceding, in the event of a violation
by the Consultant or Xxxxxxx of Section 6, the Company may terminate this
Agreement immediately upon written notice to the Consultant and
Xxxxxxx.
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(b) Upon
termination of this Agreement, the Consultant shall only be entitled to receive
its compensation though the effective date of termination and the Company shall
reimburse the Consultant for any reasonable expenses previously incurred for
which the Consultant had not been reimbursed prior to the effective date of
termination, provided that the requirements of Section 1(d)(ii) have been
satisfied. Any and all other rights granted to the Consultant under
this Agreement shall terminate as of the date of such
termination. Notwithstanding anything herein to the contrary and for
the avoidance of doubt, an amount equal to $291,667 less any compensation paid
to Consultant hereunder, shall become immediately due and payable upon a
material default under this Agreement by the Company that has not been cured in
accordance with this Section 7.
6. Non-Disclosure
of Confidential Information;
Covenant Not-To-Compete.
(a) Confidential
Information. Confidential Information includes, but is not
limited to, trade secrets as defined by the common law and statute in Florida or
any future Florida statute, processes, policies, procedures, techniques
including recruiting techniques, designs, drawings, know-how, show-how,
technical information, specifications, computer software and source code,
information and data relating to the development, research, testing, costs,
marketing and uses of the Company’s products and services, the Company’s budgets
and strategic plans, and the identity and special needs of customers, databases,
data, all technology relating to the Company’s businesses, systems, methods of
operation, customer lists, customer information, solicitation leads, marketing
and advertising materials, methods and manuals and forms, all of which pertain
to the activities or operations of the Company, names, home addresses and all
telephone numbers and e-mail addresses of the Company’s employees, former
employees, clients and former clients. In addition, Confidential Information
also includes the identity of customers and the identity of and telephone
numbers, e-mail addresses and other addresses of employees or agents of
customers who are the persons with whom the Company’s employees and agents
communicate in the ordinary course of business. For purposes of this
Agreement, the following will not constitute Confidential Information (i)
information which is or subsequently becomes generally available to the public
through no act or omission of the Consultant, and (ii) information which is
lawfully obtained by the Consultant in writing from a third party (excluding any
affiliates of the Consultant) who did not acquire such Confidential Information,
directly or indirectly, from the Consultant or the Company and was not legally
entitled to disclose the same.
(b) Legitimate Business
Interests. The Consultant recognizes that the Company has
legitimate business interests to protect and as a consequence, the Consultant
agrees to the restrictions contained in this Agreement because they further the
Company’s legitimate business interests. These legitimate business
interests include, but are not limited to (i) trade secrets and valuable
confidential business or professional information that otherwise does not
qualify as trade secrets, including all Confidential Information; (ii)
substantial relationships with specific prospective or existing customers or
clients; (iii) customer goodwill associated with the Company’s business; and
(iv) specialized training relating to the Company’s business, technology,
methods and procedures.
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(c) Confidentiality. The
Confidential Information shall be held by the Consultant and its managers,
employees and agents in the strictest confidence and shall not, without the
prior written consent of the Company, be disclosed to any person other than in
connection with the Consultant’s Services to the Company. The
Consultant further acknowledges that such Confidential Information as is
acquired and used by the Company is a special, valuable and unique
asset. The Consultant shall exercise all due and diligence
precautions to protect the integrity of the Company’s Confidential Information
and to keep it confidential whether it is in written form, on electronic media
or oral. The Consultant shall not copy any Confidential Information
except to the extent necessary to its Services hereunder nor remove any
Confidential Information or copies thereof from the Company’s premises except to
the extent necessary to provide its Services and then only with the
authorization of an officer of the Company. All records, files,
materials and other Confidential Information obtained by the Consultant in the
course of his Services to the Company are confidential and proprietary and shall
remain the exclusive property of the Company or its customers, as the case may
be. The Consultant shall not, except in connection with and as
required by its performance of the Services under this Agreement, for any reason
use for his own benefit or the benefit of any person or entity with which he may
be associated or disclose any such Confidential Information to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever
without the prior written consent of an officer of the Company.
(d) Covenant
Not-To-Compete. During the period commencing on the date hereof and
ending on October 31, 2011, the Consultant and Xxxxxxx shall not directly or
indirectly, or in association with or as a stockholder, director, officer,
consultant, employee, partner, joint venturer, member or otherwise of or through
any person, firm, corporation, partnership, association or other entity, (i)
compete with the Company by providing services similar to the Company, or (ii)
own an interest in any other person or entity that provides such services; provided, however,
that the foregoing shall not prohibit the Consultant and Xxxxxxx from
collectively owning up to 5% of the securities of any publicly-traded enterprise
provided as long as the Consultant and/or Xxxxxxx, as applicable, are not a
director, officer, consultant, employee, partner, joint venturer, manager,
member of, or to such enterprise, or otherwise compensated for services rendered
thereby. In consideration for the covenant not-to-compete set forth
in this Section 6(d), the Company shall pay to Xxxxxxx and the Consultant the
aggregate amount of $50,000 (i.e., collectively) (the “Non-Compete Payment”)
payable in three equal installments of $16,667 on the 15th day of
each month commencing August 15, 2010 through October 15, 2010.
(e) Affiliates. References
to the Company in this Section shall include the Company’s affiliates, including
subsidiaries.
7. Equitable
Relief. The Company and the Consultant recognize that the
Services to be rendered under this Agreement by are special, unique and of
extraordinary character, and that in the event of the breach by the Consultant
of the terms and conditions of this Agreement or if the Consultant, shall cease
to provide the Services to the Company for any reason and take any action in
violation of Section 6, the Company shall be entitled to institute and prosecute
proceedings in any court of competent jurisdiction to enjoin the Consultant from
breaching the provisions of Section 6. In such action, the Company
shall not be required to plead or prove irreparable harm or lack of an adequate
remedy at law or post a bond or any security.
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8.
Survival. Sections 3, 4, 5,
6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 shall survive termination of this
Agreement.
9.
Assignability. The
rights and obligations of the Company under this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the
Company. This Agreement may not be assigned or alienated without the
prior written consent of the other party and any attempt to do so shall be
void.
10. Severability. If any
provision of this Agreement otherwise is deemed to be invalid or unenforceable
or is prohibited by the laws of the state or jurisdiction where it is to be
performed, this Agreement shall be considered divisible as to such provision and
such provision shall be inoperative in such state or jurisdiction and shall not
be part of the consideration moving from either of the parties to the
other. The remaining provisions of this Agreement shall be valid and
binding and of like effect as though such provisions were not included. If any
restriction set forth in Section 6 is deemed unreasonable in scope, it is the
parties’ intent that it shall be construed in such a manner as to impose only
those restrictions that are reasonable in light of the circumstances and as are
necessary to assure the Company the benefits of this Agreement.
11. Notices
and Addresses. All notices, offers, acceptance and any other
acts under this Agreement (except payment) shall be in writing, and shall be
sufficiently given if delivered to the addressees in person, by Federal Express
or similar overnight delivery, or by facsimile or email followed by Federal
Express or similar next business day delivery, as follows:
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To
the Company:
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To
Xxxxxxx or the Consultant:
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Money4Gold
Holdings, Inc.
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Xxxx
Xxxxxxx Holdings, LLC
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000
X. Xxxxxxx Xxxx., Xxx. 0000
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000
XX 00xx
Xxxxxx
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Xx.
Xxxxxxxxxx, XX 00000
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Xxxxx,
XX 00000
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Attention: Xxxxxxx
Xxxxxxxxx, CEO
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or to
such other address as either of them, by notice to the other may designate from
time to time. The transmission confirmation receipt from the sender’s
facsimile machine shall be evidence of successful facsimile delivery. Time shall
be counted to, or from, as the case may be, the delivery in person or by
mailing.
12. Counterparts. This Agreement
may be executed in one or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same
instrument. The execution of this Agreement may be by actual or
facsimile signature.
13. Attorneys’
Fees. In the event that there is any controversy or claim
arising out of or relating to this Agreement, or to the interpretation, breach
or enforcement thereof, and any action or proceeding is commenced to enforce the
provisions of this Agreement, the prevailing party shall be entitled to a
reasonable attorney’s fee, costs and expenses.
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14. Governing
Law. This Agreement and any dispute, disagreement, or issue of
construction or interpretation arising hereunder whether relating to its
execution, its validity, and the obligations provided therein or performance
shall be governed or interpreted according to the internal laws of the State of
Florida without regard to choice of law considerations.
15. Entire
Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior oral and written agreements between
the parties hereto with respect to the subject matter hereof. Neither
this Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, except by a statement in writing signed by the party or
parties against whom enforcement or the change, waiver discharge or termination
is sought.
16. Additional
Documents. The parties hereto shall execute such additional
instruments as may be reasonably required by their counsel in order to carry out
the purpose and intent of this Agreement and to fulfill the obligations of the
parties hereunder.
17. Section
and Paragraph Headings. The section and paragraph headings in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
18. Indemnification.
(a) By the Company. The
Company shall indemnify, defend and hold harmless the Consultant and employees
and representatives from and against and in respect of any and all claims,
demands, losses, costs, expenses, obligations, liabilities, damages and
recoveries, including interest, penalties, reasonable attorney’s fees and costs,
that the Consultant or any of his employees or representatives shall incur or
suffer, which arise out of, result from, or relate to the performance by the
Consultant of the Services to be provided hereunder or in any way relate to this
Agreement; provided, however, that the Company shall not be required to
indemnify the Consultant or any of his employees or representatives for any
damages suffered by the Consultant or any such employee or representative as a
result of the Consultant’s gross negligence, willful misconduct or unlawful or
fraudulent conduct in performing the Services to be provided
hereunder.
(b) By the
Consultant.
(i) The
Consultant shall indemnify, defend and hold harmless the Company and its
affiliates, officers, directors, employees and representatives from and against
and in respect of any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages and recoveries, including interest, penalties,
reasonable attorney’s fees and costs, that the Company or any of its affiliates,
officers, directors, employees or representatives shall incur or suffer, which
arise out of, result from, or relate to the gross negligence, willful misconduct
or unlawful or fraudulent conduct of the Consultant in the performance of the
Services to be provided hereunder.
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(ii) The
Consultant shall indemnify the Company and its affiliates against all federal,
state, and local tax liability (including penalties and interest) which may
result from any federal, state, or local tax audit (including, but not limited
to, income, social security, disability, and unemployment taxes) that deems the
Consultant, or any employee or representative thereof, to be an employee rather
than an independent contractor of the Company or any of its
affiliates.
19. Director
and Officer Resignation. Xxxxxxx hereby
resigns as a Chief Operating Officer and director of the Company upon the date
first written above.
20. Stockholder’s
Agreement. Nothing contained
herein shall be construed as an amendment to the Stockholders Agreement and none
of the parties hereto have entered into any agreement (oral or written) amending
the same.
[Signature
Page to Follow]
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IN WITNESS WHEREOF, the
Company and the Consultant have executed this Agreement as of the date written
above.
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COMPANY:
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Money4Gold
Holdings, Inc.
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By:
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/s/
Xxxxxxx Xxxxxxxxx
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Xxxxxxx
Xxxxxxxxx, as CEO
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CONSULTANT:
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Xxxx
Xxxxxxx Holdings, LLC
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By:
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/s/
Xxxx Xxxxxxx
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Xxxx
Xxxxxxx, Manager
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XXXXXXX:
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/s/Xxxx
Xxxxxxx
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Xxxx
Xxxxxxx
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