SEPARATION AGREEMENT AND MUTUAL GENERAL RELEASE
Exhibit
10.99
SEPARATION
AGREEMENT AND MUTUAL GENERAL RELEASE
This
Separation Agreement and Mutual General Release (this “Agreement”) is entered
into as of this 16th day of March 2009 by Xxxxxxx X. Xxxxxx and Collectors
Universe, Inc., a Delaware corporation.
In
consideration of the respective covenants and agreements of each party to the
other contained herein and for other good and valuable consideration, the
adequacy and receipt of which is hereby acknowledges, Xxxxxxx X. Xxxxxx, for
himself, his heirs, successors and assigns (hereinafter collectively referred to
as the “Executive”) and Collectors Universe, Inc. (the “Company”), on behalf of
itself and on behalf and for the benefit of its subsidiaries and otherwise
related entities, and its and their past, present and future officers,
directors, shareholders, executives, managers, supervisors, employees, agents,
indemnitees, insurers, attorneys, legal representatives, successors, heirs, and
assigns (collectively, “Company Affiliates”), hereby agree to the
following:
1. Executive
hereby resigns (i) as the Company’s Chief Executive Officer (“CEO”) and
from all positions he may hold, whether as a member of the board of directors or
officer or employee, with any Company Affiliates (including any subsidiaries of
the Company) effective March 16, 2009 (the “Officer Resignation Date”) and (ii)
from his employment with the Company as of the close of business on
March 31, 2009 (the “Employment Resignation Date”). Pursuant to
that resignation, and effective on the Officer Resignation Date, the Executive
will relinquish his title as Chief Executive Officer of and any other titles he
may have held with the Company, as well as any titles he may have held with any
Company Affiliates.
2. Executive
represents and warrants and agrees that he has received all compensation owed to
him by the Company through his Resignation Date, including any and all wages,
bonuses, commissions, incentive compensation, car allowances, earned but unused
vacation, stock, stock options, reimbursable business expenses, and any other
payments, benefits, or other compensation of any kind to which he was entitled
from the Company, excepting only the consideration provided for
herein.
3. Executive
further acknowledges that the compensation and benefits provided to him in this
Agreement are in place of the compensation and benefits provided to him in
Sections 3, 4 and 5 of the Employment Agreement (“Employment Agreement”),
dated January 1, 2003, and Section 2 of the Employment Agreement Amendment
(“Amended Agreement”), dated September 19, 2006, and that this Separation
Agreement supersedes the Employment Agreement and Amended Agreement and all
other amendments to the Employment Agreement, with the sole exception that the
Employee Confidentiality Agreement and Assignment of Rights (collectively, the
“Intellectual Property Rights Agreements”), entered into by him with and for the
benefit of the Company in substantially the forms attached as Exhibit A and
Exhibit B, respectively, to such Employment Agreement, will remain in full
force and effect according to their respective terms and Executive agrees to
comply with all of his covenants, agreements and obligations under those
Intellectual Property Rights Agreements.
4. In lieu
of the compensation and benefits provided to Executive in the Employment
Agreement and the Amended Agreement, and in reliance on Executive’s promises,
representations, and releases contained in this Agreement, within ten (10)
business days after the Company’s receipt of this Agreement signed without
change by Executive, and in consideration therefore, and assuming Executive does
not revoke this Agreement within the seven (7) calendar days Rescission Period
referenced in the Older Workers’ Benefit Protection Act provision that is the
subject matter of Section 10 below, the Company will:
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(a) To
make payments to Executive in an amount totaling Two Hundred Ninety-Eight
Thousand Dollars ($298,000), less tax and other legally required withholdings,
in installments at the times and in the amounts as set forth on Exhibit A hereto
(the Salary Continuation Benefit”).
(b) Upon
Executive’s timely election of continuation coverage under COBRA, for the period
hereinafter specified (the “Insurance Continuation Period”), the Company will
pay one hundred percent (100%) of the Executive’s COBRA premiums for the medical
insurance coverage as in effect on March 1, 2009 for the entire Insurance
Continuation Period. For purposes of this Agreement, the term
“Insurance Continuation Period” shall mean the shorter of (i) the period
Executive remains eligible for COBRA arising from his separation from the
Company, or (ii) the date that is eighteen (18) months after the Employment
Resignation Date, provided, however, that if,
prior to the end of the Insurance Continuation Period, Executive obtains other
employment which makes health insurance available to him, the Company’s
obligation to pay such COBRA premiums shall thereupon cease.
(c) Pay
the fees and expenses, not to exceed thirty thousand dollars ($30,000), for
executive outplacement services to be provided to Executive by an agency
approved by the Company. Such fees and expenses shall be paid
directly to such agency; and if, within [twenty-four (24)] months after the
Employment Resignation Date, Executive incurs and pays any documented
out-of-pocket costs or expenses (other than legal fees and disbursements and
income taxes) directly in connection with the transactions contemplated by this
Agreement, the Company shall reimburse Executive in respect thereof in an amount
equal to fifty percent (50%) of such out-of-pocket expenses, but in no event
more than twenty thousand dollars ($20,000) in the aggregate.
5. The
Indemnification Agreement entered into by the Company for the benefit of
Executive on his becoming the Company’s CEO shall remain in full force and
effect and unchanged, and notwithstanding any provision to the contrary that may
be contained elsewhere herein, Executive’s rights and the Company’s obligations
thereunder shall not be released or relinquished by reason of this
Agreement.
6. Executive
represents to the Company that he is signing this Separation Agreement
voluntarily and with a full understanding of and his agreement with its terms
for the purpose of receiving the additional consideration from the Company
beyond that which is owed to him.
7. Executive
warrants and represents that in the exercise of Executive’s duties for the
Company and its subsidiaries, he has not engaged in any conduct that would have
entitled the Company to terminate his employment for Cause (as such term is
defined in the Employment Agreement). Executive understands that the
Company is relying on this representation and warranty in entering into this
Separation Agreement, without which the Company would not agree to the terms
contained herein.
8. In
exchange for the consideration to be received each party from the other
hereunder, except as otherwise provided in Sections 11 and 12 below, the
Company and Executive each covenants and agrees to waive and release
(i) all claims and causes of action and all rights of any kind or nature
whatsoever that such party (hereinafter, the “Releasing Party”) has, may have or
might otherwise have had against the other party (the “Released Party”), and
(ii) all obligations that the Released Party has, may have or might
otherwise have had to the Releasing Party (hereinafter, collectively, the
“Released Claims and Obligations”), whether such Released Claims and Obligations
are fixed or contingent, known and unknown, or suspected or unsuspected, arising
at anytime prior to the date this Separation Agreement is fully
executed. In the case of Executive, as the Releasing Party hereunder,
the Released Claims and Obligations shall include, without limitation, all
claims and causes of action and rights that Executive has, may have or might
otherwise have against the Company and all obligations that the Company has, may
have or might otherwise have to Executive arising out of or in connection with
any aspect of Executive’s employment, compensation, performance, acts taken
while employed by the Company, the cessation of Employee’s employment with the
Company, the Age Discrimination in Employment Act of 1967, the Americans with
Disabilities Act of 1990, Title VII of the Civil Rights Act of 1964, 42 U.S.C.
section 1981, the Fair Labor Standards Acts, the WARN Act, the California Fair
Employment and Housing Act, California Government Code section 12900, et seq., all other
state anti-discrimination statutes, labor laws, and wage and hours laws, the
Xxxxx Civil Rights Act, California Civil Code Section 51, all provisions of
the California Labor Code, the Employee Retirement Income Security Act,
29 U.S.C. Section 1001, et seq., and any
other federal, state or local law, regulation or ordinance or public policy,
contract, tort or property law theory, or any other cause of action whatsoever
that arose on or before the date this Agreement is fully
executed. For purposes of this Section 8 and Section 9
below, in the Company’s case, the term “Released Party” shall mean and include
not only the Company but also all of the Company Affiliates (as hereinabove
defined). Each party, as a Releasing Party, represents and warrants
that such party has not assigned or otherwise transferred, either in whole or in
part, to any person or entity any Claims such Releasing Party had, has or may
have or any Obligations of the other party which are being released hereunder by
such Releasing Party.
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9. It is
further understood and agreed that, subject to the exceptions set forth in
Sections 11 and 12 below, as a condition to the effectiveness of this
Separation Agreement, all rights under Section 1542 of the Civil Code of
the State of California are expressly waived by each of the Executive and the
Company. Such Section reads as follows:
“A
general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which
if known by him or her must have materially affected his or her settlement with
the debtor.”
Each of the Executive and the Company further expressly waives any and all
rights such party may have under any other statute or common law principle of
any other state which is of similar force and effect as California Civil Code
section 1542. Thus, for the purpose of implementing a full and
complete release and discharge of the Released Parties, each Releasing Party
expressly acknowledges and agrees that, subject to the exceptions set forth in
Sections 11 and 12 hereof, this Separation Agreement is intended to include
and does include in its effect, without limitation, all Claims and Obligations
which such Releasing Party does not know or suspect to exist in such party’s
favor against the Released Parties at the time of execution hereof, and that
this Agreement expressly contemplates the extinguishment of all such Claims and
Obligations.
10. The
release given by Executive to the Company in Section 8 of this Separation
Agreement includes, but is not limited to, claims arising under federal, state
or local law for age, race, sex or other forms of employment discrimination and
retaliation. In accordance with the Older Workers Benefit Protection
Act, Executive hereby knowingly and voluntarily waives and releases all rights
and claims, fixed or contingent, known or unknown or suspected or unsuspected,
arising under the Age Discrimination in Employment Act of 1967, as amended,
which Executive might otherwise have had against the Company or any of the
Company Affiliates. Executive is hereby advised that he should
consult with an attorney before signing this Agreement and that he has
21 days during which he is entitled to consider and accept this Agreement
by signing and returning this Agreement to the Company’s Chief Financial
Officer. In addition, Executive has a period of seven (7) days
(the “Rescission Period”) following his execution of this Agreement in which to
revoke the Agreement. This Agreement shall become and be effective
and enforceable in accordance with its terms upon the expiration of the
Rescission Period unless the Company’s Chief Financial Officer receives, within
such Rescission Period, a written notice from Executive that he is rescinding
this Agreement.
11. Notwithstanding
the provisions of Section 8 and Section 9 above and anything to the
contrary that may be contained elsewhere in this Agreement, it is expressly
agreed by the parties that the Company is not releasing, and the Company’s
Released Claims shall not include, any Claims or Obligations or any obligations
(whether under this Agreement or common law or statute) of Executive to
indemnify and hold harmless the Company and the Company Affiliates against any
and all liabilities, obligations, interest, penalties and costs or expenses that
the Company has incurred or may incur as a result of or in connection with any
failure by Executive to have paid or to pay, now or in the future, when due, any
federal, state or local withholding or income or other taxes, interest and
penalties (collectively “Taxes”) which Executive was or is now obligated or
hereafter becomes obligated to pay under or pursuant to applicable laws or
government regulations on or in respect of (i) any compensation of any kind
or nature that Executive received or, under applicable laws or government
regulations, that is or may hereafter be deemed to have been received by him for
or in respect of services rendered by him to the Company or any Company
Affiliates (including any Taxes that may have become, or presently are or may in
the future become due and payable by Executive as a result of his exercise of
stock options or receipt of any equity incentive or related compensation granted
by the Company) and (ii) the compensation and consideration that Executive
receives pursuant to this Agreement. Executive hereby covenants and
agrees to indemnify, hold harmless and defend the Company and Company Affiliates
from and against (x) any and all such Taxes and (y) any and all
liabilities, obligations, interest, penalties and costs or expenses (including
the reasonable fees and expenses of attorneys, accountants and experts) that the
Company may incur or become subject to as a result of or in connection with any
failure by Executive to have paid or to pay such Taxes when due, whether
Executive’s obligation to pay or his liability for such Taxes arose prior to the
date hereof, now exists or arises at any time hereafter.
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12. In the
event that Executive has breached or violated or hereafter breaches or violates
any of his material covenants, agreements or obligations contained in either of
his Intellectual Property Rights Agreements (referenced in Section 3
above), then, without limiting or prejudicing any other rights or remedies that
the Company may have at law or in equity by reason of such breach or violation,
(i) the Company may, in its sole and absolute discretion, cease the payment
of and, upon written notice to Executive, terminate its obligation to pay, any
remaining compensation or consideration which the Company would otherwise be
required or obligated to pay to Executive under this Agreement, and
(ii) Executive shall repay to the Company, on its demand, all compensation
and consideration theretofore paid by the Company to him pursuant to this
Agreement.
13. Executive
agrees that he will not make any critical, disparaging or defamatory comments
regarding the Company, its products, services, directors, officers, employees or
agents. The Company agrees that its executive officers shall not make
any critical, disparaging or defamatory comments regarding Executive or
regarding any aspect of the parties’ relationship or the conduct or events which
precipitated Executive’s separation. Any inquiry from any prospective
employer of Executive regarding Executive’s employment with or his separation
from the Company shall be referred, for a response, to the Company’s [Chief
Executive Officer or Chief Financial Officer], who will not make any
disparaging, defamatory or negative statements or remarks with respect to such
matters; provided, however, that the
Company will not provide information regarding Executive's last salary or
compensation unless the person requesting such information provides a release
signed by Executive authorizing disclosure of such information to such
person.
14. A press
release to be issued by the Company, in the form attached as Exhibit B
hereto, announcing Executive’s departure from the Company, has been approved by
the parties.
15. As a
condition to the payment of the consideration described in this Agreement,
Executive represents and warrants that he has returned all Company property in
his possession or control, including all computers, access cards, keys, reports,
manuals, documents, records, correspondence and/or other documents or materials
related to Employer’s business that Executive has compiled, generated or
received while working for Employer, including all copies, samples, computer
data or records of such material; provided that the Company may elect, by
written notice to Executive, to permit him to retain one
computer. Furthermore, Executive confirms that he has delivered all
passwords in use at the time of the separation, a list of any documents that he
created or is otherwise aware that are password-protected, and the password(s)
necessary to access such password-protected documents.
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16. Any
dispute between the parties relating to this Agreement, including any
controversy or dispute regarding the enforceability or the interpretation of any
of the provisions hereof, or with respect to any alleged or actual
non-performance by a party of its or his obligations hereunder, shall be
resolved exclusively by binding arbitration in accordance with the Rules of
Commercial Arbitration of the American Arbitration Association. Any
arbitration proceeding shall be held exclusively in Orange County, California
and any service of process in or in connection with any such proceeding shall be
adequate if sent by certified or registered mail, postage prepaid to the address
of the other party last communicated in writing by such other party to the party
initiating such arbitration. The determination of the arbitrator in
any such proceeding shall be final and binding on and non-appealable by the
parties.
Each
party acknowledges and agrees that by agreeing to resolve disputes of the type
and nature referenced in the immediately preceding paragraph of this
Section 16 exclusively by arbitration, such party is waiving any right he
or it (as the case may be) may otherwise have had to have any such disputes or
controversies resolved by means of a jury trial. EACH PARTY DOES
HEREBY EXPRESSLY AND IRREVOCABLY WAIVE SUCH PARTY’S RIGHTS TO A TRIAL BY JURY IN
ANY SUCH PROCEEDING, AND IN ANY TRIAL OR OTHER PROCEEDING BETWEEN THE PARTIES
RELATING IN ANY WAY TO THIS AGREEMENT OR ANY OF THE MATTERS REFERENCED IN THE
IMMEDIATELY PRECEDING PARAGRAPH OF THIS SECTION 15, AND EXPRESSLY AND
IRREVOCABLY AGREES THAT THE TRIER OF FACT IN ANY SUCH PROCEEDING OR TRIAL OR
OTHER PROCEEDING SHALL BE THE ARBITRATOR OR THE JUDGE. This Agreement
shall not be construed against any party merely because that party drafted or
revised the provision in question, and it shall not be construed as an admission
by any Released Party of any improper, wrongful, or unlawful actions, or any
other wrongdoing against any Releasing Party, and each of Executive and the
Company specifically disclaims any liability to or wrongful acts against the
other party (and, in the case of the Company, against any of the Company
Affiliates).
17. Each
party acknowledges that the other party has made no promises other than those
set forth herein in this Separation Agreement. Executive further
acknowledges and agrees that he is not entitled to receive, and will not claim,
any right, benefit, compensation, or relief other than what is expressly set
forth herein in this Agreement. This Separation Agreement may be
modified only by written agreement signed by both parties.
18. The
parties further agree as follows:
(a) In
the event any provision of this Agreement is void or unenforceable, the
remaining provisions shall continue in full force and effect.
(b) This
Agreement (including all of the Exhibits attached hereto) shall constitute the
entire agreement between the parties relating to its subject matter, and shall
supersede all prior or contemporaneous agreements, understandings or
representations, either written or oral, between the parties with respect to
such subject matter.
(c) No
waiver by one party of any of the obligations of the other party under this
Agreement or of any breach thereof shall be effective unless such waiver is set
forth in a writing executed by the party purported to have given such
waiver. The delay or failure of any party at any time to require
performance of any provision of this Agreement, or to exercise any of its right
under this Agreement or provided by statute, at law or in equity, shall in no
manner affect such party’s right to enforce the same at a later
time. No waiver by any party of any condition or term in any one or
more instances shall be construed as a further or continuing waiver of such
condition or term or of any other condition or term.
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(d) Notwithstanding
the provisions of Section 16 hereof, in the event of a breach or threatened
breach of this Agreement by a party hereto (a “Breaching Party”), in addition to
any rights or remedies available at law or otherwise to the other party (the
“Non-Breaching Party”), that party shall be entitled to seek, from any court of
competent jurisdiction, temporary, preliminary and permanent injunctive relief
to obtain a halt to such breach or prevent a threatened breach from taking place
and an order of specific performance of each obligation that has been breached
or is threatened to be breached by the Breaching Party. Each party
agrees that the party seeking such equitable remedies shall not be required to
post a bond or other form of security as a condition to the granting or
continued effectiveness of any such equitable remedies and that no party shall
assert in any such proceeding, as a defense against the granting of equitable
remedies or relief that the Non-Breaching Party has a sufficient remedy at
law.
(e) This
Agreement shall be binding on and inure to the benefit of the parties hereto and
their respective successors and assigns. It is further agreed that
the Company Affiliates are intended third party beneficiaries of the agreements
of Executive contained herein and each of them shall have the right,
independently, to enforce its rights and the obligations of Executive hereunder
without the necessity of joining the Company to any proceeding brought for that
purpose.
(f) For
purposes of this Agreement: (a) the terms “include”
and “including” shall mean “including without limitation” or “include
but are not limited to”; (c) the term “or” shall not be deemed to be exclusive;
and (c) the terms “hereof,” “herein,” “hereinafter,” “hereunder,” and “hereto,”
and any similar terms shall refer to this Agreement as a whole and not to the
particular Section, Subsection, paragraph or clause in which any such term is
used, unless the context in which any such term is used clearly indicates
otherwise.
(g) This
Agreement may be executed in two or more counterparts, each of which executed
counterparts, and any photocopies or facsimile copies thereof, shall be deemed
to be an original, but all such executed counterparts, including any photocopies
or facsimile copies thereof, shall together constitute one and the same
instrument.
[Remainder
of page intentionally left blank.
Signatures
of parties follow on next page.]
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IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement
as of the day and date first above written.
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/s/
XXXXXXX X. XXXXXX
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Xxxxxxx X.
Xxxxxx
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/s/Collectors
Universe, Inc.
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By: /s/XXXXXX
X. XXXXXXX
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Name:
Xxxxxx X. Xxxxxxx
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Title: Chief
Financial
Officer
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EXHIBIT A
TERMS OF PAYMENT OF SALARY
CONTINUATION BENEFIT
The
Salary Continuation Benefit of $298,000 shall be paid by the Company to
Executive in twenty-four (24) twice monthly installments, each in the amount of
$12,416.67, less tax and other legally required withholdings, during a 12-month
period commencing on the Employment Resignation Date and ending on the first
anniversary thereof, with the first such installment to be paid on April 15,
2009.
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