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 Michael R. Haynes 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, Michael R. Haynes, 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:
(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 Unruh 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.
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
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