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Exhibit 10.13 EXECUTION COPY
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL
RELEASE (this " Agreement ") is made and entered into as of
December 23, 2008 by and between SCOTT LAPORTA ("
Mr. LaPorta "), residing at 308 Laurel St., San
Francisco, CA, 94118, on the one hand, and GLOBAL CONSUMER
ACQUISITION CORP. (" GCAC "), located at 1370 Avenue of the
Americas, 28th Floor, New York, NY 10019, on the other hand
(collectively, the " Parties "). RECITALS :
WHEREAS , Mr. LaPorta, through his counsel, provided
GCAC, through its counsel, two letters letter dated August 1,
2008 and a letter dated August 8, 2008, regarding his
employment at GCAC and raising various claims (the " LaPorta
Letters "); WHEREAS , GCAC and Mr. LaPorta wish to
settle and resolve the disputes and potential differences between
GCAC and its affiliates, on the one hand, and Mr. LaPorta, on
the other hand, including, without limitation, disputes or
potential differences that arise out of or relate to
Mr. LaPorta’s employment or termination of employment
with GCAC, the LaPorta Letters, and the terms of
Mr. LaPorta’s employment term sheet with GCAC dated
October 1, 2007, including the cover letter thereto signed by
Mr. LaPorta, GCAC and, as to the "option grant," Hayground
Cove Asset Management LLC (" HCAM ") (collectively, the "
GCAC Employment Agreement "); and WHEREAS , as a
material condition to the Parties entering into this Agreement,
Mr. LaPorta and HCAM will enter into a separate Settlement
Agreement and Mutual Release on or before the Effective Date (the "
HCAM Settlement Agreement ").
NOW, THEREFORE , based on the foregoing and in consideration
for the covenants and agreements contained herein and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties, and each of them, agree to
the following, except as otherwise expressly set forth herein:
1. Termination of
Employment; Payments .
(a) GCAC hereby confirms the
termination of Mr. LaPorta without cause from his position as
Chief Executive Officer of GCAC, and Mr. LaPorta hereby
resigns as a member of the Board of Directors of GCAC (the "
Board ") effective as of date of this Agreement, and GCAC
hereby accepts Mr. LaPorta’s resignation from the Board
effective as of the date of this Agreement. As of the date of this
Agreement, Mr. LaPorta shall not hold any position with GCAC
whether as an employee or member of the Board, or otherwise, and
shall not represent himself as being affiliated with GCAC in any
way. (b) GCAC shall pay to
Mr. LaPorta a severance payment in the sum of Two Hundred
Forty-Seven Thousand Nine Hundred Seventeen Dollars ($247,917),
less applicable taxes, standard withholdings and authorized
deductions, within five (5) business days after the Effective
Date (as defined in Section 6 below), which amount
Mr. LaPorta acknowledges and agrees constitutes the full
amount of any cash payments due to Mr. LaPorta under the
GCAC
Employment Agreement or otherwise from GCAC. The aforesaid
amount shall be paid to Mr. LaPorta via a wire transfer pursuant to
the instructions in Exhibit A attached hereto.
(c) GCAC agrees and acknowledges
that: (i) Mr. LaPorta irrevocably and unconditionally
retains his option to purchase 495,000 shares of GCAC common stock
from HCAM at an exercise price of $.001 per share (the " GCAC
Option ") under the terms of the GCAC Employment Agreement (as
modified herein) and his termination under the terms of this
Agreement shall not constitute a forfeiture of any part of such
option; (ii) Mr. LaPorta shall be deemed to be fully
vested in the GCAC Option as of the Effective Date; provided
, however , that Mr. LaPorta shall not be entitled to
exercise all or any portion of the GCAC Option until six
(6) months following the closing date of a Business
Combination (as defined in GCAC’s Amended and Restated
Certificate of Incorporation) (the " Exercise Date "); and
(iii) Mr. LaPorta shall have the right to exercise the
GCAC Option at any time on or after the Exercise Date.
(d) GCAC agrees and acknowledges
that: (i) Mr. LaPorta irrevocably and unconditionally
retains all rights and title to the 25,000 GCAC founder shares (the
" Director Shares ") he received in connection with his
service on the Board under the GCAC Employment Agreement and GCAC
hereby irrevocably and unconditionally relinquishes any and all
rights under the GCAC Employment Agreement or otherwise to redeem
or repurchase the Director Shares; (ii) Mr. LaPorta
irrevocably and unconditionally retains all rights and title to the
1,000,000 warrants for GCAC stock (the " GCAC Warrants ") he
purchased and GCAC hereby irrevocably and unconditionally
relinquishes any and all rights under the GCAC Employment Agreement
or otherwise to redeem or repurchase the GCAC Warrants; and
(iii) GCAC shall deliver the Director Shares to
Mr. LaPorta within five (5) business days after the Effective
Date. (e) Mr. LaPorta
acknowledges the terms of the Letter Agreement, dated
October 3, 2007, between HCAM and GCAC (the " Lock-Up
Agreement "), and further acknowledges that, notwithstanding
the provisions of this Agreement, the GCAC Option, the shares of
GCAC stock that Mr. LaPorta may acquire upon exercise of the
GCAC Option and the Director Shares and the GCAC Warrants will be
subject to the terms of the Lock-Up Agreement.
(f) GCAC shall maintain
directors and officers’ liability insurance that names
Mr. LaPorta as an insured under such policies for a period of
six (6) years following the date of this Agreement at a level
(including, but not limited to, amounts, deductibles, scope and
exclusions) commensurate with that which is then applicable to
GCAC’s most senior executives and directors; provided
that GCAC may substitute therefor a single premium tail coverage
with respect to such directors’ and officers’ liability
insurance at a level (including, but not limited to, amounts,
deductibles, scope and exclusions) at least as favorable as in the
existing policies of GCAC. GCAC shall provide Mr. LaPorta with
all indemnification rights to which Mr. LaPorta was entitled
to receive as an officer or director of GCAC or any affiliate
thereof under any charter or organizational documents of GCAC (or
any affiliate thereof), under applicable law and/or under the
Indemnification Agreement, dated as of October 3, 2007,
between GCAC and Mr. LaPorta (the " Indemnification
Agreement "). Nothing herein constitutes or shall be construed
to be a limitation on the release provided in Section 2
hereof. (g) Mr. LaPorta
agrees and acknowledges that, other than as specified in this
Section 1 or Section 1 of the HCAM Settlement
Agreement: (x) GCAC has paid him for all
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salary, wages, overtime, bonuses, fees, payments, and any other
compensation and benefits due to Mr. LaPorta, if any, and has
paid Mr. LaPorta for all incurred reimbursable expenses, if
any, whether due under the GCAC Employment Agreement or otherwise,
owed by GCAC or any of the GCAC Releasees (as defined in
Section 2(a) ); (y) Mr. LaPorta has no right
to any further salary, wages, overtime, bonus, fee, payment, or
other compensation or benefit, to the reimbursement of any further
expenses, or to the reimbursement or payment of any of
Mr. LaPorta’s attorneys’ fees from GCAC or any of
the GCAC Releasees; and (z) Mr. LaPorta has no ownership,
partnership, or other interest in GCAC or any GCAC Releasee.
Nothing herein shall be deemed to affect Mr. LaPorta’s
vested rights, if any, in any 401(k) or other retirement programs.
(h) Mr. LaPorta agrees and
acknowledges that: (x) Mr. LaPorta shall return all GCAC
property, including, but not limited to, any and all documents
relating to GCAC and its business and any property belonging to
GCAC, within four (4) business days of the date of this
Agreement, to GCAC’s office at 1370 Avenue of the Americas,
28th Floor, New York, New York 10019 and (y) he has no
continuing right to be provided by GCAC with office space, a
company credit card, or any other incidentals to employment, other
than as specified in this Section 1 or Section 1
of the HCAM Settlement Agreement.
(i) Mr. LaPorta agrees and
acknowledges that his non-solicitation obligations under the GCAC
Employment Agreement survive this Agreement and the termination of
the GCAC Employment Agreement. Mr. LaPorta further agrees that
he shall hold in confidence all confidential information relating
to the business and affairs of GCAC and any other GCAC Releasee and
will not disclose any such confidential information to any person
except with the specific prior written consent of GCAC or as
otherwise may be required by law.
(j) Mr. LaPorta represents
and warrants that he alone is responsible for all taxes, if any,
owed by Mr. LaPorta in connection with: (x) any payments
or transfers to, or for the benefit of, Mr. LaPorta pursuant
to this Section 1 ; and (y) the GCAC Option, the
Director Shares, and the GCAC Warrants. Mr. LaPorta shall
indemnify, and hereby agrees to indemnify, GCAC fully in connection
with any failure to pay any such taxes.
2. LaPorta Release .
(a) In consideration of the
covenants set forth in this Agreement, and except as expressly set
forth herein, Mr. LaPorta for himself, his heirs, executors,
successors and assigns (collectively the " LaPorta Releasors
") hereby knowingly and voluntarily releases, absolves and
discharges GCAC and each of its past, present and future officers,
partners, attorneys, agents, administrators, employee benefits
plans or funds and the fiduciaries thereof, directors, employees,
shareholders, affiliates, representatives, or assigns and
successors, past and present, including but not limited to Jason N.
Ader, Andrew Nelson, Robert M. Foresman, Carl H. Hahn, Philip A.
Marineau, Marc Soloway and Steven Westly (collectively the "
GCAC Releasees ") from all rights, claims, demands,
obligations, damages, losses, causes of action and suits of all
kinds and descriptions, legal and equitable, known and unknown
(collectively, " Claims "), that any of the LaPorta
Releasors may have or ever has had against the GCAC Releasees from
the beginning of time to the date of this Agreement, including, but
not limited to, any such Claims
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arising out of, but not limited to, any right of
Mr. LaPorta or of any person arising under any law, statute,
constitution, regulation, ordinance, duty, contract, covenant, or
order, or any liability in connection with his employment with
GCAC, arising under or in connection with the GCAC Employment
Agreement or the LaPorta Letters, or for any act of age
discrimination or other impermissible form of harassment,
retaliation or discrimination by the GCAC Releasees against Mr.
LaPorta or any other person, as prohibited by any state or federal
statute or common law, including, but not limited to, the Age
Discrimination in Employment Act of 1967, the whistleblower
provision of the Sarbanes-Oxley Act of 2002, the Foreign Corrupt
Practices Act of 1977, the Employee Retirement Income Act of 1974,
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
the Americans With Disabilities Act, 42 U.S.C. §§ 12101
et seq., the California Fair Employment and Housing Act, Cal.
Gov’t Code §§ 12940 et seq., the Fair Labor
Standards Act, 29 U.S.C. §§ 201 et seq., the California
Labor Code, and the California Constitution, each as amended (the "
LaPorta Released Matters "). In addition to the above, the
LaPorta Released Matters include, but are not limited to, Claims
for employment discrimination, wrongful termination, retaliation,
constructive termination
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