Exhibit
10.1
EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT (“Agreement”) is made and
entered into effective as if June 1, 2008 (“Effective Date”) by and
between LiveDeal, Inc., a Nevada corporation (the “Company”) and Mike Edelhart
(“Executive”).
In
consideration of the mutual promises, covenants and agreements herein contained,
intending to be legally bound, the parties agree as follows:
1. Employment. The
Company hereby agrees to employ Executive, and Executive hereby agrees to serve,
subject to the provisions of the Agreement, as an employee of the Company in the
position of interim Chief Executive Officer. Executive will perform
all services and acts reasonably necessary to fulfill the duties and
responsibilities of his position and will render such services on the terms set
forth herein and will report to the Company’s Board of Directors (the “Board”). During the
Term (as defined below), Executive will continue to serve as a member of the
Board, will be entitled to receive compensation for his Board service, and will
be entitled to retain any restricted stock grants granted thereby. In
addition, Executive will have such other executive and managerial powers and
duties with respect to the Company as may reasonably be assigned to him by the
Board, to the extent consistent with his position and status as set forth
above. Executive will be obligated to devote up to the equivalent of
two and one-half days per week of his time, attention and energies to perform
the duties assigned hereunder as interim Chief Executive Officer, and Executive
agrees to perform such duties diligently, faithfully and to the best of his
abilities. Notwithstanding the foregoing, Company acknowledges and
agrees that during the Term, Executive shall have the right to have a “financial
interest” in or serve as a consultant, officer or director of any non-competing
business; provided that Executive agrees that engaging in such outside
activities shall not interfere with the performance of Executive’s duties
hereunder. Executive acknowledges that
any such outside activities that involve an entity other than the Company or its
subsidiaries will involve an entity independent of the Company and any actions
or decisions Executive takes or makes on behalf of such entity will not be
imputed to the Company or its subsidiaries.
2.
Term. This
Agreement is for the three-month period (the “Term”) commencing on the
Effective Date hereof and terminating on August 31, 2008, or upon the date of
termination of employment pursuant to Section 7 of this
Agreement; provided, however, that the Term may be extended for additional
months as mutually agreed to by the parties.
3.
Place of
Performance. Executive may perform his duties and conduct his
business on behalf of the Company at either the Company’s offices in Las Vegas,
Nevada or Santa Clara, CA or at remote locations of his choosing by
telecommuting; provided that such practice shall not substantially interfere
with the performance of Executive’s duties hereunder.
4.
Compensation.
(a) Salary. Executive’s
salary during the Term will be $30,000 (the “Salary”), payable in
accordance with the Company’s regular payroll practices.
(b) Performance
Bonuses. Executive will be entitled to receive up to $7,500 of
a performance bonus in the event the Company reaches certain performance
measures established by the Compensation Committee of the Board or the entire
Board. All bonuses payable under this Section 4(b) will be
subject to all applicable withholdings, including taxes.
(c) Stock
Option. The Company will grant to Executive upon execution of
this Agreement an option to purchase from the Company for cash all or any part
of an aggregate of 5,000 shares of the Company’s common stock (the “Option”) at the then-current
market price of the Company’s common stock pursuant to the Company’s 2003 Stock
Plan and the Company’s standard form of Non-Qualified Stock Option
Agreement. The Option granted under this Agreement is not intended to be
an “incentive stock option” under Section 422 of the Internal Revenue Code of
1986, as amended. So long as Executive continues to be a service
provider to the Company as an employee or as a member of the Board in accordance
with this Agreement, the Option will vest and be exercisable according to the
following schedule: (i) one-third of the Option on the one-month anniversary of
the Effective Date; (ii) one-third of the Option on the second-month anniversary
of the Effective Date; and (iii) one-third of the Option on the third-month
anniversary of the Effective Date. Notwithstanding the foregoing, the
Option will immediately vest and become exercisable upon the occurrence of a
“Change of Control” as defined in the Company’s 2003 Stock Plan or in the event
Executive is asked to resign from the Board and does in fact
resign. If any vested portion of the Option is not exercised by
Executive within 90 days following the later of Executive’s termination of
employment or service as a member of the Board, such vested portion, along with
any remaining unvested portion of the Option, will be subject to immediate
forfeiture back to the Company.
5.
Business
Expenses. During the Term, the Company will reimburse
Executive for all reasonable business expenses incurred by him in connection
with his employment and the performance of his duties as provided hereunder,
upon submission by the Executive of receipts and other documentation in
conformance with the Company’s normal procedures for executives of Executive’s
position and status.
6.
Benefits. During
the Term, Executive will be eligible to participate fully in all health and
benefit plans available to senior officers of the Company generally, as the same
may be amended from time to time by the Board.
7.
Termination of
Employment.
(a) Notwithstanding
any provision of this Agreement to the contrary, the employment of Executive
hereunder will terminate on the first to occur of the following
dates:
(i) the
date of Executive’s death;
(ii) the
date on which Executive has experienced a Disability (as defined below), and the
Company gives Executive notice of termination on account of
Disability;
(iii) the
date on which Executive has engaged in conduct that constitutes Cause (as
defined below), and the Company gives notice of termination for
Cause;
(iv)
expiration of the Term; or
(v) the
date on which the Company gives Executive notice of termination for any reason
other than the reasons set forth in Sections 8(a)(i)
through (iv)
above.
(b) For
purposes of this Agreement, “Disability” will mean an
illness, injury or other incapacitating condition as a result of which Executive
is unable to perform, with reasonable accommodation, the services required to be
performed under this Agreement for 10 consecutive days during the
Term. Executive agrees to submit to such medical examinations as may
be necessary to determine whether a Disability exists, pursuant to such
reasonable requests made by the Company from time to time. Any
determination as to the existence of a Disability will be made by a physician
mutually selected by the Company and Executive.
(c) For
purposes of this Agreement, “Cause” will mean the
occurrence of any of the following events, as reasonably determined by the
Board:
(i) Executive’s
willful and continued refusal to substantially perform his duties
hereunder;
(ii)
Executive’s conviction of a felony, or his guilty plea
to or entry of a nolo contendere plea to a felony charge; or
(iii) Executive’s
breach of any material term of this Agreement or the Company’s written policies
and procedures, as in effect from time to time; provided, however, that with
respect to Sections
8(c)(i) or (iii) above, such
termination for Cause will only be effective if the conduct constituting Cause
is not cured by Executive within 5 days of receipt by Executive of written
notice specifying in reasonable detail the nature of the alleged
breach.
8.
Compensation in Event of
Termination. Upon termination of this Agreement and
Executive’s employment, the Company will have no further obligation to Executive
except to pay the amounts set forth in this Section
8.
(a) In
the event Executive’s employment is terminated pursuant to Section 7(a)(i),
(ii), (iii) or (iv) on or before the
expiration of the Term, Executive will be entitled to payment of any earned but
unpaid Salary through the date of termination. Any bonuses, fees or
payments due to Executive under Section 4(b) above
shall be paid to Executive as set forth therein.
(b) In
the event Executive’s employment is terminated pursuant to Section 7(a)(v) on or
before the expiration of the Term, and provided that Executive executes a valid
release of any and all claims that Executive may have relating to his employment
against the Company and its agents, including, but not limited to, its officers,
directors and employees, in a form provided by the Company, Executive will be
entitled to continue receiving Salary through the end of the then existing Term,
subject to all applicable withholdings and taxes. Any bonuses, fees
or payments due to Executive under Section 4(b) above
shall be paid to Executive as set forth therein.
9.
Confidentiality. Executive
covenants and agrees that he will not at any time during or after the end of the
Term, without written consent of the Company or as may be required by law or
valid legal process, directly or indirectly, use for his own account, or
disclose to any person, firm or corporation, other than authorized officers,
directors, attorneys, accountants and employees of the Company or its
subsidiaries, Confidential Information (as hereinafter defined) of the
Company. As used herein, “Confidential Information” of
the Company means information about the Company of any kind, nature or
description, including but not limited to, any proprietary information, trade
secrets, data, formulae, supplier, client and customer lists or requirements,
price lists or pricing structures, marketing and sales information, business
plans or dealings and financial information and plans as well as papers, resumes
and records (including computer records) that are disclosed to or otherwise
known to Executive as a direct or indirect consequence of Executive’s employment
with the Company or service as a member of the Board, which information is not
generally known to the public or in the businesses in which the Company is
engaged. Confidential Information also includes any information
furnished to the Company by a third party with restrictions on its use or
further disclosure.
10. Dispute
Resolution. Except for an action exclusively seeking
injunctive relief, any disagreement, claim or controversy arising under or in
connection with this Agreement, including Executive’s employment or termination
of employment with the Company will be resolved exclusively by arbitration
before a single arbitrator in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association (the
“Rules”), provided that,
the arbitrator will allow for discovery sufficient to adequately arbitrate any
claims, including access to essential documents and witnesses; provided further,
that the Rules will be modified by the arbitrator to the extent necessary to be
consistent with applicable law. The arbitration will take place in
Phoenix, Arizona. The award of the arbitrator with respect to such
disagreement, claim or controversy will be in writing with sufficient
explanation to allow for such meaningful judicial review as permitted by law,
and that such decision will be enforceable in any court of competent
jurisdiction and will be binding on the parties hereto. The remedies
available in arbitration will be identical to those allowed at
law. The arbitrator will be entitled to award reasonable attorneys’
fees to the prevailing party in any arbitration or judicial action under this
Agreement, consistent with applicable law. The Company and Executive
each will pay its or his own attorneys’ fees and costs in any such arbitration,
provided that, the Company will pay for any costs, including the arbitrator’s
fee, that Executive would not have otherwise incurred if the dispute were
adjudicated in a court of law, rather than through arbitration.
11. Binding
Agreement.
(a) This
Agreement is a personal contract and the rights and interests of Executive
hereunder may not be sold, transferred, assigned, pledged, encumbered or
hypothecated by him, provided that all rights of the Executive hereunder shall
inure to the benefit of, and be enforceable by Executive’s personal or legal
representatives, executors, heirs, administrators, successors, distributors,
devisees and legatees.
(b) In
addition to any obligations imposed by law, any successor to Company (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the assets of the Company, is bound by this Agreement in
the same manner and to the same extent that the Company would be required to
perform if no such succession had taken place.
12. Return of Company
Property. Executive agrees that following the termination of
his employment or service as a member of the Board for any reason, he will
promptly return all property of the Company, its subsidiaries, affiliates and
any divisions thereof he may have managed that is then in or thereafter comes
into his possession, including, but not limited to, documents, contracts,
agreements, plans, photographs, books, notes, electronically stored data and all
copies of the foregoing, as well as any materials or equipment supplied by the
Company to Executive.
13. Entire
Agreement. This Agreement contains all the understandings
between the parties hereto pertaining to the matters referred to herein, and
supersedes all undertakings and agreements, whether oral or written, previously
entered into by them with respect thereto. Executive represents that,
in executing this Agreement, he does not rely, and has not relied, on any
representation or statement not set forth herein made by the Company with regard
to the subject matter, bases or effect of this Agreement otherwise.
14. Amendment or Modification,
Waiver. No provision of this Agreement may be amended or
waived unless such amendment or waiver is agreed to in writing, signed by
Executive and by a duly authorized officer of the Company. The
failure of either party to this Agreement to enforce any of its terms,
provisions or covenants will not be construed as a waiver of the same or of the
right of such party to enforce the same. Waiver by either party
hereto of any breach or default by the other party of any term or provision of
this Agreement will not operate as a waiver of any other breach or
default.
15. Notices. Any
notice to be given hereunder will be in writing and will be deemed given when
delivered personally, sent by courier or fax or registered or certified mail,
postage prepaid, return receipt requested, addressed to the party concerned at
the address indicated below or to such other address as such party may
subsequently give notice of hereunder in writing:
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To
Executive at:
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Mike
Edelhart
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___________________
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___________________
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Phone:
(___) ___-_____
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To
the Company at:
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LiveDeal,
Inc.
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2490
E. Sunset Rd., #100
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Las
Vegas, NV 89120
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Ph:
(702) 939-0230
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Fax:
(702) 939-0246
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Attention:
CFO
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Any
notice delivered personally or by courier under this Section will be deemed
given on the date delivered. Any notice sent by fax or registered or
certified mail, postage prepaid, return receipt requested, will be deemed given
on the date faxed or mailed. Each party may change the address to
which notices are to be sent by giving notice of such change in conformity with
the provisions of this Section.
16. Severability. In
the event that any one or more of the provisions of this Agreement will be held
to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remainder of the Agreement will not in any way be affected
or impaired thereby. Moreover, if any one or more of the provisions
contained in this Agreement will be held to be excessively broad as to duration,
activity or subject, such provisions will be constructed by limiting and
reducing them so as to be enforceable to the maximum extent allowed by
applicable law.
17. Survivorship. The
respective rights and obligations of the parties hereunder will survive any
termination of this Agreement to the extent necessary for the intended
preservation of such rights and obligations.
18. Each Party the
Drafter. This Agreement and the provisions contained in it
will not be construed or interpreted for or against any party to this Agreement
because that party drafted or caused that party’s legal representative to draft
any of its provisions.
19. Governing
Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Nevada, without regard to its conflicts
of laws principles.
20. Headings. All
descriptive headings of sections and paragraphs in this Agreement are intended
solely for convenience, and no provision of this Agreement is to be construed by
reference to the heading of any section or paragraph.
21. Counterparts. This
Agreement may be executed in counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same
instrument.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
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LIVEDEAL,
INC., a Nevada corporation
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EXECUTIVE
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/s/ Gary Perschbacher
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/s/ Mike Edelhart
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By:
Gary Perschbacher
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Mike
Edelhart
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Its:
Chief Financial Officer
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[MIKE
EDELHART EMPLOYMENT AGREEMENT]