Exhibit 10.59


 





 


SEPARATION AGREEMENT AND RELEASE


 


THIS
IS A SEPARATION AGREEMENT AND RELEASE between Christopher J. Aitken (“Employee”)
and LECG Corporation and its wholly-owned subsidiary LECG, LLC (collectively, “Company”)
(hereinafter referred to as “Agreement”).


 


Background. 
Employee was
previously employed by Company as the Executive Vice President and Head of
Corporate Development.  The parties have
agreed upon an exchange of consideration by which all matters pertaining to
Employee’s employment and termination of employment have been fully and finally
resolved, the terms of which are set forth below.


 


THEREFORE, in consideration of the mutual
promises set forth below, and intending to be legally bound, the Company and
the Employee agree that:


 


1.                                      Employment Termination.  Employee’s last day of work as a regular employee will be February 13,
2009, on which date Employee’s employment as a regular employee with the
Company will be terminated.  The Company
will pay Employee all earned compensation through that date, including any
accrued and unused vacation and personal days, and will reimburse Employee for
all approved but previously unreimbursed business expenses immediately upon the
termination of Employee’s employment. 
Employee will return all keys, passes, credit cards, and other Company
property, including all documents, disks and other records which pertain to the
business and affairs of the Company on or before Employee’s last day of work.


 


2.                                      Separation Consideration.  As consideration of the agreements of Employee hereunder, the Company
and Employee have agreed that Company will pay Employee a severance payment in
the amount of Three Hundred Thousand Dollars ($312,500), less all


 

















 


applicable withholdings,
payable within five (5) days after the Effective Date.  The Effective Date of this Agreement shall be
the date it is signed by Employee.


 


3.                                      Benefit Coverage.  Employee’s health coverage under the Company’s group health plan will
cease as of February 28, 2009. 
Thereafter, the Company will pay Employee’s and Employee’s qualified
dependents’ health coverage under the Consolidated Omnibus Reconciliation Act (“COBRA”)
between March 1, 2009 and February 28, 2010 so long as the Employee
elects to continue coverage under COBRA and this Agreement has not been
revoked.  Employee will be financially
responsible for continuing Consolidated Omnibus Reconciliation (“COBRA”)
coverage for Employee and Employee’s qualifying dependents, if so elected,
beginning March 1, 2010.


 


4.                                      Affiliate Status. 
Provided Employee enters into an exclusive Affiliate Agreement with
Company on or before March 1, 2009, and remains an exclusive Affiliate for
at least six (6) consecutive months, in the event of a Change of Control,
if and only if such Change of Control closes on or before August 31, 2009,
Employee shall receive an additional payment of Three Hundred Thousand Dollars
($300,000).  For purposes of this
Agreement, “Change of Control” shall be defined as the occurrence of any one or
more of the following events:


 


i.                                          sale of all or substantially all of the
assets of LECG Corporation (“LECG”) to one or more individuals, entities, or
groups (other than an “Excluded Owner” as defined below);


 


ii.                                       a person, entity, or group (other than an
Excluded Owner) acquires or attains ownership of at least 51% of the undiluted
total voting power of LECG’s then-outstanding securities eligible to vote to
elect members of the Board (“Company Voting Securities”); or


 


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iii.                                    completion of a merger or consolidation of
LECG with or into any other entity (other than an Excluded Owner) unless the
holders of the Company Voting Securities outstanding immediately before such
completion, together with any trustee or other fiduciary holding securities under
a Company benefit plan, hold securities that represent immediately after such
merger or consolidation at least 51% of the combined voting power of the then
outstanding voting securities of either LECG or the other surviving entity or
its ultimate parent.


 


(An “Excluded Owner” consists of LECG, the
Company, any entity owned, directly or indirectly, at least 50% by LECG or the
Company, any entity that, directly or indirectly, owns at least 50% of LECG or
the Company, any Company benefit plan, and any underwriter temporarily holding
securities for an offering of such securities.)


 


5.                                      Employee Representations.  Employee makes the following representations, each of which is a
condition of the Company entering into this Agreement:


 


a)                                      That the payments the Company has agreed to
provide herein include payments to which Employee would not be entitled were it
not for this Agreement.


 


b)                                     That Employee has been given a reasonable
period of time (not to exceed 10 days) to consider whether or not to sign this
Agreement, and/or acknowledges that Employee has been advised of Employee’s
right to that 10-day period and has voluntarily waived it, and that Employee
has not been pressured to sign this Agreement in a shorter period of time.


 


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c)                                      That no promises or representations except
those contained in this Agreement have been made to the Employee in connection
with the termination of Employee’s employment.


 


d)                                     That Employee understands that this Agreement
and release does not cancel or otherwise diminish any post-employment
obligations under any employment agreement with the Company (or any predecessor
or affiliate of the Company) to which the Employee is a party, including, but
not limited to, obligations relating to confidentiality or the use of
confidential information of the Company, disclosure and ownership of
intellectual property, non-competition and non-solicitation of customers or
employees.


 


e)                                      That Employee has read and understands each
and every provision in this Agreement and has been advised to consult with an
attorney in connection with Employee’s consideration of this Agreement, and
that Employee is entering into this Agreement voluntarily and of Employee’s own
free will.


 


f)                                        That Employee has not filed any complaints
against the Company in any court, nor any charges with any governmental agency
before signing this Agreement.


 


6.                                      No Admission of Liability.  Employee understands that the Company is not offering this Agreement
because it believes that the Employee has any valid legal claim against the
Company.  Employee agrees and understands
that nothing in the Agreement, or the offering of this Agreement, shall
constitute or be construed as an admission of liability, wrongdoing or
violation of any law on the part of the Company.


 


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7.                                      General Release by the
Employee.  Employee hereby fully and forever releases
and discharges the Company, its benefit plans, officers, directors, employees,
agents, members, affiliates, parent entities, subsidiary entities, successors
and assigns (“Released Party” or “Released Parties”) from any and all liability
for claims, causes of action and obligations of every nature whatsoever,
including, without limitation, claims of negligence, breach of contract,
wrongful discharge, intentional torts, defamation, and violation of federal,
state or local laws, among which are laws which prohibit discrimination on the
basis of race, color, national origin, religion, sex, age, disability and other
protected traits, such as the Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act, and/or the California Fair Employment and
Housing Act.  This Release covers claims, known or unknown,
which are based upon any act, event or failure to act which occurred before the
date on which this Agreement is signed and becomes effective, except claims for
vested pension benefits or other claims which cannot, as a matter of law, be
released.


 


Employee expressly waives and relinquishes
all rights and benefits afforded by Section 1542 of the Civil Code of the
State of California, or any analogous state or federal law, and does so
understanding and acknowledging the significance of such specific waiver of Section 1542.
Section 1542 of the Civil Code of the State of California states 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.”


 


Notwithstanding the provisions of Section 1542,
and for the purpose of implementing a full and complete release, the parties
expressly acknowledge that this Agreement is intended to include in its effect,
without limitation, all claims which the Employee does not know or suspect


 


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to exist at the time this agreement is signed,
and that this Agreement contemplates the extinguishment of any such claim or
claims.


 


8.                                      Non-Disparagement. 
Employee agrees that
Employee will not make any disparaging statements to any current, former or
potential customers, contractors, vendors or employees of the Company, to any
media or to any other person about the Company or other Released Party. A
disparaging statement is any confidential information or false or misleading
communication that, if publicized, would cause, or tend to cause, the recipient
of the communication to question the business condition, integrity, competence,
good character or product quality of the person or entity to whom the
communication relates.


 


9.                                      Remedies for Breach. 
If Employee breaches
Employee’s obligations not to disparage the Company, or if Employee breaches
the provisions of any existing agreements with the Company pertaining to
noncompetition, nonsolicitation of employees or customers or nondisclosure of
confidential business information, then the Company will have the right to any
available legal or equitable remedies. In the case of any legal proceedings
between Employee and the Company, the prevailing party shall be entitled to
recover his, her or its expenses of suit, including attorneys’ fees.  If, contrary to this Agreement, a lawsuit is
filed by Employee against a Released Party for any purpose other than to
determine the validity of this Agreement as applied to claims under the ADEA,
or Employee breaches Employee’s obligations to maintain the confidentiality of
the terms of this Agreement, then in addition to (and not instead of) any other
remedies available for such breach, Employee will be obligated to reimburse the
Company or other Released Party for litigation expenses and attorneys fees
incurred in defending such suit if the Company or other Released Party
substantially prevails.


 


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10.                               Covenant Not To Sue.  Employee
represents and warrants that Employee will not file any legal proceedings
against any Released Party on the basis of any claims within the scope of the
releases contained in this Agreement. Employee also agrees not to permit any
other entity to instigate or cause any legal proceedings to be filed against a
Released Party regarding any claims within the scope of such releases.  This covenant not to sue does not bar
Employee from filing a charge with the EEOC or the California Department of
Fair Employment and Housing.  However, in
the event such charge is filed, Employee agrees that the agreements made by the
Company pursuant to this Agreement are in full satisfaction of any damages
asserted by, or on behalf of, Employee in such charge and that Employee will
not be entitled to any monetary relief.


 


11.                               General.


 


a)                                      No provision of this Agreement may be
modified, amended or revoked, except in writing, signed by Employee and an authorized
officer of the Company.


 


b)                                     No waiver or failure to enforce any
condition or provision of this Agreement will be deemed to be a continuing
waiver of the same or any other provision of this Agreement.


 


c)                                      This Agreement constitutes the entire
Agreement respecting Employee’s employment and termination of employment;
provided, however, that Company and Employee agree that Employee’s
Indemnification Agreement, which was effective August 1, 2007 (“Indemnification
Agreement”), shall remain in full force and effect.  The separation payment provided for herein is
in lieu of payments or benefits under any other plan, program,


 


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practice, agreement or arrangement.  This Agreement supersedes any and all other
agreements, express or implied, between Employee and the Company.


 


d)                                     This Agreement shall be construed and
enforced in accordance with the laws of California, without regard to its
choice of law principles.


 


	
  BY THE EMPLOYEE:

  	
   

  	
  LECG, LLC:

  
	
   

  	
   

  	
   

  
	
  /s/ Christopher J. Aitken

  	
   

  	
  /s/ Tina Bussone

  
	
  Christopher J. Aitken

  	
   

  	
  Tina Bussone

  
	
   

  	
   

  	
  Executive Vice President,
  Head of Human

  Resources & Operations

  
	
   

  	
   

  	
   

  
	
  February 10,
  2009

  	
   

  	
  February 10,
  2009

  
	
  Date

  	
   

  	
  Date

  



 


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