SETTLEMENT AGREEMENT ANDRELEASE

Claimant/Counterclaim Respondent John Busshaus (“Busshaus” or “Claimant”) and Respondent/Counterclaim Claimant Liberated Syndication, Inc. (“Libsyn” or “Respondent” or “Company”), parties to Case Number 01-20-0005-0441 before the American Arbitration Association (the “Arbitration”), execute this Settlement Agreement and Release (“Agreement”), agreeing as set forth below. The Effective Date of this Agreement is June 8, 2021.

Whereas on or about April 24, 2020, Busshaus initiated an arbitration against Libsyn asserting severance claims for wages, compensation, and benefits arising from his employment agreement originally dated March 1, 2017, and later extended and modified by further agreement, as well as claims for unlawful discharge and violation of Pennsylvania’s Wage Payment and Collection Law (WPCL);

 

Whereas Libsyn disputed Busshaus’s claims and asserted counterclaims for breach of fiduciary duty, professional negligence, fraud, unjust enrichment, and conversion; and

 

Whereas the parties desire to settle their disputes and toward that end agree as follows:

 

In the event that it is subsequently determined by any federal, state, or local taxing authority that Claimant owes any additional taxes with respect to the Settlement Amount, it is expressly agreed that the determination of any tax liability, if any, is between the Claimant and that taxing authority, and Respondent will not be responsible for the payment of such taxes, including any interest and penalties, except with respect to any of Respondent’s portions of FICA and other federal employer-portion tax withholding associated with the payment set forth in this paragraph.

 

Busshaus was previously issued 937,500 shares of Libsyn stock that have vested (the “Vested Shares”). The Vested Shares are not covered by the preceding paragraph. Libsyn agrees not to object to or dispute any legal opinion related to Rule 144 or to remove any restrictive legend that is acceptable to the transfer agent.

 

 

a.           Busshaus Release of Libsyn. Unless expressly excepted by the terms of this Agreement or with regard to a claim for breach of this Agreement, Claimant hereby releases, waives, and forever discharges Respondent, including its past or present employees, officers, directors, trustees, board members, stockholders, agents, parent entities, successors, assigns, and other representatives, and anyone acting on their joint or several behalf (the “Libsyn Released Parties”) from any and all known and unknown claims, causes of action, demands, damages, costs, expenses, liabilities, or other losses that have arisen to date or may arise in the future from, out of, or related to any employment of Claimant by Respondent and all actions or omissions taken or committed as part of that employment or the termination thereof or resignation therefrom, including but not limited to the claims asserted or raised in the Arbitration or which could have been asserted or raised in the Arbitration (the “Busshaus Claims”). This paragraph is not intended to and does not modify, limit, or alter Libsyn’s obligations under paragraphs 7 and 8 hereof.

 

b.           Libsyn Release of Busshaus. Unless expressly excepted by the terms of this Agreement or with regard to a claim for breach of this Agreement, Respondent hereby releases, waives, and forever discharges Claimant, including his agents and other representatives, heirs, administrators, executors, and assigns, and anyone acting on their joint or several behalf (the “Busshaus Released Parties”) from any and all known and unknown claims, causes of action, demands, damages, costs, expenses, liabilities, or other losses that have arisen to date or may arise in the future from, out of, or related to any employment of Claimant by Respondent and all actions or omissions taken or committed as part of that employment or the termination thereof or resignation therefrom, including but not limited to the claims asserted in the Counterclaims or otherwise asserted or raised in the Arbitration or which could have been asserted or raised in the Arbitration (the “Libsyn Claims”).

 

Busshaus represents and warrants that, to his knowledge, he presently is not a party to or the subject of any threatened, pending or completed action, suit, proceeding, or inquiry, whether civil, criminal, administrative or investigative, including, without limitation, an action by or in the right of the corporation that would implicate the above paragraph. Any breach of these representations shall be considered a material breach of this settlement agreement.

 

The above paragraph concerning Libsyn’s indemnification and defense obligations is not intended to and does not cover the litigation captioned as 1:19-cv-09070-NRB, SEC v. Spencer and Busshaus in the U.S. District Court for the Southern District of New York. The Parties acknowledge that each is aware of class action solicitations made by one or more attorneys related to recent SEC filings by Libsyn.

 

In any threatened, pending or completed action, suit, proceeding, or inquiry, whether civil, criminal, administrative or investigative, including, without limitation, an action by or in the right of the corporation, Busshaus agrees to provide reasonable and good faith cooperation and assistance if requested by Libsyn in its defense of any such threatened, pending or completed action, suit, proceeding, or inquiry, whether civil, criminal, administrative or investigative, including, without limitation, an action by or in the right of the corporation.

 

So long as such cooperation does not implicate the limitations placed on Busshaus by the October 11, 2019 Section 102(e) Order issued by the SEC, Busshaus also agrees to reasonably cooperate with Libsyn in assisting in the defense of any existing or future charges, claims, demands, complaints, subpoenas, government investigations, arbitrations or lawsuits filed against Libsyn, including any of its past or present directors or officers, related or affiliated companies, parent companies, or subsidiaries, or in the prosecution of any claim, demand, complaint, arbitration or lawsuit filed by Libsyn against any person or entity (collectively, “Libsyn Actions”), where Busshaus, during Busshaus’ employment with the Company, had involvement in or knowledge of any decision, negotiation or other process or procedure that is the subject of any of the Libsyn Actions, where Busshaus had previously participated in the defense of any of the Libsyn Actions, or where it is alleged that Busshaus has knowledge of any facts at issue in any of the Libsyn Actions. Busshaus’ cooperation shall include, but not be limited to, meeting with Libsyn’s counsel and providing sworn statements and testimony where and when reasonably requested. Busshaus agrees that he shall not be entitled to any payments or compensation for providing such cooperation, excluding any required travel expenses.

 

5001 Baum Blvd, #770

Pittsburgh, Pennsylvania 15213

Attn: Laurie Sims

***@***

 

With a copy to:

 

Maria Gall

Ballard Spahr LLP

1980 Festival Plaza Drive, Suite 900

Las Vegas, Nevada 89135

***@***

 

 

John Busshaus

 

With a copy to:

David Berardinelli

Deforest Koscelnik & Berardinelli

3000 Koppers Building

Pittsburgh, PA 15219

***@***

 

 

 

 

1 Because the W-2 Payment to Busshaus qualifies as “supplemental wages” under Treas. Reg. 31.3402(g)-1(a)(1)(i) and because the three conditions described in Treas. Reg. 31.3402(g)-1(a)(7)(i)(A)-(C) are satisfied, the Parties agree that the optional flat-rate withholding method described at Treas. Reg. 31.3402(g)-1(a)(1)(vi) will be used to determine the appropriate withholding as to the W-2 Payment. Treas. Reg. 31.3402(g)-1(a)(1)(vi) & (7). Currently, that optional flat-rate method withholding rate is 22% rate as described at Treas. Reg. 31.3402(g)-1(a)(7)(iii)(F), as amended by Tax Reform’s change of the corresponding rate at IRC 1(i)(2) and will be used by the Parties.  IRS Notice 2018-14, IV. 

 

 

IN WITNESS WHEREOF, in consideration of their respective commitments herein set forth and with the intention to be legally bound hereby, the parties hereto have executed the Agreement, in counterpart originals or otherwise, as of the dates set forth below.

 

Liberated Syndication, Inc., by: