SEPARATION AGREEMENT
Exhibit 10.7
This Separation Agreement (“Agreement”) is made and entered into as of November 4, 2009 by and
between Xxxxxxx Xxxxx, an individual (“Xxxxx”), and HealthSport, Inc., a Delaware corporation
(“HealthSport”), with respect to the following facts:
X. Xxxxx has served as an independent consultant for HealthSport pursuant to an independent
consultant agreement with HealthSport (the “Consultant Agreement”). Xxxxx has served as a director
of HealthSport since May 2007. Xxxxx has also in the past served as HealthSport’s chief operating
officer and secretary but is not an officer of HealthSport as of the date of this Agreement.
X. Xxxxx now desires to terminate the Consultant Agreement and Xxxxx’x position of independent
consultant with HealthSport.
X. Xxxxx and HealthSport now desire to release one another from certain claims that they may
have against one another arising out of Xxxxx’x Consultant Agreement with HealthSport, with Xxxxx’x
past employment with HealthSport and otherwise prior to the date of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, and
intending to be legally bound, HealthSport and Xxxxx agree as follows:
Section 1. Resignation. Xxxxx hereby resigns as an independent consultant of
HealthSport effective as of the date of this Agreement. Xxxxx shall remain a director of
HealthSport. The Consultant Agreement is terminated as of the date of this Agreement. Xxxxx shall
not be an employee of HealthSport. Xxxxx will return to HealthSport all property owned by
HealthSport, including all originals and copies of the following, whether in Xxxxx’x possession or
previously removed by Xxxxx from HealthSport’s premises and still existing, and whether recorded on
paper, computer disk, other computer readable-form, or any other medium: all computers, office
equipment, company assets, lists, correspondence, books, letters, records, financial data, product
information, formulas, sales information and other materials and other materials and writing owned
by HealthSport or used by it in connection with the conduct of its business.
Section 2. Separation Payment. As separation compensation, HealthSport shall, subject
to Xxxxx’ satisfaction of any withholding or other taxes that may be due:
(i) Pay to Xxxxx the sum of $35,000 on or before December 1, 2009; and
(ii) Issue 100,000 unregistered shares of common stock of HealthSport to Xxxxx on or before
December 1, 2009.
Xxxxx shall be solely responsible for payment of any and all applicable taxes associated with this
Agreement.
Section 3. Section 409A Compliance. This Agreement is intended to comply with the
requirements of section 409A of the Internal Revenue Code (“409A”). In the event this Agreement or
any benefit paid to Xxxxx hereunder is deemed to be subject to 409A, Xxxxx hereby consents to the
Company adopting such conforming amendments as the Company deems necessary, in its reasonable
discretion, to comply with 409A. If upon Xxxxx’x “separation from service” within the meaning of
409A, he is then a “specified employee” (as defined in 409A), then solely to the extent necessary
to comply with 409A and avoid the imposition of taxes under 409A, the Company shall defer payment
of “nonqualified deferred compensation” subject to 409A payable as a result of and within six (6)
months following such separation from service until the earlier of (i) the first business day of
the seventh month following Xxxxx’ separation from service, or (ii) ten (10) days after the Company
receives written notification of Xxxxx’ death. Any such delayed payments shall be made without
interest. In addition, to the extent required by 409A, any expense reimbursement payments to Xxxxx
must be made by no later than the end of Xxxxx’ taxable year following the taxable year in which
the expense is incurred. Such reimbursement or in-kind benefit rights may not be subject to
liquidation or exchange for another benefit. The Company (nor any of its directors, employees or
agents) shall not be liable to Xxxxx or other persons as to any unexpected or adverse tax
consequence realized by Xxxxx or other person as a result of this Agreement or any payment or
benefit provided under this Agreement.
Section 4. Indemnification Claims Not Released. Xxxxx retains, and does not release in
this Agreement any rights to indemnification in accordance with the terms of HealthSport’s
articles of incorporation or bylaws.
Section 5. General Release. Except for the claims set forth in Section 4 above, Xxxxx
for himself, his heirs, executors, administrators, assigns and successors, fully and forever
releases and discharges HealthSport and its current, former and future parents, subsidiaries,
related entities, employee benefit plans and their fiduciaries, predecessors, successors, officers,
directors, shareholders, agents, employees and assigns (collectively, “Releases”), with respect to
any and all claims, liabilities and causes of action, of every nature, kind and description, in
law, equity or otherwise, which have arisen, occurred or existed at any time prior to the signing
of this Agreement, including, without limitation, any and all claims, liabilities and causes of
action arising out of or relating to Xxxxx’x employment relationship with HealthSport prior to the
date of this Agreement.
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Section 6. Knowing Waiver of Employment-Related Claims. Xxxxx understands and agrees
that, with the exception of potential employment-related claims identified below, he is waiving any
and all rights he may have had, now has, or in the future may have, to pursue against any of the
Releases any and all remedies available to him under any employment-related causes of action,
including without limitation, claims of wrongful discharge, breach of contract, breach of the
covenant of good faith and fair dealing, fraud, violation of public policy, defamation,
discrimination, personal injury, physical injury, emotional distress, claims under Title VII of the
Civil Rights Act of 1964, as amended, the Americans With Disabilities Act, the Federal
Rehabilitation Act, the California Fair Employment and Housing Act, the California Family Rights
Act, the Equal Pay Act of 1963, the provisions of the California Labor Code and any other federal,
state or local laws and regulations relating to employment, conditions of employment (including
wage and hour laws), perquisites of employment (including but not limited to claims relating to
stock and/or stock options) and/or employment discrimination.
Claims not covered by the release provisions of this Agreement are (i) claims for unemployment
insurance benefits, (ii) claims under the California Workers’ Compensation Act, and (iii) claims
for indemnity under the California Labor Code, (iv) claims arising from HealthSport’s
nonperformance under this Agreement and (v) any challenge to the validity of Xxxxx’x release of
claims under the Age Discrimination in Employment Act of 1967, as amended, (“ADEA”) as set forth in
Section 6 below. Xxxxx expressly waives any right to recovery of any type, including damages and
reinstatement, in any administrative or court action, whether state or federal, and whether brought
by him or on his behalf, related in any way to the matters released herein.
Section 7. Knowing Waiver of ADEA Claims. Xxxxx acknowledges that he is knowingly and
voluntarily waiving and releasing any rights he may have under the federal Age Discrimination in
Employment Act of 1967, as amended. He also acknowledges that the consideration given for this
waiver and release is in addition to anything of value to which he was already was entitled. Xxxxx
further acknowledges that he has been advised by this writing, as required by law, that: (i) his
waiver and release specified in this paragraph do not apply to any rights or claims that may arise
after the date he signs this Agreement or to any challenge to the validity of this waiver of ADEA
claims; (ii) he has been advised hereby that he has the right to consult with an attorney prior to
executing this Agreement; (iii) he has twenty one (21) days to consider this Agreement (although he
may choose to voluntarily execute this Agreement earlier); (iv) he has seven (7) days following his
execution of this Agreement to revoke the Agreement (in writing); and (v) this Agreement will not
be effective until the date upon which the revocation period has expired, which will be the eighth
(8th) day after this Agreement is executed by Xxxxx.
Section 8. Waiver of Civil Code § 1542. Xxxxx expressly waives any and all rights and
benefits conferred upon him by Section 1542 of the Civil Code of the State of California, which
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.”
Xxxxx expressly agrees and understands that the release given by him pursuant to this Agreement
applies to all unknown, unsuspected and unanticipated claims, liabilities and causes of action
which he may have against any of the other Releases.
Section 9. Severability of Release Provisions. Xxxxx agrees that if any provision of
the release given by him under this Agreement is found to be unenforceable, it will not affect the
enforceability of the remaining provisions and the courts may enforce all remaining provisions to
the extent permitted by law.
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Section 10. Representation Regarding Legal Actions. Xxxxx represents that, as of the
date of this Agreement, he has not filed any lawsuits, charges, complaints, petitions, claims or
other accusatory pleadings against the Releases in any court or any with any governmental agency.
Except for claims preserved by law or expressly by this Agreement, Xxxxx promises never to xxx any
of the Releases, or otherwise institute or participate in any legal or administrative proceedings
against any of the Releases, with respect to any claim covered by the
release provisions of this Agreement, unless he is compelled by legal process to do so. Xxxxx
promises and agrees that he shall not advocate or incite the institution of, or assist or
participate in, any suit, complaint, charge or administrative proceeding by any other person
against any of the Releases, unless compelled by legal process to do so.
Section 11. Promise to Maintain Confidentiality of HealthSport’s Confidential
Information. Xxxxx acknowledges that due to the position he has occupied and the
responsibilities he has had at HealthSport, he has received confidential information concerning
HealthSport’s products, procedures, customers, sales, prices, contracts, and the like. Xxxxx
hereby promises and agrees that, unless compelled by legal process, he will not disclose to others
and will keep confidential all information he has received while employed by HealthSport concerning
HealthSport’s products and procedures, the confidential purchasing information relating to
HealthSport’s customers, HealthSport’s sales, HealthSport’s prices, the terms of any of
HealthSport’s contracts with third parties, and the like. Xxxxx agrees that a violation by him of
the foregoing obligation to maintain the confidentiality of HealthSport’s confidential information
will constitute a material breach of this Agreement.
Section 12. Entire Agreement. This Agreement constitutes the sole agreement between
the parties with respect to its subject matter and supersedes all prior discussions, arrangements
or agreements, whether written or oral, with respect to its subject matter.
Section 13. Waiver, Amendment and Modification of Agreement. The parties agree that
no waiver, amendment or modification of any of the terms of this Agreement shall be effective
unless in writing and signed by all parties affected by the waiver, amendment or modification. No
waiver of any term, condition or default of any term of this Agreement shall be construed as a
waiver of any other term, condition or default.
Section 14. Representation by Counsel. The parties acknowledge that they have had the
opportunity to be represented in negotiations for the preparation of this Agreement by counsel of
their own choosing, and that they have entered into this Agreement voluntarily, without coercion.
This Agreement shall be construed in accordance with its plain meaning and not strictly for or
against either party.
Section 15. California Law. The parties agree that this Agreement and its terms shall
be construed under California law, without regard to any choice of law provisions.
Section 16. Counterparts. This Agreement may be signed in multiple counterparts and
may be delivered by facsimile or electronic mail in portable document format or other means
intended to preserve the original graphical content of a signature. Each such counterparts shall
be an original and all of which, taken together, shall constitute one and the same instrument.
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Section 17. Period to Consider Terms of Agreement. Xxxxx acknowledges that this
Agreement was presented to him on November 4, 2009 and that he is entitled to have up to
twenty-one (21) days’ time in which to consider the terms of this Agreement. Xxxxx acknowledges
that he has obtained the advice and counsel from the legal representative of his choice and
executes this Agreement having had sufficient time within which to consider its terms. Xxxxx
represents that if he executes this Agreement before 21 days have elapsed, he does
so voluntarily, upon the advice and with the approval of his legal counsel, and that he
voluntarily waives any remaining consideration period.
Section 18. Revocation of Agreement. Xxxxx understands that after executing this
Agreement, he has the right to revoke it within seven (7) days after his execution of it. Xxxxx
understands that this Agreement will not become effective and enforceable unless the seven-day
revocation period passes and Xxxxx does not revoke the Agreement in writing. Xxxxx understands
that this Agreement may not be revoked after the seven-day revocation period has passed. Xxxxx
understands that any revocation of this Agreement must be made in writing and delivered to
HealthSport’s General Counsel within the seven-day period.
Section 19. Effective Date. This Agreement shall become effective and binding upon
the parties eight (8) days after Xxxxx’x execution thereof, so long as Xxxxx has not revoked this
Agreement within the time period and in the manner specified in Section 18, above.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| /s/ Xxxxxxx Xxxxx | ||||
| Xxxxxxx Xxxxx | ||||
| HEALTHSPORT, INC. |
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| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Xxxxxx X. Xxxxxxxx | ||||
| Chairman of the Board | ||||
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