SEVERANCE AND RELEASE AGREEMENT
Exhibit 10.1
SEVERANCE AND RELEASE AGREEMENT
MusclePharm Corporation its
subsidiaries, parents, predecessors, successors and affiliates (the
“Company”) and Xxxxx
Xxxxxxx, Employee’s heirs, executors, administrators,
successors, and assigns (collectively referred to throughout this
Agreement as “Employee”), agree that:
1. Last
Day of Employment.
Employee's last day of employment with the Company was May 1, 2020
("Separation Date"). Employee also agrees to resign from the
Company’s Board of Directors.
2. Consideration.
In consideration for signing this Agreement and complying with its
terms, the Company has
agreed to pay Employee the equivalent of three (3) months of his
regular base salary in the sum of one hundred thousand dollars and
zero cents ($100,000.00) through its normal payroll practices (and
subject to applicable withholding) and according to the following
schedule:
May 15,
2020 -- $16,666.66
May 29,
2020 -- $16,666.66
June
19, 2020 -- $16,666.66
June
26, 2020 -- $16,666.66
July 3,
2020 -- $16,666.66
July
17, 2020 --$16,666.66
3. No
Consideration Absent Execution of this Agreement. Employee understands and agrees that
the Company will not pay the consideration referenced in paragraph
“2” above, except for Employee’s agreement to
execute this Agreement and the fulfillment of the promises
contained herein.
4. General
Release, Claims Not Released and Related
Provisions.
a. General
Release of All Claims. Employee knowingly and voluntarily
releases and forever discharges the Company, its parent
corporation, affiliates, subsidiaries, divisions, predecessors,
insurers, successors and assigns, and their current and former
employees, attorneys, officers, directors and agents thereof, both
individually and in their business capacities, and their employee
benefit plans and programs and their administrators and fiduciaries
(collectively referred to throughout the remainder of this
Agreement as “Releasees”), of and from any and all
claims, known and unknown, asserted or unasserted, which the
Employee has or may have against Releasees as of the date of
execution of this Agreement, including, but not limited to, any
alleged violation of:
■
Title VII of the
Civil Rights Act of 1964;
■
Sections 1981
through 1988 of Title 42 of the United States Code;
■
The Employee
Retirement Income Security Act of 1974 ("ERISA") (as modified
below);
■
The Immigration
Reform and Control Act;
■
The Americans with
Disabilities Act of 1990;
■
The Age
Discrimination in Employment Act of 1967
(“ADEA”);
■
The Worker
Adjustment and Retraining Notification Act;
■
The Fair Credit
Reporting Act;
■
The Family and
Medical Leave Act;
■
The Equal Pay
Act;
■
The California
Family Rights Act;
■
The California Fair
Employment and Housing Act;
■
The California
Xxxxx Civil Rights Act;
■
The California
Confidentiality of Medical Information Act;
■
The California
Equal Pay Law (California Labor Code § 1197.5);
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■
The California
Investigative Consumer Reporting Agencies Act;
■
The California
Consumer Credit Reporting Agencies Act;
■
Those other
provisions of the California Labor Code that lawfully may be
released;
■
All relevant
provisions of the Florida Labor Code and any other Florida law
related to employment;
■
any other federal,
state or local law, rule, regulation, or ordinance;
■
any public policy,
contract, tort, or common law; or
■
any basis for
recovering costs, fees, or other expenses, including attorneys'
fees incurred in these matters.
This
Agreement and General Release does not extend to claims Employee
may have to Employee’s own vested accrued employee benefits
under the Company’s health, welfare, or retirement benefit
plans as of the Separation Date or to those rights which as a matter of
law cannot be waived, including but not limited to claims Employee
may have under the California Labor Code (such as rights to
reimbursement or indemnity under Labor Code § 2802). Nor does
this Agreement and General Release affect any right Employee may
have to receive workers’ compensation benefits, unemployment
benefits pursuant to the California Unemployment Insurance Code or
State Disability insurance benefits.
If any
claim is not subject to release, to the extent permitted by law,
Employee waives any right or ability to be a class or collective
action representative or to otherwise participate in any putative
or certified class, collective or multi-party action or proceeding based on such a claim
in which Employer is a party.
Nothing
herein is intended to or shall preclude Employee from filing a
complaint and/or charge with any appropriate federal, state, or
local government agency and/or cooperating with said agency in its
investigation. The releases contained in this paragraph will remain
in full force and effect. To the extent permitted by law, Employee
agrees that if such an administrative claim is made, Employee shall
not be entitled to recover any individual monetary relief or other
individual remedies.
5.
Waiver
of California Civil Code Section 1542. To effect a full and
complete general release as described above, Employee expressly
waives and relinquishes all rights and benefits of section 1542 of
the Civil Code of the State of California, and Employee does so
understanding and acknowledging the significance and consequence of
specifically waiving 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.
Thus,
notwithstanding the provisions of Section 1542, and to implement a
full and complete release and discharge of Employer, Employee
expressly acknowledges this Confidential Agreement and General
Release is intended to include in its effect, without limitation,
all Claims Employee does not known or suspect to exist in
Employee’s favor at the time of signing this Agreement and
General Release, and that this Agreement and General Release
contemplates the extinguishment of any such Claim or Claims.
Employees warrants Employee has read this Agreement and General
Release, including this waiver of California Civil Code section
1542, and that Employee has consulted counsel or has had the
opportunity to consult counsel about this Agreement and General
Release and specifically about the waiver of section 1542, and that
Employee understands this Agreement and General Release and the
section 1542 waiver, and so Employee freely and knowingly enters
into this Agreement and General Release. Employee acknowledges
Employee may later discover facts different from or in addition to
those Employee now knows or believes to be true regarding the
matters released or described in this Agreement and General
Release, and even so Employee agrees the releases and agreements
contained in this Agreement and General Release shall remain
effective in all respects notwithstanding any later discovery of
any different or additional facts. Employee assumes any and all
risk of any mistake in connection with the true facts involved in
the matters, disputes, or controversies described in this Agreement
and General Release or with regard to any facts now unknown to
Employee relating to those matters.
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6. Acknowledgments
and Affirmations.
Employee affirms
that Employee has not filed, caused to be filed, or presently is a
party to any claim against the Company.
Employee also
affirms that if Employee was classified as non-exempt from overtime
laws, that Employee has reported all hours worked as of the date
Employee signs this Agreement and has been paid and/or has received all
compensation, wages, bonuses, commissions, and/or benefits which
are due and payable as of the date Employee signs this
Agreement.
Employee also
affirms that Employee has been paid for all of Employee’s
accrued, unused vacation, paid time off and personal
days.
Employee further
affirms that Employee has been reimbursed for all expenses Employee
incurred in performing Employee’s duties or in following the
Company’s directions.
Employee affirms
that the Company has made available all leave to which Employee was
entitled under the Family and Medical Leave Act or related state or
local leave or disability accommodation laws.
Employee further
affirms that Employee has no known workplace injuries or
occupational diseases.
Employee also
affirms that Employee has not divulged any Personal Health
Information (“PHI”), proprietary or confidential
information of the Company and will continue to maintain the
confidentiality of such information consistent with HIPAA, the
Company’s policies and Employee’s agreement(s) with the
Company and/or common law. If Employee placed any PHI or
confidential or proprietary information on Employee’s
personal computer, phone, or electronic data storage device which
was not returned to the Company, Employee will tender the device to
the Company for removal of the information.
Employee further
affirms that Employee has not been retaliated against for reporting
any allegations of wrongdoing by the Company or its officers,
including any allegations of corporate fraud.
Employee affirms
that all of Company’s decisions regarding Employee's pay and
benefits through the date of Employee's execution of this Agreement
were not discriminatory based on age, disability, race, color, sex,
religion, national origin or any other classification protected by
law.
Employee affirms
that all of Company’s decisions regarding Employee's pay and
benefits through the date of Employee's Separation Date were not
discriminatory based on age, disability, race, color, sex,
religion, national origin or any other classification protected by
law.
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7. Limited
Disclosure and Return of Property. Employee agrees not to disclose
any information regarding the underlying facts leading up to or the
existence or substance of this Agreement, except to
Employee’s spouse, tax advisor, an attorney with whom
Employee chooses to consult regarding Employee’s
consideration of this Agreement and/or to any federal, state, or
local government agency.
Employee affirms
that Employee has returned all of the Company’s property,
documents, and/or any confidential information in Employee’s
possession or control. Employee also affirms that Employee is in
possession of all of Employee’s property that Employee had at
the Company’s premises and that the Company is not in
possession of any of Employee’s property.
8. Governing
Law and Interpretation. This Agreement shall be governed and
conformed in accordance with the laws of the state of California
without regard to its conflict of laws provision. In the event of a
breach of any provision of this Agreement, either party may
institute an action specifically to enforce any term or terms of
this Agreement and/or to seek any damages for breach. The exclusive
venue for any litigation brought to enforce the provisions of this
Agreement shall be in the civil courts of the City of Los Angeles
in the State of California. The prevailing party in any such
litigation shall be entitled to recover its attorney’s fees
and costs incurred in such action. Should any provision of this
Agreement be declared illegal or unenforceable by any court of
competent jurisdiction and cannot be modified to be enforceable,
excluding the general release language, such provision shall
immediately become null and void, leaving the remainder of this
Agreement in full force and effect.
9. Nonadmission
of Wrongdoing. The
Parties agree that neither this Agreement nor the furnishing of the
consideration for this Agreement shall be deemed or construed at
any time for any purpose as an admission by Releasees of wrongdoing
or evidence of any liability or unlawful conduct of any
kind.
10. Mutual
Non-Disparagement.
The Parties agree that neither Party shall publicly disparage,
defame or libel the other in any manner whatsoever.
11. Cooperation.
Employee agrees to cooperate and help the Company from time to time
with any questions related to the Company’s business. In
addition, Employee agrees to ensure a smooth transition of the
Costco account to another Company employee as designated by the
Company and such assistance shall include, among other things, a
Company-approved transition letter.
12. Amendment.
This Agreement may not be modified, altered or changed except in
writing and signed by both Parties wherein specific reference is
made to this Agreement.
13. Entire
Agreement. This
Agreement sets forth the entire agreement between the Parties
hereto, and fully supersedes any prior agreements or understandings
between the Parties. Employee acknowledges that
Employee has not relied on any representations, promises, or
agreements of any kind made to Employee in connection with
Employee’s decision to accept this Agreement, except for
those set forth in this Agreement.
14. Eligibility
Requirements. EMPLOYEE IS
ADVISED THAT EMPLOYEE HAS UP TO FORTY-FIVE (45) CALENDAR DAYS TO
CONSIDER THIS AGREEMENT. EMPLOYEE ALSO IS ADVISED TO CONSULT WITH
AN ATTORNEY PRIOR TO EMPLOYEE’S SIGNING OF THIS
AGREEMENT.
EMPLOYEE MAY REVOKE THIS AGREEMENT FOR A PERIOD
OF SEVEN (7) CALENDAR DAYS FOLLOWING THE DAY EMPLOYEE SIGNS THIS
AGREEMENT. ANY REVOCATION WITHIN THIS PERIOD MUST BE
SUBMITTED, IN WRITING, TO XXXX XXXXXXX AND STATE, "I HEREBY REVOKE
MY ACCEPTANCE OF OUR AGREEMENT." THE REVOCATION MUST BE
PERSONALLY DELIVERED TO XXXXX X. XXXXXX, ESQ., OR EMAILED TO HIM
AT Xxxxx@Xxxxxxxxxxx.xxx WITHIN SEVEN (7) CALENDAR DAYS AFTER EMPLOYEE
SIGNS THIS AGREEMENT.
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EMPLOYEE
AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS
AGREEMENT, DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL UP
TO FORTY-FIVE (45) CALENDAR DAY CONSIDERATION PERIOD.
EMPLOYEE
FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS
AGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS
EMPLOYEE HAS OR MIGHT HAVE AGAINST RELEASEES.
The
Parties knowingly and voluntarily sign this Agreement as of the
date(s) set forth below:
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MUSCLEPHARM
CORPORATION
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By:
/s/ Xxxxx
Xxxxxxx
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By:
/s/ Xxxx
Xxxxxxx
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Xxxxx
Xxxxxxx
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Xxxx
Xxxxxxx
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Chief Executive
Officer
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Date:
May 4, 2020
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Date:
May 4, 2020
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