SEPARATION AGREEMENT
Exhibit 10.6
This Separation Agreement (“Agreement”) is made and entered into as of November 4, 2009 by and
between Xxxxxxx Xxxxxx, an individual (“Seaber”), and HealthSport, Inc., a Delaware corporation
(“HealthSport”), with respect to the following facts:
X. Xxxxxx has served as a director of HealthSport.
X. Xxxxxx now desires to resign from his position as director of HealthSport.
X. Xxxxxx and HealthSport now desire to release one another from certain claims that they may
have against one another arising out of Seaber’s director position 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 Seaber agree as follows:
Section 1. Resignation. Seaber hereby resigns as a director of HealthSport effective
as of the date of this Agreement. Seaber will return to HealthSport all property owned by
HealthSport, including all originals and copies of the following, whether in Seaber’s possession or
previously removed by Seaber 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 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 Seaber’s satisfaction of any withholding or other taxes that may be due:
(i) Pay to Seaber the sum of $10,000 which shall be paid on or before December 1, 2009; and
(ii) Issue 100,000 unregistered shares of common stock of HealthSport to Seaber on or before
December 1, 2009.
Seaber 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 Seaber hereunder is deemed to be subject to 409A, Seaber hereby consents to the
Company adopting such conforming amendments as the Company deems necessary, in its reasonable
discretion, to comply with 409A. If upon Seaber’s “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 Seaber’s separation
from service, or (ii) ten (10) days after the Company receives written notification of
Seaber’s death. Any such delayed payments shall be made without interest. In addition, to the
extent required by 409A, any expense reimbursement payments to Seaber must be made by no later than
the end of Seaber’s 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 Seaber
or other persons as to any unexpected or adverse tax consequence realized by Seaber or other person
as a result of this Agreement or any payment or benefit provided under this Agreement.
Section 4. Ongoing Obligations. In addition to Seaber’s ongoing obligations as a
director of HealthSport, Seaber agrees to remain reasonably available to HealthSport and its senior
executives via telephone for a period of thirty (30) days from the date of this Agreement to
respond to questions and assist with issues related to the transition of Seaber’s responsibilities
with HealthSport.
Section 5. Indemnification Claims Not Released. Seaber 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 6.
General Release. Except for the claims set forth in
Section 5 above, Seaber for
himself, his heirs, executors, administrators, assigns and successors, fully and forever releases
and discharges HealthSport and its current, former and future parents, subsidiaries, affiliates,
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 Seaber’s employment relationship and director relationship
with HealthSport prior to the date of this Agreement.
Section 7. Knowing Waiver of Employment-Related Claims. Seaber 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 Seaber’s release
of claims under the Age Discrimination in Employment Act of 1967, as amended, (“ADEA”) as set forth
in Section 7 below. Seaber 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.
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Section 8. Knowing Waiver of ADEA Claims. Seaber 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.
Seaber 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 Seaber.
Section 9. Waiver of Civil Code § 1542. Seaber 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.”
Seaber 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 10. Severability of Release Provisions. Seaber 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.
Section 11. Representation Regarding Legal Actions. Seaber 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, Seaber 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. Seaber
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 Releasees, unless compelled by legal process to do so.
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Section 12. Promise to Maintain Confidentiality of HealthSport’s Confidential
Information. Seaber 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. Seaber
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. Seaber 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 13. 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 14. 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 15. 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 16. 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 17. Counterparts. This Agreement may be signed in multiple counterparts and
my 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.
Section 18. Period to Consider Terms of Agreement. Seaber 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. Seaber 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. Seaber
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.
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Section 19. Revocation of Agreement. Seaber understands that after executing this
Agreement, he has the right to revoke it within seven (7) days after his execution of it. Seaber
understands that this Agreement will not become effective and enforceable unless the seven-day
revocation period passes and Seaber does not revoke the Agreement in writing. Seaber understands
that this Agreement may not be revoked after the seven-day revocation period has passed. Seaber
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 20. Effective Date. This Agreement shall become effective and binding upon
the parties eight (8) days after Seaber’s execution thereof, so long as Seaber has not revoked this
Agreement within the time period and in the manner specified in
Section 19, above.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| /s/ Xxxxxxx Xxxxxx | ||||
| Xxxxxxx Xxxxxx | ||||
| HEALTHSPORT, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Xxxxxx X. Xxxxxxxx | ||||
| Chairman of the Board | ||||
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