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EXHIBIT 10.3
EMPLOYMENT SEPARATION AND GENERAL RELEASE AGREEMENT
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This Employment Separation and General Release Agreement (this
"SEPARATION AGREEMENT") is entered into this 8th day of August,
2008, by and
between Susan Levine, an individual ("EXECUTIVE"), and Allergy
Research Group,
Inc., a Florida corporation (the "COMPANY").
WHEREAS, Executive has been employed as the Vice President and
Secretary for the Company; and
WHEREAS, Executive and the Company have mutually agreed to
terminate
Executive's employment relationship with the Company subject to the
closing of
the merger of Longhorn Acquisition Corp. with and into the Company
as of the
closing date of such merger (the "SEPARATION DATE") upon the terms
set forth
herein;
NOW, THEREFORE, in consideration of the covenants undertaken and
the
releases contained in this Separation Agreement and the Consulting
Agreement
attached as EXHIBIT B hereto (the "CONSULTING AGREEMENT"),
Executive and the
Company agree as follows:
I. RESIGNATION. Executive hereby irrevocably resigns as an
officer,
director, employee, member, manager and in any other capacity with
the Company
and each of its Affiliates, effective as of the Separation Date. On
the
Separation Date, Executive agrees that she shall confirm such
resignation by
executing the letter attached as EXHIBIT A hereto and promptly
delivering such
letter to the Company. The Company and its Affiliates hereby accept
such
resignation, effective as of the Separation Date. Executive waives
any right or
claim to reinstatement as an employee of the Company or any of its
Affiliates by
which she was employed at any time prior to the Separation Date.
(For purposes
of this Separation Agreement, the term "AFFILIATE" has the meaning
accorded to
such term in Rule 12b-2 under the Securities Exchange Act of 1934,
as amended.)
Executive acknowledges and agrees that Executive has received all
amounts owed
for her regular and usual salary (including, but not limited to,
any severance,
overtime, bonus, accrued vacation, commissions, or other wages),
reimbursement
of expenses, and usual benefits, and that all payments due to
Executive from the
Company have been received.
II. CONSULTING AGREEMENT. Concurrently with the execution of
this
Separation Agreement, Executive shall execute the Consulting
Agreement attached
as EXHIBIT B hereto.
III. RELEASE. Executive, on behalf of herself, her descendants,
dependents, heirs, executors, administrators, assigns, and
successors, and each
of them, hereby covenants not to sue and fully releases and
discharges the
Company and each of its parents, subsidiaries and Affiliates, past
and present,
as well as each of their respective trustees, directors, officers,
members,
managers, partners, agents, attorneys, insurers, employees,
stockholders,
representatives, assigns, and successors, past and present, and
each of them
(hereinafter together and collectively referred to as the
"RELEASEES") with
respect to and from any and all claims, wages, demands, rights,
liens,
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agreements or contracts (written or oral), covenants, actions,
suits, causes of
action, obligations, debts, costs, expenses, attorneys' fees,
damages,
judgments, orders and liabilities of whatever kind or nature in
law, equity or
otherwise, whether now known or unknown, suspected or unsuspected,
and whether
or not concealed or hidden (each, a "CLAIM"), which she now owns or
holds or she
has at any time heretofore owned or held or may in the future own
or hold as
against any of said Releasees (including, without limitation, any
Claim arising
out of or in any way connected with Executive's service as an
officer, director,
employee, member or manager of any Releasee, Executive's separation
from her
position as an officer, director, employee, manager and/or member,
as
applicable, of any Releasee, or any other transactions,
occurrences, acts or
omissions or any loss, damage or injury whatever), resulting from
any act or
omission by or on the part of said Releasees, or any of them,
committed or
omitted prior to the date of this Separation Agreement including,
without
limiting the generality of the foregoing, any Claim under Title VII
of the Civil
Rights Act of 1964, the Age Discrimination in Employment Act of
1967 ("ADEA"),
the Americans with Disabilities Act, the Family and Medical Leave
Act of 1993,
the California Fair Employment and Housing Act, the California
Family Rights
Act, or any other federal, state or local law, regulation, or
ordinance, or any
Claim for severance pay, bonus, sick leave, holiday pay, vacation
pay, life
insurance, health or medical insurance or any other fringe benefit,
workers'
compensation or disability. However, this release does not cover
any Claim that
cannot be so released as a matter of applicable law and does not
prohibit either
party from filing a claim to enforce or challenge the validity of
the terms of
this Separation Agreement pursuant to the provisions hereof.
Executive
acknowledges and agrees that she has received any and all leave and
other
benefits that she has been and is entitled to pursuant to the
Family and Medical
Leave Act of 1993.
Without limiting the generality of the foregoing release,
Executive hereby expressly waives any right to indemnification,
advancement of
legal fees and expenses, reimbursement or any other form of
recovery from the
Company and its current and future affiliates to the extent that
Executive
incurs any judgment or award ("LOSS") resulting from, based upon,
arising out of
or related to the pending litigation entitled BRONSON V. ALLERGY
RESEARCH GROUP,
INC. in Palm Beach County, Florida (including any current or future
allegations
of breach of fiduciary duty by Executive during the periods to
which such
litigation relates, but excluding any future action taken by
Bronson and its
affiliates to the extent that such future action does not relate to
such
allegations of breach of fiduciary duty by Executive during the
periods to which
such litigation relates) (the "BRONSON LITIGATION"), except to the
extent that
such Loss is covered by directors and officers liability insurance
purchased by
and maintained by the Company for such periods to which the Bronson
Litigation
relates. Executive shall indemnify and hold harmless the Company
and its present
and future affiliates, to the fullest extent lawful, from and
against any Loss,
promptly as incurred, directly or indirectly resulting from, based
upon, arising
out of, or related to the Bronson Litigation, except to the extent
that such
Loss is covered by directors and officers liability insurance
purchased by and
maintained by the Company for such periods to which the Bronson
Litigation
relates; provided, however, that Company shall not be liable to
indemnify
Executive for any amounts paid in settlement of any of the Bronson
Litigation
effected without the Company's written consent, and the Company
shall not settle
any of the Bronson Litigation in a manner which would impose any
penalty or
limitation on Executive without Executive's written consent, which
consent, in
either case, shall not be unreasonably withheld.
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IV. WAIVER OF CIVIL CODE SECTION 1542. This Separation Agreement
is
intended to be effective as a general release of and bar to each
and every Claim
hereinabove specified. Accordingly, Executive hereby expressly
waives any and
all rights and benefits conferred by Section 1542 of the California
Civil Code
and any similar provision of any other applicable state law as to
the Claims.
Section 1542 of the California Civil Code provides:
"A GENERAL RELEASE DOES NOT EXTEND TO ANY 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."
Executive acknowledges that she later may discover claims,
demands,
causes of action or facts in addition to or different from those
which Executive
now knows or believes to exist with respect to the subject matter
of this
Agreement and which, if known or suspected at the time of executing
this
Separation Agreement, may have materially affected its terms.
Nevertheless,
Executive hereby waives, as to the Claims, any claims, demands, and
causes of
action that might arise as a result of such different or additional
claims,
demands, causes of action or facts.
V. ADEA WAIVER. Executive expressly acknowledges and agrees that
by
entering into this Separation Agreement, she is waiving any and all
rights or
claims that she may have arising under the ADEA, which have arisen
on or before
the date of execution of this Separation Agreement. Executive
further expressly
acknowledges and agrees that:
(a) In return for this Separation Agreement, she will receive
consideration beyond that which she was already entitled to receive
before
entering into this Separation Agreement;
(b) She is hereby advised in writing by this Separation
Agreement to consult with an attorney before signing this
Separation Agreement;
(c) She has voluntarily chosen to enter into this Separation
Agreement and has not been forced or pressured in any way to sign
it;
(d) She was given a copy of this Separation Agreement on July
18, 2008 and informed that she had twenty-one (21) days within
which to consider
the Separation Agreement and that if she wished to execute this
Separation
Agreement prior to expiration of such 21-day period, she should
execute the
Acknowledgement and Waiver attached hereto as EXHIBIT C;
(e) She was informed that she has seven (7) days following the
date of execution of this Separation Agreement in which to revoke
this
Separation Agreement, and this Separation Agreement will become
null and void if
Executive elects revocation during that time. Any revocation must
be in writing
and must be received by the Company during the seven-day revocation
period. In
the event that Executive exercises her right of revocation, neither
the Company
nor Executive will have any obligations under this Separation
Agreement; and
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(f) Nothing in this Separation Agreement prevents or precludes
Executive from challenging or seeking a determination in good faith
of the
validity of this waiver under the ADEA, nor does it impose any
condition
precedent, penalties or costs from doing so, unless specifically
authorized by
federal law.
VI. NO TRANSFERRED CLAIMS. Executive warrants and represents
that
Executive has not heretofore assigned or transferred to any person
not a party
to this Separation Agreement any released matter or any part or
portion thereof
and she shall defend, indemnify and hold the Company and each of
its Affiliates
harmless from and against any claim (including the payment of
attorneys' fees
and costs actually incurred whether or not litigation is commenced)
based on or
in connection with or arising out of any such assignment or
transfer made,
purported or claimed.
VII. MISCELLANEOUS
A. ASSIGNMENT. This Separation Agreement is personal in its
nature and neither of the parties hereto shall, without the consent
of the
other, assign or transfer this Separation Agreement or any rights
or obligations
hereunder; PROVIDED, HOWEVER, that in the event of a merger,
consolidation, or
transfer or sale of all or substantially all of the assets of the
Company with
or to any other individual(s) or entity, this Separation Agreement
shall,
subject to the provisions hereof, be binding upon and inure to the
benefit of
such successor and such successor shall discharge and perform all
the promises,
covenants, duties, and obligations of the Company hereunder.
B. NUMBER AND GENDER; EXAMPLES. Where the context requires, as
used in this Separation Agreement, the singular shall include the
plural, the
plural shall include the singular, and any gender shall include all
other
genders. Where specific language is used to clarify by example a
general
statement contained herein, such specific language shall not be
deemed to
modify, limit or restrict in any manner the construction of the
general
statement to which it relates.
C. SECTION HEADINGS. The section headings of, and titles of
paragraphs and subparagraphs contained in, this Separation
Agreement are for the
purpose of convenience only, and they neither form a part of this
Separation
Agreement nor are they to be used in the construction or
interpretation thereof.
D. GOVERNING LAW. This Separation Agreement will be governed
by and construed in accordance with the laws of the state of
California, without
giving effect to any choice of law or conflicting provision or rule
(whether of
the state of California or any other jurisdiction) that would cause
the laws of
any jurisdiction other than the state of California to be applied.
In
furtherance of the foregoing, the internal law of the state of
California will
control the interpretation and construction of this Separation
Agreement, even
if under such jurisdiction's choice of law or conflict of law
analysis, the
substantive law of some other jurisdiction would ordinarily
apply.
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E. SEVERABILITY. If any provision of this Separation Agreement
or the application thereof is held invalid, the invalidity shall
not affect
other provisions or applications of this Separation Agreement which
can be given
effect without the invalid provisions or applications and to this
end the
provisions of this Separation Agreement are declared to be
severable.
F. ENTIRE AGREEMENT. This Separation Agreement, together with
the Consulting Agreement, embodies the entire agreement of the
parties hereto
respecting the matters within its scope. This Separation Agreement
supersedes
all prior and contemporaneous agreements of the parties hereto that
directly or
indirectly bears upon the subject matter hereof. Any prior
negotiations,
correspondence, agreements, proposals or understandings relating to
the subject
matter hereof shall be deemed to have been merged into this
Separation
Agreement, and to the extent inconsistent herewith, such
negotiations,
correspondence, agreements, proposals, or understandings shall be
deemed to be
of no force or effect. There are no representations, warranties, or
agreements,
whether express or implied, or oral or written, with respect to the
subject
matter hereof, except as expressly set forth herein.
Notwithstanding the
foregoing, the Non-Competition Agreement between Executive and the
Company
entered into on or about the date hereof is outside of the scope of
the
integration provisions of this Section VII.F.
G. MODIFICATIONS. This Separation Agreement may not be
amended, modified or changed (in whole or in part), except by a
formal,
definitive written agreement expressly referring to this Separation
Agreement,
which agreement is executed by both of the parties hereto.
H. WAIVER. Neither the failure nor any delay on the part of a
party to exercise any right, remedy, power or privilege under this
Separation
Agreement shall operate as a waiver thereof, nor shall any single
or partial
exercise of any right, remedy, power or privilege preclude any
other or further
exercise of the same or of any right, remedy, power or privilege,
nor shall any
waiver of any right, remedy, power or privilege with respect to any
occurrence
be construed as a waiver of such right, remedy, power or privilege
with respect
to any other occurrence. No waiver shall be effective unless it is
in writing
and is signed by the party asserted to have granted such
waiver.
I. ARBITRATION. Any dispute, claim or controversy arising out
of or relating to this Separation Agreement or the Consulting
Agreement, the
enforcement or interpretation of any provision hereof or thereof,
or because of
an alleged breach, default, or misrepresentation in connection with
any
provision hereof or thereof, including the determination of the
scope or
applicability of this agreement to arbitrate, shall be submitted to
final and
binding arbitration, to be held in San Francisco, California before
a sole
arbitrator (the "ARBITRATOR") selected from the American
Arbitration
Association, as the exclusive forum for the resolution of such
dispute;
provided, however, that provisional injunctive relief may, but need
not, be
sought by either party to this Agreement in a court of law while
arbitration
proceedings are pending, and any provisional injunctive relief
granted by such
court shall remain effective until the matter is finally determined
by the
Arbitrator. Final resolution of any dispute through arbitration may
include any
remedy or relief which the Arbitrator deems just and equitable,
including any
and all remedies provided by applicable state or federal statutes.
At the
conclusion of the arbitration, the Arbitrator shall issue a written
decision
that sets forth the essential findings and conclusions upon which
the
Arbitrator's award or decision is based. Any award or relief
granted by the
Arbitrator hereunder shall be final and binding on the parties
hereto and may be
enforced by any court of competent jurisdiction. The parties
acknowledge and
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agree that they are hereby waiving any rights to trial by jury in
any action,
proceeding or counterclaim brought by either of the parties against
the other in
connection with any matter whatsoever arising out of or in any way
connected
with this Agreement or Executive's employment or the Consulting
Agreement. The
parties agree that the Company shall be responsible for payment of
the forum
costs of any arbitration hereunder, including the Arbitrator's fee,
but that
each party shall bear its own attorneys fees and other
expenses.
J. NOTICES. Any notice required to be delivered hereunder
shall be in writing and shall be addressed:
(i) if to the
Company, to:
c/o Country Life, LLC
180 Vanderbilt Motor Parkway
Hauppauge, New York 11788
Attention: Richard
Belenski
with a copy to:
O'Melveny & Myers LLP
275 Battery Street, Suite 2600
San Francisco, California 94111
Attn: Michael J. Kennedy, Esq. and Eric C.
Sibbitt, Esq.
(ii) if to Executive, to Executive's last known
address as reflected on the books and records of the Company; or,
in each case,
to such other address as such party may hereafter specify for the
purpose by
written notice to the other party hereto. Any such notice shall be
deemed
received on the date of receipt by the recipient thereof if
received prior to
5:00 p.m. in the place of receipt and such day is a business day in
the place of
receipt. Otherwise, any such notice shall be deemed not to have
been received
until the next succeeding business day in the place of receipt.
K. LEGAL COUNSEL; MUTUAL DRAFTING. Each party recognizes that
this is a legally binding contract and acknowledges and agrees that
they have
had the opportunity to consult with legal counsel of their choice.
Each party
has cooperated in the drafting, negotiation and preparation of this
Separation
Agreement. Hence, in any construction to be made of this Separation
Agreement,
the same shall not be construed against either party on the basis
of that party
being the drafter of such language. Executive agrees and
acknowledges that she
has read and understands this Separation Agreement, is entering
into it freely
and voluntarily, and has been advised to seek counsel prior to
entering into
this Separation Agreement and has had ample opportunity to do
so.
L. COUNTERPARTS. This Separation Agreement may be executed in
any number of counterparts, each of which shall be deemed an
original as against
any party whose signature appears thereon, and all of which
together shall
constitute one and the same instrument. This Separation Agreement
shall become
binding when one or more counterparts hereof, individually or taken
together,
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shall bear the signatures of all of the parties reflected hereon as
the
signatories. Photographic copies of such signed counterparts may be
used in lieu
of the originals for any purpose.
M. TAXES. The Company shall have the right to withhold from
any payment hereunder or under any other agreement between the
Company and
Executive the amount required by law to be withheld with respect to
such payment
or other benefits provided to Executive. Other than as to such
withholding
right, Executive shall be solely responsible for any taxes due as a
result of
the payments and benefits received by Executive contemplated by
this Separation
Agreement.
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The undersigned have read and understand the consequences of
this Separation Agreement and voluntarily sign it. The undersigned
declare under
penalty of perjury under the laws of the State of Florida that the
foregoing is
true and correct.
ALLERGY RESEARCH GROUP, INC.
By: /s/ Manfred Salomon
--------------------------------
Name: Manfred
Salomon
Title: President
EXECUTIVE
/s/ Susan Levine
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Name: Susan Levine
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EXHIBIT A
RESIGNATION LETTER
September ___, 2008
To: The Boards
of Directors of Allergy Research Group, Inc. and
Nutricology, Inc.
From:
Susan Levine
I hereby resign as an employee, officer, director, member,
manager and in any other capacity with Allergy Research Group,
Inc.,
Nutricology, Inc. and each of their respective affiliates,
effective as of the
date set forth above.
----------------------
Susan Levine
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EXHIBIT B
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "AGREEMENT") is entered into
this 8th day of August 2008, by and between Susan Levine, an
individual (the
"CONSULTANT"), and Allergy Research Group, Inc., a Florida
corporation (the
"COMPANY").
RECITALS
THE PARTIES ENTER THIS AGREEMENT on the basis of the following
facts, understandings and intentions:
A. The Company desires that the Consultant provide consulting
services to the Company as described below, on the terms and
conditions
hereinafter set forth.
B. The Consultant desires to provide such services to the
Company on such terms and conditions.
C. This Agreement, together with that certain Employment
Separation and General Release Agreement, dated as of August 8,
2008, by and
between Executive and the Company (the "SEPARATION AGREEMENT"),
shall govern the
relationship between the Consultant and the Company from and after
the Effective
Date and supersedes and negates all previous agreements with
respect to such
relationship.
NOW, THEREFORE, in consideration of the above recitals
incorporated herein and the mutual covenants and promises contained
herein and
other good and valuable consideration, the receipt and sufficiency
of which are
hereby expressly acknowledged, the parties agree as follows:
1.
ENGAGEMENT. The Company hereby engages the Consultant and the
Consultant hereby accepts such engagement, upon the terms and
conditions hereinafter set forth, subject to the closing of the
merger
of Longhorn Acquisition Corp. with and into the Company, for the
period
commencing on the closing date of such merger (the "EffectIVE
DATE")
and ending on the second anniversary of the Effective Date, subject
to
earlier termination as provided in Section 4 herein (such period
is
referred to as the "CONSULTING TERM").
2.
CONSULTING SERVICES.
2.1 SERVICES.
The Consultant shall serve as the Company's
Marketing Consultant and perform consulting services during
the Consulting Term as reasonably requested from time to time
on matters with which the Consultant was familiar and/or about
which the Consultant acquired knowledge, expertise and/or
experience during the time that the Consultant was employed by
the Company. Such consulting services shall include assisting
with planning and representation of the Company at trade
shows, relevant industry conferences and similar events, and
providing such other advice to and consultation with the
Company and such of its affiliates as the Company may
reasonably request.
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2.2 TIME
COMMITMENT. The Consultant agrees to devote sufficient
time to the business of the Company and its affiliates to
accomplish the projects assigned by the Company. The
Co