Exhibit 10.1
Separation Agreement and
General Release
For good and
valuable consideration, the parties below enter this Separation
Agreement and General Release (“Agreement”).
1.
Parties . The parties to this Agreement are Curtis Cluff,
his heirs, representatives, successors and assigns (hereinafter
referred to collectively as “Mr. Cluff”) and OMP, Inc.
and/or any of its successors, subsidiaries, affiliates, parents,
and related companies (hereinafter referred to collectively as the
“Company”).
2.
Separation from Employment. The parties agree that Mr.
Cluff’s employment relationship with the Company will end on
December 31, 2007, provided, however, that (a) Mr. Cluff may elect
to resign on an earlier date, or (b) the Company may elect to
terminate Mr. Cluff’s employment on an earlier date in the
event Mr. Cluff fails or refused to perform his assigned duties to
the Company’s reasonable satisfaction. (The actual date
of Mr. Cluff’s termination is hereafter referred to as the
“Separation Date”.) Mr. Cluff shall continue to
receive his current salary and benefits up to and including the
Separation Date. Between the date this Agreement is executed
and the Separation Date, it is understood and agreed that Mr. Cluff
will be transitioning his duties and responsibilities to others, as
directed by the Company, and that he will use his best efforts to
ensure a smooth transition.
3.
Transition Success Payment. Provided that Mr. Cluff
remains employed through December 31, 2007 because he has not
resigned earlier and has not been terminated earlier for failing to
perform his duties to the Company’s reasonable satisfaction,
and further provided that he timely executes and returns to the
Company the additional Second Separation Agreement and General
Release in the form of Exhibit A hereto, the Company agrees to
provide him with a transition success payment in the amount of
$49,666.68, which is equivalent to two months of Mr. Cluff’s
regular pay, less applicable withholding taxes, in a lump sum (the
“Transition Success Payment”). Provided Mr. Cluff
executes (and does not revoke) and complies with every provision of
this Agreement, said Transition Success Payment shall be delivered
to Mr. Cluff within ten (10) business days following his delivery
to the Company of the executed additional Second Separation
Agreement and General Release in the form of Exhibit A hereto.
4.
Release of Claims By Mr. Cluff. As consideration
for the promises and covenants of the Company set forth in this
Agreement, Mr. Cluff hereby fully and forever releases and
discharges the Company and its or their current and former owners,
shareholders, agents, employee benefit plans, representatives,
employees, attorneys, parties, successors, predecessors, related
companies, and assigns (hereinafter collectively called the
“Released Parties”), from all claims and causes of
action, whether known or
unknown, including but not limited to those
arising out of or relating in any way to Mr. Cluff’s
employment with the Company, including the termination of his
employment, based on any acts or events occurring up until the date
of Mr. Cluff’s signature below. Mr. Cluff understands
and agrees that this Release is a full and complete waiver of all
claims, including, but not limited to, any claims of wrongful
discharge, breach of contract, breach of the covenant of good faith
and fair dealing, violation of public policy, defamation, personal
injury, emotional distress; any claims under Title VII of the Civil
Rights Act of 1964, as amended, the Fair Labor Standards Act, the
Age Discrimination in Employment Act of 1967, the Employee
Retirement Income Security Act of 1974, as amended
(“ERISA”), as related to severance benefits, the
California Fair Employment and Housing Act, California Government
Code § 12900 et seq. , the California Labor Code,
the California Business & Professions Code, the Equal Pay Act
of 1963, the Americans With Disabilities Act, the Family and
Medical Leave Act, the California Family Rights Act, the Civil
Rights Act of 1991; and any claims under any other federal, state,
and local laws and regulations. This Agreement does
not release claims that cannot be released as a matter of law,
including, but not limited to, claims under Division 3, Article 2
of the California Labor Code (which includes indemnification
rights).
5.
Outstanding Claims . As further consideration and
inducement for this Agreement, Mr. Cluff represents that he has not
filed or otherwise pursued any charges, complaints or claims of any
nature which are in any way pending against the Company or any of
the Released Parties with any court with respect to any matter
covered by this Agreement and that, to the extent permitted by law,
he will not do so in the future. Mr. Cluff further represents
that, with respect to any charge, complaint or claim he has filed
or otherwise pursued or will file or otherwise pursue in the future
with any state or federal agency against the Company or any of the
Released Parties, he will forgo any monetary damages, including but
not limited to compensatory damages, punitive damages, and
attorneys’ fees, to which he may otherwise be entitled in
connection with said charge, complaint or claim. Nothing in
this Agreement shall limit Mr. Cluff’s right to file a
charge, complaint or claim with any state or federal agency or to
participate or cooperate in such matters.
7.
Civil Code 1542 Waiver. As a further consideration and
inducement for this Agreement, Mr. Cluff hereby waives any and all
rights under Section 1542 of the California Civil Code or any other
similar state, local, or federal law, statute, rule, order or
regulation he may have with respect to the Company and any of the
Released Parties.
Section 1542 provides:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED
HIS SETTLEMENT WITH THE DEBTOR.
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Mr. Cluff
expressly agrees that this Agreement shall extend and apply to all
unknown, unsuspected and unanticipated injuries and damages as well
as those that are now disclosed.
9.
Additional Release. The parties agree that, provided Mr.
Cluff executes the additional Second Separation Agreement and
General Release in the form of Exhibit A hereto within twenty-one
(21) calendar days after the Separation Date, the Company shall
provide Mr. Cluff with the Transition Success Payment described in
Paragraph 3 above, pursuant to the terms and conditions set forth
in Exhibit A
10.
Acknowledgement and Release of Claims by the Company. As
additional consideration for the releases, promises and covenants
of Mr. Cluff set forth in this Agreement, the Company hereby
acknowledges that this separation of employment is by mutual and
amicable agreement and not for cause. The Company fully and
forever agrees that no claim for “cause” nor
“termination for cause” can or will be raised presently
nor at any time in the future. Not withstanding the
foregoing, the Company may terminate Mr. Cluff’s employment
prior to December 31, 2007, as stated and in accordance with
paragraph 2.(b) of this agreement, provided however that such
termination will result only in the maximum loss of the Transition
Success Payment, as well as the salary and benefits that would
otherwise have been earned by Mr. Cluff from the date of such
termination through December 31, 2007, and shall not in any case
constitute cause under the definition of Mr. Cluff’s
employment and/or stock option agreements.
11.
Consideration and Revocation Periods . Mr. Cluff
understands that he has the right to consult with an attorney
before signing this Agreement. Mr. Cluff also understands
that he has twenty-one (21) calendar days after receipt of this
Agreement within which to review and consider it and decide to
execute or not execute it. Mr. Cluff also understands that
for a period of seven (7) calendar days after signing this
Agreement, he may revoke this Agreement by delivering to the VP,
Human Resources of the Company, within said seven (7) calendar
days, a letter stating that he is revoking it.
12.
No Admission of Liability. By entering into this
Agreement, the Company and all Released Parties do not admit any
liability whatsoever to Mr. Cluff or to any other person arising
out of claims heretofore or hereafter asserted by him, and the
Company, for itself and all Released Parties, expressly denies any
and all such liability.
13.
Confidentiality of Terms of Agreement. Mr. Cluff agrees
to maintain in confidence the terms of this Agreement and to
discuss them only with attorneys, tax advisors, and family members
who have a reasonable need to know of such terms.
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14.
Non-Disclosure of Confidential and Proprietary
Information. Mr. Cluff agrees that he shall continue to
maintain the confidentiality of all confidential and proprietary
information of the Company. Mr. Cluff agrees that, in
accordance with this Agreement and any other confidentiality
agreements which may exist between him and the Company, he shall
not divulge, furnish, or make available to any party any
confidential or proprietary information of the Company. Mr.
Cluff further agrees that on or before the Separation Date, he
shall return to the Company all of its property in his
possession.
15.
Joint Participation In Preparation Of Agreement . The
parties hereto participated jointly in the negotiation and
preparation of this Agreement, and each party has had the
opportunity to obtain the advice of legal counsel and to review,
comment upon, and redraft this Agreement. Accordingly, it is
agreed that no rule of construction shall apply against any party
or in favor of any party. This Agreement shall be construed
as if the parties jointly prepared this Agreement, and any
uncertainty or ambiguity shall not be interpreted against any one
party and in favor of the other.
16.
Choice of Law and Consent to Jurisdiction. The parties
agree that California law shall govern the validity, effect, and
interpretation of this Agreement.
17.
Section Headings . Section headings in this Agreement are
included for convenience of reference only a
