RESIGNATION AGREEMENT AND GENERAL RELEASE
Exhibit 10.1
Xxxxx X. Xxxxxxxx, M.D. (the “Employee”) and Questcor Pharmaceuticals, Inc. (the “Company”)
hereby agree to terminate their employment relationship and resolve all claims Employee may have on
the following basis:
1. Resignation: Employee has resigned voluntarily from employment with the Company effective
Wednesday, September 15, 2010, and the Company has accepted Employee’s resignation.
2. Expense Reimbursement: With respect to outstanding business expenses, if any, Employee
agrees that on or before October 31, 2010, he will submit a final expense reimbursement statement
reflecting any outstanding business expenses incurred through his termination date along with the
appropriate receipts and necessary supporting documentation. The Company will provide
reimbursement for appropriate business expenses pursuant to its current business policies and
practices.
3. Final Compensation: Other than any such outstanding expenses, Employee represents and
agrees that he has received all compensation owed to him by the Company through his termination
date, including any and all wages, bonuses, incentives, stock options, commissions, earned but
unused vacation, and any other payments or other compensation of any kind to which he was entitled
from the Company.
4. Benefits: Any current coverage of Employee and his spouse and dependents under the
Company’s group medical, dental, and vision plans shall terminate on September 30, 2010, but
Employee shall be entitled to exercise whatever rights Employee has to continue or convert such
coverage thereafter at his expense pursuant to federal and State COBRA laws. Employee shall also
be entitled to exercise any rights Employee has with respect to any account balance in the
Company’s 40lk, profit sharing, or similar plans as provided by the plan documents and applicable
law. Except as so provided, Employee shall not be eligible for or entitled to any other benefits
from the Company after September 15, 2010.
5. Voluntary Agreement: Employee represents to the Company that he is signing this
Resignation Agreement and General Release (this “Agreement”) freely and voluntarily and with a full
understanding of and agreement with its terms, after having had adequate time to review the
Agreement and consult with legal counsel, for the purpose of receiving additional pay and
consideration from the Company beyond that which is owed to him.
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6. Severance Compensation: In reliance on Employee’s promises, representations, and releases
in this Agreement, after this Agreement takes effect as provided in Section 12 below, , the Company
will provide Employee with base salary continuation at his current rate of Twenty-two thousand five
hundred dollars ($22,500 per month or $11,250 semi-monthly), less legally required withholdings,
payable on regularly scheduled paydays commencing on the first such payday after the date on which
this Agreement takes effect and continuing for a period of six (6) months thereafter; provided,
however, that upon Employee’s acceptance of other employment for an average of twenty (20) or more
hours per week during this six month period, all further salary continuation payments shall cease.
In the event Employee accepts other employment at any time during this six month period, Employee
shall immediately notify the Company in writing of such reemployment and return to the Company any
severance compensation applicable to periods after the date of acceptance of such other employment.
For purposes of clarification, any consulting services performed for the Company shall not count
against the twenty (20) hour allowance set forth above. In addition, if Employee breaches this
Agreement, including specifically as set forth in Paragraph 8, Employee shall be required to
immediately return all severance compensation provided under this Agreement.
7. Stock Options: Employee acknowledges that all stock option vesting ceased effective with
his termination date and, as of such date, none of Employee’s stock options had vested.
Accordingly, as of Employee’s termination date, all of his stock options are terminated and
cancelled.
8. Proprietary Information: Employee understands that the Company’s Proprietary Information
and Inventions Agreement and the Company’s Policy Against Xxxxxxx Xxxxxxx which he signed during
his employment will remain in full force and effect as both of these documents contain obligations
which continue after his termination date. Employee agrees to comply with all such continuing
obligations. Employee further agrees that in the future he will not take any action or make any
comments that actually or potentially disparage, libel, slander, disrupt, damage, impair or
otherwise unlawfully interfere with the Company’s business interests and/or customer relationships,
nor will Employee defame, talk negatively about, harass, retaliate against, or harm of any of the
Company’s personnel or their personal reputations, including any of its current or former
directors, executives, medical science liaisons, or other employees who worked with or reported to
him. Any actions or communications in violation of this Paragraph will constitute a material
breach of this Agreement requiring the immediate return of all consideration provided under this
Agreement, including all severance paid to Employee and the re-characterization of Employee’s
departure as a termination rather than a voluntary resignation, as well as all other remedies and
damages available at law or in equity. The Company agrees to use reasonable efforts to ensure that
its current directors, executives, medical science liaisons and other employees in the future do
not libel, slander, disparage or talk negatively about Employee.
9. General Release of All Claims: In consideration for this Agreement, Employee hereby
waives and releases all claims, known and unknown, that he or any spouse, dependent, or other
person acting on his behalf may have against the Company, its parent, subsidiaries, and related
entities, and each of their respective past and present officers, directors, shareholders,
executives,
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managers, supervisors, agents, employees, insurers, successors, and assigns (collectively, the
“the Released Parties”) arising at any time prior to the effective date of this Agreement,
including but not limited to all claims regarding any aspect of his employment, compensation,
benefits, or termination of his employment with the Company or arising under the Age Discrimination
in Employment Act of 1967, the Americans with Disabilities Act of 1990, Title VII of the Civil
Rights Act of 1964, 42 U.S.C. section 1981, the Fair Labor Standards Act, the WARN Act, the
California Fair Employment and Housing Act, California Government Code section 12900, et
seq., all other state anti-discrimination statutes, labor laws, and wage and hours laws,
the Xxxxx Civil Rights Act, California Civil Code section 51, all provisions of the California
Labor Code; the Employee Retirement Income Security Act, 29 U.S.C. section 1001, et
seq., and any other federal, state or local law, regulation or ordinance or public policy,
contract, tort or property law theory, or any other cause of action whatsoever that arose on or
before the date Employee signs this Agreement. The release in this Agreement includes, but is
not limited to, claims arising under federal, state or local law for age, race, sex or other forms
of employment discrimination and retaliation. Nothing in this Agreement, however, shall release or
impair any claim or right Employee may have which under applicable law cannot be released.
10. Unknown Claims: Employee understands and agrees that this Agreement shall also release any
claims described in Section 9 that are presently unknown to him. Employee hereby waives the
protection of any law that might otherwise limit his ability to release unknown claims, such as
Section 1542 of the California Civil Code, which reads 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.”
11. No Other Proceedings: Employee agrees to withdraw with prejudice all complaints or
charges, if any, he has filed against any of the Released Parties with any agency or court.
Employee agrees that he will not file any lawsuit, complaint, or charge against any Released Party
based on the claims released in this Resignation Agreement and General Release.
12. Age Discrimination Claims: For purposes of the Older Workers Benefit
Protection Act, 29 U.S.C. §626(f) and to assure that this Agreement bars any claims under the
federal Age Discrimination In Employment Act, Employee acknowledges (i) that he has read this
Agreement and he understands that it bars all claims, including those for age discrimination; (ii)
that the release of claims in this Agreement does not apply to claims based on events that occur
after this Agreement takes effect; (iii) that he is receiving consideration that he is not
otherwise entitled to from the Company; (iv) that he has been advised in writing to consult an
attorney and has done so; (v) that he has been allowed at least twenty-one (21) days in which to
decide whether to accept this Agreement; and (vi) this Agreement does not take effect until seven
(7) days after he has signed it, during which time he may revoke her acceptance by so notifying the
Company and returning all consideration he may have received under this Agreement
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13. Confidentiality: Unless otherwise required by law, Employee agrees that he will keep
completely confidential and will not disclose any of the terms of this Agreement, including the
consideration provided pursuant to this Agreement, to any person, except to his immediate family
members, attorneys and financial advisors who must first be informed of and agree to be bound by
this confidentiality provision prior to any disclosure of confidential information to them.
14. Return of Company Property: Employee represents that he has returned to the Company all
proprietary or confidential information and property of the Company, including but not limited to
the laptop computer, all keys to the office, all fobs, credit cards, files, records, access cards,
equipment and other Company owned property, records or information in his possession, including all
copies thereof in whatever form, including any and all electronic copies.
15. Arbitration: Any and all disputes connected with, related to or arising from this
Agreement shall be settled by final and binding arbitration in accordance with the rules of the
American Arbitration Association. Any such arbitration will take place in Alameda County,
California. The parties hereby incorporate into this agreement all of the arbitration provisions
of Section 1283.05 of the California Code of Civil Procedure. Each side will bear its own
attorneys’ fees, and the arbitrator will not have authority to award attorneys’ fees unless a
statutory section at issue in the dispute authorizes the award of attorneys’ fees to the prevailing
party, in which case the arbitrator has authority to make such award as permitted by the statute in
question. The arbitration shall be instead of any civil litigation; this means that all parties
are waiving any right to a jury trial, and that the arbitrator’s decision shall be final and
binding to the fullest extend permitted by law and enforceable by any court having jurisdiction
thereof. Judgment upon any award rendered by the arbitrator may be entered in any court having
jurisdiction.
16. Interpretation: This Agreement shall not be construed against any party merely because
that party drafted or revised the provision in question, and it shall not be construed as an
admission by the Released Parties of any improper, wrongful, or unlawful actions, or any other
wrongdoing against Employee, and the Released Parties specifically disclaim any liability to or
wrongful acts against Employee.
17. No Other Promises: Employee acknowledges that the Released Parties have made no promises
to him other than those set forth herein in this Agreement . Employee further acknowledges and
agrees that he is not entitled to receive, and will not claim, any right, benefit, compensation, or
relief other than what is expressly set forth herein in this Agreement Release. This Agreement may
be modified only by written agreement signed by both parties.
18. Partial Invalidity: In the event any provision of this Agreement is void or
unenforceable, the remaining provisions shall continue in full force and effect.
19. Complete Agreement: This Agreement , along with Company’s Proprietary Information and
Inventions Agreement which is incorporated herein by this reference, constitute
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the entire agreement between the parties regarding the subject matter hereof, and supersede
any and all prior and contemporaneous oral and written agreements, including, without limitation,
Employee’s Offer Letter dated January 29, 2010 and Severance Agreement dated January 29, 2010.
| EMPLOYEE |
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| Dated: August 24, 2010 | /s/ Xxxxx X. Xxxxxxxx, M.D. | |||
| Xxxxx X. Xxxxxxxx, M.D. | ||||
| QUESTCOR PHARMACEUTICALS, INC. |
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| Dated: August 24, 2010 | /s/ Xxx X. Xxxxxx | |||
| Name: | Xxx X. Xxxxxx | |||
| Title: | President and Chief Executive Officer | |||
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