Exhibit 10.1


 


SEPARATION
AGREEMENT AND GENERAL RELEASE


 


This Separation Agreement and General Release (hereafter “Agreement”)
is entered into between Gary Wright (“Employee”),
and Omnicell, Inc. (“Employer”).


 


WHEREAS, Employee is, or prior to the execution of this Agreement has
been, employed by Employer;


 


WHEREAS, Employee’s employment with Employer will terminate, and
Employee and Employer (collectively “the Parties”) each now agree that certain
potential claims and contentions between them should be fully and finally
resolved;


 


THEREFORE, in exchange for the good and valuable consideration set
forth herein, the Parties hereby agree as follows:


 


1.             Termination of Employment. Employer
and Employee have reached a mutual understanding that Employee will pursue
other opportunities. Employee hereby irrevocably agrees that Employee’s
full-time employment with Employer will terminate or has terminated effective
at the close of business on March 31, 2006,
(the “Separation Date”).


 


2.             Standard Severance. Pursuant
to Employer’s normal policy, whether this Agreement is executed or not,
Employee will receive:


 


a.             Accrued Salary
and Paid Time Off. Employee will be paid (to the extent not previously paid
by Employer) on the Separation Date, all earned and accrued salary and bonus
amounts and all accrued and unused vacation.


 


b.             Accrued Expenses.
Employer agrees to promptly process all expense reports properly submitted by
Employee in accordance with existing Company practice, including all required
receipts and supporting documentation.


 


c.             Stock Vesting.
Employee’s stock options will cease vesting immediately after the Separation
Date, and Employee will have (i) thirty (30) days for options granted under the
1992 Stock Plan; or (ii) three (3) months for options granted under the 1999
Stock Plan following the Separation Date to exercise his stock options.


 


3.             Separation Package. In
consideration of Employee’s obligations set forth in this Agreement, Employer
agrees to provide to Employee the following (the “Separation Benefits”):


 


a.             Separation
Payment. Employer agrees to pay to Employee a separation payment of four hundred fifty-six thousand dollars ($456,000.00) which
is the equivalent of eighteen (18) months of
pay (of which 12 months is paid in accordance with Employee’s employment letter
agreement, dated April 7, 2003 (the “Employment Letter”), plus an additional 6 months),
calculated at Employee’s base rate of pay in effect immediately prior to the Separation
Date (the “Separation Payment”). The Separation Payment will be subject to
standard payroll deductions and withholdings, plus eligible 401(K)
contributions, and will be paid in one lump sum within ten (10) days following the
expiration of the revocation period set forth in Section 7.b. below.


 

















 


b.             Stock Acceleration.
The vesting of the following list of Employee’s unvested stock options on the Separation
Date will immediately accelerate and become fully vested, and thereafter
subject to the exercise and expiration terms set forth in Section 2.c above.


 


	
  Grant Number

  	
   

  	
  Grant Date

  	
   

  	
  Grant Price

  	
   

  	
  Option Plan

  	
   

  	
  Shares

  Accelerated

  	
   

  
	
  00002910

  	
   

  	
  12/20/2002

  	
   

  	
  $

  	
  3.03

  	
   

  	
  1999

  	
   

  	
  3,188

  	
   

  
	
  99-350 &
  99-350A

  	
   

  	
  07/02/2003

  	
   

  	
  $

  	
  10.00

  	
   

  	
  1999

  	
   

  	
  25,001

  	
   

  
	
  99-1904
  & 99-1904A

  	
   

  	
  12/04/2003

  	
   

  	
  $

  	
  13.16

  	
   

  	
  1999

  	
   

  	
  4,376

  	
   

  
	
  99-1905
  & 99-1905A

  	
   

  	
  12/04/2003

  	
   

  	
  $

  	
  13.16

  	
   

  	
  1999

  	
   

  	
  4,845

  	
   

  
	
  99-2003
  & 99-2003A

  	
   

  	
  12/04/2003

  	
   

  	
  $

  	
  13.16

  	
   

  	
  1999

  	
   

  	
  15,000

  	
   

  
	
  99-2004A

  	
   

  	
  12/04/2003

  	
   

  	
  $

  	
  13.16

  	
   

  	
  1999

  	
   

  	
  15,000

  	
   

  
	
  99-2649A

  	
   

  	
  12/01/2004

  	
   

  	
  $

  	
  10.75

  	
   

  	
  1999

  	
   

  	
  68,751

  	
   

  



 


c.             COBRA Health
Insurance Benefits. Employee shall have the opportunity to elect, by
written notice, continuation health care coverage pursuant to COBRA, 29 U.S.C.
§ 1161 et seq., for a period beginning after the Separation Date
and continuing for so long as required by law. To the extent that Employee is
entitled to elect and does elect COBRA coverage, Employer will reimburse a
portion of Employee’s COBRA premiums for a period of eighteen (18)
months after the Separation Date, or until Employee becomes eligible
for coverage under any other group health plan, whichever period is shorter; provided
that under no circumstances will Employer pay COBRA premiums for
Employee for any period during which Employee has had the opportunity to elect,
after the execution of this Agreement, coverage under any other group health
plan.


 


d.             Outplacement
Services. Employer agrees to provide Employee with outplacement services
from Right Associates (or similar service) for a period of six (6) to twelve (12) months immediately following the Separation
Date.


 


e.             No Other
Payments. Employee understands and agrees that Employer and the other
entities released herein shall neither make nor cause to be made any other
payments to Employee, Employee’s beneficiaries or dependents, or otherwise on
Employee’s behalf, except as specifically referenced herein. Employee
represents and warrants that he has not assigned or alienated to any person any
of the claims released herein.


 


Employer
will make tax withholding and other appropriate deductions from any payments
described in this paragraph 3. Any payments described in this paragraph 3 that
have been paid to Employee prior to execution of this Agreement will be applied
towards satisfaction of Employer’s obligations hereunder.


 


4.             Employee Obligations. In
consideration of Employer’s offer of payment set forth herein, Employee agrees
to the following obligations:


 


a.             Agreement Not to
Compete. Employee agrees that, in consideration of the compensation and
benefits set forth in Section 3 above, for a period of twelve (12) months
immediately following the Separation Date, he shall not in any manner, directly
or indirectly: (i) own, manage or operate any business owned or operated by; or
(ii) perform services (whether as an employee, consultant or otherwise) on
behalf of: Cardinal Health, Inc., or Cerner Corporation (including their
respective subsidiaries and affiliates). This provision will not be construed
to prohibit Employee from owning less than five percent (5%) in any business
regularly and actively traded on national exchanges or in the over-the-counter
market. In the event Employee is seeking employment with a particular division
of one of the above listed companies that is not


 


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competitive with Employer,
Employee may seek a waiver to this non-competition obligation by submitting
written justification to Employer’s CEO, such waiver to be granted at Employer’s
sole and absolute discretion.


 


b.             Agreement Not to
Induce. Employee agrees that for a period of twelve (12) months immediately
following the Separation Date, he shall not either directly or indirectly:  (i) solicit, induce, recruit or encourage any
of Employer’s employees or exclusive consultants to leave their employment, or
take away from Employer such employees or exclusive consultant, or attempt to
solicit, induce, recruit, encourage or take away from Employer employees or
exclusive consultants, either for Employee or for any other person or entity;
or (ii) solicit, induce, recruit, or encourage any customer of Employer or
potential customer who Employer has identified during the term of Employee’s
employment with Employer to terminate its business relationship with Employer,
or solicit, induce, recruit, divert or take away any such customer’s business
or patronage with Employer either for Employee or for any other person or
entity.


 


c.             Return of
Employer Property. Employee agrees that, upon execution of this Agreement,
he will return (or has returned) to Employer all Company equipment and
materials received by him in the course of his employment, including without
limitation any computer or laptop computer, printer, and fax machine provided
to Employee, all paper and electronic Company confidential or proprietary
documents including memoranda, customer lists, price lists, marketing
materials, reports and analyses, and all copies thereof, and that Employee has
destroyed any electronic copies of such materials remaining in his possession
after he has complied with the requirements of this paragraph. This paragraph
4.c is not intended to, nor does it prevent Employee from retaining certain
personal memoranda and documentation that does not contain Company information
that is of a confidential or proprietary nature for personal reference.


 


d.             Proprietary
Information Obligations. Employee hereby acknowledges and represents he has
complied with all the terms of the Employer’s standard Proprietary Information
Agreement (a copy of which will be provided at Employee’s request), including
the reporting of any inventions and original works of authorship (as defined
therein), conceived or made by Employee (solely or jointly with others) covered
by that agreement’s terms. Further, Employee agrees that he has, preserved in
compliance with the standard Proprietary Information Agreement terms, and will
continue to preserve as confidential all trade secrets, confidential knowledge,
data or other proprietary information relating to customers, customer lists,
business and sales plans,  products,
processes, know-how, designs, formulas, developmental or experimental work,
computer programs, databases, other original works of authorship, financial
information or other subject matter pertaining to any business of Employer or
any of its employees, customers, clients, consultants or licensees.


 


e.             Transition
Support (Before and After Separation Date). Employee agrees that for a
reasonable period following Employee’s Separation Date, he will make himself
reasonably available for consultation with Employer and Employer’s agents and
employees regarding Employee’s prior work for Employer and the effective
transition of Employee’s duties to his replacement. Each party acknowledges
that such support shall only be requested and provided in accordance with all
federal, state and local laws and regulations.


 


5.             Mutual Obligations.


 


a.             Announcement of
Departure. Both Employee and Employer agree to work in good faith to
accurately message the circumstances of Employee’s departure (through press
release and scripted question and answer examples, and the like) to the mutual
satisfaction of both parties.


 


b.             Non-Disparagement.
Both Employee and Employer (through its executive officers and directors) agree
not to disparage the other party, in any manner likely to be harmful to them or
their business, business reputation or personal reputation; provided that both
Employee and Employer will respond accurately and fully to any question,
inquiry or request for information when required by legal process. Unless any
other employee of the Employer is specifically designated by Employee as, and
is in agreement to be, utilized as a personal reference by the Employee in his
search for other business or employment opportunities (in which case Employer
shall not be responsible for the content of such individual’s response),
Employee agrees to direct any and all employment verification requests to
Employer’s Human Resources Department, and Employer’s HR


 


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department will be instructed
to respond to such requests only with Employee’s start and end dates of
employment and Employee’s title while employed with Employer.


 


6.             General Release of Claims and
Covenant Not to Sue by Employee. Also in consideration of the payments made
hereunder, to the maximum extent permitted by law, Employee agrees for himself
and his heirs, beneficiaries, devisees, executors, administrators, attorneys,
personal representatives, successors and assigns, hereby forever to release, and
discharge, and covenant not to sue Employer, its past, present, or future
parents, subsidiaries, and/or other affiliates; all of the past and present
directors, officers, shareholders, general or limited partners, employees,
attorneys, and other agents and representatives of such entities; and any
employee benefit plans in which Employee is or has been a participant by virtue
of employment with Employer from or for any and all claims, debts, demands,
accounts, judgments, rights, causes of action, claims for equitable relief,
damages, costs, charges, complaints, obligations, promises, agreements,
controversies, suits, expenses, compensation, responsibility and liability of
every kind and character whatever (including attorneys’ fees and costs),
whether in law or equity, known or unknown, asserted or unasserted, suspected
or unsuspected, which Employee has against such entities as of the execution of
this Agreement, including without limitation any and all claims arising out of
Employee’s employment with Employer or the termination thereof, and any and all
claims arising under federal, state, or local laws relating to employment,
including without limitation claims of wrongful discharge, retaliation, breach
of express or implied contract, fraud, misrepresentation, defamation, or
liability in tort, claims of any kind that may be brought in any court or
administrative agency, including without limitation claims under Title VII of
the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family
and Medical Leave Act, and similar state or local statutes, ordinances, and
regulations, provided, however, that this Release shall not extend to
claims for pension, retirement, or savings benefits which are inalienable under
the terms of any employee benefit plan and provided further however, this
release shall not extend to any Employee right of or claim for indemnification
pursuant to any indemnification contract, insurance policy, or any corporate
charter or bylaw. Employee further covenants not to sue, or initiate any other
proceeding against, Employer as to any claims released herein.


 


7.             Release of Age Discrimination Claims;
Periods for Review and Reconsideration.


 


a.             Employee understands and agrees
that this Agreement includes a release of claims arising under the Age
Discrimination in Employment Act (ADEA), and that this Agreement does not waive
rights or claims that may arise after the date the waiver is executed. Employee
understands and warrants that he has been given a period of twenty-one (21)
days to review and consider this Agreement. Employee is hereby advised to
consult with an attorney prior to executing the Agreement. By Employee’s
signature below, Employee warrants that he has had the opportunity to do so and
to be fully and fairly advised by that legal counsel as to the terms of the
Agreement. Employee further understands that he may use as much or all of this
21-day period as he wishes before signing, and warrants that he has done so. Employee
also acknowledges that the consideration given for the ADEA Waiver is in
addition to anything of value to which Employee was already entitled.


 


b.             Employee further understands that
he has seven (7) days after signing this Agreement to revoke the Agreement by
notice in writing to: Vice President, Human Resources, Omnicell, Inc., 1201
Charleston Road, Mountain View, CA 94043 (“Employer Contact”). This Agreement
shall be binding, effective, and enforceable upon Employee upon the expiration
of this seven-day revocation period without the Employer Contact having
received such revocation, but not before such time. Employee
understands and agrees that any payments hereunder shall not be made prior to
the expiration of this seven-day revocation period.


 


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8.             Waiver of California Civil Code
§ 1542. Employee hereby agrees to waive Section 1542 of the California
Civil Code, which states:


 


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 her settlement with the debtor.


 


9.             Taxes. Other than any taxes
which may be the obligation of Employer, to the extent any taxes may be due
beyond those withheld by Employer on any portion of the salary continuation or
other consideration provided pursuant to this Agreement, Employee agrees to pay
such taxes and to indemnify and hold Employer and its agents and affiliates
harmless for any tax payments owed, interest, penalties, levies or assessments
as a result of any failure by Employee to pay such taxes.


 


10.           Unemployment Benefits. Employer
agrees that it will not contest any claim for unemployment benefits that may be
filed by Employee after the Separation Date.


 


11.           No Admission. Employee
understands and agrees that Employer has admitted no liability or obligation to
provide the consideration contemplated herein.


 


12.           Confidentiality. Employee
agrees not to disclose the existence or terms of this Agreement to any person
other than Employee’s lawyer, accountant, income tax preparer, and spouse (if
any), except pursuant to written authorization by Employer or as compelled by
law, and that Employee will be responsible for any further disclosure of such
information made by such persons. This Agreement may be used as evidence in any
subsequent proceeding alleging its breach


 


13.           Severability and Consequences of
Invalid Terms. Should any portion or provision of this Agreement be found
void or unenforceable for any reason by a Court of competent jurisdiction, the
Court should enforce all portions and provisions of this Agreement to the
maximum extent which would have been enforceable in the original Agreement. If
such portion or provision cannot be so modified to be enforceable, the
unenforceable portion shall be deemed severed from the remaining portions and
provisions of this Agreement, which shall otherwise remain in full force and
effect. If any portion or provision of this Agreement is so found to be void or
unenforceable for any reason in regard to any one or more persons, entities, or
subject matters, such portion or provision shall remain in full force and effect
with respect to all other persons, entities, and subject matters.


 


14.           Multiple Counterparts. This
Agreement may be executed in two or more counterparts, each of which will be
deemed an original, but all of which together shall constitute one and the same
instrument.


 


15.           Governing Law. This Agreement
shall be governed and construed in all respects in accordance with the laws of
the State of California without regard to the conflict of laws rules contained
therein.


 


16.           Understanding and Authority. The
Parties understand and agree that all terms of this Agreement are contractual
and are not a mere recital, and represent and warrant that they are competent
to covenant and agree as herein provided. This Agreement constitutes the
complete, final and exclusive embodiment of the entire agreement between
Employee and Employer with regard to this subject matter. It is entered into
without reliance on any promise or representation, written or oral, other than
those expressly contained herein, and it supersedes any other such promises,
warranties or representations, including the Employment Letter, however,
nothing in this Agreement shall effect the rights and obligations of Employee
and Employer as set forth in Employee’s Indemnity Agreement with Employer effective
June 7, 2004. This Agreement may not be modified or amended except in a writing
signed by both Employee and a duly authorized officer of Employer. The Parties
have carefully read this Agreement in its entirety; fully understand and agree
to its terms and provisions; and intend and agree that it be final and binding.


 


EMPLOYEE
REPRESENTS AND WARRANTS THAT IN NEGOTIATING AND EXECUTING THIS AGREEMENT, HE
HAS HAD AN ADEQUATE OPPORTUNITY TO CONSULT WITH COMPETENT LEGAL COUNSEL OF
EMPLOYEE’S CHOOSING CONCERNING THE MEANING AND EFFECT OF EACH TERM AND
PROVISION HEREOF. EMPLOYEE ACKNOWLEDGES THAT HE IS SIGNING THIS AGREEMENT
KNOWINGLY, WILLINGLY AND VOLUNTARILY IN EXCHANGE FOR THE BENEFITS DESCRIBED IN
PARAGRAPH 3. EMPLOYEE


 


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UNDERSTANDS THAT HE IS GIVING UP ANY LEGAL CLAIMS HE HAS AGAINST THE
PARTIES RELEASED ABOVE BY SIGNING THIS AGREEMENT.


 


IN
WITNESS WHEREOF, and intending to be legally bound, the Parties have executed
the foregoing on the dates shown below.


 


	
  GARY E. WRIGHT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Gary E. Wright

  	
   

  	
  March 30, 2006

  	
   

  
	
  Signature

  	
   

  	
  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  OMNICELL, INC.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Randoll A. Lipps

  	
   

  	
  March 30, 2006

  	
   

  
	
   

  	
   

  	
   

  	
  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Chairman, President and Chief Executive
  Officer

  	
   

  



 


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