Separation. I agree that my roles as Chief Executive Officer and President of Company and as a member of Company’s Board of Directors (and positions I hold at any subsidiary or affiliate of Company) ceased effective May 6, 2018. I will continue to assist Company in a transitionary capacity as a non-executive employee and my employment status with Company will cease effective May 21, 2018 (my “Termination Date”).
Return of Property. I warrant and represent that I have or will on my Termination Date have returned all Company property, including identification cards or badges, access codes or devices, keys, laptops, computers, telephones, mobile phones, hand-held electronic devices, credit cards, electronically stored documents or files, physical files, and any other Company property in my possession.
Severance. In exchange for my entering into this Agreement, Company will provide me with each of the following after my Termination Date:
Cash Severance. Company will pay Employee a severance amount equal to (i) 12 months of base salary, which will be paid periodically pursuant to Company’s regularly scheduled pay periods and subject to customary payroll deductions and (ii) $193,150.69 (representing a prorated portion of Employee’s 2018 annual cash bonus), which will be paid in a lump sum on the Termination Date and subject to customary payroll deductions (collectively, the “Severance Amount”).
Option Vesting. Employee was granted an option to purchase 688,625 shares of Company common stock (“Common Stock”) on January 6, 2018 pursuant to a Dueling Option Award Agreement (the “Stock Option”) under the Evolus, Inc. 2017 Omnibus Incentive Plan (the “Plan”). Upon Employee’s Termination Date the Stock Option shall not be exercisable as to any portion of the Common Stock underlying the Stock Option. The Stock Option will remain outstanding and will continue to become exercisable as though Employee remained in service through January 6, 2019 (such that on January 6, 2019, the Stock Option will vest as to 172,156 shares of Common Stock). These vested options shall be exercisable at any time prior to February 6, 2020 and may be exercised through the surrender of shares with a price equal to the Stock Option exercise price or cashless exercise as provided in the Plan. Except as set forth herein, the terms and conditions covering the Stock Option will remain unchanged.
RSU Earning. Employee was granted 100,224 restricted stock units on January 6, 2018 pursuant to a RSU Award Agreement under the Plan (the “RSUs”). The earning and payment of the RSUs will continue according to the schedule in the RSU Award
Continuation of Benefits. Company will provide continuation of health benefits through the end of the 12-month anniversary of the Termination Date for Employee and his dependents.
Payment of Expenses. Company will pay to Employee all business expenses submitted in accordance with Company’s expense reimbursement policies.
General Release. In return for the promises in Section 3 above, I, on my own behalf, and on behalf of my heirs, grantees, agents, representatives, devisees, trustees, assigns, assignors, attorneys, and any other entities or persons in which I have an interest (collectively “Releasors”) hereby release and forever discharge Company and each of its past and present agents, employees, representatives, officers, directors, members, managers, attorneys, accountants, insurers, advisors, consultants, assigns, successors, heirs, predecessors in interest, joint ventures, affiliates, subsidiaries, parents, and commonly-controlled entities (collectively “Releasees”) from all liabilities, causes of action, charges, complaints, suits, claims, obligations, costs, losses, damages, rights, judgments, attorneys’ fees, expenses, bonds, bills, penalties, fines, and all other legal responsibilities of any form whatsoever, whether known or unknown, whether suspected or unsuspected, whether fixed or contingent, liquidated or unliquidated that I had or may claim to have against any of the Releasees, including Company, up through and including the date this Agreement is executed by me, including any and all claims arising under any theory of law, whether common, constitutional, statutory or other of any jurisdiction, foreign or domestic, whether known or unknown, whether in law or in equity, which I had or may claim to have against Company or any of the other Releasees. This general release is intended to have the broadest possible application and releases any tort, contract, common law, constitutional, statutory, and other type of claim I had or may claim to have against Company and/or any of the other Releasees. This general release also includes, but is not limited to, (i) all claims of any kind related to my employment with, compensation by and separation from Company, as well as (ii) all claims relating to any acts or omissions occurring prior to or on the date of this Agreement between me and Company as well as between me and any of the other Releasees. Releasors specifically release, among other things, claims under all applicable state and federal laws of any kind, including, but not limited to, any claims based on age, sex, pregnancy, race, color, national origin, marital status, religion, veteran status, disability, sexual orientation, medical condition, or other anti-discrimination laws of any type, including, without limitation, Title VII of the Civil Rights Act of 1964 as amended, the Age Discrimination in Employment Act (Title 29, United States Code, Sections 621, et seq.) (“ADEA”), the Americans with Disabilities Act, the Fair Labor Standards Act, the Family Medical Leave Act, the California Fair Employment and Housing Act, the California Workers’
Release of Age Discrimination Claims. I understand that the general release in Section 4 above includes a waiver of any and all rights and claims I had or may claim to have against Company as well as any of the other Releasees, including any rights and claims which I may claim to have arising under the ADEA. I admit that this Agreement satisfies the requirements of 29 U.S.C. § 626(f). I also acknowledge and agree that I have read and understand the terms of this Agreement. I represent that I have been advised in writing by this Agreement to consult with an attorney of my choosing regarding the waiver of rights and claims under the ADEA. I also acknowledge that I have obtained and considered such legal counsel as I deem necessary, such that I am entering into this Agreement freely, knowingly, and voluntarily. I further acknowledge that I have been given at least 21 days in which to consider whether or not to enter into this Agreement. I understand that, at my option, I may elect not to use the full 21-day period. I also understand that this Agreement shall not become enforceable until the eighth day after I sign it. If I do not revoke my acceptance within the seven-day period after this Agreement is executed by me, I understand this Agreement shall become binding and enforceable on the eighth day. I further understand that I am not waiving any rights or claims under the ADEA that may arise after the effective date of this Agreement.
Waiver. I understand and agree that all of my rights under California Civil Code Section 1542 are expressly waived. I understand that Section 1542 provides as follows:
I understand that waiving my rights under Civil Code Section 1542 means that even if I should eventually suffer some damage arising out of my employment and/or separation from employment with Company or any of the other Releasees, that I will not be able to make any claims for those damages, even as to claims which may now exist, but which I do not know exist, and which if known would have affected my decision to sign this Agreement. I acknowledge that I may discover facts or law different from, or in addition to, the facts or law that I know or believe to be true with respect to the claims released in this Agreement and agree, nonetheless, that this Agreement and the releases contained in it shall be and remain effective in all respects notwithstanding such different or additional facts or the discovery of them. I further declare and represent that I intend this Agreement to be complete and not subject to any claim of mistake, and that the releases herein express full and complete releases by me and the other Releasors, and that I intend that the general release by me herein shall be final and complete with respect to Company as well as all other Releasees. I have executed this Agreement with the full knowledge that the general release in Section 4 combined with my waiver of any rights under Civil Code Section 1542 cover all possible claims against Company and any of the other Releasees, to the fullest extent permitted by law.
No Assignment. I warrant and represent that I have not assigned or transferred to any person any released matter or any right to the payment or other consideration provided by this Agreement. I agree to defend, indemnify and hold Company and any of the other Releasees harmless from any and all claims based on or in connection with or arising out of any such assignment or transfer made, purported or claimed.
No Wrongdoing. I understand that, by signing this Agreement, Company does not admit any wrongdoing and makes no admission that it or any of the other Releasees has engaged, or is now engaging, in any unlawful conduct. I am also admitting no wrongdoing by signing this Agreement. Company and I agree that this Agreement may never be treated as an admission of liability by any party for any purpose. Company and I also agree that no use of this Agreement or any comments made by either party during the discussions or negotiations regarding this Agreement will be used by a party or their representatives in connection with any subsequent legal action except for an action to enforce this Agreement.
Confidential Information. I understand that my obligations under the confidentiality provisions in EXHIBIT A remain in effect and survive the termination of my employment with Company.
Non-Disparagement. In addition to any other non-disparagement agreement to which I may be bound, I expressly agree that I will not in any way disparage or otherwise cause to be published or disseminated any negative statements, remarks, comments or information regarding Company or any of the other Releasees. Notwithstanding the foregoing, I shall not be restrained or prohibited, and it shall not be a breach of this Agreement by me if I make any statements in any letters, legal filings or other related documents or proceedings in each case
General. I acknowledge that I have carefully read and fully understand the nature of this Agreement, that I have been advised to consult with an attorney of my choosing before executing this Agreement, that I have had the opportunity to consider this Agreement, and that all of my questions concerning this Agreement have been answered to my satisfaction. I also agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not apply in the interpretation of this Agreement. The provisions of this Agreement set forth the entire agreement between me and Company concerning my severance pay and benefits and my termination of employment. Any other contrary promises, written or oral, are replaced by this Agreement, and are no longer effective unless they are contained in this document or are expressly deemed to survive the cessation of my employment with Company in accordance with the terms of the written document in which they are contained. The validity, interpretation and performance of this Agreement shall be construed and interpreted according to the laws of the State of California. Any action arising out of or relating to this Agreement shall be brought in a court of competent jurisdiction located in the County of Orange, State of California. I acknowledge that I have received all compensation to which I am currently entitled from Company and any of the other Releasees through my separation date, including, without limitation, salary, bonuses and vacation pay.
Attorneys’ Fees. In the event that any proceeding or action is brought by either party to enforce or interpret the terms of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover its costs of suit, including reasonable attorney’s fees.
Representations and Warranties.
This Agreement in all respects has been voluntarily and knowingly entered into by me.
I had an opportunity to seek legal advice from legal counsel of my choice with respect to the advisability of executing this Agreement
I have made such investigation of the facts pertaining to this Agreement as I deem necessary.
The terms of this Agreement are the result of negotiations between me and Company and are entered into in good faith by us in accordance with California law.
This Agreement has been carefully read by me and the contents hereof are known and understood by me.