Exhibit 10.1
OMNICELL, INC.
AMENDED AND RESTATED SEVERANCE BENEFIT PLAN
SECTION 1.
INTRODUCTION.
The Amended and Restated Omnicell, Inc. Severance Benefit Plan (the
“Plan”
) was originally established effective January 3, 2007, was amended and restated effective May 2, 2007 and is hereby amended and restated effective June 20, 2009 (the
“Effective Date”
). The purpose of the Plan is to provide for the payment of severance benefits to certain eligible employees of Omnicell, Inc. (the
“Company”
) and Company affiliates, if any, that have been designated by the Company on the attached Appendix A as eligible to participate in the Plan (each such affiliate, an
“Employer”
and all such affiliates collectively, the
“Employers”
) whose employment with the Company or an Employer is involuntarily terminated and who meets the eligibility criteria set forth in Section 2(a) below. This Plan shall supersede any severance benefit plan, policy or practice previously maintained by the Company or any Employer. This Plan document also is the Summary Plan Description for the Plan.
SECTION 2.
ELIGIBILITY FOR BENEFITS.
(a)
General Rules.
Subject to the requirements set forth in this Section, the Company will grant severance benefits under the Plan to Eligible Employees.
(1)
Definition of “Eligible Employee.”
For purposes of this Plan, an Eligible Employee is a full-time regular hire employee of the Company or any Employer, who is notified by the Company in writing that he or she is eligible for participation in the Plan and (i) whose employment is involuntarily terminated by the Company or an Employer without Cause (as defined in Section 2(c) below); or (ii) whose employment is terminated as a result of a reduction-in-force; or (iii) who is selected by the Plan Administrator in its sole discretion to receive the benefits set forth herein. The determination of whether an employee is an Eligible Employee shall be made by the Company, in its sole discretion, and such determination shall be binding and conclusive on all persons. For purposes of this Plan, full-time regular hire employees are those employees who are regularly scheduled to work at least thirty-two (32) hours per week. Regular hire employees who are regularly scheduled to work fewer than thirty-two (32) hours per week and temporary employees are not eligible for severance benefits under the Plan.
(2)
In order to be eligible to receive any benefits under the Plan, an Eligible Employee must remain on the job until his or her date of termination as scheduled by the Company.
(3)
In order to be eligible to receive any benefits under the Plan, an Eligible Employee also must execute a general waiver and release in substantially the form attached hereto as Exhibit A, Exhibit B or Exhibit C, as appropriate, within the applicable time period set forth therein, but in no event more than sixty (60) days following the date of termination, or as may be updated by the Company from time to time, and such release must become effective in accordance with its terms. The Company, in its discretion, may modify the form of the required release to comply with applicable law and shall determine the form of the required release, which may be incorporated into a termination agreement or other agreement with the Eligible Employee.
(b)
Exceptions to Benefit Entitlement.
An employee, including an employee who otherwise is an Eligible Employee, will not receive benefits under the Plan (or will receive reduced benefits under the Plan) in the following circumstances, as determined by the Company in its sole discretion:
(1)
The employee has executed an individually negotiated employment contract or agreement with the Company or an Employer relating to severance benefits that is in effect on his or her termination date, and the employee has not elected in writing to the Company’s Vice President of Human Resources (or such other Company officer as the Company may direct in writing) as of employee’s termination date to be governed solely by this Plan, in which case such employee’s severance benefit, if any, shall be governed by the terms of such
individually negotiated employment contract or agreement and shall be governed by this Plan only to the extent that the reduction pursuant to Section 3(c) below does not entirely eliminate benefits under this Plan.
(2)
The employee voluntarily terminates employment with the Company or an Employer. Voluntary terminations include, but are not limited to, resignation, retirement or failure to return from a leave of absence on the scheduled date.
(3)
The employee voluntarily terminates employment with the Company or an Employer in order to accept employment with another entity that is wholly or partly owned (directly or indirectly) by the Company or an affiliate of the Company.
(4)
The employee is offered an identical or substantially equivalent or comparable position with the Company or an affiliate of the Company. For purposes of the foregoing, a “substantially equivalent or comparable position” is one that offers the employee substantially the same level of base salary and does not require a relocation of the employee’s place of employment by more than fifty (50) miles from its previous location.
(5)
The employee is offered immediate reemployment by a successor to the Company or an affiliate of the Company or by a purchaser of its assets, as the case may be, following a change in ownership of the Company or an Employer or a sale of substantially all of the assets of a division or business unit of the Company or an Employer. For purposes of the foregoing, “immediate reemployment” means that the employee’s employment with the successor to the Company or an affiliate of the Company or the purchaser of its assets, as the case may be, results in uninterrupted employment such that the employee does not incur a lapse in pay as a result of the change in ownership of the Company or an Employer or the sale of its assets.
(6)
The employee is offered immediate reemployment by a third party entity to whom the Company or an affiliate of the Company has outsourced or otherwise transferred the employee’s job responsibilities. For purposes of the foregoing, “immediate reemployment” means that the employee’s employment with the third party entity to whom the employee’s job responsibilities have been outsourced or otherwise transferred, as the case may be, results in uninterrupted employment such that the employee does not incur a lapse in pay as a result of the outsourcing or other transfer.
(7)
The employee is rehired by the Company or an affiliate of the Company prior to the date benefits under the Plan are scheduled to commence.
(8)
The employee does not confirm in writing that he or she is and shall remain subject to the Company’s Proprietary Information and Inventions Agreement.
(9)
Following notification of involuntary termination by the Company, the employee does not satisfactorily perform his or her assigned job duties until the date set by the Company or an Employer for the termination of employment.
(c)
An involuntary termination without
“Cause”
means an involuntary termination of an employee’s employment by the Company or an Employer other than for one of the following reasons:
(1)
an intentional action or intentional failure to act by the employee that was performed in bad faith;
(2)
an employee’s intentional refusal or intentional failure to act in accordance with any lawful and proper direction or order of his or her superiors;
(3)
an employee’s habitual neglect of the duties of employment, which may include a failure to perform her or her job duties satisfactorily;
(4)
an employee’s indictment, charge, or conviction of a felony or any crime
involving moral turpitude, or participation in any act of theft or dishonesty, regardless of whether such act has had or could reasonably be expected to have a material detrimental effect on the business of the Company or an Employer; or
(5)
an employee’s violation of any material provision of the Company’s Proprietary Information and Inventions Agreement or violation of any material provision of any other written Company or Employer policy or procedure.
SECTION 3.
AMOUNT OF BENEFIT.
(a)
Severance Benefits.
Subject to the exceptions set forth in Section 2(b), severance benefits under the Plan, if any, shall be provided to Eligible Employees described in Section 2(a) in the amount provided in Appendix B.
(b)
Additional Benefits.
Notwithstanding the foregoing, the Company may, in its sole discretion, provide benefits in addition to those benefits set forth in Section 3(a) to Eligible Employees and the provision of any such benefits to an Eligible Employee shall in no way obligate the Company to provide such benefits to any other Eligible Employee or to any other employee, even if similarly situated.
(c)
Certain Reductions.
The Company, in its sole discretion, shall have the authority to reduce an Eligible Employee’s severance benefits, in whole or in part, by any other severance benefits, pay in lieu of notice, or other similar benefits payable to the Eligible Employee by the Company or an affiliate of the Company that become payable in connection with the Eligible Employee’s termination of employment pursuant to (i) any applicable legal requirement, including, without limitation, the Worker Adjustment and Retraining Notification Act, the California Plant Closing Act, or any other similar state law, (ii) a written employment or severance agreement with the Company or an Employer of the Company, or (iii) any Company or Employer policy or practice providing for the Eligible Employee to remain on the payroll for a limited period of time after being given notice of the termination of the Eligible Employee’s employment, and the Plan Administrator shall so construe and implement the terms of the Plan; provided, however, that notwithstanding the foregoing and any other provision in the Plan to the contrary, such reduction shall in no event reduce the cash severance benefits provided under this Plan to less than one (1) week of Base Salary (as such term is defined in Appendix B). The Company’s decision to apply such reductions to the severance benefits of one Eligible Employee and the amount of such reductions shall in no way obligate the Company to apply the same reductions in the same amounts to the severance benefits of any other Eligible Employee, even if similarly situated. In the Company’s sole discretion, such reductions may be applied on a retroactive basis, with severance benefits previously paid being re-characterized as payments pursuant to the Company’s statutory obligation.
SECTION 4.
COMPANY PROPERTY.
(a)
Return of Company Property.
Except as provided in Section 4(b) below, an Eligible Employee will not be entitled to any severance benefit under the Plan unless and until the Eligible Employee returns all Company Property. For this purpose,
“Company Property”
means all Company and/or Employer documents (and all copies thereof) and other Company and/or Employer property which the Eligible Employee had in his or her possession at any time, including, but not limited to, Company and/or Employer files, notes, drawings records, plans, forecasts, reports, studies, analyses, proposals, agreements, financial information, research and development information, sales and marketing information, operational and personnel information, specifications, code, software, databases, computer-recorded information, tangible property and equipment (including, but not limited to, leased vehicles, computers, facsimile machines, mobile telephones, servers), credit cards, entry cards, identification badges and keys; and any materials of any kind which contain or embody any proprietary or confidential information of the Company and/or an Employer (and all reproductions thereof in whole or in part). As a condition to receiving benefits under the Plan, Eligible Employees must not make or retain copies, reproductions or summaries of any such Company or Employer property. In the Company’s sole discretion, the Company may determine the value of any unreturned Company property and deduct the value of such property from any severance benefits otherwise owed to the employee under this Plan.
(b)
Retention of Certain Company Equipment.
Notwithstanding the provisions of Section 4(a), the Company and an Eligible Employee may agree to allow the Eligible Employee to retain certain Company or Employer equipment (e.g., laptops, printers, facsimile machines, copiers, etc.) (
“Company Equipment”
) for his or her personal use following the Eligible Employee’s termination of employment. As a condition to retaining any Company Equipment, the Eligible Employee must execute a general waiver and release in substantially the form attached hereto as Exhibit A, Exhibit B or Exhibit C, as appropriate, within the applicable time period set forth therein, but in no event more than sixty (60) days following the date of termination, and such release must become effective in accordance with its terms. The Eligible Employee acknowledges that the Eligible Employee will have imputed income related to the retention of any Company Equipment. The Eligible Employee will follow all Company instructions as to the return and/or deletion of any Company information contained on the Company Equipment.
SECTION 5.
TIME OF PAYMENT AND FORM OF BENEFIT.
All cash severance benefits under the Plan shall be paid in a single lump sum as soon as administratively practicable following the Eligible Employee’s satisfaction of all of the requirements set forth in Sections 2(a) and 4(a). All payments under the Plan will be subject to applicable withholding for federal, state and local taxes. If an Eligible Employee is indebted to the Company at his or her termination date, the Company reserves the right to offset any severance payments under the Plan by the amount of such indebtedness. Additionally, if an Eligible Employee is subject to withholding for taxes related to any non-Plan benefits, including but not limited to any imputed income related to the use of Company vehicles for personal travel, or imputed income related to retention of Company Equipment, the Company may offset any severance payments under the Plan by the amount of such withholding taxes.
Notwithstanding anything to the contrary set forth herein, any payments and benefits provided under the Plan that constitute “deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”
) and the regulations and other guidance thereunder and any state law of similar effect (collectively
“Section 409A”
) shall not commence in connection with an Eligible Employee’s termination of employment unless and until the Eligible Employee has also incurred a “separation from service” (as such term is defined in Treasury Regulations Section 1.409A-1(h) (
“Separation From Service”
)), unless the Company reasonably determines that such amounts may be provided to the Eligible Employee without causing the Eligible Employee to incur the adverse personal tax consequences under Section 409A.
It is intended that (i) each installment of any benefits payable under the Plan to an Eligible Employee be regarded as a separate “payment” for purposes of Treasury Regulations Section 1.409A-2(b)(2)(i), (ii) all payments of any such benefits under the Plan satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4) and 1.409A-1(b)(9)(iii), and (iii) any such benefits consisting of COBRA premiums also satisfy, to the greatest extent possible, the exemption from the application of Section 409A provided under Treasury Regulations Section 1.409A-1(b)(9)(v). However, if the Company determines that any such benefits payable under the Plan constitute “deferred compensation” under Section 409A and the Eligible Employee is a “specified employee” of the Company, as such term is defined in Section 409A(a)(2)(B)(i), then, solely to the extent necessary to avoid the imposition of the adverse personal tax consequences under Section 409A, the timing of such benefit payments shall be delayed as follows: on the earlier to occur of (A) the date that is six (6) months and one (1) day after the Eligible Employee’s Separation From Service and (B) the date of the Eligible Employee’s death (such applicable date, the
“Delayed Initial Payment Date”
), the Company shall (1) pay the Eligible Employee a lump sum amount equal to the sum of the benefit payments that the Eligible Employee would otherwise have received through the Delayed Initial Payment Date if the commencement of the payment of the benefits had not been delayed pursuant to this paragraph and (2) commence paying the balance, if any, of the benefits in accordance with the applicable payment schedule.
SECTION 6.
REEMPLOYMENT.
In the event of an Eligible Employee’s reemployment by the Company or an Employer or other affiliate of the Company or by a company to whom the employee’s job responsibilities have been outsourced or
otherwise transferred during the period of time in respect of which severance benefits pursuant to Sections 3(a) and 3(b) have been paid, the Company, in its sole and absolute discretion, may require such Eligible Employee to repay to the Company all or a portion of such severance benefits as a condition of reemployment.
SECTION 7.
RIGHT TO INTERPRET PLAN; AMENDMENT AND TERMINATION.
(a)
Exclusive Discretion.
The Plan Administrator (as defined in Section 10(a) herein) shall have the exclusive discretion and authority to establish rules, forms, and procedures for the administration of the Plan and to construe and interpret the Plan and to decide any and all questions of fact, interpretation, definition, computation or administration arising in connection with the operation of the Plan, including, but not limited to, the eligibility to participate in the Plan and amount of benefits paid under the Plan. The rules, interpretations, computations and other actions of the Plan Administrator shall be binding and conclusive on all persons.
(b)
Amendment or Termination.
The Company reserves the right to amend or terminate this Plan (including Appendix A and Appendix B) or the benefits provided hereunder at any time; provided, however, that no such amendment or termination shall adversely affect the right to any unpaid benefit of any Eligible Employee whose termination date has occurred prior to amendment or termination of the Plan. Any action amending or terminating the Plan shall be in writing and executed by the Chief Executive Officer or the Chief Financial Officer of the Company.
SECTION 8.
NO IMPLIED EMPLOYMENT CONTRACT.
The Plan shall not be deemed (i) to give any employee or other person any right to be retained in the employ of the Company or an Employer or (ii) to interfere with the right of the Company or an Employer to discharge any employee or other person at any time, with or without cause, which right is hereby reserved.
SECTION 9.
LEGAL CONSTRUCTION.
This Plan is intended to be governed by and shall be construed in accordance with the Employee Retirement Income Security Act of 1974 (
“ERISA”
) and, to the extent not preempted by ERISA, the laws of the State of California (without regard to principles of conflict of laws).
SECTION 10.
CLAIMS, INQUIRIES AND APPEALS.
(a)
Applications for Benefits and Inquiries.
Any application for benefits, inquiries about the Plan or inquiries about present or future rights under the Plan must be submitted to the Plan Administrator in writing by an applicant (or his or her authorized representative). The Plan Administrator is:
Omnicell, Inc.
Attn: Human Resources Manager
1201 Charleston Road
Mountain View, CA 94043
(b)
Denial of Claims.
In the event that any application for benefits is denied in whole or in part, the Plan Administrator must provide the applicant with written or electronic notice of the denial of the application, and of the applicant’s right to review the denial. Any electronic notice will comply with the regulations of the U.S. Department of Labor. The notice of denial will be set forth in a manner designed to be understood by the applicant and will include the following:
(1)
the specific reason or reasons for the denial;
(2)
references to the specific Plan provisions upon which the denial is based;
(3)
a description of any additional information or material that the Plan Administrator needs to complete the review and an explanation of why such information or material is necessary; and
(4)
an explanation of the Plan’s review procedures and the time limits applicable to such procedures, including a statement of the applicant’s right to bring a civil action under Section 502(a) of ERISA following a denial on review of the claim, as described in Section 10(d) below.
This notice of denial will be given to the applicant within ninety (90) days after the Plan Administrator receives the application, unless special circumstances require an extension of time, in which case, the Plan Administrator has up to an additional ninety (90) days for processing the application. If an extension of time for processing is required, written notice of the extension will be furnished to the applicant before the end of the initial ninety (90) day period.
This notice of extension will describe the special circumstances necessitating the additional time and the date by which the Plan Administrator is to render its decision on the application.
(c)
Request for a Review.
Any person (or that person’s authorized representative) for whom an application for benefits is denied, in whole or in part, may appeal the denial by submitting a request for a review to the Plan Administrator within sixty (60) days after the application is denied. A request for a review shall be in writing and shall be addressed to:
Omnicell, Inc.
Attn: Vice President, Human Resources
1201 Charleston Road
Mountain View, CA 94043
A request for review must set forth all of the grounds on which it is based, all facts in support of the request and any other matters that the applicant feels are pertinent. The applicant (or his or her representative) shall have the opportunity to submit (or the Plan Administrator may require the applicant to submit) written comments, documents, records, and other information relating to his or her claim. The applicant (or his or her representative) shall be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to his or her claim. The review shall take into account all comments, documents, records and other information submitted by the applicant (or his or her representative) relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination.
(d)
Decision on Review.
The Plan Administrator will act on each request for review within sixty (60) days after receipt of the request, unless special circumstances require an extension of time (not to exceed an additional sixty (60) days), for processing the request for a review. If an extension for review is required, written notice of the extension will be furnished to the applicant within the initial sixty (60) day period. This notice of extension will describe the special circumstances necessitating the additional time and the date by which the Plan Administrator is to render its decision on the review. The Plan Administrator will give prompt, written or electronic notice of its decision to the applicant. Any electronic notice will comply with the regulations of the U. S.
Department of Labor. In the event that the Plan Administrator confirms the denial of the application for benefits in whole or in part, the notice will set forth, in a manner calculated to be understood by the applicant, the following:
(1)
the specific reason or reasons for the denial;
(2)
references to the specific Plan provisions upon which the denial is based;
(3)
a statement that the applicant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to his or her claim; and
(4)
a statement of the applicant’s right to bring a civil action under Section 502(a) of ERISA.
(e)
Rules and Procedures.
The Plan Administrator will establish rules and procedures, consistent with the Plan and with ERISA, as necessary and appropriate in carrying out its responsibilities in reviewing benefit claims. The Plan Administrator may require an applicant who wishes to submit additional information in connection with an appeal from the denial of benefits to do so at the applicant’s own expense.
(f)
Exhaustion of Remedies.
No legal action for benefits under the Plan may be brought until the applicant (i) has submitted a written application for benefits in accordance with the procedures described by Section 10(a) above, (ii) has been notified by the Plan Administrator that the application is denied, (iii) has filed a written request for a review of the application in accordance with the appeal procedure described in Section 10(c) above, and (iv) has been notified that the Plan Administrator has denied the appeal. Notwithstanding the foregoing, if the Plan Administrator does not respond to an applicant’s claim or appeal within the relevant time limits specified in this Section 10, the applicant may bring legal action for benefits under the Plan pursuant to Section 502(a) of ERISA.
SECTION 11.
BASIS OF PAYMENTS TO AND FROM PLAN.
The Plan shall be unfunded, and all cash payments under the Plan shall be paid only from the general assets of the Company. An Eligible Employee’s right to receive payments under the Plan is no greater than that of the Company’s unsecured general creditors. Therefore, if the Company were to become insolvent, the Eligible Employee might not receive benefits under the Plan.
SECTION 12.
OTHER PLAN INFORMATION.
(a)
Employer and Plan Identification Numbers.
The Employer Identification Number assigned to the Company (which is the
“Plan Sponsor”
as that term is used in ERISA) by the Internal Revenue Service is 94-3166458. The Plan Number assigned to the Plan by the Plan Sponsor pursuant to the instructions of the Internal Revenue Service is 510.
(b)
Ending Date for Plan’s Fiscal Year and Type of Plan.
The date of the end of the fiscal year for the purpose of maintaining the Plan’s records is December 31. The Plan is a welfare benefit plan.
(c)
Agent for the Service of Legal Process.
The agent for the service of legal process with respect to the Plan is:
Omnicell, Inc.
Attn: Corporate Secretary
1201 Charleston Road
Mountain View, CA 94043
(d)
Plan Sponsor and Administrator.
The Plan Sponsor and the
“Plan Administrator”
of the Plan is:
Omnicell, Inc.
Attn: Vice President, Human Resources
1201 Charleston Road
Mountain View, CA 94043
The Plan Sponsor’s and Plan Administrator’s telephone number is (650) 251- 6100. The Plan Administrator is the named fiduciary charged with the responsibility for administering the Plan.
SECTION 13.
STATEMENT OF ERISA RIGHTS.
Participants in this Plan are entitled to certain rights and protections under ERISA. If you are an Eligible Employee, you are considered a participant in the Plan and, under ERISA, you are entitled to:
(a)
Receive Information About Your Plan and Benefits
(1)
Examine, without charge, at the Plan Administrator’s office and at other specified locations, such as worksites, all documents governing the Plan and a copy of the latest annual report (Form 5500 Series), if applicable, filed by the Plan with the U.S. Department of Labor and available at the Public Disclosure Room of the Employee Benefits Security Administration;
(2)
Obtain, upon written request to the Plan Administrator, copies of documents governing the operation of the Plan and copies of the latest annual report (Form 5500 Series), if applicable, and an updated (as necessary) Summary Plan Description. The Administrator may make a reasonable charge for the copies; and
(3)
Receive a summary of the Plan’s annual financial report, if applicable. The Plan Administrator is required by law to furnish each participant with a copy of this summary annual report.
(b)
Prudent Actions by Plan Fiduciaries.
In addition to creating rights for Plan participants, ERISA imposes duties upon the people who are responsible for the operation of the employee benefit plan. The people who operate the Plan, called “fiduciaries” of the Plan, have a duty to do so prudently and in the interest of you and other Plan participants and beneficiaries. No one, including your employer, your union or any other person, may fire you or otherwise discriminate against you in any way to prevent you from obtaining a Plan benefit or exercising your rights under ERISA.
(c)
Enforce Your Rights.
If your claim for a Plan benefit is denied or ignored, in whole or in part, you have a right to know why this was done, to obtain copies of documents relating to the decision without charge, and to appeal any denial, all within certain time schedules as set forth in detail in Section 10 herein.
Under ERISA, there are steps you can take to enforce the above rights. For instance, if
you request a copy of Plan documents or the latest annual report from the Plan, if applicable, and do not receive them within 30 days, you may file suit in a Federal court and you are not required to follow the claims procedure set forth in Section 10 herein. In such a case, the court may require the Plan Administrator to provide the materials and pay you up to $110 a day until you receive the materials, unless the materials were not sent because of reasons beyond the control of the Plan Administrator.
If you have completed the claims and appeals procedure described in Section 10 and have a claim for benefits which is denied or ignored, in whole or in part, you may file suit in a state or Federal court.
If you are discriminated against for asserting your rights, you may seek assistance from the U.S. Department of Labor, or you may file suit in a Federal court. The court will decide who should pay court costs and legal fees. If you are successful, the court may order the person you have sued to pay these costs and fees. If you lose, the court may order you to pay these costs and fees, for example, if it finds your claim is frivolous.
(d)
Assistance with Your Questions.
If you have any questions about the Plan, you should contact the Plan Administrator. If you have any questions about this statement or about your rights under ERISA, or if you need assistance in obtaining documents from the Plan Administrator, you should contact the nearest office of the Employee Benefits Security Administration, U. S. Department of Labor, listed in your telephone directory or the Division of Technical Assistance and Inquiries, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue N.W., Washington, D.C. 20210. You may also obtain certain publications about your rights and responsibilities under ERISA by calling the publications hotline of the Employee Benefits Security Administration or accessing its website at http://www.dol.gov/ebsa/.
SECTION 14.
GENERAL PROVISIONS.
(a)
Notices.
Any notice, demand or request required or permitted to be given by either the Company or an Eligible Employee pursuant to the terms of this Plan shall be in writing and shall be deemed given when delivered personally or deposited in the U.S. mail, First Class with postage prepaid, and addressed to the parties, in the case of the Company, at the address set forth in Section 12(d) and, in the case of an Eligible Employee, at the address as set forth in the Company’s employment file maintained for the Eligible Employee as previously furnished by the Eligible Employee or such other address as a party may request by notifying the other in writing.
(b)
Transfer and Assignment.
The rights and obligations of an Eligible Employee under this Plan may not be transferred or assigned without the prior written consent of the Company. This Plan shall be binding upon any person who is a successor by merger, acquisition, consolidation or otherwise to the business formerly carried on by the Company without regard to whether or not such person or entity actively assumes the obligations hereunder.
(c)
Waiver.
Any party’s failure to enforce any provision or provisions of this Plan shall not in any way be construed as a waiver of any such provision or provisions, nor prevent any party from thereafter enforcing each and every other provision of this Plan. The rights granted the parties herein are cumulative and shall not constitute a waiver of any party’s right to assert all other legal remedies available to it under the circumstances.
(d)
Severability.
Should any provision of this Plan be declared or determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
(e)
Section Headings.
Section headings in this Plan are included for convenience of reference only and shall not be considered part of this Plan for any other purpose.
Omnicell, Inc.
has caused its duly authorized officer to execute the amendment and restatement of this Plan effective as of June 20, 2009.
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OMNICELL, INC.
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By:
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Title:
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For Employees Age 40 or Older
Individual Termination
EXHIBIT A
RELEASE AGREEMENT
I understand and agree completely to the terms set forth in the Omnicell, Inc. Severance Benefit Plan (the
“Plan”
).
I understand that this Release, together with the Plan, constitutes the complete, final and exclusive embodiment of the entire agreement between the Company, affiliates of the Company and me with regard to the subject matter hereof. I am not relying on any promise or representation by the Company or the Employer that is not expressly stated therein. Certain capitalized terms used in this Release are defined in the Plan.
I hereby confirm my obligations under my Proprietary Information and Inventions Agreement with the Company and/or the Employer.
In exchange for the Severance Benefits and other consideration provided to me by the Plan that I am not otherwise entitled to receive, and except as otherwise set forth in this Release, I hereby generally and completely release the Company, the Employers, and their current and former parents, subsidiaries, successors, predecessors and affiliates, and their current and former partners, members, directors, officers, employees, stockholders, shareholders, agents, attorneys, predecessors, insurers, affiliates and assigns, from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring at any time prior to and including the date I sign this Release. This general release includes, but is not limited to: (a) all claims arising out of or in any way related to my employment with the Company, the Employers or their affiliates, or the termination of that employment; (b) all claims related to my compensation or benefits, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in the Company, the Employers, or their affiliates; (c) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (d) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (e) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990 (as amended), the federal Age Discrimination in Employment Act (as amended) (
“ADEA”
), the federal Employee Retirement Income Security Act of 1974 (as amended), and the California Fair Employment and Housing Act (as amended).
I am not releasing any claim that cannot be waived under applicable state or federal law or any rights I have to pursue a claim for workers’ compensation or unemployment benefits, and I am not releasing any rights that I have to be indemnified (including any right to reimbursement of expenses) arising under applicable law, the certificate of incorporation or by-laws (or similar constituent documents of the Company), any indemnification agreement between me and the Company, the Employers, or their affiliates, or any directors’ and officers’ liability insurance policy of the Company, the Employers, or their affiliates. The foregoing notwithstanding, nothing in this Release shall prevent me from filing, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission, the Department of Labor, or the California Department of Fair Employment and Housing, except that I acknowledge and agree that I shall not recover any monetary benefits in connection with any such claim, charge or proceeding with regard to any claim released herein. Nothing in this Release shall prevent me from challenging the validity of this Release in a legal or administrative proceeding.
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the ADEA (“ADEA Waiver”), and that the consideration given under the Plan for the ADEA Waiver is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as
required by the ADEA, that: (a) my ADEA Waiver and release does not apply to any rights or claims that may arise after the date I sign this Release; (b) I should consult with an attorney prior to signing this Release (although I may choose voluntarily not to do so); (c) I have twenty-one (21) days to consider this Release (although I may choose voluntarily to sign this Release earlier); (d) I have seven (7) days following the date I sign this Release to revoke the Release by providing written notice to an officer of the Company within the seven (7) day period; and (e) the ADEA Waiver shall not be effective until the date upon which the revocation period has expired unexercised, which shall be the eighth day after I sign this Release. Nevertheless, my general release of claims, except for the ADEA Waiver, is effective immediately, and not revocable.
I UNDERSTAND THAT THIS RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. In giving the release herein, which includes claims which may be unknown to me at present,
I acknowledge that I have read and understand 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 settlement with the debtor.”
I hereby expressly waive and relinquish all rights and benefits under that section and any law of any other jurisdiction of similar effect with respect to my release of any unknown or unsuspected claims hereunder.
I acknowledge that to become effective, I must sign and return this Release to the Company so that it is received not later than twenty-one (21) days following the date it is provided to me.
I agree not to disparage Company (or its officers, directors or employees), in any manner likely to be harmful to it, them or their business, business reputation or personal reputation; provided that I may respond accurately and fully to any question, inquiry or request for information when required by legal process. I understand and agree that in the event that I do not comply with this non-disparagement obligation, my Severance Benefits will be forfeited and subject to return upon demand by Company.
For Employees Age 40 or Older
Group Termination
EXHIBIT B
RELEASE AGREEMENT
I understand and agree completely to the terms set forth in the Omnicell, Inc. Severance Benefit Plan (the
“Plan”
).
I understand that this Release, together with the Plan, constitutes the complete, final and exclusive embodiment of the entire agreement between the Company, affiliates of the Company and me with regard to the subject matter hereof. I am not relying on any promise or representation by the Company or the Employer that is not expressly stated therein. Certain capitalized terms used in this Release are defined in the Plan.
I hereby confirm my obligations under my Proprietary Information and Inventions Agreement with the Company and/or the Employer.
In exchange for the Severance Benefits and other consideration provided to me by the Plan that I am not otherwise entitled to receive, and except as otherwise set forth in this Release, I hereby generally and completely release the Company, the Employers and their current and former parents, subsidiaries, successors, predecessors and affiliates, and their current and former partners, members, directors, officers, employees, stockholders, shareholders, agents, attorneys, predecessors, insurers, affiliates and assigns, from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring at any time prior to and including the date I sign this Release. This general release includes, but is not limited to: (a) all claims arising out of or in any way related to my employment with the Company, the Employers or their affiliates, or the termination of that employment; (b) all claims related to my compensation or benefits, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in the Company, the Employers, or their affiliates; (c) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (d) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (e) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990 (as amended), the federal Age Discrimination in Employment Act (as amended) (
“ADEA”
), the federal Employee Retirement Income Security Act of 1974 (as amended), and the California Fair Employment and Housing Act (as amended).
I am not releasing any claim that cannot be waived under applicable state or federal law or any rights I have to pursue a claim for workers’ compensation or unemployment benefits, and I am not releasing any rights that I have to be indemnified (including any right to reimbursement of expenses) arising under applicable law, the certificate of incorporation or by-laws (or similar constituent documents of the Company), any indemnification agreement between me and the Company, the Employers, or their affiliates, or any directors’ and officers’ liability insurance policy of the Company, the Employers, or their affiliates. The foregoing notwithstanding, nothing in this Release shall prevent me from filing, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission, the Department of Labor, or the California Department of Fair Employment and Housing, except that I acknowledge and agree that I shall not recover any monetary benefits in connection with any such claim, charge or proceeding with regard to any claim released herein. Nothing in this Release shall prevent me from challenging the validity of this Release in a legal or administrative proceeding.
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the ADEA (“ADEA Waiver”), and that the consideration given under the Plan for the ADEA Waiver is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as required by the ADEA, that: (a) my ADEA Waiver does not apply to any rights or claims that may arise after the date I sign this Release; (b) I should consult with an attorney prior to signing this Release (although I may choose
voluntarily not to do so); (c) I have forty-five (45) days to consider this Release (although I may choose voluntarily to sign this Release earlier); (d) I have seven (7) days following the date I sign this Release to revoke the Release by providing written notice to an officer of the Company within the seven (7) day period; (e) the ADEA Waiver shall not be effective until the date upon which the revocation period has expired unexercised, which shall be the eighth day after I sign this Release; and (f) I have received with this Release a detailed list of the job titles and ages of all employees who were terminated in this group termination and the ages of all employees of the Company in the same job classification or organizational unit who were not terminated. Nevertheless, my general release of claims, except for the ADEA Waiver, is effective immediately, and not revocable.
I UNDERSTAND THAT THIS RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. In giving the release herein, which includes claims which may be unknown to me at present,
I acknowledge that I have read and understand 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 settlement with the debtor.”
I hereby expressly waive and relinquish all rights and benefits under that section and any law of any other jurisdiction of similar effect with respect to my release of any unknown or unsuspected claims hereunder.
I hereby represent that I have been paid all compensation owed and for all hours worked, have received all the leave and leave benefits and protections for which I am eligible, pursuant to the Family and Medical Leave Act or otherwise, and have not suffered any on-the-job injury for which I have not already filed a claim.
I agree not to disparage Company (or its officers, directors or employees), in any manner likely to be harmful to it, them or their business, business reputation or personal reputation; provided that I may respond accurately and fully to any question, inquiry or request for information when required by legal process. I understand and agree that in the event that I do not comply with this non-disparagement obligation, my Severance Benefits will be forfeited and subject to return upon demand by Company.
I acknowledge that to become effective, I must sign and return this Release to the Company so that it is received not later than forty-five (45) days following the date it is provided to me.
For Employees Under Age 40
Individual and Group Termination
EXHIBIT C
RELEASE AGREEMENT
I understand and agree completely to the terms set forth in the Omnicell, Inc. Severance Benefit Plan (the
“Plan”
).
I understand that this Release, together with the Plan, constitutes the complete, final and exclusive embodiment of the entire agreement between the Company, affiliates of the Company and me with regard to the subject matter hereof. I am not relying on any promise or representation by the Company or the Employer that is not expressly stated therein. Certain capitalized terms used in this Release are defined in the Plan.
I hereby confirm my obligations under my Proprietary Information and Inventions Agreement with the Company and/or the Employer.
In exchange for the Severance Benefits and other consideration provided to me by the Plan that I am not otherwise entitled to receive, and except as otherwise set forth in this Release, I hereby generally and completely release the Company, the Employers and their current and former parents, subsidiaries, successors, predecessors and affiliates, and their current and former partners, members, directors, officers, employees, stockholders, shareholders, agents, attorneys, predecessors, insurers, affiliates and assigns, from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring at any time prior to and including the date I sign this Release. This general release includes, but is not limited to: (a) all claims arising out of or in any way related to my employment with the Company, the Employers or their affiliates, or the termination of that employment; (b) all claims related to my compensation or benefits, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in the Company, the Employers, or their affiliates; (c) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (d) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (e) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990 (as amended), the federal Employee Retirement Income Security Act of 1974 (as amended), and the California Fair Employment and Housing Act (as amended).
I am not releasing any claim that cannot be waived under applicable state or federal law or any rights I have to pursue a claim for workers’ compensation or unemployment benefits, and I am not releasing any rights that I have to be indemnified (including any right to reimbursement of expenses) arising under applicable law, the certificate of incorporation or by-laws (or similar constituent documents of the Company), any indemnification agreement between me and the Company, the Employers, or their affiliates, or any directors’ and officers’ liability insurance policy of the Company, the Employers, or their affiliates. The foregoing notwithstanding, nothing in this Release shall prevent me from filing, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission, the Department of Labor, or the California Department of Fair Employment and Housing, except that I acknowledge and agree that I shall not recover any monetary benefits in connection with any such claim, charge or proceeding with regard to any claim released herein. Nothing in this Release shall prevent me from challenging the validity of this Release in a legal or administrative proceeding.
I UNDERSTAND THAT THIS RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. In giving the release herein, which includes claims which may be unknown to me at present,
I acknowledge that I have read and understand 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 settlement with the debtor.” I hereby expressly waive and relinquish all rights and benefits under that section and
any law of any other jurisdiction of similar effect with respect to my release of any unknown or unsuspected claims hereunder.
I hereby represent that I have been paid all compensation owed and for all hours worked, have received all the leave and leave benefits and protections for which I am eligible, pursuant to the Family and Medical Leave Act or otherwise, and have not suffered any on-the-job injury for which I have not already filed a claim.
I agree not to disparage Company (or its officers, directors or employees), in any manner likely to be harmful to it, them or their business, business reputation or personal reputation; provided that I may respond accurately and fully to any question, inquiry or request for information when required by legal process. I understand and agree that in the event that I do not comply with this non-disparagement obligation, my Severance Benefits will be forfeited and subject to return upon demand by Company.
I acknowledge that to become effective, I must sign and return this Release to the Company so that it is received not later than fourteen (14) days following the date it is provided to me.
APPENDIX A
OMNICELL, INC.
SEVERANCE BENEFIT PLAN
Affiliates of the Company whose employees are eligible to participate in the Omnicell, Inc. Severance Benefit Plan (each an
“Employer”
) are as follows:
None
The foregoing list of Employers is subject to such change as the Company, pursuant to Section 1 of the Plan, may determine in its sole and absolute discretion. Any such change to the participating Employers shall be set forth in a revised version of this Appendix A.
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Appendix A Adopted: June 20, 2009
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OMNICELL, INC.
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By:
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Title:
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APPENDIX B
OMNICELL, INC.
SEVERANCE BENEFIT PLAN
Severance benefits provided to Eligible Employees under the Omnicell, Inc. Severance Benefit Plan (the
“Plan”
) are as follows, and apply to Eligible Employees up to and including the level of Senior Manager (including Systems Sales Directors, Senior Systems Sales Directors and Directors of Corporate Sales):
1.
Severance Benefits.
Subject to the exceptions set forth in Section 2(b) of the Plan, each Eligible Employee who meets all the requirements set forth in Sections 2(a) and 4(a) of the Plan, including, without limitation, executing a general waiver and release in substantially the form attached to the Plan as Exhibit A, Exhibit B or Exhibit C, as appropriate, within the applicable time period set forth therein, but in no event more than sixty (60) days following the date of termination, and provided that such release becomes effective in accordance with its terms, shall receive severance benefits as set forth in this Appendix B. The Company, in its sole discretion, may modify the form of the required general waiver and release to comply with applicable law, and may incorporate such waiver and release into a termination agreement or other agreement with the Eligible Employee.
(a)
Cash Severance Benefit.
Eligible Employees shall be entitled to receive a cash severance benefit equal to the number of months of Base Salary set forth below next to his or her Years of Service at the time of termination. Partial Years of Service are not counted.
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Years of Service
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Months of Base Salary
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1
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1 month
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2
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2 months
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3
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3 months
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For each 5 Years of Service
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1 extra month
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(b)
Continued Group Health Plan Benefits.
If the Eligible Employee was enrolled in a group health plan (e.g., medical, dental, or vision plan) sponsored by the Company or an affiliate of the Company immediately prior to termination, the Eligible Employee may be eligible to continue coverage under such group health plan (or to convert to an individual policy), at the time of the Eligible Employee’s termination of employment, under the Consolidated Omnibus Budget Reconciliation Act of 1985 (
“COBRA”
). The Company will notify the Eligible Employee of any such right to continue such coverage at the time of termination pursuant to COBRA. No provision of this Plan will affect the continuation coverage rules under COBRA, except that the Company’s payment, if any, of applicable insurance premiums, or waiver of any cost of coverage under any self-funded group health plan, will be credited as payment by the Eligible Employee for purposes of the Eligible Employee’s payment required under COBRA.
Therefore, the period during which an Eligible Employee may elect to continue the Company’s or its affiliate’s group health plan coverage at his or her own expense under COBRA, the length of time during which COBRA coverage will be made available to the Eligible Employee, and all other rights and obligations of the Eligible Employee under COBRA (except the obligation to pay insurance premiums that the Company pays, if any, or, with respect to a self-funded plan, any obligation to pay the cost of coverage to the Company that the Company waives, if any) will be applied in the same manner that such rules would apply in the absence of this Plan.
If an Eligible Employee timely elects continued coverage under COBRA, the Company shall pay
the same portion of (or, in the case of any self-funded plan, shall credit the Eligible Employee with the same portion of) the Eligible Employee’s premiums for COBRA continuation coverage (including coverage for the Eligible Employee’s eligible dependents) that the Company paid (or bore in the case of any self-funded plan) for the Eligible Employee’s active employee coverage under the Company’s group health plans for the number of months following the Eligible Employee’s termination of employment that is equal to the number of months of the cash severance benefit described above. Notwithstanding the foregoing, no such premium payments shall be made or credited following the Eligible Employee’s death or the effective date of the Eligible Employee’s coverage under a group health plan of another employer.
The Eligible employee may also be entitled to receive a subsidy toward the remaining portion of the Eligible Employee’s COBRA premiums for a period of time (not to exceed nine (9) months) to the extent the Eligible Employee (and each covered dependent, if applicable) qualifies under the American Recovery and Reinvestment Act of 2009 (
“ARRA”
) as an “assistance eligible individual” who is entitled to a COBRA premium subsidy without recapture.
The Eligible Employee shall be responsible for remitting the full amount of the COBRA premiums necessary to maintain continued coverage under the Company’s group health plans. Upon receipt by the Company of written documentation that the Eligible Employee paid the full COBRA premium for the applicable month, the Company shall pay to the Eligible Employee the Company’s portion of the COBRA premium payment for that month and, if applicable, the COBRA premium subsidy available to the Eligible Employee under ARRA as long as the Eligible Employee remains eligible for such subsidy. Each Eligible Employee shall be required to notify the Company immediately if the Eligible Employee becomes eligible for or covered by a group health plan of another employer. Upon the conclusion of such period of insurance premium payments made by the Company, or the provision of coverage under a self-funded group health plan, the Eligible Employee will be responsible for the entire payment of premiums (or payment for the cost of coverage) required under COBRA for the duration of the COBRA period except to the extent the Eligible Employee remains eligible for the COBRA premium subsidy under ARRA.
For purposes of this Section 1(b), (i) references to COBRA shall be deemed to refer also to analogous provisions of state law, as applicable, and (ii) any applicable insurance premiums that are paid by the Company shall not include any amounts payable by the Eligible Employee under an Internal Revenue Code Section 125 health care reimbursement plan, which amounts, if any, are the sole responsibility of the Eligible Employee.
(c)
Outplacement Assistance.
Eligible Employees shall be entitled to outplacement assistance, the scope of which shall be determined by the Company in the Company’s sole discretion. Eligible Employees shall not be entitled to any payment in lieu of outplacement assistance.
2.
Definitions:
The following definitions shall apply for purposes of this Appendix B:
(a)
“Base Salary”
shall mean the Eligible Employee’s base pay (excluding incentive pay, premium pay, commissions, overtime, bonuses and other forms of variable compensation), at the rate in effect during the last regularly scheduled payroll period immediately preceding the Eligible Employee’s termination date. For any Eligible Employees that are regular part-time employees,
“Base Salary”
shall mean the pro-rata equivalent of the Eligible Employee’s base pay which reflects the part-time status of the Eligible Employee.
(b)
“Years of Service”
means a continuous complete twelve-month period commencing on an Eligible Employee’s date of hire with the Company or an Employer and anniversaries thereof, during which the Eligible Employee is employed by the Company or an Employer, and ending on the date on which the Eligible Employee is notified, in writing, pursuant to Section 2(a)(1) of the Plan that he or she is eligible for participation in the Plan. For purposes of the foregoing, an Eligible Employee will receive credit for any time on a paid leave of absence, but not for time on
an unpaid leave of absence.
3.
Other Employee Benefits.
All other benefits (such as life insurance, disability coverage, and 401(k) plan coverage) terminate as of the Eligible Employee’s termination date (except to the extent that a conversion privilege may be available thereunder).
4.
Reductions Pursuant to Section 3(c) of the Plan.
The severance benefits set forth in this Appendix B are subject to certain reductions under Section 3(c) of the Plan.
The foregoing severance benefits are subject to such change as the Company, pursuant to Section 3(a) of the Plan, may determine in its sole and absolute discretion. Any such change in severance benefits shall be set forth in a revised version of this Appendix B.
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Appendix B Adopted: June 20, 2009
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OMNICELL, INC.
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By:
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Title:
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APPENDIX B
OMNICELL, INC.
SEVERANCE BENEFIT PLAN
Severance benefits provided to Eligible Employees under the Omnicell, Inc. Severance Benefit Plan (the
“Plan”
) are as follows, and apply to Eligible Employees at the levels of Director and Senior Director (excluding Systems Sales Directors, Senior Systems Sales Directors and Directors of Corporate Sales):
1.
Severance Benefits.
Subject to the exceptions set forth in Section 2(b) of the Plan, each Eligible Employee who meets all the requirements set forth in Sections 2(a) and 4(a) of the Plan, including, without limitation, executing a general waiver and release in substantially the form attached to the Plan as Exhibit A, Exhibit B or Exhibit C, as appropriate, within the applicable time period set forth therein, but in no event more than sixty (60) days following the date of termination, and provided that such release becomes effective in accordance with its terms, shall receive severance benefits as set forth in this Appendix B. The Company, in its sole discretion, may modify the form of the required general waiver and release to comply with applicable law, and may incorporate such waiver and release into a termination agreement or other agreement with the Eligible Employee.
(a)
Cash Severance Benefit.
Eligible Employees shall be entitled to receive a cash severance benefit equal to the number of months of Base Salary set forth below next to his or her Years of Service at the time of termination. Partial Years of Service are not counted.
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Years of Service
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Months of Base Salary
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Not relevant
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4 months
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For each 5 Years of Service
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1 extra month
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(b)
Continued Group Health Plan Benefits.
If the Eligible Employee was enrolled in a group health plan (e.g., medical, dental, or vision plan) sponsored by the Company or an affiliate of the Company immediately prior to termination, the Eligible Employee may be eligible to continue coverage under such group health plan (or to convert to an individual policy), at the time of the Eligible Employee’s termination of employment, under the Consolidated Omnibus Budget Reconciliation Act of 1985 (
“COBRA”
). The Company will notify the Eligible Employee of any such right to continue such coverage at the time of termination pursuant to COBRA. No provision of this Plan will affect the continuation coverage rules under COBRA, except that the Company’s payment, if any, of applicable insurance premiums, or waiver of any cost of coverage under any self-funded group health plan, will be credited as payment by the Eligible Employee for purposes of the Eligible Employee’s payment required under COBRA.
Therefore, the period during which an Eligible Employee may elect to continue the Company’s or its affiliate’s group health plan coverage at his or her own expense under COBRA, the length of time during which COBRA coverage will be made available to the Eligible Employee, and all other rights and obligations of the Eligible Employee under COBRA (except the obligation to pay insurance premiums that the Company pays, if any, or, with respect to a self-funded plan, any obligation to pay the cost of coverage to the Company that the Company waives, if any) will be applied in the same manner that such rules would apply in the absence of this Plan.
If an Eligible Employee timely elects continued coverage under COBRA, the Company shall pay the same portion of (or, in the case of any self-funded plan, shall credit the Eligible Employee with the same portion of) the Eligible Employee’s premiums for COBRA continuation coverage (including coverage for the Eligible Employee’s eligible dependents) that the Company paid (or
bore in the case of any self-funded plan) for the Eligible Employee’s active employee coverage under the Company’s group health plans for the number of months following the Eligible Employee’s termination of employment that is equal to the number of months of the cash severance benefit described above. Notwithstanding the foregoing, no such premium payments shall be made or credited following the Eligible Employee’s death or the effective date of the Eligible Employee’s coverage under a group health plan of another employer.
The Eligible employee may also be entitled to receive a subsidy toward the remaining portion of the Eligible Employee’s COBRA premiums for a period of time (not to exceed nine (9) months) to the extent the Eligible Employee (and each covered dependent, if applicable) qualifies under the American Recovery and Reinvestment Act of 2009 (
“ARRA”
) as an “assistance eligible individual” who is entitled to a COBRA premium subsidy without recapture.
The Eligible Employee shall be responsible for remitting the full amount of the COBRA premiums necessary to maintain continued coverage under the Company’s group health plans. Upon receipt by the Company of written documentation that the Eligible Employee paid the full COBRA premium for the applicable month, the Company shall pay to the Eligible Employee the Company’s portion of the COBRA premium payment for that month and, if applicable, the COBRA premium subsidy available to the Eligible Employee under ARRA as long as the Eligible Employee remains eligible for such subsidy. Each Eligible Employee shall be required to notify the Company immediately if the Eligible Employee becomes eligible for or covered by a group health plan of another employer. Upon the conclusion of such period of insurance premium payments made by the Company, or the provision of coverage under a self-funded group health plan, the Eligible Employee will be responsible for the entire payment of premiums (or payment for the cost of coverage) required under COBRA for the duration of the COBRA period
except to the extent the Eligible Employee remains eligible for the COBRA premium subsidy under ARRA.
For purposes of this Section 1(b), (i) references to COBRA shall be deemed to refer also to analogous provisions of state law, as applicable, and (ii) any applicable insurance premiums that are paid by the Company shall not include any amounts payable by the Eligible Employee under an Internal Revenue Code Section 125 health care reimbursement plan, which amounts, if any, are the sole responsibility of the Eligible Employee.
(c)
Outplacement Assistance.
Eligible Employees shall be entitled to outplacement assistance, the scope of which shall be determined by the Company in the Company’s sole discretion. Eligible Employees shall not be entitled to any payment in lieu of outplacement assistance.
2.
Definitions:
The following definitions shall apply for purposes of this Appendix B:
(a)
“Base Salary”
shall mean the Eligible Employee’s base pay (excluding incentive pay, premium pay, commissions, overtime, bonuses and other forms of variable compensation), at the rate in effect during the last regularly scheduled payroll period immediately preceding the Eligible Employee’s termination date. For any Eligible Employees that are regular part-time employees,
“Base Salary”
shall mean the pro-rata equivalent of the Eligible Employee’s base pay which reflects the part-time status of the Eligible Employee.
(b)
“Years of Service”
means a continuous complete twelve-month period commencing on an Eligible Employee’s date of hire with the Company or an Employer and anniversaries thereof, during which the Eligible Employee is employed by the Company or an Employer, and ending on the date on which the Eligible Employee is notified, in writing, pursuant to Section 2(a)(1) of the Plan that he or she is eligible for participation in the Plan. For purposes of the foregoing, an Eligible Employee will receive credit for any time on a paid leave of absence, but not for time on an unpaid leave of absence.
3.
Other Employee Benefits.
All other benefits (such as life insurance, disability coverage, and 401(k) plan coverage) terminate as of the Eligible Employee’s termination date (except to the extent that a conversion privilege may be available thereunder).
4.
Reductions Pursuant to Section 3(c) of the Plan.
The severance benefits set forth in this Appendix B are subject to certain reductions under Section 3(c) of the Plan.
The foregoing severance benefits are subject to such change as the Company, pursuant to Section 3(a) of the Plan, may determine in its sole and absolute discretion. Any such change in severance benefits shall be set forth in a revised version of this Appendix B.
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Appendix B Adopted: June 20, 2009
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OMNICELL, INC.
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By:
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Title:
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APPENDIX B
OMNICELL, INC.
SEVERANCE BENEFIT PLAN
Severance benefits provided to Eligible Employees under the Omnicell, Inc. Severance Benefit Plan (the
“Plan”
) are as follows, and apply to Eligible Employees at the level of Vice President, where such Vice President is not reported by the Company as an officer under Section 16(b) of the Securities and Exchange Act of 1934:
1.
Severance Benefits.
Subject to the exceptions set forth in Section 2(b) of the Plan, each Eligible Employee who meets all the requirements set forth in Sections 2(a) and 4(a) of the Plan, including, without limitation, executing a general waiver and release in substantially the form attached to the Plan as Exhibit A, Exhibit B or Exhibit C, as appropriate, within the applicable time period set forth therein, but in no event more than sixty (60) days following the date of termination, and provided that such release becomes effective in accordance with its terms, shall receive severance benefits as set forth in this Appendix B. The Company, in its sole discretion, may modify the form of the required general waiver and release to comply with applicable law, and may incorporate such waiver and release into a termination agreement or other agreement with the Eligible Employee.
(a)
Cash Severance Benefit.
Eligible Employees shall be entitled to receive a cash severance benefit equal to the number of months of Base Salary set forth below next to his or her Years of Service at the time of termination. Partial Years of Service are not counted.
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Years of Service
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Months of Base Salary
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Not relevant
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6 months
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For each 5 Years of Service
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2 extra months
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(b)
Continued Group Health Plan Benefits.
If the Eligible Employee was enrolled in a group health plan (e.g., medical, dental, or vision plan) sponsored by the Company or an affiliate of the Company immediately prior to termination, the Eligible Employee may be eligible to continue coverage under such group health plan (or to convert to an individual policy), at the time of the Eligible Employee’s termination of employment, under the Consolidated Omnibus Budget Reconciliation Act of 1985 (
“COBRA”
). The Company will notify the Eligible Employee of any such right to continue such coverage at the time of termination pursuant to COBRA. No provision of this Plan will affect the continuation coverage rules under COBRA, except that the Company’s payment, if any, of applicable insurance premiums, or waiver of any cost of coverage under any self-funded group health plan, will be credited as payment by the Eligible Employee for purposes of the Eligible Employee’s payment required under COBRA.
Therefore, the period during which an Eligible Employee may elect to continue the Company’s or its affiliate’s group health plan coverage at his or her own expense under COBRA, the length of time during which COBRA coverage will be made available to the Eligible Employee, and all other rights and obligations of the Eligible Employee under COBRA (except the obligation to pay insurance premiums that the Company pays, if any, or, with respect to a self-funded plan, any obligation to pay the cost of coverage to the Company that the Company waives, if any) will be applied in the same manner that such rules would apply in the absence of this Plan.
If an Eligible Employee timely elects continued coverage under COBRA, the Company shall pay the same portion of (or, in the case of any self-funded plan, shall credit the Eligible Employee with the same portion of) the Eligible Employee’s premiums for COBRA continuation coverage
(including coverage for the Eligible Employee’s eligible dependents) that the Company paid (or bore in the case of any self-funded plan) for the Eligible Employee’s active employee coverage under the Company’s group health plans for the number of months following the Eligible Employee’s termination of employment that is equal to the number of months of the cash severance benefit described above. Notwithstanding the foregoing, no such premium payments shall be made or credited following the Eligible Employee’s death or the effective date of the Eligible Employee’s coverage under a group health plan of another employer.
The Eligible employee may also be entitled to receive a subsidy toward the remaining portion of the Eligible Employee’s COBRA premiums for a period of time (not to exceed nine (9) months) to the extent the Eligible Employee (and each covered dependent, if applicable) qualifies under the American Recovery and Reinvestment Act of 2009 (
“ARRA”
) as an “assistance eligible individual” who is entitled to a COBRA premium subsidy without recapture.
The Eligible Employee shall be responsible for remitting the full amount of the COBRA premiums necessary to maintain continued coverage under the Company’s group health plans. Upon receipt by the Company of written documentation that the Eligible Employee paid the full COBRA premium for the applicable month, the Company shall pay to the Eligible Employee the Company’s portion of the COBRA premium payment for that month
and, if applicable, the COBRA premium subsidy available to the Eligible Employee under ARRA as long as the Eligible Employee remains eligible for such subsidy. Each Eligible Employee shall be required to notify the Company immediately if the Eligible Employee becomes eligible for or covered by a group health plan of another employer. Upon the conclusion of such period of insurance premium payments made by the Company, or the provision of coverage under a self-funded group health plan, the Eligible Employee will be responsible for the entire payment of premiums (or payment for the cost of coverage) required under COBRA for the duration of the COBRA period
except to the extent the Eligible Employee remains eligible for the COBRA premium subsidy under ARRA.
For purposes of this Section 1(b), (i) references to COBRA shall be deemed to refer also to analogous provisions of state law, as applicable, and (ii) any applicable insurance premiums that are paid by the Company shall not include any amounts payable by the Eligible Employee under an Internal Revenue Code Section 125 health care reimbursement plan, which amounts, if any, are the sole responsibility of the Eligible Employee.
(c)
Outplacement Assistance.
Eligible Employees shall be entitled to outplacement assistance, the scope of which shall be determined by the Company in the Company’s sole discretion. Eligible Employees shall not be entitled to any payment in lieu of outplacement assistance.
2.
Definitions:
The following definitions shall apply for purposes of this Appendix B:
(a)
“Base Salary”
shall mean the Eligible Employee’s base pay (excluding incentive pay, premium pay, commissions, overtime, bonuses and other forms of variable compensation), at the rate in effect during the last regularly scheduled payroll period immediately preceding the Eligible Employee’s termination date. For any Eligible Employees that are regular part-time employees,
“Base Salary”
shall mean the pro-rata equivalent of the Eligible Employee’s base pay which reflects the part-time status of the Eligible Employee.
(b)
“Years of Service”
means a continuous complete twelve-month period commencing on an Eligible Employee’s date of hire with the Company or an Employer and anniversaries thereof, during which the Eligible Employee is employed by the Company or an Employer, and ending on the date on which the Eligible Employee is notified, in writing, pursuant to Section 2(a)(1) of the Plan that he or she is eligible for participation in the Plan. For purposes of the foregoing, an Eligible Employee will receive credit for any time on a paid leave of absence, but not for time on an unpaid leave of absence.
3.
Other Employee Benefits.
All other benefits (such as life insurance, disability coverage, and 401(k) plan coverage) terminate as of the Eligible Employee’s termination date (except to the extent that a conversion privilege may be available thereunder).
4.
Reductions Pursuant to Section 3(c) of the Plan.
The severance benefits set forth in this Appendix B are subject to certain reductions under Section 3(c) of the Plan.
The foregoing severance benefits are subject to such change as the Company, pursuant to Section 3(a) of the Plan, may determine in its sole and absolute discretion. Any such change in severance benefits shall be set forth in a revised version of this Appendix B.
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Appendix B Adopted: June 20, 2009
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OMNICELL, INC.
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By:
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Title:
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APPENDIX B
OMNICELL, INC.
SEVERANCE BENEFIT PLAN
Severance benefits provided to Eligible Employees under the Omnicell, Inc. Severance Benefit Plan (the
“Plan”
) are as follows, and apply to Eligible Employees at the level of Vice President, where such Vice President is reported by the Company as an officer under Section 16(b) of the Securities and Exchange Act of 1934, and the President:
1.
Severance Benefits.
Subject to the exceptions set forth in Section 2(b) of the Plan, each Eligible Employee who meets all the requirements set forth in Sections 2(a) and 4(a) of the Plan, including, without limitation, executing a general waiver and release in substantially the form attached to the Plan as Exhibit A, Exhibit B or Exhibit C, as appropriate, within the applicable time period set forth therein, but in no event more than sixty (60) days following the date of termination, and provided that such release becomes effective in accordance with its terms, shall receive severance benefits as set forth in this Appendix B. The Company, in its sole discretion, may modify the form of the required general waiver and release to comply with applicable law, and may incorporate such waiver and release into a termination agreement or other agreement with the Eligible Employee.
(a)
Cash Severance Benefit.
Eligible Employees shall be entitled to receive a cash severance benefit equal to the number of months of Base Salary set forth below next to his or her Years of Service at the time of termination. Partial Years of Service are not counted.
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Years of Service
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Months of Base Salary
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Not relevant
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12 months
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For each 5 Years of Service
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2 extra months
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(b)
Continued Group Health Plan Benefits.
If the Eligible Employee was enrolled in a group health plan (e.g., medical, dental, or vision plan) sponsored by the Company or an affiliate of the Company immediately prior to termination, the Eligible Employee may be eligible to continue coverage under such group health plan (or to convert to an individual policy), at the time of the Eligible Employee’s termination of employment, under the Consolidated Omnibus Budget Reconciliation Act of 1985 (
“COBRA”
). The Company will notify the Eligible Employee of any such right to continue such coverage at the time of termination pursuant to COBRA. No provision of this Plan will affect the continuation coverage rules under COBRA, except that the Company’s payment, if any, of applicable insurance premiums, or waiver of any cost of coverage under any self-funded group health plan, will be credited as payment by the Eligible Employee for purposes of the Eligible Employee’s payment required under COBRA.
Therefore, the period during which an Eligible Employee may elect to continue the Company’s or its affiliate’s group health plan coverage at his or her own expense under COBRA, the length of time during which COBRA coverage will be made available to the Eligible Employee, and all other rights and obligations of the Eligible Employee under COBRA (except the obligation to pay insurance premiums that the Company pays, if any, or, with respect to a self-funded plan, any obligation to pay the cost of coverage to the Company that the Company waives, if any) will be applied in the same manner that such rules would apply in the absence of this Plan.
If an Eligible Employee timely elects continued coverage under COBRA, the Company shall pay the same portion of (or, in the case of any self-funded plan, shall credit the Eligible Employee with the same portion of) the Eligible Employee’s premiums for COBRA continuation coverage
(including coverage for the Eligible Employee’s eligible dependents) that the Company paid (or bore in the case of any self-funded plan) for the Eligible Employee’s active employee coverage under the Company’s group health plans for the number of months following the Eligible Employee’s termination of employment that is equal to the number of months of the cash severance benefit described above. Notwithstanding the foregoing, no such premium payments shall be made or credited following the Eligible Employee’s death or the effective date of the Eligible Employee’s coverage under a group health plan of another employer.
The Eligible employee may also be entitled to receive a subsidy toward the remaining portion of the Eligible Employee’s COBRA premiums for a period of time (not to exceed nine (9) months) to the extent the Eligible Employee (and each covered dependent, if applicable) qualifies under the American Recovery and Reinvestment Act of 2009 (
“ARRA”
) as an “assistance eligible individual” who is entitled to a COBRA premium subsidy without recapture.
The Eligible Employee shall be responsible for remitting the full amount of the COBRA premiums necessary to maintain continued coverage under the Company’s group health plans. Upon receipt by the Company of written documentation that the Eligible Employee paid the full COBRA premium for the applicable month, the Company shall pay to the Eligible Employee the Company’s portion of the COBRA premium payment for that month
and, if applicable, the COBRA premium subsidy available to the Eligible Employee under ARRA as long as the Eligible Employee remains eligible for such subsidy. Each Eligible Employee shall be required to notify the Company immediately if the Eligible Employee becomes eligible for or covered by a group health plan of another employer. Upon the conclusion of such period of insurance premium payments made by the Company, or the provision of coverage under a self-funded group health plan, the Eligible Employee will be responsible for the entire payment of premiums (or payment for the cost of coverage) required under COBRA for the duration of the COBRA period
except to the extent the Eligible Employee remains eligible for the COBRA premium subsidy under ARRA.
For purposes of this Section 1(b), (i) references to COBRA shall be deemed to refer also to analogous provisions of state law, as applicable, and (ii) any applicable insurance premiums that are paid by the Company shall not include any amounts payable by the Eligible Employee under an Internal Revenue Code Section 125 health care reimbursement plan, which amounts, if any, are the sole responsibility of the Eligible Employee.
(c)
Outplacement Assistance.
Eligible Employees shall be entitled to outplacement assistance, the scope of which shall be determined by the Company in the Company’s sole discretion. Eligible Employees shall not be entitled to any payment in lieu of outplacement assistance.
2.
Definitions:
The following definitions shall apply for purposes of this Appendix B:
(a)
“Base Salary”
shall mean the Eligible Employee’s base pay (excluding incentive pay, premium pay, commissions, overtime, bonuses and other forms of variable compensation), at the rate in effect during the last regularly scheduled payroll period immediately preceding the Eligible Employee’s termination date. For any Eligible Employees that are regular part-time employees,
“Base Salary”
shall mean the pro-rata equivalent of the Eligible Employee’s base pay which reflects the part-time status of the Eligible Employee.
(b)
“Years of Service”
means a continuous complete twelve-month period commencing on an Eligible Employee’s date of hire with the Company or an Employer and anniversaries thereof, during which the Eligible Employee is employed by the Company or an Employer, and ending on the date on which the Eligible Employee is notified, in writing, pursuant to Section 2(a)(1) of the Plan that he or she is eligible for participation in the Plan. For purposes of the foregoing, an Eligible Employee will receive credit for any time on a paid leave of absence, but not for time on an unpaid leave of absence.
3.
Other Employee Benefits.
All other benefits (such as life insurance, disability coverage, and 401(k) plan coverage) terminate as of the Eligible Employee’s termination date (except to the extent that a conversion privilege may be available thereunder).
4.
Reductions Pursuant to Section 3(c) of the Plan.
The severance benefits set forth in this Appendix B are subject to certain reductions under Section 3(c) of the Plan.
The foregoing severance benefits are subject to such change as the Company, pursuant to Section 3(a) of the Plan, may determine in its sole and absolute discretion. Any such change in severance benefits shall be set forth in a revised version of this Appendix B.
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Appendix B Adopted: June 20, 2009
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OMNICELL, INC.
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By:
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Title:
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Exhibit 10.2
May 24, 2012
William Shields
Dear Bill,
As you know, Omnicell, Inc. (“Omnicell”) entered into an agreement and plan of merger (“Merger Agreement”) under which MTS Medication Technologies, Inc. (“MTS”) became a wholly-owned subsidiary of Omnicell upon the closing of the transaction on May 21, 2012 (the “Closing”).
With this background in place, we are pleased to offer you the following principal terms for employment with Omnicell following the Closing. Your position will be Executive Vice President, reporting to Randall Lipps. Your monthly salary will be $21,666.66, less payroll deductions and all required withholdings, which is an annual equivalent of $260,000.00.
As a material inducement to accept Omnicell’s offer of employment, and subject to approval by our Board of Directors, at the next regularly scheduled meeting of the Board after the Closing, you will be granted an award of options to purchase up to 30,000
shares of Omnicell Common Stock at a price equal to the fair market value of such shares on the date of grant (the “Option”). Upon approval, those Option shares will vest and become exercisable during your active employment with Omnicell over a four-year vesting period, with twenty-five percent (25%) of the shares under the Option vesting on the one-year anniversary of the vesting commencement date, and the remaining shares vesting pro-rata on a monthly basis over the next thirty-six (36) months. In addition, as a material inducement to accept Omnicell’s offer of employment, and also subject to approval by our Board of Directors, you will be granted restricted stock units (RSUs) covering 15,000 shares of Omnicell Common Stock, which will vest in equal increments every six months over a four-year vesting period. This equity grant, comprised of share options and RSUs, will be subject to the terms and conditions of Omnicell’s stock option plan and your grant agreements.
As a further material inducement to accept Omnicell’s offer of employment, and subject to approval by our Board of Directors at the next regularly scheduled meeting after the Closing, you will be granted an additional RSU award covering 10,000 shares, which will vest in full 18 months from the date of grant, provided you remain actively employed with Omnicell during the vesting period. This stock grant will be subject to the terms and conditions of Omnicell’s stock option plan and your grant agreement.
Subject to the terms of the MTS Medication Technologies, Inc. Management Bonus Plan specially adopted for the remainder of calendar year 2012, you will be eligible to participate in a one-time bonus compensation program with a target payout of 90% of your base salary, as earned between April 1, 2012 and December 31, 2012, upon full achievement of the agreed metrics, to be evaluated, in the sole discretion of Omnicell, based on a combination of Omnicell and MTS company performance for the current MTS fiscal year beginning April 1, 2012, through December 31, 2012 and, if earned, paid on the first regular payday after the bonus amount, if any, has been calculated. You must be an Omnicell employee through the end of the bonus period (December 31, 2012) in order to earn the bonus. No prorated bonus can be earned or will be awarded except as specified in writing as part of the bonus plan document. Any bonuses are deemed earned and awarded at the sole discretion of Omnicell and its Board of Directors. For calendar year 2012, you will not be eligible for any other bonus compensation, including without limitation the Omnicell MBO Program (from which you hereby “opt-out” for calendar year 2012), and the Omnicell, Inc. 2010 Quarterly Executive Bonus Plan.
Employment at Omnicell or any of its subsidiaries is at-will employment, which means it may be terminated by you or by Omnicell at any time, with our without cause or liability, and with or without advance notice. Your employment at-will status can only be modified in a written agreement signed by you and by an officer of Omnicell. In addition, Omnicell may change your position, duties, compensation, benefits and work location from time to time at its discretion.
As an Omnicell employee, you will be eligible for benefits under the Omnicell, Inc. Amended and Restated Severance Benefit Plan (the “Severance Plan”, a copy of which is enclosed). In addition, in the event that your employment is terminated without Cause (as defined in the Severance Plan) and as a result of the transactions contemplated in the Merger Agreement and within six (6) months after the Closing, provided that you execute and allow to become fully effective a general release and waiver of all claims in the form attached hereto as Exhibit B, you will receive the following:
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1.
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A lump sum amount equal to your annual base salary, in addition to any Unpaid Bonus Payment and any Unpaid Current Period Bonus Payment (each as defined in the MTS Employment Agreement), all subject to payroll withholding and deduction, and payable on the sixtieth (60
th
) day following the date of employment termination;
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2.
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For up to twelve (12) months beginning on the termination date (the “
COBRA Premiums Period
”), the Company will pay an amount toward your COBRA premiums, equivalent to the Company’s share of the health care coverage premiums paid by the Company on your behalf while you were a participant in the group health insurance coverage in effect as of the termination date (the “
COBRA Premiums Amount
”), provided you timely elect continued coverage under COBRA. You will remain responsible for an amount equal to your share of health care coverage premiums, and the COBRA administrative fee. If Omnicell determines, in its sole discretion, that it cannot pay the COBRA Premiums Amount without a substantial risk of violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company instead shall pay to you, on the first day of each month, a cash payment equal to the applicable COBRA Premiums Amount for that month, subject to applicable tax withholdings (such amount, the “
Special Cash Payment
”), during the COBRA Premiums Period. You may, but are not obligated to, use such Special Cash Payment toward the cost of COBRA premiums. If, during the COBRA Premiums Period, you become covered by group health insurance coverage through another employer or otherwise you cease to be eligible for COBRA, you must immediately notify Omnicell in writing of such event.
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Payment of any severance under the above provision is subject to set-off against, and reduction of any benefits for which you may be eligible under the Severance Plan.
Your new terms of employment will take effect immediately
upon the Closing.
For calendar year 2012 you will remain eligible to participate in, and you will remain enrolled in your current elected benefit plans, and transition to Omnicell plans thereafter. Omnicell may, however, change benefits from time to time at its discretion. Omnicell also maintains competitive medical, dental and vision plans as well as term life, long and short term disability insurance policies, and 401(k) plan. In addition, you will be given service credit for your service with MTS from your original date of hire by MTS, for purposes of all Omnicell compensation programs, the vacation policy, severance plans, and medical, dental and vision plans.
As a condition of employment and required by law, you must show proof of your identity and authorization to work in the United States. To complete the federally-required verification form (I-9), we ask that you submit copies of this documentation with your new employment materials during your first week of employment after the Closing. You will be provided with a list of permissible documents with the Form I-9.
As an employee of Omnicell or a subsidiary of Omnicell, you will be expected to abide by Company policies and procedures, the Company’s Policy Against Trading on the Basis of Inside Information and the Code of Ethics, and acknowledge in writing that you have read and understand the Company’s Employee Handbook. Initially, you will also be expected to abide by the MTS employee handbook. As a condition of employment, you must read, sign and
comply with the attached Employee Proprietary Information and Inventions Agreement which prohibits unauthorized use or disclosure of Company proprietary information. This offer is contingent upon a background check clearance. In addition as part of your duties for Omnicell, you may be assigned to work onsite with an Omnicell customer or otherwise to provide services to or interact with an Omnicell customer. Some of these customers have additional requirements that they impose upon individuals who work onsite at their facility or have access to their patient health information, including, but not limited to, the requirement that you submit to drug-testing, testing for various infectious diseases and/or background/screening checks. If you are assigned to work with such a customer, you will be given notice of the customer’s additional requirements and will be required to fulfill these requirements as a condition of your employment with Omnicell. You agree to assist as needed and to complete any documentation at the Company’s request to meet these conditions.
This letter, together with your Employee Proprietary Information and Inventions Agreement, and your Noncompetition Agreement with Omnicell dated on or about May 21, 2012 forms the complete and exclusive statement of your employment agreement with Omnicell. It supersedes any other agreements or promises made to you by anyone, whether oral or written, including that certain Employment Agreement between you and MTS Medication Technologies, Inc. dated January 30, 2011 (“MTS Employment Agreement”). Changes in your employment terms, other than those changes expressly reserved to the Company’s discretion in this letter, require a written modification signed by an officer of Omnicell.
If you have any questions, please give Wendi Ellis a call at (615) 564-7183. Please note the above offer is good until May 30, 2012.
I am pleased to confirm your offer to join the Omnicell team. We are excited about the prospect of welcoming MTS employees to the Omnicell family.
Sincerely,
/s/ Randall A. Lipps
Randall A. Lipps
Chairman, President, and Chief Executive Officer
To indicate your acceptance of the company’s offer, please sign and date this letter in the space provided below (as well as the release that is attached to this letter) and return it to Human Resources via confidential fax at
(650) 251-6277
. A duplicate is enclosed for your records. This letter, along with the Employee Proprietary Information and Inventions Agreement, Policy Against Trading on the Basis of Inside Information and the Code of Ethics between you and the Omnicell, set forth the terms of your employment with Omnicell or a subsidiary of Omnicell and supersede any prior representations or agreements, whether written or oral. This letter may not be modified or amended except by a written agreement, signed by Omnicell and by you.
_
/s/ William Shields
_________________________ __
5/27/12
_______________
Signature Date
EXHIBIT A
GENERAL RELEASE
This General Release (“Release”) is entered into between the individual named in the “Employee” section of the signature block below (“Employee”), and Omnicell, Inc. (“Omnicell”) (collectively, “the Parties”).
WHEREAS, although Omnicell is under no obligation to do so, in connection with the anticipated acquisition by Omnicell of Employee’s current employer, MTS Medication Technologies, Inc. (“MTS”), Omnicell is prepared to provide to Employee an offer of employment with Omnicell or MTS, effective as of the actual closing of the acquisition of MTS. In exchange for the good and valuable consideration set forth herein, the Parties agree as follows:
1.
General Release of Claims by Employee
. To the maximum extent permitted by law, Employee agrees for himself/herself and his/her heirs, beneficiaries, devisees, executors, administrators, attorneys, personal representatives, successors and assigns, hereby forever to release, and discharge MTS, its past, present, or future parents, subsidiaries, and/or other affiliates; all of the past and present directors, officers, shareholders, employees 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 MTS from or for any and all claims, debts, demands, accounts, judgments, rights, causes of action, claims for equitable relief, damages, costs, obligations, 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 Release, including without limitation any and all claims Employee might have by virtue of his status, if any, as a shareholder of MTS or any affiliated entity of MTS, any and all claims arising out of Employee’s employment with MTS or the termination thereof, any claims arising from the MTS Employment Agreement, the MTS Medication Technologies, Inc. Management Bonus Plan, 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 notwithstanding the foregoing or anything else contained in this Release, this Release shall not extend to: (i) any vested, unpaid rights under any pension, retirement or similar plan or any other rights under such plans which are inalienable under the terms of such plans; or (ii) Employee’s rights, if any, to indemnification, and/or defense under any MTS or Omnicell certificate of incorporation, bylaw and/or policy or procedure, or under any insurance contract; or (iii) Employee’s rights, where applicable, to file and/or participate in any administrative proceeding of any federal, state or local government agency; however, Employee shall not be entitled to recover any monetary relief or other individual remedy in connection with proceeding or any ensuing litigation; or (iv) any rights arising under the offer letter agreement between Employee and Omnicell dated May 24, 2012.
2.
Release of Age Discrimination Claims; Periods for Review and Reconsideration
.
a. Employee understands and agrees that this Release includes a release of claims arising under the Age Discrimination in Employment Act (ADEA), and that this Release does not waive rights or claims that may arise after the date the waiver is executed. Employee understands and warrants that Employee has a period of twenty-one (21) days to review and consider this Release. Employee is hereby advised to consult with an attorney prior to executing the Release. By Employee’s signature below, Employee warrants that Employee has had the opportunity to do so and to be fully and fairly advised by that legal counsel as to the terms of the Release. Employee further understands that Employee may use as much or all of this 21-day period as Employee wishes before signing.
b. Employee further understands that Employee has seven (7) days after signing this Release to revoke the Release by notice in writing to: Rob Seim, CFO Omnicell, Inc., 1201 Charleston Road, Mountain View, CA 94043 (“Omnicell Contact”). This Release shall be binding, effective, and enforceable upon Employee upon the expiration of this seven-day revocation period without the Omnicell Contact having received such revocation, but not before such time.
3.
Waiver of California Civil Code § 1542
. Employee hereby agrees to waive Section 1542 of the California Civil Code (or any similar provision of any other state), which states:
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.
4.
No Admission
. Employee understands and agrees that neither Omnicell nor MTS has admitted any liability or obligation to provide the consideration contemplated herein.
5.
Severability and Consequences of Invalid Terms
. Should any portion or provision of this Release be found void or unenforceable for any reason by a court of competent jurisdiction, the Parties intend that all portions and provisions of this Release be enforced to the maximum extent they would have been enforceable in the original Release. 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 Release, which shall otherwise remain in full force and effect.
6.
Counterparts
. This Release 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.
7.
Governing Law
. This Release 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.
8.
Understanding and Authority
. There are no representations, promises or agreements between Omnicell, MTS and/or Employee other than those expressly set forth herein. The Parties have read this Release in its entirety; fully understand and agree to its terms and provisions; and intend and agree that it be final and binding.
IN WITNESS WHEREOF, and intending to be legally bound, the Parties have executed the foregoing on the dates shown below.
Employee:
William Shields
Omnicell, Inc.
/s/ William Shields 5/27/12
/s/ Robin Seim 5/24/2012
Signature Date Signature Date
CFO
Title
EXHIBIT B
Release and Waiver for Severance upon Termination
as a Result of the Transactions Contemplated
in the Merger Agreement (Change In Control)
[TO BE SIGNED ON OR AFTER EMPLOYMENT TERMINATION DATE]
1.
General Release.
In exchange for the consideration provided to Employee pursuant to the offer letter agreement with Omnicell, Inc. (“Omnicell”) dated May 24, 2012 (“Offer Letter Agreement”), that Employee is not otherwise entitled to receive, Employee hereby generally and completely releases Omnicell, Inc.,
MedPak Holdings, Inc.,
MTS Medication Technologies, Inc., and their respective current and former directors, officers, employees, shareholders, partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers, affiliates, and assigns from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring prior to Employee’s signing this Release. This general release includes, but is not limited to: (1) all claims arising out of or in any way related to Employee’s employment with Omnicell or the termination of that employment; (1) all claims related to Employee’s compensation or benefits from Omnicell, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in Omnicell; (1) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; claims under the MTS Employment Agreement (as defined in the Offer Letter Agreement); (1) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (1) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990, the federal Age Discrimination in Employment Act of 1967 (as amended) (“ADEA”), the federal Family and Medical Leave Act, and the Florida Civil Rights Act of 1992 (as amended).
2.
Exceptions.
Employee is not releasing any claim that cannot be waived under applicable state or federal law. Employee is not releasing any rights that Employee may have to be indemnified (including any right to reimbursement of expenses) arising under applicable law, the certificate of incorporation or by-laws (or similar constituent documents of Omnicell), any indemnification agreement between Employee and Omnicell, or any directors’ and officers’ liability insurance policy of Omnicell. Nothing in this Release shall prevent Employee from filing, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission, the Department of Labor, or the Florida Commission on Human Relations, except that Employee hereby acknowledges and agrees that Employee shall not recover any monetary benefits in connection with any such proceeding with regard to any claim released in this Release. Nothing in this Release shall prevent Employee from challenging the validity of the Release in a legal or administrative proceeding.
3.
ADEA Waiver
. Employee acknowledges that Employee is knowingly and voluntarily waiving and releasing any rights Employee may have under the ADEA (“ADEA Waiver”). Employee also acknowledges that the consideration given for the ADEA Waiver is in addition to anything of value to which Employee was already entitled. Employee further acknowledges that Employee has been advised by this writing, as required by the ADEA, that:
(3)
Employee’s ADEA Waiver does not apply to any rights or claims that arise after the date Employee signs this Release;
(3)
Employee should consult with an attorney prior to signing this Release;
(3)
Employee has twenty-one (21) days to consider this Release (although Employee may choose to voluntarily sign it sooner);
(3)
Employee has seven (7) days following the date Employee signs
this Release to revoke the ADEA Waiver; and
(3)
the ADEA Waiver will not be effective until the date upon which the revocation period has expired unexercised, which will be the eighth day after Employee signs this Release.
4.
Section 1542 Waiver.
In giving the release herein, which includes claims which may be unknown to Employee at present, Employee acknowledges that Employee has read and understands 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.”
Employee hereby expressly waives and relinquishes all rights and benefits under that section and any law of any other jurisdiction of similar effect with respect to Employee’s release of any unknown or unsuspected claims herein. Employee has read this Release, fully understands it and freely and knowingly agrees to its terms.
I UNDERSTAND THAT THIS RELEASE INCLUDES A GENERAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS, EVEN THOSE UNKNOWN CLAIMS, THAT, IF KNOWN BY ME, WOULD AFFECT MY DECISION TO ACCEPT THE AGREEMENT AND GIVE THIS RELEASE.
Given this __ day of
____
, 2012
William Shields
Exhibit 10.4
OMNICELL, INC.
2009 EQUITY INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
ADOPTED BY THE COMPENSATION COMMITTEE
OF THE BOARD OF DIRECTORS: JUNE 5, 2012
Pursuant to the Restricted Stock Unit Grant Notice (“
Grant Notice
”) and this Restricted Stock Unit Award Agreement, including any country-specific appendix thereto (the “
Agreement
”) and in consideration of your services, Omnicell, Inc. (the “
Company
”) has awarded you a Restricted Stock Unit Award (the “
Award
”) under its 2009 Equity Incentive Plan (the “
Plan
”). Your Award is granted to you effective as of the Date of Grant set forth in the Grant Notice for this Award. This Agreement shall be deemed to be agreed to by the Company and you upon the acceptance by you of the Restricted Stock Unit Award Grant Notice to which it is attached. Defined terms not explicitly defined in this Agreement shall have the same meanings given to them in the Plan. In the event of any conflict between the terms in this Agreement and the Plan, the terms of the Plan shall control. The details of your Award, in addition to those set forth in the Grant Notice and the Plan, are as follows.
1.
GRANT OF THE AWARD.
This Award represents the right to be issued on a future date the number of shares of the Company’s Common Stock as indicated in the Grant Notice. As of the Date of Grant, the Company will credit to a bookkeeping account maintained by the Company for your benefit (the “
Account
”) the number of shares of Common Stock subject to the Award. This Award was granted in consideration of your services to the Company or an Affiliate. Except as otherwise provided herein, you will not be required to make any payment to the Company (other than services to the Company or an Affiliate) with respect to your receipt of the Award, the vesting of the shares or the delivery of the underlying Common Stock.
2.
VESTING.
Subject to the limitations contained herein, your Award will vest, if at all, in accordance with the vesting schedule provided in the Grant Notice, provided that vesting will cease upon the termination of your Continuous Service (regardless of the reason for such termination and whether or not later found to be invalid or in breach of employment laws in the jurisdiction where you are employed or the terms of your employment agreement, if any), and unless otherwise expressly provided in this Agreement or determined by the Company, your right to vest in the RSU under the Plan, if any, will terminate as of such date and will not be extended by any notice period (e.g., your period of service would not include any contractual notice period or any period of “garden leave” or similar period mandated under employment laws in the jurisdiction where you are employed or the terms of your employment agreement, if any); the Committee shall have the exclusive discretion to determine when you are no longer providing Continuous Services for purposes of your RSU grant (including whether you may still be considered to be providing services while on a leave of absence). Upon such termination of your Continuous Service, the shares credited to the Account that were not vested on the date of such termination will be forfeited at no cost to the Company and you will have no further right, title or interest in or to such underlying shares of Common Stock.
3.
NUMBER OF SHARES.
(a)
The number of shares subject to your Award may be adjusted from time to time for Capitalization Adjustments, as provided in the Plan.
(b)
Any shares, cash or other property that becomes subject to the Award pursuant to this Section 3, if any, shall be subject, in a manner determined by the Board, to the same forfeiture restrictions, restrictions on transferability, and time and manner of delivery as applicable to the other shares covered by your Award.
(c)
Notwithstanding the provisions of this Section 3, no fractional shares or rights for fractional
shares of Common Stock shall be created pursuant to this Section 3. The Board shall, in its discretion, determine an equivalent benefit for any fractional shares or fractional shares that might be created by the adjustments referred to in this Section 3.
4.
SECURITIES LAW COMPLIANCE.
You may not be issued any shares under your Award unless either (i) the shares are registered under the Securities Act; or (ii) the Company has determined that such issuance would be exempt from the registration requirements of the Securities Act. Your Award also must comply with other applicable securities and exchange control laws and regulations relevant to the Company and the offer of the RSUs and the underlying shares of Common Stock, and you will not receive such shares if the Company determines that such receipt would not be in material compliance with such laws and regulations.
5.
LIMITATIONS ON TRANSFER.
Your Award is not transferable, except by will or by the laws of descent and distribution. In addition to any other limitation on transfer created by applicable securities laws, you agree not to assign, hypothecate, donate, encumber or otherwise dispose of any interest in any of the shares of Common Stock subject to the Award until the shares are issued to you in accordance with Section 6 of this Agreement. After the shares have been issued to you, you are free to assign, hypothecate, donate, encumber or otherwise dispose of any interest in such shares provided that any such actions are in compliance with the provisions herein and applicable securities laws. Notwithstanding the foregoing, by delivering written notice to the Company, in a form satisfactory to the Company, you may designate a third party who, in the event of your death, shall thereafter be entitled to receive any distribution of Common Stock to which you were entitled at the time of your death pursuant to this Agreement.
6.
DATE OF ISSUANCE.
The Company will deliver to you a number of shares of the Company’s Common Stock equal to the number of vested shares subject to your Award, including any additional shares received pursuant to Section 3 above that relate to those vested shares on the applicable vesting date(s). However, if a scheduled delivery date falls on a date that is not a U.S. business day, such delivery date shall instead fall on the next following U.S. business day. The form of such delivery (e.g., a stock certificate or electronic entry evidencing such shares) shall be determined by the Company.
7.
DIVIDENDS.
You shall receive no benefit or adjustment to your Award with respect to any cash dividend, stock dividend or other distribution that does not result from a Capitalization Adjustment as provided in Section 9(a) of the Plan; provided, however, that this sentence shall not apply with respect to any shares of Common Stock that are delivered to you in connection with your Award after such shares have been delivered to you.
8.
RESTRICTIVE LEGENDS.
The shares issued under your Award shall be endorsed with appropriate legends determined by the Company.
9.
AWARD NOT A SERVICE CONTRACT.
(a)
Your Continuous Service with the Company or an Affiliate is not for any specified term and may be terminated by you or by the Company or an Affiliate at any time, for any reason. Nothing in this Agreement (including, but not limited to, the vesting of your Award pursuant to the schedule set forth in Section 2 herein or the issuance of the shares subject to your Award), the Plan or any covenant of good faith and fair dealing that may be found implicit in this Agreement or the Plan shall: (i) confer upon you any right to continue in the employ of, or affiliation with, the Company or an Affiliate; (ii) constitute any promise or commitment by the Company or an Affiliate regarding the fact or nature of future positions, future work assignments, future compensation or any other term or condition of employment or affiliation; (iii) confer any right or benefit under this Agreement or the Plan unless such right or benefit has specifically accrued under the terms of this Agreement or Plan; or (iv) deprive the Company or an Affiliate of the right to terminate you and without regard to any future vesting opportunity that you may have.
(b)
By accepting this Award, you acknowledge and agree that the right to continue vesting in the Award pursuant to the schedule set forth in Section 2 is earned only by continuing to provide Continuous Service (not through the act of being hired, being granted this Award or any other award
or benefit) and that the Company has the right to reorganize, sell, spin-out or otherwise restructure one or more of its businesses or Affiliates at any time or from time to time, as it deems appropriate (a “reorganization”). You further acknowledge and agree that such a reorganization could result in the termination of your Continuous Service, or the termination of Affiliate status of your employer and the loss of benefits available to you under this Agreement, including but not limited to, the termination of the right to continue vesting in the Award. You further acknowledge and agree that this Agreement, the Plan, the transactions contemplated hereunder and the vesting schedule set forth herein or any covenant of good faith and fair dealing that may be found implicit in any of them do not constitute an express or implied promise of continued engagement for the term of this Agreement, for any period, or at all, and shall not interfere in any way with your right or the Company’s right to terminate your Continuous Service at any time.
(c)
No claim or entitlement to compensation or damages shall arise from forfeiture of the RSU resulting from the termination of your Continuous Service (for any reason whatsoever, whether or not later found to be invalid or in breach of employment laws in the jurisdiction where you are employed or the terms of your employment agreement, if any), and in consideration of the grant of the RSU to which you are otherwise not entitled, you irrevocably agree never to institute any claim against the Company, any of its Subsidiaries or Affiliates or your Employer (the
“Employer”
), waive your ability, if any, to bring any such claim, and release the Company, its subsidiaries and affiliates and the Employer from any such claim; if, notwithstanding the foregoing, any such claim is allowed by a court of competent jurisdiction, then, by participating in the Plan, you shall be deemed irrevocably to have agreed not to pursue such claim and agree to execute any and all documents necessary to request dismissal or withdrawal of such claim.
10.
RESPONSIBILITY FOR TAXES.
(a)
You acknowledge that, regardless of any action taken by the Company or, if different, the Employer, the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to your participation in the Plan and legally applicable to you (
“Tax-Related Items”
), is and remains your responsibility and may exceed the amount actually withheld by the Company or the Employer. You further acknowledge that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the RSU, including, but not limited to, the grant, vesting or settlement of the RSU, the subsequent sale of shares of Common Stock acquired pursuant to such settlement and the receipt of any dividends; and (ii) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the RSU to reduce or eliminate your liability for Tax-Related Items or achieve any particular tax result. Further, if you are subject to Tax-Related Items in more than one jurisdiction between the date of grant and the date of any relevant taxable or tax withholding event, as applicable, you acknowledge that the Company
and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
On or before the time you receive a distribution of the shares in respect of your Award, or at any time thereafter as requested by the Company and/or the Employer, you hereby authorize any required withholding from the Common Stock issuable to you and/or otherwise agree to make adequate provision in cash for any sums required to satisfy the Tax-Related Items. Except as provided below, the Company shall withhold from the shares of Common Stock issuable to you to satisfy the Tax-Related Items. By your acceptance of the RSU, you agree that: (i) in the event that such withholding from the shares of Common Stock is problematic under applicable tax or securities law or has materially adverse accounting consequences, the Company shall instead withhold from any other compensation paid to you by the Company or the Employer in partial or full satisfaction of the Tax-Related Items, and (ii) the Company may determine in its sole discretion to instead withhold from any other compensation paid to you by the Company or the Employer in partial or full satisfaction of the Tax-Related Items, provided that if you are subject to reporting obligations under Section 16
of the Exchange Act, exercise of such discretion is subject to the prior approval and direction of the Committee. In no way limiting the foregoing, the Company is hereby authorized to withhold shares of Common Stock that are otherwise to be issued and delivered to you under this Award in partial or full satisfaction of the Tax-Related Items; provided, however, that no shares of Common Stock shall be withheld with a value exceeding the minimum amount of tax required to be withheld by law. If the obligation for Tax-Related Items is satisfied by withholding in shares of Common Stock, for tax purposes, you are deemed to have been issued the full number of shares of Common Stock subject to the vested RSU, notwithstanding that a number of the shares of Common Stock are held back solely for the purpose of paying the Tax-Related Items.
(b)
You agree to pay the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of your participation in the Plan that cannot be satisfied by the means previously described. Unless the obligation for Tax-Related Items is satisfied, the Company shall have no obligation to deliver to you any Common Stock.
(c)
In the event the obligation of the Company and/or any Affiliate to withhold arises prior to the delivery to you of Common Stock or it is determined after the delivery of Common Stock to you that the amount of the withholding obligation was greater than the amount withheld by the Company and/or any Affiliate, you agree to indemnify and hold the Company and its Affiliates harmless from any failure by the Company and/or any Affiliate to withhold the proper amount.
11.
UNSECURED OBLIGATION.
Your Award is unfunded, and as a holder of a vested Award, you shall be considered an unsecured creditor of the Company with respect to the Company’s obligation, if any, to issue shares pursuant to this Agreement. You shall not have voting or any other rights as a stockholder of the Company with respect to the shares to be issued pursuant to this Agreement until such shares are issued to you pursuant to Section 6 of this Agreement. Upon such issuance, you will obtain full voting and other rights as a stockholder of the Company. Nothing contained in this Agreement, and no action taken pursuant to its provisions, shall create or be construed to create a trust of any kind or a fiduciary relationship between you and the Company or any other person.
12.
NOTICES.
Any notices provided for in your Award or the Plan shall be given in writing and shall be deemed effectively given upon receipt or, in the case of notices delivered by the Company to you, five (5) days after deposit in the United States mail, postage prepaid, addressed to you at the last address provided to the Company. Notwithstanding the foregoing, the Company may, in its sole discretion, decide to deliver any documents related to participation in the Plan and this Award by electronic means or to request your consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.
13.
NATURE OF GRANT.
In accepting the grant, you acknowledge, understand and agree that:
(a)
the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;
(b)
the grant of the RSU is voluntary and occasional and does not create any contractual or other right to receive future grants of RSUs, or benefits in lieu of RSUs, even if RSUs have been granted in the past;
(c)
all decisions with respect to future RSU or other grants, if any, will be at the sole discretion of the Company;
(d)
you are voluntarily participating in the Plan;
(e)
the RSU and the shares of Common Stock subject to the RSU are not intended to replace
any pension rights or compensation;
(f)
the RSU and the shares of Common Stock subject to the RSU, and the income and value of same, are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments;
(g)
the future value of the underlying shares of Common Stock is unknown, indeterminable and cannot be predicted with certainty; and
(h)
the following provisions apply only if you are providing services outside the United States:
(i)
the RSU and the shares of Common Stock subject to the RSU are not part of normal or expected compensation or salary for any purpose; and
(ii)
you acknowledge and agree that neither the Company, the Employer nor any Subsidiary or Affiliate of the Company
shall be liable for any foreign exchange rate fluctuation between your local currency and the United States Dollar that may affect the value of the RSU or of any amounts due to you pursuant to the settlement of the RSU or the subsequent sale of any shares of Common Stock acquired upon settlement.
14.
NO ADVICE REGARDING GRANT.
The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding your participation in the Plan, or your acquisition or sale of the underlying shares of Common Stock. You are hereby advised to consult with your own personal tax, legal and financial advisors regarding your participation in the Plan before taking any action related to the Plan.
15.
DATA PRIVACY
.
You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this Agreement and any other RSU grant materials (“Data”) by and among, as applicable, the Employer, the Company and its Subsidiaries and Affiliates for the exclusive purpose of implementing, administering and managing your participation in the Plan.
You understand that the Company and the Employer may hold certain personal information about you, including, but not limited to, your name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all RSUs or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in your favor, for the exclusive purpose of implementing, administering and managing the Plan.
You understand that Data will be transferred to such stock plan service provider as may be selected by the Company in the future, which is assisting the Company with the implementation, administration and management of the Plan. You understand that the recipients of the Data may be located in the United States or elsewhere, and that the recipients’ country (e.g., the United States) may have different data privacy laws and protections than your country. You understand that if you reside outside the United States, you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative. You authorize the Company and any other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing your participation in the Plan. You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the Plan. You understand that if you reside outside the United States, you may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing your local human resources representative. Further, you understand that you are providing the consents herein on a purely voluntary basis. If you do not consent, or if you later seek to revoke your consent, your employment status or service and career with the Employer will not be adversely affected; the only adverse consequence of refusing or withdrawing your consent is that the Company would not be able to grant you RSUs or other equity awards or
administer or maintain such awards. Therefore, you understand that refusing or withdrawing your consent may affect your ability to participate in the Plan. For more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you may contact your local human resources representative.
16.
MISCELLANEOUS.
(a)
The rights and obligations of the Company under your Award shall be transferable to any one or more persons or entities, and all covenants and agreements hereunder shall inure to the benefit of, and be enforceable by the Company’s successors and assigns. Your rights and obligations under your Award may only be assigned with the prior written consent of the Company.
(b)
You agree upon request to execute any further documents or instruments necessary or desirable in the sole determination of the Company to carry out the purposes or intent of your Award.
(c)
You acknowledge and agree that you have reviewed your Award in its entirety, have had an opportunity to obtain the advice of counsel prior to executing and accepting your Award, and fully understand all provisions of your Award.
(d)
This Agreement shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required.
(e)
All obligations of the Company under the Plan and this Agreement shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company.
17.
GOVERNING PLAN DOCUMENT.
Your Award is subject to all the provisions of the Plan, the provisions of which are hereby made a part of your Award, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. Except as expressly provided herein, in the event of any conflict between the provisions of your Award and those of the Plan, the provisions of the Plan shall control.
18.
LANGUAGE.
If you have received this Agreement or any other document related to the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
19.
SEVERABILITY.
If all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.
20.
CHOICE OF LAW; VENUE.
The interpretation, performance and enforcement of this Agreement will be governed by the law of the state of California without regard to such state’s conflicts of laws rules. For purposes of any action, lawsuit or other proceedings brought to enforce this Agreement, relating to it, or arising from it, the parties hereby submit to and consent to the sole and exclusive jurisdiction of the courts of Santa Clara County, California, or the federal courts for the United States for the Northern District of California, and no other courts, where this grant is made and/or to be performed.
21.
AMENDMENT.
This Agreement may not be modified, amended or terminated except by an instrument in writing, signed or otherwise accepted by you and by a duly authorized representative of the Company. Notwithstanding the foregoing, this Agreement may be amended solely by the Board by a writing which specifically states that it is amending this Agreement, so long as a copy of such amendment is delivered to you, and provided that no such amendment adversely affecting your rights hereunder may be made without your written consent. Without
limiting the foregoing, the Board reserves the right, by written notice to you, to impose new provisions or to change the existing provisions of this Agreement in any way it may deem necessary or advisable for legal or administrative reasons to carry out the purpose of the grant.
22.
APPENDIX.
Notwithstanding any provisions in this Agreement, the RSU grant shall be subject to any special terms and conditions set forth in any Appendix to this Agreement for your country. Moreover, if you relocate to one of the countries included in the Appendix, the special terms and conditions for such country will apply to you, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons. The Appendix constitutes part of this Agreement.
23.
WAIVER.
You acknowledge that a waiver by the Company of breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by you or any other Participant.
24.
ELECTRONIC DELIVERY AND ACCEPTANCE.
The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
* * * * *
APPENDIX
OMNICELL, INC.
2009 EQUITY INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
Terms and Conditions
This Appendix includes additional terms and conditions that govern the RSUs granted to you under the Omnicell, Inc. (the
“Company”
) 2009 Equity Incentive Plan (the
“Plan”
) if you reside in one of the countries listed below. Unless otherwise defined herein, the terms defined in the Plan and/or the Restricted Stock Unit Award Agreement (the “
Agreement
”), as applicable, shall have the same defined meanings in this Appendix.
Notifications
This Appendix also includes information regarding securities, exchange control and certain other issues of which you should be aware with respect to participation in the Plan. The information is based on the securities, exchange control and other laws in effect in the respective countries as of May 2012. Such laws are often complex and change frequently. As a result, the Company strongly recommends that you not rely on the information in this Appendix as the only source of information relating to the consequences of participation in the Plan because the information may be out of date at the time the RSUs vest or shares acquired under the Plan are sold.
In addition, the information contained herein is general in nature and may not apply to your particular situation and the Company is not in a position to assure you of a particular result. Accordingly, you are advised to seek appropriate professional advice as to how the relevant laws in your country may apply to your situation.
Finally, you understand that if you are a citizen or resident of a country other than the one in which you are currently working, transfer employment after the date of grant, or are considered a resident of another country for local law purposes, the information contained herein may not apply to you, and the Company shall, in its discretion, determine to what extent the terms and conditions contained herein shall apply.
Australia
Notifications
Securities Law Information.
If you acquire shares upon settlement of the RSUs and you offer the Shares for sale to a person or entity resident in Australia, the offer may be subject to disclosure requirements under Australian law. You should obtain legal advice on disclosure obligations prior to making any such offer.
Canada
Terms and Conditions
Settlement of RSUs.
Notwithstanding any discretion in the Plan or anything to the contrary in the Agreement, the RSUs do not provide any right for you, as a resident of Canada, to receive a cash payment and the RSUs shall be paid in shares of Common Stock only.
The following provisions apply if you are a resident of Quebec:
Language Consent.
The parties acknowledge that it is their express wish that the Agreement, as well as all documents, notices, and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English.
Les parties reconnaissent avoir exigé la rédaction en anglais de cette convention (
“
Agreement
”
), ainsi que de tous documents exécutés, avis donnés et procédures judiciaries intentées, directement ou indirectement, relativement à ou suite à la présente convention.
Data Privacy Notice and Consent.
This provision supplements Section 15 of the Agreement:
You hereby authorize the Company and the Company’s representative to discuss with and obtain all relevant information from all personnel (professional or not) involved in the administration and operation of the Plan. You further authorize the Company and your Employer to disclose and discuss your participation in the Plan with their advisors. You also authorize the Company and your Employer to record such information and keep it in your employee file.
China
The following provision applies to Participants who are nationals of the People’s Republic of China (“PRC”) residing in the PRC:
Notifications
Exchange Control Requirements.
Pursuant to exchange control laws in the PRC, you understand that you may be required, immediately upon vesting of the RSUs, to sell all shares issued and immediately repatriate to the PRC any cash proceeds you receive upon sale of the shares. To facilitate this immediate sale, you agree to execute any documents, authorization or forms that the Company or a third-party broker acting for the Company may request. If you do not execute such documents, you understand that the Company may refuse to issue you any shares at vesting.
If immediate sale of the shares is required, you understand that the repatriation of the cash from the sale of shares may need to be effected through a special exchange control account established by the Company, an Affiliate, or the Employer and you hereby consent and agree that the cash may be transferred to such account on your behalf prior to being delivered to you. You understand that there may be a delay between the date of sale and the date the cash proceeds are distributed to you, and you further understand and agree that the Company will not be responsible for any currency fluctuation that may occur between the date of sale and the date the cash proceeds are distributed to you.
You further agree to comply with any other requirements that may be imposed by the Company in the future to facilitate compliance with exchange control requirements in the PRC.
Germany
Notifications
Exchange Control Information.
Cross-border payments in excess of €12,500 must be reported monthly to the German Federal Bank. You are responsible for obtaining the appropriate form from a German federal bank and complying with applicable reporting requirements.
Saudi Arabia
Notifications
Securities Law Information
. The Agreement and related RSU documents may not be distributed in the Kingdom of Saudi Arabia except to such persons as are permitted under the Offers of Securities Regulations issued by the Capital Market Authority.
The Capital Market Authority does not make any representation as to the accuracy or completeness of the Agreement, and expressly disclaims any liability whatsoever for any loss arising from, or incurred in reliance upon, any part of the Agreement. You are hereby advised to conduct your own due diligence on the accuracy of the information relating to
the shares. If you do not understand the content of the Agreement, you should consult an authorized financial adviser.
United Arab Emirates
Notifications
Securities Law Information.
The Plan is only being offered to qualified employees of the Company and its Affiliates and is in the nature of an “exempt personal offer” of equity incentives to employees of the Company’s Affiliates in the United Arab Emirates. The Plan, the Agreement and any other grant documents you may receive from the Company are intended for distribution only to such employees and must not be delivered to, or relied on by, any other person. Prospective purchasers of the securities offered (
i.e
., shares) should conduct their own due diligence on the securities. If you do not understand the contents of the Plan or the Agreement, you should consult an authorized financial adviser. The Emirates Securities and Commodities Authority and the Dubai Financial Services Authority have no responsibility for reviewing or verifying any documents in connection with the Plan. The Ministry of Economy, the Dubai Department of Economic Development, Emirates Securities and Commodities Authority, Central Bank and the Dubai Financial Services Authority, as applicable depending on your location in the United Arab Emirates, have not approved the Plan or the Agreement or taken steps to verify the information set out therein, and have no responsibility for such documents.
United Kingdom
Terms and Conditions
Responsibility for Taxes.
This provision supplements Section 10 of the Agreement:
You agree that, if you do not pay or the Employer or the Company does not withhold from you the full amount of income tax that you owe at vesting, or the release or assignment of the RSUs for consideration, or the receipt of any other benefit in connection with the RSUs (the “
Due Date
”) within 90 days after the Due Date, or such other period specified in Section 222(1)(c) of the U.K. Income Tax (Earnings and Pensions) Act 2003, then the amount that should have been withheld shall constitute a loan owed by you to the Employer, effective 90 days after the Due Date. You agree that the loan will bear interest at the Her Majesty’s Revenue and Customs (“
HMRC
”) official rate and will be immediately due and repayable by you, and the Company and/or the Employer may recover it at any time thereafter by withholding the funds from salary, bonus or any other funds due to you by the Company or Employer, by withholding in shares issued at settlement or from the cash proceeds from the sale of shares or by demanding cash or a cheque from you. You also authorize the Company to delay the issuance of any shares unless and until the loan is repaid in full.
Notwithstanding the foregoing, if you are an executive officer or director (as within the meaning of Section 13(k) of the Exchange Act), the terms of the immediately foregoing provision will not apply. In the event that you are an executive officer or director and income tax is not collected from or paid by you within 90 days of the Due Date, the amount of any uncollected income tax may constitute a benefit to you on which additional income tax and National Insurance Contributions (“
NICs
”) (including Employer NICs, as defined below) may be payable. You acknowledge that the Company or the Employer may recover any such additional income tax and NICs (including Employer NICs, as defined below) at any time thereafter by any of the means referred to in Section 10 of the Agreement, although you acknowledge that you ultimately will be responsible for reporting any income tax or NICs (including Employer NICs, as defined below) due on this additional benefit directly to the HMRC under the self-assessment regime.
National Insurance Contributions Acknowledgment.
As a condition of participation in the Plan and the vesting of the RSUs, you agree to accept any liability for secondary Class 1 NICs which may be payable by the Company and/or the Employer in connection with the RSUs and any event giving rise to Tax-Related Items (the “
Employer NICs
”). Without limitation to the foregoing, you agree to execute a joint election with the Company, the form of such joint election being formally approved by HMRC (the “
Joint Election
”), and any other required consent or election. You further agree to execute such other joint elections as may be required between you and any successor to the Company and/or the Employer. You further agree that the Company and/or the Employer may collect the Employer NICs from you by any of the means set forth in Section 10 of the Agreement.
If you do not enter into a Joint Election prior to the vesting of the RSUs or if approval of the Joint Election has been withdrawn by HMRC, the RSUs shall become null and void without any liability to the Company and/or the Employer.
