EXHIBIT 10.15
SEPARATION AGREEMENT
AND MUTUAL RELEASE
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This Separation Agreement and Mutual Release ("Separation Agreement")
is made and entered into this 22nd day of October, 1996, by and between
Xxxxxx X. Xxxxxxxxx, M.D. ("Xxxxxxxxx"), a resident of the State of
Minnesota, and MGI PHARMA, INC. ("MGI"), a Minnesota corporation.
WHEREAS, Xxxxxxxxx was employed by MGI from August 9, 1994, through
October 31, 1996;
WHEREAS, Xxxxxxxxx has elected to resign his position with MGI,
effective October 31, 1996;
WHEREAS, it is the desire of Xxxxxxxxx and MGI to set forth the terms
and conditions relating to Shrotriya's separation from employment and to
resolve all potential disputes related directly or indirectly to
Shrotriya's employment with MGI and/or the termination of his employment,
in accordance with this Separation Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Separation Agreement and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged,
IT IS AGREED, by and between the undersigned, as follows:
A. COMPENSATION AND BENEFITS TO XXXXXXXXX
(1) Compensation to Xxxxxxxxx: MGI will pay Xxxxxxxxx the severance
payment described in the "Termination Agreement" dated August 9, 1994 (a
copy of
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which is attached hereto as Exhibit A). As specified in Paragraph 2 (iii) of
the Termination Agreement, MGI will provide Xxxxxxxxx x xxxxxxxxx payment "equal
to twelve (12) times [his] monthly salary . . .." This severance compensation
will be provided to Xxxxxxxxx in a single lump-sum payment, less all federal and
state tax withholdings, as well as any other appropriate deductions.
(2) Vacation: MGI also will provide Xxxxxxxxx compensation for XXX days of
accrued but unused vacation, less all federal and state tax withholdings, as
well as any other appropriate deductions.
(3) Benefits: (a) As of November 1, 1996, Xxxxxxxxx will have the
opportunity to continue certain benefits, at his own expense, by making the
requisite COBRA payments. These COBRA payments will provide Xxxxxxxxx the
following benefits: (1) life insurance coverage; (2) medical and dental
coverage; and (3) accidental death and dismemberment coverage. Shrotriya's COBRA
benefits will expire in 18 months, or when Xxxxxxxxx elects to discontinue these
benefits, whichever occurs earlier.
(b) With respect to MGI's retirement plans -- its 401-K plan and its
Money Purchase Retirement Plan -- Xxxxxxxxx is fully vested in those plans and
will receive contributions corresponding to his employment with MGI through
October 31, 1996.
(c) With respect to MGI's Stock Option program, Xxxxxxxxx will be
eligible to exercise his options in accordance with the terms of the stock
option grants in relation to a resignation date of October 31, 1996.
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(d) As of November 1, 1996, Xxxxxxxxx will not be eligible for the
following benefits: (1) short-term disability coverage; and (2) long-term
disability coverage.
(4) Timing of Severance Compensation: MGI will make the severance and
vacation payments in conjunction with the normal payroll disbursements at the
end of October, 1996.
(5) No Legal Entitlement to Compensation and Benefits: Xxxxxxxxx agrees
that MGI does not have any legal obligation to provide him the compensation
described in Paragraph (1) above. MGI has agreed to provide Xxxxxxxxx the
compensation described in Paragraph (1) above to reach an expeditious and
amicable resolution of any potential employment-related disputes, to facilitate
Shrotriya's transition to alternative employment, and to minimize the potential
attorneys' fees and management time that would be expended in the event that any
potential dispute between the parties was not resolved amicably.
(6) Inclusive of All Income and Other Benefits: Xxxxxxxxx understands and
agrees that the compensation and benefits described in Paragraphs (1)-(3) above
are inclusive of any and all income and other benefits for which he may be, is,
or would have been eligible, had his employment with MGI continued.
B. FULL COMPROMISE/GENERAL RELEASE
(7) Full Compromise: Xxxxxxxxx specifically understands and agrees that
the payment and acceptance of the consideration described in Paragraphs (1)-(3)
above is in full, final, and complete compromise, settlement, and satisfaction
of any
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and all claims which Xxxxxxxxx could have asserted in any litigation
against MGI, its subsidiaries, affiliates, and related corporate entities,
and/or the current or former directors, officers, employees, attorneys, and
agents of MGI and/or its subsidiaries, affiliates, and related corporate
entities.
(8) General Release of MGI: Xxxxxxxxx, for and on behalf of himself and
his heirs, administrators, executors, successors and assigns, agrees to, and
hereby does, release, acquit, and forever discharge MGI and its affiliates,
subsidiaries, and related companies, and the current and former directors,
officers, members, agents, attorneys, servants, independent contractors and
employees of MGI and all its related entities (the "Released Parties"), from any
and all claims, whether direct or indirect, fixed or contingent, known or
unknown, which Xxxxxxxxx ever had, has, or may claim to have, for, upon, or by
reason of any matter, act or thing prior to the date of this Separation
Agreement, including but not limited to: any cause of action Xxxxxxxxx could
have asserted in any litigation against any of the Released Parties; any cause
of action or claim relating to Shrotriya's association with or employment by
MGI; any cause of action relating to any statements or actions by MGI or any of
the Released Parties; and/or any cause of action or claim relating to
Shrotriya's decision to resign or MGI's decision to terminate his employment.
This General Release specifically encompasses, but is not limited to, claims
that could be brought under Title VII, 42 U.S.C. (S) 2000(e) et seq., as amended
by the Civil Rights Act of 1991; the Age Discrimination in Employment Act, 29
U.S.C. (S) 621 et seq.; the Americans With Disabilities Act, 42 U.S.C. (S)(S)
12101-12213; the Employee Retirement
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Income Security Act (ERISA), 29 U.S.C. (S) 1001, et seq.; the Fair Labor
Standards Act, 29 U.S.C. (S) 201, et seq.; the National Labor Relations Act, 29
U.S.C. (S) 151, et seq., the Worker Adjustment Retraining and Notification Act,
29 U.S.C. (S) 2101, et seq., and any other federal or state statute, including
any attorneys' fees, liquidated damages, punitive damages, costs or
disbursements that could be awarded in connection with these or any other
statutory claims. This General Release also specifically encompasses any and all
claims grounded in contract or tort theories, including, but not limited to:
Breach of contract; tortious interference with contractual relations; promissory
estoppel; breach of the implied covenant of good faith and fair dealing; breach
of employee handbooks, manuals or other policies; wrongful discharge; wrongful
discharge in violation of public policy; assault; battery; fraud; false
imprisonment; invasion of privacy; intentional or negligent misrepresentation;
defamation, including libel and slander, discharge defamation and self-
defamation; intentional or negligent infliction of emotional distress;
negligence; breach of fiduciary duty; negligent hiring, retention or
supervision; whistleblower claims; and/or any other tort theory based on either
intentional or negligent conduct of any kind, including any attorneys' fees,
liquidated damages, punitive damages, costs or disbursements that could be
awarded in connection with these or any other common law claims.
(9) General Release of Xxxxxxxxx: MGI, for and on behalf of itself, its
affiliates, subsidiaries, and related companies, hereby does release, acquit and
forever discharge Xxxxxxxxx from any and all claims, whether direct or indirect,
fixed or
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contingent, known or unknown, which MGI or its related companies ever had, has
or may claim to have for, upon, or by reason of any matter, act, or thing, prior
to the date of this Separation Agreement, including but not limited to, any acts
performed by Xxxxxxxxx at any time during the period he was employed by MGI.
C. RIGHTS TO CONSIDER AND RESCIND
(10) Right to Consider Executing this Separation Agreement: Xxxxxxxxx
understands that he has twenty-one (21) calendar days to consider whether he
should execute this Separation Agreement. Xxxxxxxxx further understands,
however, that he is not required to take the entire 21-day period to decide
whether he wishes to execute this Separation Agreement and that he may do so on
an accelerated basis without prejudice to his own or MGI's rights under this
Separation Agreement.
(11) Right to Rescind or Revoke: Xxxxxxxxx understands that he has the
right to rescind or revoke this Agreement for any reason within fifteen (15)
calendar days after he signs it. Xxxxxxxxx understands that this Agreement will
not become effective or enforceable until the applicable rescission period has
expired. Xxxxxxxxx understands that if he wishes to rescind, the rescission must
be in writing and hand-delivered or mailed to the Company. If hand-delivered,
the rescission must be: (a) addressed to Xx. Xxxxxxx X. Xxxxxxx, President and
Chief Executive Officer, MGI PHARMA, INC., Suite 300 E. Opus Center, 0000 Xxxx
Xxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000; and (b) delivered to Xx. Xxxxxxx
X. Xxxxxxx within the fifteen- (15) day period. If mailed, the rescission must
be: (a) postmarked within the fifteen-
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(15) day period; (b) addressed to Xx. Xxxxxxx X. Xxxxxxx, President and Chief
Executive Officer, MGI PHARMA, INC., Suite 300 E. Opus Center, 0000 Xxxx Xxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000; and (c) sent by certified mail, return
receipt requested.
D. MISCELLANEOUS
(12) Inquiries from Prospective Employers: If MGI receives a call from a
prospective employer of Xxxxxxxxx, that call will be routed to Xx. Xxxx-xxxx
Xxxxx or another MGI executive designated by MGI. Xx. Xxxxx or the other
designated executive will disclose to the prospective employer Shrotriya's dates
of employment, Shrotriya's positions/titles, Shrotriya's compensation, and any
other information Xxxxxxxxx specifically authorizes, in writing, Xx. Xxxxx or
the other designated executive to disclose.
(13) Letter of Reference: If requested by Xxxxxxxxx, MGI will provide him a
mutually acceptable letter of reference upon the expiration of the rescission
period set forth in Paragraph (11) above. MGI will draft this letter and provide
it to Xxxxxxxxx for his review. MGI retains the sole discretion regarding the
contents of the letter of reference. If authorized in writing by Xxxxxxxxx, MGI
will provide the reference letter to any of the prospective employers described
in Paragraph (12) above.
(14) Announcement: Xxxxxxxxx and MGI agree that it would be mutually
beneficial to announce Shrotriya's resignation to other MGI employees.
Therefore,
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Xxxxxxxxx and MGI agree that MGI may publicly disclose the announcement attached
hereto as Exhibit B.
(15) Mutual Non-disparagement Agreement: Xxxxxxxxx agrees that he will not
disparage MGI, its directors, officers, employees and agents, and/or any MGI
products or services. MGI's Board of Directors and officers agree that they will
not disparage Xxxxxxxxx.
(16) No Admission of Fault: Xxxxxxxxx agrees that MGI's willingness to
enter into this Separation Agreement does not constitute, and should not be
construed as, any admission of liability or fault on the part of MGI or any of
MGI's employees.
(17) No Future Employment: Xxxxxxxxx agrees that he waives any claim to
reinstatement and/or future employment with MGI, its subsidiaries, affiliates,
or related corporate entities. Xxxxxxxxx further agrees that at no time
following the execution of this Separation Agreement will he seek employment
with MGI or its related corporate entities.
(18) Proprietary Information: Xxxxxxxxx agrees that he will not disclose
any MGI proprietary or confidential information or any MGI trade secrets to any
company (including his future employers) or individual. Shrotriya's obligations
to maintain the confidentiality of MGI's information are specified in the
"Employee Agreement With MGI PHARMA, INC. Relating to Patent and Confidential
Information," dated August 9, 1994, which document is attached hereto as Exhibit
C,
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which is incorporated herein by reference and which survives this Separation
Agreement.
(19) Complete Agreement: Xxxxxxxxx agrees that there are no covenants,
promises, undertakings, or understandings outside of this Separation Agreement,
except as specifically set forth herein. Any modification of, or addition to,
this Separation Agreement must be in writing, signed by all parties.
(20) Severability: Should any provision of this Separation Agreement be
held invalid or illegal, such illegality shall not invalidate the whole of this
Separation Agreement, but, rather, the Separation Agreement shall be construed
as if it did not contain the illegal part, and the rights and obligations of the
parties shall be construed and enforced accordingly.
(21) Knowing and Voluntary Agreement: Xxxxxxxxx agrees that he has entered
into this agreement knowingly and voluntarily. Xxxxxxxxx further acknowledges
that MGI recommended that he review this Agreement with counsel and that he has
had an adequate opportunity to do so.
(22) Governing Law: This Separation Agreement and General Release shall be
governed by, and interpreted in accordance with, the laws of the State of
Minnesota.
s/ Xxxxxx X. Xxxxxxxxx
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XXXXXX X. XXXXXXXXX
Subscribed and sworn to before me
this 22nd day of October, 1996.
s/ Xxxxxx Xxxxxxx
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Notary Public
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MGI PHARMA, INC.
By s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Its President and Chief
Executive Officer
Subscribed and sworn to before me
this 22nd day of October, 1996.
s/ Xxxxxx Xxxxxxx
--------------------------------
Notary Public
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