SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit 10.2
This Separation Agreement and General Release (the “Separation Agreement”) is entered into by and
between MGI PHARMA, INC. (the “Company”) and Xxxxx X. Xxxxxx (the “Employee”).
WHEREAS, the purpose of this Separation Agreement and General Release is to set forth the
terms and conditions under which the Company and Employee will terminate their employment
relationship;
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and
for good and valuable consideration, Employee and the Company agree as follows:
1. Separation from Employment. Effective April 21, 2006, Employee’s employment has
been terminated. Except as provided in this Separation Agreement, all benefits and privileges of
employment have ended as of this date.
2. Termination Benefits. Subject to the terms and conditions of this Separation
Agreement, including the release set forth in Paragraph 10, the Company will pay to Employee the
gross amount of Two Hundred Seventy-five thousand dollars ($275,000) in a lump sum payment subject
to withholding, as severance, equivalent to 12 months of Employee’s current base salary. Payment
of this sum shall be within 15 business days following the expiration of the rescission period
described in paragraph 12 below, provided that Employee does not rescind this Separation Agreement.
Employee agrees that Employee is not entitled to the payment referenced in this paragraph
unless Employee signs this Separation Agreement and does not rescind in accordance with
Paragraph12.
3. Stock Options and Restricted Stock Awards. Effective as of the date of separation,
all unvested options and Restricted Stock Awards shall expire. Employee’s ability to exercise all
vested options, if any, shall be governed by the terms of the applicable stock option plan(s), and
option agreement(s).
4. No Right to Apply For or Accept Employment. Employee agrees to not apply for or
accept employment with the Company or with any current or future related company, affiliate, or
subsidiary currently or at any time in the future.
5. Return of Information and Assets. Employee affirms that all originals and all
copies of the Company’s records, correspondence and documents, and all other property and assets of
the Company, created or obtained by Employee as a result of or in the course of or in connection
with employment with the Company which are in Employee’s possession or control, whether
confidential or not, have been returned to the Company or will be returned to the Company prior to
the Employee’s signing of this Separation Agreement.
6. Passwords and Password-Protected Documents. Employee agrees that prior to signing
this Separation Agreement, Employee delivered all passwords in use by Employee at the time of
Employee’s termination, a list of any documents that Employee created or of which
Employee is otherwise aware that are password-protected, and the password(s) necessary to
access such password-protected documents.
7. Confidentiality. Employee agrees that the existence and terms and conditions of
this Separation Agreement shall remain confidential as between the parties, and may only be
disclosed:
(a.) by Employee to immediate family, legal counsel, investment advisor or banks, and
accountant or tax advisor, each of which shall be advised of the confidential nature of this
Separation Agreement and who shall each agree to be bound hereby;
(b.) by the Company to its officers and directors, outside auditors, tax advisors and legal
counsel, each of which shall be advised of the confidential nature of this Separation
Agreement and who shall each agree to be bound hereby; or
(c.) by either party as necessary to effect its terms or as otherwise required by law, court
order or valid legal proceeding.
Without limiting the generality of and subject to the foregoing, Employee agrees information
regarding this Separation Agreement shall not be disclosed to any third party including any current
or former Company employee.
8. Employee Agreement with MGI PHARMA, INC. Relating to Patent and Confidential
Information (the “Confidential Information Agreement”). Employee acknowledges that in the
course of employment with the Company, Employee has had access to confidential information
resulting from the business affairs of the Company and/or related companies and entities. Further,
Employee acknowledges that there is an obligation to continue to perform the obligations under the
Confidential Information Agreement which Employee executed on January 31, 2005 (attached as Exhibit
A) and that such obligations shall continue in full force and effect and be unaffected by this
Separation Agreement.
9. No Other Benefits. Employee agrees and understands that Employee is entitled to no
benefits other than those enumerated in this Separation Agreement. Employee also understands that
payments made pursuant to this Separation Agreement may be subject to withholding of applicable
income and other employment-related taxes and consents to the Company’s right to withhold from such
payments.
10. Settlement and Release. For the consideration expressed in this Separation
Agreement, Employee hereby fully and completely releases and waives and forever discharges the
Company, its predecessors, successors, assigns, parents, affiliates, subsidiaries, related
companies, officers, directors, shareholders, agents, servants, counsel, executives, directors,
shareholders, agents, employees, any retirement or welfare benefit plans offered by the Company and
any trustee or administrator of any such plans, and insurers (collectively referred to as “Released
Parties”) from any and all claims, complaints, causes of action or demands of whatever kind, known
or unknown, suspected or unsuspected, which exist or may exist up through the date Employee signs
this Separation Agreement arising out of any actions, conduct, decisions, behavior, or events
occurring up through the execution of this Separation Agreement, including without limitation any
and all claims, complaints, causes of action or demands relating
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in any way to the hiring of Employee, the terms, conditions and circumstances of Employee’s
employment, Employee’s compensation WHILE employed with the Company, the cessation of Employee’s
employment with the Company, and any other actions, decisions, alleged omissions, or events
occurring up through the date Employee signs this Separation Agreement.
Employee understand and agrees that Employee’s release of claims in this Separation Agreement
includes, but is not limited to, any claims Employee may have under: Title VII of the Federal Civil
Rights Act of 1964, as amended; the Americans with Disabilities Act; the Equal Pay Act; the Fair
Labor Standards Act; the Employee Retirement Income Security Act; the Family and Medical Leave Act;
the Age Discrimination in Employment Act; the Minnesota Human Rights Act; Minn. Stat. § 176.82;
Minn. Stat. § 181.81; or any other federal, state, or local statute, ordinance, or law.
Employee also understands that Employee is giving up all other claims, whether grounded in
contract or tort theories, including but not limited to: wrongful discharge; breach of contract;
tortious interference with contractual relations; promissory estoppel; detrimental reliance; breach
of the implied covenant of good faith and fair dealing; breach of express or implied promise;
breach of manuals or other policies; breach of fiduciary duty; assault; battery; fraud; false
imprisonment; invasion of privacy; intentional or negligent misrepresentation; defamation,
including libel, slander, discharge defamation and self-publication defamation; discharge in
violation of public policy; whistleblower; negligence; intentional or negligent infliction of
emotional distress; attorney’s fees; or any other theory, whether legal or equitable, with the
exception of those claims which cannot be released under applicable state or federal law.
Employee also understands and agrees that Employee is waiving the right to monetary damages or
other individual legal or equitable relief awarded by any governmental agency related to any claim
against the Released Parties arising from or relating to the Company’s hiring of Employee,
Employee’s employment with the Company, the cessation of Employee’s employment with the Company, or
any other actions, decisions, alleged omissions, or events occurring prior to Employee’s signing of
this Separation Agreement.
Employee makes this release on behalf of Employee, Employee’s estate and Employee’s heirs,
personal representatives, administrators, executors, successors and assigns.
11. Time to Accept. Employee hereby acknowledges having the opportunity to take
twenty-one (21) days from the date Employee received this Separation Agreement to consider the
terms of this Separation Agreement before signing, that Employee fully understands and accepts the
terms of this Separation Agreement, that Employee’s signature is freely, voluntarily and knowingly
given, and that Employee has been provided a full opportunity to review and reflect on the terms of
the Separation Agreement and to obtain the advice of legal counsel of choice, which advice the
Company has encouraged Employee to obtain.
12. Right to Rescind. After executing this Separation Agreement, Employee understands
that Employee may rescind this Separation Agreement by delivering written notice of such rescission
within fifteen (15) days of the date appearing next to Employee’s signature. To be effective, such
rescission notice must be hand-delivered to the Company, or, if sent by
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mail, postmarked within the applicable time period, sent by certified mail, return receipt
requested, and addressed as follows: MGI PHARMA, INC., 0000 Xxxx Xxx Xxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxxx, XX 00000, Attention: Xxxx Xxxxxxxxxxx. Employee understands that if Employee
exercises the right of rescission as provided for in this paragraph, this Separation Agreement will
not remain in effect, expect that Employee’s employment ended as of April 21, 2006.
13. Entire Agreement. This Separation Agreement (and all exhibits referenced in this
Separation Agreement) constitutes the entire agreement between the parties with respect to
Employee’s employment and separation from employment. No modification, amendment or change of any
kind to this Separation Agreement shall be effective unless it is in writing and signed by both
parties.
14. Governing Law. The laws of the State of Minnesota will govern the validity,
construction and performance of this Separation Agreement, without regard to the conflict of law
provisions of any other jurisdictions. Any legal proceeding related to this Separation Agreement
will be brought in an appropriate Minnesota court, and both parties hereby consent to the exclusive
jurisdiction of that court for this purpose.
15. Severability. If any part of this Separation Agreement is construed to be in
violation of any law, such part shall be modified to achieve the objective of the parties to the
fullest extent permitted and the balance of this Separation Agreement shall remain in full force
and effect.
16. No Admission. Nothing in this Separation Agreement is intended to be, and nothing
will be deemed to be, an admission of liability by the Company or Employee that either of them has
violated any state or federal statute, local ordinance or principle of common law, or that either
party has engaged in any wrongdoing.
17. Waiver. The waiver by either party of a breach by the other party of any
provision of this Separation Agreement shall not operate or be construed as a waiver of any
subsequent breach.
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IN WITNESS WHEREOF, the parties have duly executed this Separation Agreement on the dates set forth
below to be effective as of the date shown below.
I ACKNOWLEDGE THAT I HAVE READ THIS AGREEMENT AND THAT I AGREE TO THE CONDITIONS AND OBLIGATIONS
SET FORTH. FURTHER, I AGREE THAT I HAVE HAD ADEQUATE TIME TO CONSIDER THE TERMS OF THIS AGREEMENT
AND THAT I AM VOLUNTARILY ENTERING INTO THIS AGREEMENT WITH A FULL UNDERSTANDING OF ITS MEANING.
| Dated: | April 26, 2006 | /s/ Xxxxx X. Xxxxxx | ||||
| Xxxxx X. Xxxxxx, Employee | ||||||
| MGI PHARMA, INC. | ||||||
Dated:
|
April 26, 2006 | By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||||
| Title: | President and CEO | |||||
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