Employment Agreement

Amendment to Employment Agreement

Change of Control Agreement

 

 

 

 

 

 

 

 

 

EX-10.1 2 c73726exv10w1.htm EXHIBIT 10.1

Exhibit 10.1

EXECUTIVE EMPLOYMENT AGREEMENT

THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is effective as of January 2, 2008 (the “Effective Date”) by and between Dr. Rajesh C. Shrotriya (“Executive”), and Spectrum Pharmaceuticals, Inc. (the “Corporation”).

WHEREAS:

A. The Corporation is a corporation organized under the laws of the State of Delaware, and is engaged in the business of developing and manufacturing pharmaceutical products and services; and

B. Executive is a person whose skills, experience and training are required by the Corporation; and

C. The Corporation wishes to continue to employ Executive and Executive wishes to accept the continued employment offered by the Corporation on the terms and conditions hereinafter set forth.

NOW THEREFORE, the parties hereto, intending to be legally bound, do hereby agree as follows:

1. EMPLOYMENT

1.1 Position and Duties

The Corporation does hereby continue to employ Executive and Executive hereby accepts such continuing employment as Chairman, Chief Executive Officer and President of Corporation upon the terms and provisions set forth in this Agreement. Executive shall report to the Board of Directors of the Corporation (the “Board”). Executive shall devote his full working time and effort to the business and affairs of the Corporation as necessary to faithfully discharge the duties and responsibilities of his office.

1.2 Other Activities

Executive may participate in other business and act as a director of any profit or nonprofit corporation, so long as such activity is not competitive with the business of the Corporation in any material respect and does not materially detract from the performance of his duties as a full time executive of the Corporation.

 

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2. TERM

This Agreement shall continue in full force and effect for a period, which shall commence as of the Effective Date and shall continue until January 2, 2011, unless sooner terminated as hereafter provided. Thereafter, this Agreement will automatically renew for one (1) calendar year periods, unless either party gives to the other written notice at least ninety (90) days prior to the commencement of the next year, of such party’s intent not to renew this Agreement. “Term” shall mean all or any part of the initial period of employment until January 2, 2011, or all or any part of one or more renewal period(s).

3. COMPENSATION AND BENEFITS

3.1 Base Salary

As compensation for the services to be performed by Executive during the continuance of this Agreement, the Corporation shall pay Executive an annual base salary of $600,000, adjusted annually, based on performance of Executive and the Corporation, as determined by the Board (Compensation Committee), payable in accordance with Corporation practices in effect from time to time, but not less often than monthly. “Base Salary” shall mean the initial base salary or the then-current base salary as later approved by the Board.

3.2 Bonuses

The Executive shall also be paid a performance bonus (the “Performance Bonus”), no later than January 31 of the year following in an amount to be determined by the Board’s Compensation Committee according to Executive’s achievement of annual performance objectives mutually agreed upon by Executive and the Board. Annual performance objectives shall be adopted no later than January 31st of each calendar year. The Performance Bonus may, in the discretion of the Board, be paid in cash and/or in the form of annual or special grants of stock options, restricted stock and/or other equity based awards.

3.3 Pro Rata Bonuses Notwithstanding any other provision in this Agreement to the contrary, should Executive’s employment be terminated by the Corporation Without Cause, as defined in Section 6.3.3, for any reason, prior to the end of a calendar year, then in good faith the Board shall determine the amount of the Bonus, Performance Bonus and any other bonus that would have been paid to Executive had his employment continued through the end of the calendar year and the Corporation shall pay Executive (or in the case of Death, his estate) the pro rata amount of each of these bonuses (the “Pro Rata Bonuses”).

 

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3.4 Equity Compensation

Executive shall be eligible to participate in any long-term incentive plans and/or equity based compensation plans established or maintained by Corporation for its senior executive officers.

3.5 Additional Benefits

Executive shall be entitled to all rights and benefits for which Executive is otherwise entitled under any pension plan, profit sharing plan, life, medical, dental, or health benefit the Corporation may provide for senior executives generally and for employees of the Corporation generally from time to time in effect during the Term of this Agreement (collectively, the “Additional Benefits”).

3.6 Vacation

Executive shall be entitled to thirty (30) working days per year of paid vacation (six weeks) for each calendar year of employment, which shall accrue on a pro rata basis from the date employment commences under this Agreement. Since commencement of his employment with the Corporation on September 1, 2000, Executive has accrued, but not used vacation time. The balance of accrued and unused vacation, as of the Effective Date of this Agreement, shall be added to the vacation accrued under this Agreement, and the total accrued vacation shall be available for Executive’s use. Upon termination of employment, for whatever reason, all accrued and unused vacation shall be paid to Executive. Executive shall also be entitled to holidays and leave time in accordance with the plans, policies, programs and practices in effect generally with respect to other senior employees of the Corporation. Executive shall not forfeit or cease to accrue any paid vacation, if he is unable to or does not use it, in any year or period of years during the Term hereof, or any extension thereof.

3.7 Life Insurance

During the Term of this Agreement, the Corporation shall pay for life insurance on Executive in the amount of $5 million. Executive shall be entitled to select personal beneficiaries for fifty (50%) percent of the proceeds of the life insurance with the other fifty (50%) percent going to the Corporation. The Corporation and Executive shall mutually agree on the appropriate policy structure of such life insurance, considering all options such as, but not limited to, term life, key person, or whole life policies. The Corporation shall provide Executive with additional cash compensation at the end of each calendar year to fully offset taxes attributable to Executive as a result of payment of the life insurance premiums by the Corporation.

3.8 Annual Physical Examination

Corporation shall pay all costs associated with Executive’s receiving a comprehensive annual physical examination.

3.9 Estate Planning Expense

Corporation shall pay the fees for attorneys and financial advisors to create and maintain a comprehensive estate plan for Executive with a maximum of thirty thousand dollars ($30,000) in total payments or reimbursements for the first year during the Term, and ten thousand dollars ($10,000) in total payments or reimbursements for each subsequent year during the Term.

 

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4. PERIODIC REVIEW

The Corporation shall review Executive’s compensation and benefits, not less frequently than every twelve (12) months.

5. REIMBURSEMENTS

5.1 Business Expenses

5.1.1 During the Term of this Agreement, Executive shall be provided with one or more corporate credit cards to use to pay for business expenses incurred in the course of performing duties for the Corporation. The Corporation shall be responsible for paying the expenses charged to the card.

5.1.2 To the extent that Executive pays business expenses directly out of his personal funds, Executive shall be promptly reimbursed by the Corporation for amounts actually expended by Executive in the course of performing duties for the Corporation where Executive tenders receipts or other documentation reasonably substantiating the amounts as required by the Corporation. As a condition of employment hereunder, Executive shall entertain business prospects, maintain and improve Executive’s professional skills by participating in continuing education courses and seminars, and maintain memberships in civic groups and professional societies. Business expenses include travel, entertainment, parking, business meetings, professional dues, the costs of and dues associated with maintaining club memberships, expenses of education, and other expenses related to the duties performed by Executive, made or substantiated in accordance with policies, practices and procedures established from time to time by the Corporation and incurred in the pursuit and furtherance of the Corporation’s business and goodwill.

5.2 Travel

In connection with any travel by Executive in the performance of his duties hereunder, Executive shall be entitled to travel in business class for domestic flights up to four (4) hours duration or in first class if a business class seat is not available or if the flight is of longer duration than four (4) hours or is an international flight.

5.3 Automobile

During the Term of this Agreement, Corporation shall provide Executive with a monthly vehicle allowance or buy or lease a new car every three (3) years comparable to the make and model Executive was using as of the Effective Date of this Agreement. In addition, Corporation shall pay or reimburse Executive for reasonable and necessary costs of all automobile insurance (liability or otherwise), fuel, lubricants and automobile maintenance and repair incurred by Executive hereunder.

 

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6. TERMINATION OF EMPLOYMENT

Employment shall terminate upon the occurrence of any of the following events:

6.1 Non-Renewal Upon Expiration of Term

Upon at least ninety (90) days prior written notice of non-renewal of this Agreement by Corporation to Executive pursuant to Section 2 hereof. Upon expiration of the Term without renewal, Executive shall receive the Without Cause Severance Benefits (defined in Section 6.4), as if he had been terminated Without Cause under Section 6.4 of this Agreement.

6.2 Mutual Agreement

Executive’s employment, and this Agreement, shall terminate at such time as the Corporation and Executive mutually agree, in writing, to such termination, and Executive shall not be eligible for any severance benefits.

6.3 Termination for Cause

6.3.1 For purposes of this Agreement, “Cause” shall be defined only as any of the following, provided however, that the Board, by a duly adopted resolution, has determined the presence of such Cause in good faith: (i) Executive’s material breach of any of his duties and responsibilities under this Agreement (other than as a result of incapacity due to Disability, as defined in Section 6.5); (ii) Executive’s conviction by, or entry of a plea of guilty in, a court of competent jurisdiction for a felony that adversely affects the Corporation or its reputation; or (iii) Executive’s commission of an act of fraud or willful misconduct or gross negligence in the performance of his duties.

6.3.2 Notwithstanding the foregoing, Executive shall not be terminated for Cause pursuant to Subsection 6.3.1, unless and until Executive has received written notice of the proposed termination for Cause, including details of the bases for such termination, and Executive has had an opportunity to be heard before at least a majority of the Board. Executive shall be deemed to have had such an opportunity if written notice is given to him at least ten (10) days in advance of a meeting and Executive has the actual opportunity to be heard, at that meeting, by no less than a majority of the Board on the issues of his proposed termination.

6.3.3 Termination for any other reason than one of the reasons set forth above under Section 6.3.1 and/or without following the procedures under Subsection 6.3.2, shall be considered “Without Cause.”

6.4 Termination Without Cause

6.4.1 The Corporation shall have the right to terminate Executive’s employment with the Corporation Without Cause at any time, but any such termination shall be without prejudice to Executive’s rights to receive, at Corporation’s sole expense, the following severance benefits (the “Without Cause Severance Benefits”): (a) a lump sum payment equivalent to the aggregate of two (2) years cash compensation (defined as actual or estimated Base Salary, Bonuses, and the Corporation-paid automobile benefit under

 

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Section 5.3 hereunder); (b) for two (2) years, Corporation-paid continued coverage for Executive and his eligible dependents under the Corporation’s existing health and benefit plans); and (c) immediate vesting in all options, restricted stock and other equity based awards granted to Executive, and Executive shall have three (3) years to exercise all vested equity based awards, subject to the terms of the respective Corporation equity plan and individual agreement(s) governing such equity based awards and as otherwise set forth in this Agreement. Unless made at a time otherwise provided for in this Agreement, such lump sum payment shall be made not later than ten (10) days after the Termination Without Cause becomes effective.

6.4.2 With regard to any options granted to Executive pursuant to the Corporation’s Amended and Restated 1997 Stock Incentive Plan (the “1997 Plan”), the following shall take place upon a Termination Without Cause and shall be considered a Without Cause Severance Benefit:

6.4.3 For each particular option (the “1997 Plan Option”):

(a) if the Current Market Price of a share of the Corporation’s common stock is greater than the exercise price of the 1997 Plan Option on the date of termination, Executive shall be able to exercise such 1997 Plan Option in accordance with the terms of the 1997 Plan and the individual stock option agreement, and the Corporation shall grant, on the date of termination, a new option, pursuant to the terms of the Corporation’s 2003 Amended and Restated Incentive Award Plan (the “2003 Plan”) or other appropriate plan or arrangement, to purchase a number of shares of the Corporation’s common stock equal to the same number of shares exercisable under the 1997 Plan Option (after fully vesting as required above) at an exercise price equal to the Current Market Price on the date of termination. Such option shall be fully vested and exercisable for three (3) years, subject to the terms of the 2003 Plan or other appropriate plan or arrangement and individual agreement(s) governing such option and as otherwise set forth in this Agreement, or

(b) if the Current Market Price of a share of the Corporation’s common stock is equal to or less than the exercise price of the 1997 Plan Option on the date of termination, such 1997 Plan Option shall be immediately cancelled, and the Corporation shall grant, on the date of termination, a new option, pursuant to the terms of the 2003 Plan or other appropriate plan or arrangement, to purchase a number of shares of the Corporation’s common stock equal to the same number of shares exercisable under the 1997 Plan Option (after fully vesting as required above) at an exercise price equal to the exercise price of the 1997 Plan Option. Such option shall be fully vested and exercisable for three (3) years, subject to the terms of the 2003 Plan or other appropriate plan or arrangement and individual agreement(s) governing such option and as otherwise set forth in this Agreement.

(c) Notwithstanding the foregoing, the total number of shares issuable pursuant to the new options granted by Subsections (a) and (b) above shall be subject to the limitation on the number of shares permitted by the 2003 Plan to be issued to one person during a calendar year, if any.

 

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6.4.4 “Current Market Price” on any given date shall be determined as follows:

(a) If the Corporation’s common stock is then listed or admitted to trading on a NASDAQ market system or a stock exchange which reports closing sale prices, the Current Market Price shall be the closing sale price on such date on such NASDAQ market system or principal stock exchange on which the Corporation’s common stock is then listed or admitted to trading, or, if no closing sale price is quoted on such day, then the Current Market Price shall be the closing sale price of the Corporation’s common stock on such NASDAQ market system or such exchange on the next preceding day for which a closing sale price is reported.

(b) If the Corporation’s common stock is not then listed or admitted to trading on a NASDAQ market system or a stock exchange which reports closing sale prices, the Current Market Price shall be the average of the closing bid and asked prices of the Corporation’s common stock in the over-the-counter market on such date.

(c) If neither (a) nor (b) is applicable as of such date, then the Current Market Price shall be determined by the Board, in consultation with Executive, in good faith using any reasonable method of evaluation, which determination shall be conclusive and binding on all the parties.

6.5 Disability

For the purposes of this Agreement, “Disability” shall mean the absence of Executive performing Executive’s duties with the Corporation on a full-time basis for a period of twelve (12) consecutive months, as a result of incapacity due to mental or physical illness as determined by a physician selected by the Corporation or its insurers and reasonably acceptable to Executive or Executive’s legal representative. If Executive shall become Disabled, Executive’s employment may be terminated by written notice to Executive. A lump sum equal to three (3) months of Executive’s Base Salary, at the time of his termination, shall be paid to Executive or Executive’s legal representative within ten (10) days of his termination (the “Disability-Related Severance Benefits”). All equity based awards, such as options and restricted stock, shall immediately vest and shall remain exercisable in accordance with the terms of the respective Corporation equity plan and individual agreement(s) governing such options and as otherwise set forth in this Agreement.

6.6 Death

Executive’s employment and this Agreement will terminate automatically in the event of the death of Executive. A lump sum equal to three (3) months of Executive’s Base Salary, at the time of his death, shall be paid to Executive’s estate within ten (10) days of his death (the “Death-Related Severance Benefits”). All equity based awards, such as options and restricted stock, shall immediately vest and shall remain exercisable in accordance with the terms of the respective Corporation equity plan and individual agreement(s) governing such options and as otherwise set forth in this Agreement.

 

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6.7 Resignation By Executive For No Reason

Executive may voluntary resign his employment for no reason at any time upon sixty (60) days written notice to Corporation. If the Corporation should accept Executive’s resignation effective in less than sixty (60) days, Corporation shall pay Executive all of his regular and customary compensation and benefits through the sixtieth (60th) day of notice. Executive shall not be entitled to any severance in the event of such a resignation by Executive. However, any stock options or other equity based awards (except for restricted stock) held by Executive shall immediately become fully vested upon the effective date of Executive’s resignation Without Cause, and Executive shall have three (3) years to exercise all such vested equity based award subject to the terms of the respective Corporation equity plan and individual agreement(s) governing such equity based award and as otherwise set forth in this Agreement. With regard to any 1997 Plan Options (as defined in Section 6.4), the Executive shall receive the Without Cause Severance Benefit outlined above under Section 6.4 for such options, as if he had been terminated Without Cause under Section 6.4.

6.8 Resignation By Executive for Good Reason

Other than pursuant to the circumstances of a Change of Control, as defined in Section 7.4, in which case Section 7.2 shall apply, if during the Term Executive suffers: a material diminution of base salary; a material diminution in the employee’s authority, duties or responsibilities; a material diminution in the authority, duties or responsibilities of the supervisor to whom the employee is required to report, including a requirement that an employee report to a corporate officer or employee instead of directly to the board of directors; a material diminution in the budget over which the employee retains authority; a material change in geographic location at which the employee must perform his services; or any other action or inaction that constitutes a material breach of the terms of an applicable employment agreement, then Executive shall have “Good Reason” to voluntarily resign his employment with the Corporation. If, within ninety (90) days of the initial existence of the condition(s) that constitute Good Reason, Executive:(a) provides written notice to the Board of his intention to resign his employment for Good Reason; (b) provides written notice to the Board of the grounds that Executive believes he has to resign for Good Reason and within thirty (30) days of receipt of such written notice, the Board has not cured by eliminating the condition(s) that constitute Good Reason; and (c) Executive actually terminates his employment no less than two (2) years following the initial existence of the Good Reason condition, then Executive shall receive all of the Without Cause Severance Benefits, as if he had been terminated Without Cause under Section 6.4 of this Agreement.

7. CHANGE OF CONTROL

7.1 One-Time Payment to Executive

In addition to any other payment due to Executive under this Agreement, if there should occur a Change of Control of the Corporation (or any successor), Corporation (or any successor) shall within thirty (30) days pay Executive a one-time payment of six hundred thousand dollars ($600,000.00). The one-time payment shall be made in recognition of Executive’s extraordinary and unique contributions to the development of Corporation.

 

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7.2 Executive’s Rights

If there should occur a Change of Control of the Corporation (or any successor) and (i) Executive’s employment is terminated (other than by Executive) Without Cause within twelve (12) months thereafter; or (ii) Executive is adversely affected in terms of assigned duties and responsibilities, overall compensation, benefits, title, authority, number of reports, reporting relationships or location of employment (without his written consent, being required to regularly report to an office located more than thirty (30) miles from his present office), and Executive, within twelve (12) months after an event constituting a Change of Control, elects to resign his employment with the Corporation, then in either case, Executive shall be provided with Corporation-paid senior executive outplacement services (at a value of no less than forty thousand dollars ($40,000)) at an outplacement or executive search firm of Executive’s selection (and reasonably acceptable to Corporation); and he shall receive the Without Cause Severance Benefits, as if he had been terminated Without Cause under Section 6.4 of this Agreement. For clarity, the Without Cause Severance Benefits, in this circumstance, include the Executive’s right to exercise his equity based awards, including options to acquire common stock of the Corporation or acquirer’s stock, if applicable. Collectively, the benefits Executive is eligible to receive under this Section 7 shall be referred to as the “Change of Control Severance Benefits.” In addition, instead of two (2) years cash compensation (as defined under Section 6.4.1 (a)), Executive shall receive three (3) years cash compensation pursuant to the Change of Control Severance Benefits.

7.3 Relocation Expense

In the event Executive voluntarily resigns for Good Reason, or is terminated Without Cause, the Corporation will pay or reimburse Executive for all reasonable relocation expenses incurred by Executive in connection with his and his family’s relocation to Connecticut, including, but not limited to short-term hotel costs or apartment rental for Executive for a period not to exceed six (6) months, house hunting, travel by Executive’s spouse and all household goods moving costs. The total of all such amounts will not exceed seventy-five thousand dollars ($75,000). The Corporation will provide Executive with additional cash compensation at the end of the calendar year to fully offset taxes attributable to Executive as a result of payment of such reasonable relocation expenses by the Corporation. If within six (6) months of his voluntary resignation for Good Cause, or his termination Without Cause, Executive informs the Corporation that he does not intend to relocate, Corporation shall pay Executive seventy-five thousand dollars ($75,000) in a lump sum, less any relocation expenses already incurred or advanced.

7.4 Definition

For all purposes of this Agreement, “Change of Control” shall have the same definition of Change of Control in the Corporation’s 2003 Amended and Restated Incentive Award Plan.

8. CERTAIN ADDITIONAL PAYMENTS BY THE CORPORATION

8.1 Notwithstanding anything in this Agreement to the contrary, and except as set forth below, in the event it shall be determined that any payment or distribution by the Corporation to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Article 8) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code (the “Code”) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment.

 

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8.2 Subject to the provisions of Section 8.3, all determinations required to be made under this Article 8, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a certified public accounting firm as may be designated by the Executive (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Corporation and the Executive within fifteen (15) business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Corporation. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Executive shall appoint another accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Corporation. Any Gross-Up Payments, as determined pursuant to this Article 8, shall be paid by the Corporation to the Executive within five days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Corporation and the Executive.

As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Corporation should have been made (an “Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Corporation exhausts its remedies pursuant to Section 8.3, and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Corporation to or for the benefit of the Executive.

8.3 The Executive shall notify the Corporation in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Corporation of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive has been informed in writing of such claim and shall apprise the Corporation of the nature of such claim prior to the expiration of the thirty (30) day period following the date on which it gives such notice to the Corporation (or such shorter period ending on the date that any payment of taxes with respect to the claim is due). If the Corporation notifies the Executive in writing prior to the expiration of such period that is desires to contest such claim, the Executive shall:

 

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give the Corporation any information reasonably requested by the Corporation relating to such claim,

 

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take such action in connection with contesting such claim as the Corporation shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Corporation,

 

 

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cooperate with the Corporation in good faith in order effectively to contest such claim, and

 

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permit the Corporation to participate in any proceedings relating to such claim;

provided, however, that the Corporation shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 8.3, the Corporation shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Corporation shall determine; provided, however, that if the Corporation directs the Executive to pay such claim and sue for a refund, the Corporation shall advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statue of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Corporation’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.

8.4 If, after the receipt by the Executive of an amount advanced by the Corporation pursuant to Section 8.3, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Corporation’s complying with the requirements of Section 8.3) promptly pay to the Corporation the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Corporation pursuant to Section 8.3, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Corporation does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

9. DEFERRED COMPENSATION

In the event that the Corporation determines that any payments hereunder fail to satisfy the distribution requirement of Section 409A(a)(2)(A) of the Code, the payment of such benefit shall be accelerated to the minimum extent necessary so that the benefit is not subject to the provisions of Section 409A(a)(1) of the Code. (It is the intention of the preceding sentence to apply the short-term deferral provisions of Section 409A of the Code, and the regulations and other guidance thereunder, to the payments hereunder, and the payment schedule as revised after the application of the preceding sentence shall be referred to as the “Revised Payment Schedule.”)

 

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However if there is no Revised Payment Schedule that would avoid application of Section 409A(a)(1) of the Code, the payment of such benefits shall not be paid pursuant to the Revised Payment Schedule and instead shall be delayed to the minimum extent necessary so that such benefits are not subject to the provisions of Section 409A(a)(1) of the Code. The Corporation may attach conditions to or adjust the amounts paid pursuant to this Section 9 to preserve, as closely as possible, the economic consequences that would have applied in the absence of this Section 9; provided, however, that no such condition or adjustment shall result in the payments being subject to Section 409A(a)(1) of the Code.

10. MISCELLANEOUS

10.1 Arbitration

Any dispute, controversy or claim arising out of or in respect of this Agreement (or its validity, interpretation or enforcement), the employment relationship or the subject matter hereof shall, at the request of either party, be settled by binding arbitration before a single arbitrator in Orange County, California in accordance with the then-current Employment Arbitration Rules of the American Arbitration Association and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The Corporation shall pay the filing fee, all other costs of the arbitration and the fees and costs of the arbitrator (the “Arbitration Costs”). The Arbitrator shall award reasonable attorneys’ fees and expenses (but in no case Arbitration Costs) to the prevailing party.

10.2 No Third-Party Beneficiaries

This Agreement shall not confer any rights or remedies upon any person other than the parties and their respective successors and permitted assigns.

10.3 Entire Agreement

This Agreement (including the documents referred to herein and the Employee Proprietary Information and Inventions Agreement signed by Executive on July 15, 2004 (the “Proprietary Information Agreement”), the Indemnity Agreement signed by Executive on September 7, 2004 (the “Indemnity Agreement”) and all agreements and/or plans governing equity based awards granted to Executive) constitutes the entire agreement between the parties and supersedes any prior understandings, agreements, or representations between the parties, written or oral, to the extent they have related in any way to the subject matter hereof.

10.4 Succession and Assignment

This Agreement shall be binding upon and inure to the benefit of the parties named herein and their respective successors and permitted assigns. No party may assign either this Agreement or any of his or its rights, interests, or obligations hereunder without the prior written approval of the Corporation and Executive; provided, however, that the Corporation may (i) assign any or all of its rights and interests hereunder to one or more of its affiliates and (ii) designate one or more of its affiliates to perform its obligations hereunder (in any or all of which cases the Corporation nonetheless shall remain responsible for the performance of all of its obligations hereunder). Any successor or assignee of the Corporation shall be deemed substituted for employer under the terms of this Agreement for all purposes.

 

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10.5 Counterparts

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

10.6 Headings

The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.

10.7 Notices

All notices, requests, demands, claims, and other communications required or permitted hereunder shall be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given if (and then two business days after) it is sent by registered or certified mail, return receipt requested, postage prepaid, and addressed to the intended recipient as set forth below:

If to Corporation:

Spectrum Pharmaceuticals, Inc.
157 Technology Drive
Irvine, CA 92618

If to Executive:
Rajesh Shrotriya, M.D.

 

 

Any party may send any notice, request, demand, claim, or other communication hereunder to the intended recipient at the address set forth above using any other means (including personal delivery, expedited courier, messenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice, request, demand, claim, or other communication shall be deemed to have been duly given unless and until it actually is received by the intended recipient. Any party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving notice in the manner herein set forth.

10.8 Governing Law

This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of California.

 

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10.9 Amendments and Waivers

No amendment of any provision of this Agreement shall be valid unless the same shall be in writing, approved by the Board, and signed by Corporation and the Executive. No waiver by any party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

10.10 Severability

Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.

10.11 Defense and Indemnification

10.11.1 The Corporation shall, to the maximum extent permitted by the laws of Delaware and California, defend, indemnify and hold Executive harmless from and against any expenses, including reasonable attorneys fees, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding arising out of, or related to, Executive’s employment by the Corporation in any and all cases pursuant to the terms of the Indemnity Agreement. The Corporation shall pay or reimburse Executive’s expenses, including reasonable attorneys fees and costs of settlement, reasonably incurred in defending against any such proceeding to the maximum extent permitted by law in any and all cases pursuant to the terms of the Indemnity Agreement. The Corporation shall include Executive under all directors and officers liability insurance policies and shall use its best efforts to maintain or improve existing coverage levels, assuming continuation of insurance availability at commercially reasonable rates.

10.11.2 The Corporation shall defend, indemnify and hold Executive harmless from and against any income tax assessed against him as a result of any payment/benefit being paid to or given to him by the Corporation that is not exempt from, or that violates, Internal Revenue Code Section 409A.

10.12 Board Acting by Committee

Any action that this Agreement requires or permits the Board or the Corporation to take may be taken by a Compensation Committee or any other authorized committee of the Board.

[Signature Page Follows]

 

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IN WITNESS THEREOF, the parties hereto have executed this Agreement as of the Effective Date.

 

 

 

 

 

 

 

CORPORATION

 

EXECUTIVE

 

 

 

 

 

 

 

By:

 

/S/ Stuart Krassner

 

By:

 

/S/ Rajesh C. Shrotriya

 

 

 

 

 

 

 

 

 

Stuart Krassner, Sc.D., Psy.D.

 

 

 

Rajesh C. Shrotriya, M.D.

 

 

Chair, Compensation Committee

 

 

 

 

 

15

 

 

 

 

 

 

 

 

 

 

 

 

 

First Amendment to Executive Employment Agreement, dated as of April 17, 2014, by and between Spectrum Pharmaceuticals, Inc. and Dr. Rajesh C. Shrotriya. (Filed as Exhibit 10.2 to Form 10-Q, as filed with the Securities and Exchange Commission on August 8, 2014 and incorporated herein by reference

 

EX-10.2 3 d745117dex102.htm EX-10.2

Exhibit 10.2

FIRST AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT

This FIRST AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (this “Amendment”), is dated effective as of April 17, 2014, 2014 (the “Effective Date”) between Spectrum Pharmaceuticals, Inc., a Delaware corporation (“Corporation”), and Dr. Rajesh C. Shrotriya (“Executive”).

WHEREAS, Executive and Corporation entered into an Executive Employment Agreement dated January 2, 2008 (the “Agreement”); and

WHEREAS, Executive and Corporation desire to amend the Agreement on the terms and subject to the conditions set forth herein.

NOW, THEREFORE, in consideration of the premises set forth above and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Agreement is hereby amended effective as of the Effective Date as set forth in this Amendment:

1. Section 1.1 of the Agreement shall be amended and restated in its entirety by the following:

“The Corporation shall hereby continue to employ Executive and Executive hereby accepts such continuing employment as Chairman and Chief Executive Officer of Corporation upon the terms and provisions set forth in this Agreement. Executive shall be the most senior executive officer at Corporation. All other executive officers of Corporation and its subsidiaries, as applicable, shall report exclusively to Executive (on a direct or indirect basis), and Executive shall report to the Board of Directors of the Corporation (the “Board”). Executive shall devote his full working time and effort to the business and affairs of the Corporation as necessary to faithfully discharge the duties and responsibilities of his office.”

2. The first sentence of Section 6.8 of the Agreement shall be amended and restated in its entirety by the following:

“Other than pursuant to the circumstances of a Change of Control, as defined in Section 7.4, in which case Section 7.2 shall apply, if during the Term Executive suffers: a material diminution of base salary; a material diminution in Executive’s title, authority, duties or responsibilities, including another executive officer of Corporation failing to exclusively (on a direct or indirect basis) report to Executive without Executive’s consent or a requirement that Executive must report to someone other than the Board; a material diminution in the budget over which Executive retains authority; a material change in geographic location at

 

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which Executive must perform his services; or any other action or inaction that constitutes a material breach of the terms of this Agreement, then Executive shall have “Good Reason” to voluntarily resign his employment with the Corporation.”

3. Miscellaneous. This Amendment shall inure to the benefit of and be binding upon each of the Executive and Corporation and each of their respective successors and assigns. This Amendment may be executed in counterparts, each of which is deemed an original, but all of which constitutes one and the same agreement. Delivery of an executed counterpart of this Amendment electronically or by facsimile shall be effective as delivery of an original executed counterpart of this Amendment.

4. Except as specifically modified herein, the Agreement shall continue in full force and effect in accordance with all of the terms and conditions thereof.

[SIGNATURES APPEAR ON THE FOLLOWING PAGE]

 

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IN WITNESS WHEREOF, Executive and Corporation have executed this Amendment effective as of the Effective Date.

 

SPECTRUM PHARMACEUTICALS, INC.

By:

 

/s/ Kurt A. Gustafson

Name:

 

Kurt A. Gustafson

Title:

 

EVP & Chief Financial Officer

 

/s/ Rajesh C. Shrotriya

DR. RAJESH C. SHROTRIYA

Signature Page to First Amendment to Executive Employment Agreement

 

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Form of Change in Control Severance Agreement. (Filed as Exhibit 10.1 to Form 8-K, as filed with the Securities and Exchange Commission on March 31, 2014, and incorporated herein by reference.)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EX-10.1 2 d705388dex101.htm EX-10.1

Exhibit 10.1

Privileged& Confidential

CHANGE IN CONTROL SEVERANCE AGREEMENT

CHANGE IN CONTROL SEVERANCE AGREEMENT (this “Agreement”) dated as of March 28, 2014, by and between Spectrum Pharmaceuticals, Inc. (the “Company”), and             (the “Employee”).

W I T N E S S E T H

WHEREAS, the Company desires to offer certain severance protections to the Employee if the Employee’s employment with the Company is terminated by the Company under certain circumstances following a Change in Control.

NOW, THEREFORE, in consideration of the foregoing, of the mutual promises contained herein and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1. DEFINITIONS. For purposes of this Agreement, capitalized terms and phrases used herein and not otherwise defined shall have the meanings ascribed in this Section 1:

(a) “Accrued Benefits” shall mean: (i) (A) any unpaid Base Salary through the date of termination; (B) reimbursement for any unreimbursed business expenses incurred through the date of termination; and (C) any accrued but unused vacation time in accordance with Company policy, in each case, payable within sixty (60) days following the applicable termination of employment (or such earlier date as may be required by applicable law); and (ii) all other accrued and vested payments, benefits or fringe benefits to which the Employee shall be entitled in accordance with the applicable compensation arrangement or benefit plan or program of the Company.

(b) “Base Salary” shall mean the Employee’s annual base compensation rate for services paid by the Company to the Employee at the time immediately prior to the Employee’s termination of employment, as reflected in the Company’s payroll records or, if higher, the Employee’s annual base compensation rate immediately prior to a Change in Control. Base Salary shall not include commissions, bonuses, overtime pay, incentive compensation, benefits paid under any qualified plan, any group medical, dental or other welfare benefit plan, non-cash compensation, or any other additional compensation, but shall include amounts reduced pursuant to the Employee’s salary reduction agreement under Section 125, 132(f)(4) or 401(k) of the Internal Revenue Code, if any, or a nonqualified elective deferred compensation arrangement, if any, to the extent that in each such case the reduction is to base salary.

(c) “Board” shall mean the Board of Directors of the Company.

 

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(d) “Cause” shall mean the Employee engaging in any of the following: (i) fraud, misappropriation, embezzlement or acts of similar dishonesty; (ii) conviction of, or plea of nolo contendere to a felony; (iii) any illegal use of drugs or excessive use of alcohol in the workplace; (iv) intentional and willful misconduct that may subject the Company to criminal or civil liability; (v) breach of the Employee’s duty of loyalty to the Company or diversion or usurpation of corporate opportunities properly belonging to the Company; (vi) the knowing breach of any Company confidentiality agreement to which the Employee is a party; (vii) disregard of the Company policies and procedures; (viii) insubordination, (ix) failure to satisfactorily perform the duties of the Employee’s position, or (x) violation of any material provision of this Agreement, including, without limitation, Section 5 hereof, in each case, as determined by the Company in its sole discretion. The Company’s lack of immediate action with respect to conduct of the Employee that would constitute Cause hereunder shall not preclude the Company from taking later action on such act or taking action with respect to another such act committed by the Employee.

(e) “Change in Control” shall mean the consummation of the first transaction following the date hereof, whether in a single transaction or in a series of transactions, that results in (i) the holders of the outstanding voting securities of the Company as of the date hereof ceasing to hold a majority of the outstanding voting securities of the Company or its successor, or (ii) a sale of all or substantially all of the assets of the Company on a consolidated basis.

(f) “Code Section 409A” shall mean Internal Revenue Code Section 409A and the treasury regulations and other official guidance promulgated thereunder from time to time.

(g) “Good Reason” shall mean the occurrence of any of the following events, without the express written consent of the Employee, unless such events are fully corrected in all material respects by the Company within thirty (30) days following written notification thereof by the Employee to the Company: (i) a material diminution in the Employee’s Base Salary and employee benefits package in the aggregate as in effect immediately prior to a Change in Control; (ii) a material diminution in the Employee’s duties, authorities or responsibilities (other than temporarily while physically or mentally incapacitated or as required by applicable law) as in effect immediately prior to a Change in Control; (iii) a relocation of the Employee’s primary work location by more than fifty (50) miles from its location as in effect immediately prior to a Change in Control that also results in a material increase in the Employee’s commuting distance; or (iv) a material breach of this Agreement by the Company. The Employee shall provide the Company with a written notice detailing the specific circumstances alleged to constitute Good Reason within ninety (90) days after the first occurrence of such circumstances, and actually terminate employment within thirty (30) days following the expiration of the Company’s cure period as set forth above. Otherwise, any claim of such circumstances as “Good Reason” shall be deemed irrevocably waived by the Employee.

2. TERM

(a) At-Will Employment. The Employee acknowledges and agrees that the Employee’s employment with the Company is and shall remain “at-will” and the Employee’s employment with the Company may be terminated at any time and for any reason (or no reason) by the Company or the Employee, with or without notice. During the period of the Employee’s employment with the Company, the Employee shall perform such duties and fulfill such responsibilities as reasonably requested by the Company from time to time commensurate with the Employee’s position with the Company.

 

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(b) Expiration. Notwithstanding any other provisions herein to the contrary, in the event that a Change in Control is consummated and the Employee remains in the continued employment of the Company through the first anniversary of such Change in Control, this Agreement shall expire automatically as of such date, and thereafter, all of the rights and obligations of the Employee and the Company hereunder shall become null and void and without any further legal force or effect whatsoever.

3. CHANGE IN CONTROL SEVERANCE BENEFITS.

(a) BENEFITS UPON TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. If the Employee’s employment by the Company is terminated (x) by the Company other than for Cause (and other than due to death or physical or mental incapacity), or (y) by the Employee for Good Reason, in each case, within twelve (12) months following the occurrence of a Change in Control, the Company shall pay or provide the Employee with the following benefits, subject to the Employee’s continued compliance with the obligations in Sections 4, 5 and 6 hereof.

(i) The Accrued Benefits.

(ii) An amount equal to the Employee’s monthly Base Salary rate (but not as an employee), paid monthly for a period of twelve (12) months following such termination; provided that to the extent that the payment of any amount constitutes “nonqualified deferred compensation” for purposes of Code Section 409A, any such payment scheduled to occur during the first sixty (60) days following such termination shall not be paid until the sixtieth (60th) day following such termination and shall include payment of any amount that was otherwise scheduled to be paid prior thereto.

(iii) The impact of the Employee’s termination of employment under this Section 3(a) with respect to any outstanding long-term incentive program awards shall be governed by all of the terms and conditions of such program and the applicable award documentation thereunder.

(b) OTHER TERMINATIONS. The parties intention under this Agreement is to provide severance benefits only under the circumstances expressly enumerated under Section 3(a) hereof. Unless otherwise determined by the Company in its sole discretion, in the event of a termination of the Employee’s employment with the Company for any reason (or no reason) or at any time other than as expressly contemplated by Section 3(a) hereof, the Employee shall not be entitled to receive any severance benefits or other further compensation from the Company hereunder whatsoever, except for the Accrued Benefits and any other rights or benefits to which the Employee is otherwise entitled pursuant to the requirements of applicable law.

(c) OTHER OBLIGATIONS. Upon any termination of the Employee’s employment with the Company, on the request of the Company, the Employee shall promptly resign from any position as an officer, director or fiduciary of any Company-related entity.

(d) EXCLUSIVE REMEDY. The amounts payable to the Employee following termination of employment hereunder shall be in full and complete satisfaction of the Employee’s rights under this Agreement and any other claims that the Employee may have in respect of the Employee’s employment with the Company or any of its affiliates in connection with any termination of employment contemplated hereunder, and the Employee acknowledges that such amounts are fair and reasonable, and are the Employee’s sole and exclusive remedy, in lieu of all other remedies at law or in equity, with respect to the termination of the Employee’s employment hereunder or any breach of this Agreement.

 

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4. RELEASE; NO MITIGATION; NO SET-OFFS. Any and all amounts payable and benefits or additional rights provided pursuant to this Agreement beyond the Accrued Benefits shall only be payable if the Employee delivers to the Company and does not revoke a general release of claims in favor of the Company substantially in the form of Exhibit A attached hereto. Such release shall be executed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following termination. In no event shall the Employee be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Employee under any of the provisions of this Agreement, nor shall the amount of any payment hereunder be reduced by any compensation earned by the Employee as a result of employment by a subsequent employer. The Company’s obligations to pay the Employee amounts hereunder shall not be subject to set-off, counterclaim or recoupment by amounts owed by the Employee to the Company or any of its affiliates.

5. RESTRICTIVE COVENANTS.

(a) CONFIDENTIALITY; NONDISPARAGEMENT.

(i) The Employee recognizes that by reason of the Employee’s provision of services to the Company, the Employee has acquired confidential information and trade secrets concerning research and development, know-how, processes and techniques, technical data, customers, sales prospects, distribution, pricing and cost information, and marketing plans and proposals, financial data and the intellectual property of the Company (collectively, the “Proprietary Information”), the use or disclosure of which could cause the Company substantial loss and damages that could not be readily calculated and for which no remedy at law would be adequate; provided that Proprietary Information does not include any information that (A) is or becomes available to the general public or is generally available within the relevant business or industry other than as a result of an action by the Employee in breach of this Agreement, or (B) the Employee receives or has received on a non-confidential basis from a source other than the Company. Accordingly, the Employee covenants and agrees with the Company that, for the period commencing on the date hereof and ending on the first anniversary of the date that the Employee ceases to provide services to the Company, the Employee will not at any time, except in performance of the Employee’s obligations to the Company or with the prior written consent of the Company, directly or indirectly, disclose or reveal to any person, entity or other organization or use for the Employee’s own benefit any Proprietary Information known to the Employee unless disclosure is required by law, regulation or legal process (including, without limitation, by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) in connection with any proceeding by or before a governmental or judicial authority, regulatory or administrative body or securities exchange. For purposes of this Agreement, Proprietary Information may be in any medium or form, including, without limitation, physical documents, computer files or disks, videotapes, audiotapes, and oral communications.

 

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(ii) In the event that the Employee is requested or required by law, regulation or legal process to disclose any Proprietary Information, the Employee shall provide the Company with prompt written notice so that the Company may, at its own cost, seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained or the Company waives its right to seek such an order or remedy, the Employee shall, without liability under this Agreement, furnish only that portion of such Proprietary Information or take only such action that, in the opinion of the Employee’s counsel, the Employee is required to disclose under applicable law, regulation or legal process; provided that the Employee shall exercise the Employee’s commercially reasonable efforts to obtain assurance that confidential treatment shall be accorded any such Proprietary Information.

(iii) The Employee agrees that the Employee will not make, or cause or assist any other person to make, any statement or other communication, written or otherwise, to any third party, including, without limitation, books, articles or writings of any other kind, as well as film, videotape, audio tape, computer/internet format or any other medium, which impugns, attacks or criticizes, is misleading or untrue with respect to, or is otherwise disparaging (or that constitutes trade libel) of the reputation, business, prospects, products, services or character of any of the Company or the Company or any of their affiliates or any of their respective directors, officers or employees. Nothing in this Section 5(a)(iii) shall prohibit the Employee from providing truthful information in response to a subpoena or other legal process.

(b) INVENTIONS. (i) The Employee acknowledges and agrees that all ideas, methods, inventions, discoveries, improvements, work products, developments, software, know-how, processes, techniques, methods, works of authorship and other work product, whether patentable or unpatentable, (A) that are reduced to practice, created, invented, designed, developed, contributed to, or improved with the use of any Company resources and/or within the scope of the Employee’s work with the Company or that relate to the business, operations or actual or demonstrably anticipated research or development of the Company, and that are made or conceived by the Employee, solely or jointly with others, during the period of the Employee’s employment with the Company, or (B) suggested by any work that the Employee performs in connection with the Company, either while performing the Employee’s duties with the Company or on the Employee’s own time, but only insofar as the Inventions are related to the Employee’s work as an employee or other service provider to the Company, shall belong exclusively to the Company (or its designee), whether or not patent or other applications for intellectual property protection are filed thereon (the “Inventions”). The Employee will keep full and complete written records (the “Records”), in the manner prescribed by the Company, of all Inventions, and will promptly disclose all Inventions completely and in writing to the Company. The Records shall be the sole and exclusive property of the Company, and the Employee will surrender them upon the termination of the Employee’s employment with the Company, or upon the Company’s request. The Employee will assign to the Company the Inventions and all patents or other intellectual property rights that may issue thereon in any and all countries, whether during or subsequent to the Employee’s employment with the Company, together with the right to file, in the Employee’s name or in the name of the Company (or its designee), applications for patents and equivalent rights (the “Applications”). The Employee will, at any time during and subsequent to the Employee’s employment with the Company, make such applications, sign such papers, take all rightful oaths, and perform all other acts as may be requested from time to time by the Company to perfect, record, enforce, protect, patent or register the Company’s rights in the Inventions, all without additional compensation to the Employee from the Company. The Employee will also execute assignments to the Company (or its designee) of the Applications, and give the Company and its attorneys all reasonable assistance (including the giving of testimony) to obtain the Inventions for the Company’s benefit, all without additional compensation to the Employee from the Company, but entirely at the Company’s expense.

 

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(ii) In addition, the Inventions will be deemed Work for Hire, as such term is defined under the copyright laws of the United States, on behalf of the Company and the Employee agrees that the Company will be the sole owner of the Inventions, and all underlying rights therein, in all media now known or hereinafter devised, throughout the universe and in perpetuity without any further obligations to the Employee. If the Inventions, or any portion thereof, are deemed not to be Work for Hire, or the rights in such Inventions do not otherwise automatically vest in the Company, the Employee hereby irrevocably conveys, transfers and assigns to the Company, all rights, in all media now known or hereinafter devised, throughout the universe and in perpetuity, in and to the Inventions, including, without limitation, all of the Employee’s right, title and interest in the copyrights (and all renewals, revivals and extensions thereof) to the Inventions, including, without limitation, all rights of any kind or any nature now or hereafter recognized, including, without limitation, the unrestricted right to make modifications, adaptations and revisions to the Inventions, to exploit and allow others to exploit the Inventions and all rights to sue at law or in equity for any infringement, or other unauthorized use or conduct in derogation of the Inventions, known or unknown, prior to the date hereof, including, without limitation, the right to receive all proceeds and damages therefrom. In addition, the Employee hereby waives any so-called “moral rights” with respect to the Inventions. To the extent that the Employee has any rights in the results and proceeds of the Employee’s service to the Company that cannot be assigned in the manner described herein, the Employee agrees to unconditionally waive the enforcement of such rights. The Employee hereby waives any and all currently existing and future monetary rights in and to the Inventions and all patents and other registrations for intellectual property that may issue thereon, including, without limitation, any rights that would otherwise accrue to the Employee’s benefit by virtue of the Employee being an employee of or other service provider to the Company.

(c) RETURN OF COMPANY PROPERTY. On the date of the Employee’s termination of employment with the Company for any reason (or at any time prior thereto at the Company’s request), the Employee shall return all property belonging to the Company or its affiliates (including, but not limited to, any Company-provided laptops, computers, cell phones, wireless electronic mail devices or other equipment, or documents and property belonging to the Company). The Employee may retain the Employee’s rolodex and similar address books provided that such items only include contact information.

(d) REASONABLENESS OF COVENANTS. In signing this Agreement, the Employee gives the Company assurance that the Employee has carefully read and considered all of the terms and conditions of this Agreement, including the restraints imposed under this Section 5. The Employee agrees that these restraints are necessary for the reasonable and proper protection of the Company and its affiliates and their Confidential Information and that each and every one of the restraints is reasonable in respect of subject matter, length of time and geographic area, and that these restraints, individually or in the aggregate, will not prevent the Employee from obtaining other suitable employment during the period in which the Employee is bound by the restraints. The covenants contained in this Section 5 are independent covenants and shall be enforceable by the Company regardless of any claims that the Employee shall have against the Company or any of its affiliates, whether under this Agreement or otherwise. The Employee further covenants that the Employee will not challenge the reasonableness or enforceability of any of the covenants set forth in this Section 5. It is also agreed that each of the Company’s affiliates will have the right to enforce all of the Employee’s obligations to that affiliate under this Agreement, including without limitation pursuant to this Section 5.

 

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(e) REFORMATION. In the event that any of the covenants contained in this Section 5 shall be determined by any court of competent jurisdiction to be unenforceable for any reason whatsoever, then any such provision or provisions shall not be deemed void, and the parties hereto agree that said limits may be modified by the court and that said covenants contained in this Section 5 shall be amended in accordance with said modification, it being specifically agreed by the parties that it is their continuing desire that the covenants contained in this Section 5 be enforced to the full extent of its terms and conditions or if a court finds the scope of the covenants unenforceable, the court should redefine the covenants so as to comply with applicable law.

6. COOPERATION. Upon the receipt of reasonable notice from the Company (including outside counsel), the Employee agrees that while employed by the Company and thereafter, the Employee will respond and provide information with regard to matters in which the Employee has knowledge as a result of the Employee’s employment with the Company, and will provide reasonable assistance to the Company, its affiliates and their respective representatives in defense of all claims that may be made against the Company or its affiliates, and will assist the Company and its affiliates in the prosecution of all claims that may be made by the Company or its affiliates, to the extent that such claims may relate to the period of the Employee’s employment with the Company. The Employee agrees to promptly inform the Company if the Employee becomes aware of any lawsuit involving such claims that may be filed or threatened against the Company or its affiliates. The Employee also agrees to promptly inform the Company (to the extent that the Employee is legally permitted to do so) if the Employee is asked to assist in any investigation of the Company or its affiliates (or their actions), regardless of whether a lawsuit or other proceeding has then been filed against the Company or its affiliates with respect to such investigation, and shall not do so unless legally required. Upon presentation of appropriate documentation, the Company shall pay or reimburse the Employee for all reasonable out-of-pocket travel, duplicating or telephonic expenses incurred by the Employee in complying with this Section 6.

7. EQUITABLE RELIEF AND OTHER REMEDIES. The Employee acknowledges and agrees that the remedy at law for any breach of any of the provisions of Section 5 or Section 6 hereof may be inadequate and, accordingly, the Employee covenants and agrees that the Company shall, in addition to any other rights and remedies to which the Company and its affiliates may have under applicable law, be entitled to equitable relief, including, without limitation, injunctive relief, without bond or other necessity, and to the remedy of specific performance with respect to any breach or threatened breach of such covenants, as may be available from any court of competent jurisdiction. In the event of a material violation by the Employee of Section 5 or Section 6 hereof, any severance being paid to the Employee pursuant to this Agreement or otherwise shall immediately cease, and any severance previously paid to the Employee shall be immediately repaid to the Company.

 

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8. NO ASSIGNMENTS. This Agreement is personal to each of the parties hereto. Except as provided in this Section 8 hereof, no party may assign or delegate any rights or obligations hereunder without first obtaining the written consent of the other party hereto. The Company may assign this Agreement to any successor to all or substantially all of the business and/or assets of the Company; provided that the Company shall require such successor to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company and any successor to its business and/or assets, which assumes and agrees to perform the duties and obligations of the Company under this Agreement by operation of law or otherwise.

9. NOTICE. For purposes of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given (a) on the date of delivery, if delivered by hand, (b) on the date of transmission, if delivered by confirmed facsimile or electronic mail, (c) on the first business day following the date of deposit, if delivered by guaranteed overnight delivery service, or (d) on the fourth business day following the date delivered or mailed by United States registered or certified mail, return receipt requested, postage prepaid, addressed as follows:

If to the Employee:

At the address (or to the facsimile number) shown

in the books and records of the Company.

If to the Company:

Spectrum Pharmaceuticals, Inc.

11500 S. Eastern Avenue, Suite 240

Henderson, NV 89052

Attention: Legal Department

e-mail: legal@sppirx.com

With a copy to (which shall not constitute notice):

Spectrum Pharmaceuticals, Inc.

11500 S. Eastern Avenue, Suite 240

Henderson, NV 89052

Attention: Chief Executive Officer

or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.

 

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10. SECTION HEADINGS; INCONSISTENCY. The section headings used in this Agreement are included solely for convenience and shall not affect, or be used in connection with, the interpretation of this Agreement. In the event of any inconsistency between the terms of this Agreement and any form, award, plan or policy of the Company, the terms of this Agreement shall govern and control.

11. SEVERABILITY. The provisions of this Agreement shall be deemed severable. The invalidity or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of any provision of this Agreement in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by applicable law.

12. COUNTERPARTS. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.

13. GOVERNING LAW; JURISDICTION. This Agreement, the rights and obligations of the parties hereto, and all claims or disputes relating thereto, shall be governed by and construed in accordance with the laws of the State of Nevada, without regard to the choice of law provisions thereof. Each of the parties agrees that any dispute between the parties shall be resolved only in the courts of the State of Nevada or the United States District Court for Nevada and the appellate courts having jurisdiction of appeals in such courts. In that context, and without limiting the generality of the foregoing, each of the parties hereto irrevocably and unconditionally (a) submits in any proceeding relating to this Agreement or the Employee’s employment by the Company or any affiliate, or for the recognition and enforcement of any judgment in respect thereof (a “Proceeding”), to the exclusive jurisdiction of the courts of the State of Nevada, the court of the United States of America for the State of Nevada, and appellate courts having jurisdiction of appeals from any of the foregoing, and agrees that all claims in respect of any such Proceeding shall be heard and determined in such Nevada State court or, to the extent permitted by law, in such federal court, (b) consents that any such Proceeding may and shall be brought in such courts and waives any objection that the Employee or the Company may now or thereafter have to the venue or jurisdiction of any such Proceeding in any such court or that such Proceeding was brought in an inconvenient court and agrees not to plead or claim the same, (c) WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE EMPLOYEE’S EMPLOYMENT BY THE COMPANY OR ANY AFFILIATE OF THE COMPANY, OR THE EMPLOYEE’S OR THE COMPANY’S PERFORMANCE UNDER, OR THE ENFORCEMENT OF, THIS AGREEMENT, (d) agrees that service of process in any such Proceeding may be effected by mailing a copy of such process by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such party at the Employee’s or the Company’s address as provided in Section 9 hereof, and (e) agrees that nothing in this Agreement shall affect the right to effect service of process in any other manner permitted by the laws of the State of Nevada. The parties acknowledge and agree that in connection with any dispute hereunder, each party shall pay all of its own costs and expenses, including, without limitation, its own legal fees and expenses.

 

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14. MISCELLANEOUS. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by the Employee and such officer or director of the Company as may be designated by the Board. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. This Agreement together with all exhibits hereto (if any) sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersedes any and all prior agreements or understandings between the Employee and the Company with respect to the subject matter hereof. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not expressly set forth in this Agreement.

15. TAX MATTERS.

(a) WITHHOLDING. The Company may withhold from any and all amounts payable under this Agreement or otherwise such federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation.

(b) CODE SECTION 409A COMPLIANCE.

(i) The intent of the parties is that payments and benefits under this Agreement comply with Code Section 409A, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Employee and the Company of the applicable provision without violating the provisions of Code Section 409A.

(ii) To the extent required for purposes of Code Section 409A, if applicable, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amount or benefit upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” Notwithstanding anything to the contrary in this Agreement, if the Employee is deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered “nonqualified deferred compensation” under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall not be made or provided until the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such “separation from service” of the Employee, and (B) the date of the Employee’s death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 15(b)(ii) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Employee in a lump sum, and all remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.

 

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(iii) To the extent that reimbursements or other in-kind benefits under this Agreement constitute “nonqualified deferred compensation” for purposes of Code Section 409A, (A) all expenses or other reimbursements hereunder shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Employee, (B) any right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (C) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. For purposes of Code Section 409A, the Employee’s right to receive installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

 

SPECTRUM PHARMACEUTICALS, INC.

By:

 

  

Name:

 

Title:

 

EMPLOYEE

By:

 

 

Name:

 

Title:

 

Change in Control Severance Agreement Signature Page


EXHIBIT A

GENERAL RELEASE

I,             , in consideration of and subject to the performance by Spectrum Pharmaceuticals, Inc. (together with its subsidiaries and successors, the “Company”), of its obligations under the Change in Control Severance Agreement dated as of March 28, 2014 (the “Agreement”), do hereby release and forever discharge as of the date hereof the Company and its respective affiliates, subsidiaries and direct or indirect parent entities and all present, former and future directors, officers, agents, representatives, employees, successors and assigns of the Company and/or its respective affiliates, subsidiaries and direct or indirect parent entities (collectively, the “Released Parties”) to the extent provided below (this “General Release”). The Released Parties are intended to be third-party beneficiaries of this General Release, and this General Release may be enforced by each of them in accordance with the terms hereof in respect of the rights granted to such Released Parties hereunder. Terms used herein but not otherwise defined shall have the meanings given to them in the Agreement.

1. I understand that any payments or benefits paid or granted to me under Section 3 of the Agreement represent, in part, consideration for signing this General Release and are not salary, wages or benefits to which I was already entitled. I understand and agree that I will not receive certain of the payments and benefits specified in Section 3 of the Agreement unless I execute this General Release and do not revoke this General Release within the time period permitted hereafter. Such payments and benefits will not be considered compensation for purposes of any employee benefit plan, program, policy or arrangement maintained or hereafter established by the Company or its affiliates.

2. Except as provided in paragraphs 4 and 5 below and except for the provisions of the Agreement which expressly survive the termination of my employment with the Company, I knowingly and voluntarily (for myself, my heirs, executors, administrators and assigns) release and forever discharge the Company and the other Released Parties from any and all claims, suits, controversies, actions, causes of action, cross-claims, counter-claims, demands, debts, compensatory damages, liquidated damages, punitive or exemplary damages, other damages, claims for costs and attorneys’ fees, or liabilities of any nature whatsoever in law and in equity, both past and present (through the date that this General Release becomes effective and enforceable) and whether known or unknown, suspected, or claimed against the Company or any of the Released Parties which I, my spouse, or any of my heirs, executors, administrators or assigns, may have, which arise out of or are connected with my employment with, or my separation or termination from, the Company (including, but not limited to, any allegation, claim or violation, arising under: Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended (including the Older Workers Benefit Protection Act); the Equal Pay Act of 1963, as amended; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification Act; the Employee Retirement Income Security Act of 1974; any applicable Executive Order Programs; the Fair Labor Standards Act; or their state or local counterparts; or under any other federal, state or local civil or human rights law, or under any other local, state, or federal law, regulation or ordinance; or under any public policy, contract or tort, or under common law; or arising under any policies, practices or procedures of the Company; or any claim for wrongful discharge, breach of contract, infliction of emotional distress, defamation; or any claim for costs, fees, or other expenses, including attorneys’ fees incurred in these matters) (all of the foregoing collectively referred to herein as the “Claims”).

 

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3. I represent that I have made no assignment or transfer of any right, claim, demand, cause of action, or other matter covered by paragraph 2 above.

4. I agree that this General Release does not waive or release any rights or claims that I may have under the Age Discrimination in Employment Act of 1967 which arise after the date I execute this General Release. I acknowledge and agree that my separation from employment with the Company in compliance with the terms of the Agreement shall not serve as the basis for any claim or action (including, without limitation, any claim under the Age Discrimination in Employment Act of 1967).

5. I agree that I hereby waive all rights to sue or obtain equitable, remedial or punitive relief from any or all Released Parties of any kind whatsoever in respect of any Claim, including, without limitation, reinstatement, back pay, front pay, and any form of injunctive relief. Notwithstanding the above, I further acknowledge that I am not waiving and am not being required to waive any right that cannot be waived under law, including the right to file an administrative charge or participate in an administrative investigation or proceeding; provided, however, that I disclaim and waive any right to share or participate in any monetary award resulting from the prosecution of such charge or investigation or proceeding. Additionally, I am not waiving (i) any right to the Accrued Benefits or any severance benefits to which I am entitled under the Agreement, (ii) any claim relating to directors’ and officers’ liability insurance coverage or any right of indemnification under the Company’s organizational documents or otherwise, (iii) claims under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, (iv) claims related to reimbursement of ordinary and reasonable business expenses in accordance with the Company’s policies in effect from time to time, and (v) claims relating to any outstanding equity-based award on the date of termination in accordance with the terms thereof.

6. In signing this General Release, I acknowledge and intend that it shall be effective as a bar to each and every one of the Claims hereinabove mentioned or implied. I expressly consent that this General Release shall be given full force and effect according to each and all of its express terms and provisions, including those relating to unknown and unsuspected Claims (notwithstanding any state or local statute that expressly limits the effectiveness of a general release of unknown, unsuspected and unanticipated Claims), if any, as well as those relating to any other Claims hereinabove mentioned or implied. I acknowledge and agree that this waiver is an essential and material term of this General Release and that without such waiver the Company would not have agreed to the terms of the Agreement. I further agree that in the event I should bring a Claim seeking damages against the Company, or in the event I should seek to recover against the Company in any Claim brought by a governmental agency on my behalf, this General Release shall serve as a complete defense to such Claims to the maximum extent permitted by law. I further agree that I am not aware of any pending claim of the type described in paragraph 2 above as of the execution of this General Release.

 

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7. I agree that neither this General Release, nor the furnishing of the consideration for this General Release, shall be deemed or construed at any time to be an admission by the Company, any Released Party or myself of any improper or unlawful conduct.

8. I agree that if I violate this General Release by suing the Company or the other Released Parties, I will pay all costs and expenses of defending against the suit incurred by the Released Parties, including reasonable attorneys’ fees.

9. I agree that this General Release and the Agreement are confidential and agree not to disclose any information regarding the terms of this General Release or the Agreement, except to my immediate family and any tax, legal or other counsel that I have consulted regarding the meaning or effect hereof or as required by law, and I will instruct each of the foregoing not to disclose the same to anyone.

10. Any non-disclosure provision in this General Release does not prohibit or restrict me (or my attorney) from responding to any inquiry about this General Release or its underlying facts and circumstances by the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), any other self-regulatory organization or any governmental entity.

11. I hereby acknowledge that Sections 3 through 9, 11, and 13 through 15 of the Agreement shall survive my execution of this General Release.

12. I represent that I am not aware of any claim by me other than the claims that are released by this General Release. I acknowledge that I may hereafter discover claims or facts in addition to or different than those which I now know or believe to exist with respect to the subject matter of the release set forth in paragraph 2 above and which, if known or suspected at the time of entering into this General Release, may have materially affected this General Release and my decision to enter into it.

13. Notwithstanding anything in this General Release to the contrary, this General Release shall not relinquish, diminish, or in any way affect any rights or claims arising out of any breach by the Company or by any Released Party of the Agreement after the date hereof.

14. Whenever possible, each provision of this General Release shall be interpreted in, such manner as to be effective and valid under applicable law, but if any provision of this General Release is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this General Release shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

 

A-3


BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:

 

 

1.

I HAVE READ IT CAREFULLY;

 

 

2.

I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED;

 

 

3.

I VOLUNTARILY CONSENT TO EVERYTHING IN IT;

 

 

4.

I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION, I HAVE CHOSEN NOT TO DO SO OF MY OWN VOLITION;

 

 

5.

I HAVE HAD AT LEAST [21][45] DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE TO CONSIDER IT, AND THE CHANGES MADE SINCE MY RECEIPT OF THIS RELEASE ARE NOT MATERIAL OR WERE MADE AT MY REQUEST AND WILL NOT RESTART THE REQUIRED [21][45]-DAY PERIOD;

 

 

6.

I UNDERSTAND THAT I HAVE SEVEN (7) DAYS AFTER THE EXECUTION OF THIS RELEASE TO REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS EXPIRED;

 

 

7.

I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND

 

 

8.

I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED, WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME.

 

SIGNED:

 

 

 

 

DATED:

 

NAME:

 

 

 

 

 

 

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