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 NASDA
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