EXHIBIT 10.33
TERMINATION
AGREEMENT
This Agreement is made as of the 7th
day of July, 2004, between MGI PHARMA, INC., a Minnesota
corporation, with its principal offices at Suite 100, 5775 Old
Shakopee Road, Bloomington, Minnesota 55347 (the
“Company”) and Eric P. Loukas (“Employee”),
residing at 1738 Tamberwood Echo, Woodbury, Minnesota,
55125.
WITNESSETH THAT:
WHEREAS, this Agreement is intended
to specify the financial arrangements that the Company will provide
to the Employee upon Employee’s separation from employment
with the Company under any of the circumstances described herein;
and
WHEREAS, this Agreement is entered
into by the Company in the belief that it is in the best interests
of the Company and its shareholders to provide stable conditions of
employment for Employee notwithstanding the possibility, threat or
occurrence of certain types of change in control, thereby enhancing
the Company’s ability to attract and retain highly qualified
people.
NOW, THEREFORE, to assure the
Company that it will have the continued dedication of Employee
notwithstanding the possibility, threat or occurrence of a bid to
take over control of the Company, and to induce Employee to remain
in the employ of the Company, and for other good and valuable
consideration, the Company and Employee agree as
follows:
1. Term of Agreement . The
term of this Agreement shall commence on the date hereof as first
written above and shall continue through December 31, 2004;
provided that commencing on January 1, 2005 and each
January 1 thereafter, the term of this Agreement shall
automatically be extended for one additional year unless not later
than twelve months prior to such January 1, the Company shall have
given notice that it does not wish to extend this Agreement (which
notice may not, in any event, be given sooner than January 1,
2005); and provided , further , that
notwithstanding any such notice by the Company not to extend, this
Agreement shall continue in effect for a period of 24 months beyond
the term provided herein if a Change in Control (as defined in
Section 3(i) hereof) shall have occurred during such
term.
2. Termination of
Employment
(i) Prior to a Change in
Control . Prior to a Change in Control (as defined in Section
3(i) hereof), the Company may terminate Employee from employment
with the Company at will, with or without Cause (as defined in
Section 3(iii) hereof), at any time.
(ii) After a Change in
Control
(a) From and after the date of a
Change in Control (as defined in Section 3(i) hereof) during the
term of this Agreement, the Company shall not terminate Employee
from employment with the Company except as provided in this Section
2(ii) or as a result of Employee’s Disability (as defined in
Section 3(iv) hereof) or his death.
(b) From and after the date of a
Change in Control (as defined in Section 3(i) hereof) during the
term of this Agreement, the Company shall have the right to
terminate Employee from employment with the Company at any time
during the term of this Agreement for Cause (as defined in Section
3(iii) hereof), by written notice to the Employee, specifying the
particulars of the conduct of Employee forming the basis for such
termination.
(c) From and after the date of a
Change in Control (as defined in Section 3(i) hereof) during the
term of this Agreement: (x) the Company shall have the right to
terminate Employee’s employment without Cause (as defined in
Section 3(iii) hereof), at any time; and (y) the Employee shall,
upon the occurrence of such a termination by the Company without
Cause, or upon the voluntary termination of Employee’s
employment by Employee for Good Reason (as defined in Section 3(ii)
hereof), be entitled to receive the benefits provided in Section 4
hereof. Employee shall evidence a voluntary termination for Good
Reason by written notice to the Company given within 60 days after
the date of the occurrence of any event that Employee knows or
should reasonably have known constitutes Good Reason for voluntary
termination. Such notice need only identify the Employee and set
forth in reasonable detail the facts and circumstances claimed by
Employee to constitute Good Reason.
Any notice given by Employee pursuant to this
Section 2 shall be effective five business days after the date it
is given by Employee.
1
3. Definitions
(i) A “Change in
Control” shall mean:
(a) a change in control of a nature
that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”),
or successor provision thereto, whether or not the Company is then
subject to such reporting requirement;
(b) any “person” (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act)
is or becomes the “beneficial owner” (as defined in
Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Company representing 35% or more
of the combined voting power of the Company’s then
outstanding securities;
(c) the Continuing Directors (as
defined in Section 3(v) hereof) cease to constitute a majority of
the Company’s Board of Directors; provided that
such change is the direct or indirect result of a proxy fight and
contested election or elections for positions on the Board of
Directors; or
(d) the majority of the Continuing
Directors (as defined in Section 3(v) hereof) determine in their
sole and absolute discretion that there has been a change in
control of the Company.
(ii) “Good Reason” shall
mean the occurrence of any of the following events, except for the
occurrence of such an event in connection with the termination or
reassignment of Employee’s employment by the Company for
Cause (as defined in Section 3(iii) hereof), for Disability (as
defined in Section 3(iv) hereof) or for death:
(a) the assignment to Employee of
employment responsibilities which are not of comparable
responsibility and status as the employment responsibilities held
by Employee immediately prior to a Change in Control;
(b) a reduction by the Company in
Employee’s base salary as in effect immediately prior to a
Change in Control;
(c) an amendment or modification of
the Company’s incentive compensation program (except as may
be required by applicable law) which affects the terms or
administration of the program in a manner adverse to the interest
of Employee as compared to the terms and administration of such
program immediately prior to a Change in Control;
(d) the Company’s requiring
Employee to be based anywhere other than within 50 miles of
Employee’s office location immediately prior to a Change in
Control, except for requirements of temporary travel on the
Company’s business to an extent substantially consistent with
Employee’s business travel obligations immediately prior to a
Change in Control;
(e) except to the extent otherwise
required by applicable law, the failure by the Company to continue
in effect any benefit or compensation plan, stock ownership plan,
stock purchase plan, bonus plan, life insurance plan,
health-and-accident plan or disability plan in which Employee is
participating immediately prior to a Change in Control (or plans
providing Employee with substantially similar benefits), the taking
of any action by the Company which would adversely affect
Employee’s participation in, or materially reduce
Employee’s benefits under, any of such plans or deprive
Employee of any material fringe benefit enjoyed by Employee
immediately prior to such Change in Control, or the failure by the
Company to provide Employee with the number of paid vacation days
to which Employee is entitled immediately prior to such Change in
Control in accordance with the Company’s vacation policy as
then in effect; or
(f) the failure by the Company to
obtain, as specified in Section 5(i) hereof, an assumption of the
obligations of the Company to perform this Agreement by any
successor to the Company.
(iii) “Cause” shall mean
termination by the Company of Employee’s employment based
upon (a) the willful and continued failure by Employee
substantially to perform his duties and obligations (other than any
such failure resulting from his incapacity due to physical or
mental illness or any such actual or anticipated failure resulting
from Employee’s termination for Good Reason) or (b) the
willful engaging by Employee in misconduct which is materially
injurious to the Company, monetarily or otherwise. For purposes of
this Section 3(iii), no action or failure to act on
Employee’s part shall be considered “willful”
unless done, or omitted to be done, by Employee in bad faith and
without reasonable belief that his action or omission was in the
best interests of the Company.
(iv) “Disability” shall
mean any physical or mental condition which would qualify Employee
for a disability benefit under the Company’s long-term
disability plan.
(v) “Continuing
Director” shall mean any person who is a member of the Board
of Directors of the Company, while such person is a
membe
