RELEASE AGREEMENT
I
understand that my employment with Sunesis Pharmaceuticals, Inc. (the
“Company”)
is
terminating effective June 6, 2008. I further understand that if I sign this
Release Agreement (the “Release”)
and
allow it to become effective, then the Company shall provide me with the
following severance benefits under the terms of my Amended and Restated
Executive Severance Benefits Agreement dated as of May 27, 2008: (1) a lump-sum
payment equal to nine
(9)
months’ of my base salary, less standard payroll deductions and withholdings,
payable within thirty (30) days after the Effective Date of this Release; (2)
provided I timely elect continued coverage under COBRA (as defined in my
Amended
and Restated Executive Severance Benefits Agreement),
payment
of the premiums to continue my group health insurance coverage, including
coverage for my eligible dependents, for a maximum period of nine (9) months
following my termination (or such lesser number of months as my dependents
and I
are eligible for such coverage); and (3) the vesting of my outstanding Stock
Awards (as defined in my Amended
and Restated Executive Severance Benefits Agreement)
shall be
accelerated such that as of my termination date, those Stock Awards that would
have vested in the ordinary course over the twelve (12) month period following
the date of my termination had I remained continuously employed by the Company
during such period shall be fully vested and exercisable; and, in addition
to
such severance benefits under my Amended
and Restated Executive Severance Benefits Agreement,
an
offer, open through July 1, 2008, to amend my vested stock options outstanding
as of my termination date in accordance with the Acceptance of Option Amendment
attached hereto as Exhibit A.
I
understand that this Release, together with the Amended and Restated Executive
Severance Benefits Agreement between me and the Company, constitutes the
complete, final and exclusive embodiment of the entire agreement between me
and
the Company with regard to the subject matter hereof. I am not relying on any
promise or representation by the Company that is not expressly stated therein.
Certain
capitalized terms used in this Release are defined in the Amended and Restated
Executive Severance Benefits Agreement, which I have executed and of which
this
Release is a part.
1.
Proprietary
Information Obligations. I
hereby
confirm my obligations under my Confidentiality Agreement with the
Company.
2. General
Release.
In
exchange for severance benefits and other consideration provided to me by the
Amended and Restated Executive Severance Benefits Agreement that I am
not
otherwise entitled to receive, I hereby generally and completely release the
Company and its current and former directors, officers, employees, stockholders,
shareholders, partners, agents, attorneys, predecessors, successors, parent
and
subsidiary entities, insurers, affiliates, and assigns (collectively, the
“Released
Parties”)
from
any and all claims, liabilities and obligations, both known and unknown, that
arise out of or are in any way related to events, acts, conduct, or omissions
occurring prior to my signing this Release (collectively, the “Released
Claims”).
The
Released Claims include, but are not limited to: (1) all claims arising out
of
or in any way related to my employment with the Company or its affiliates,
or
the termination of that employment; (2) all claims related to my compensation
or
benefits, including salary, bonuses, commissions, vacation pay, expense
reimbursements, severance pay, fringe benefits, stock, stock options, or any
other ownership interests in the Company or its affiliates; (3) all claims
for
breach of contract, wrongful termination, and breach of the implied covenant
of
good faith and fair dealing; (4) all tort claims, including claims for fraud,
defamation, emotional distress, and discharge in violation of public policy;
and
(5) all federal, state, and local statutory claims, including claims for
discrimination, harassment, retaliation, attorneys’ fees, or other claims
arising under the federal Civil Rights Act of 1964 (as amended), the federal
Americans with Disabilities Act of 1990, the federal Age Discrimination in
Employment Act of 1967 (as amended) (“ADEA”),
the
federal Employee Retirement Income Security Act of 1974 (as amended), and the
California Fair Employment and Housing Act (as amended). Notwithstanding the
foregoing, the following are not included in the Released Claims (the
“Excluded
Claims”):
(1)
any rights or claims for indemnification I may have pursuant to any written
indemnification agreement with the Company to which I am a party, the charter,
bylaws, or operating agreements of the Company, or under applicable law; or
(2)
any rights which are not waiveable as a matter of law. In addition, nothing
in
this Release prevents me from filing, cooperating with, or participating in
any
proceeding before the Equal Employment Opportunity Commission, the Department
of
Labor, or the California Department of Fair Employment and Housing, except
that
I hereby waive my right to any monetary benefits in connection with any such
claim, charge or proceeding. I hereby represent and warrant that, other than
the
Excluded Claims, I am not aware of any claims I have or might have against
any
of the Released Parties that are not included in the Released
Claims.
1.
3. ADEA
Waiver.
I
acknowledge that I am knowingly and voluntarily waiving and releasing any rights
I may have under the ADEA. I also acknowledge that the consideration given
for
the Released Claims is in addition to anything of value to which I was already
entitled. I further acknowledge that I have been advised by this writing, as
required by the ADEA, that: (a) the Released Claims do not apply to any rights
or claims that arise after the date I sign this Release; (b) I should consult
with an attorney prior to signing this Release (although I may choose
voluntarily not to do so); (c) I have twenty-one (21) days to consider this
Release (although I may choose to voluntarily sign it sooner); (d) I have seven
(7) days following the date I sign this Release to revoke the Release by
providing written notice to an officer of the Company; and (e) the Release
will
not be effective until the date upon which the revocation period has expired
unexercised, which will be the eighth day after I sign this Release
(“Effective
Date”).
4. Section
1542 Waiver. I
acknowledge that I have read and understand Section 1542 of the California
Civil
Code which reads as follows: “A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his or her favor at the time of executing the release,
which
if known by him or her must have materially affected his or her settlement
with
the debtor.”
I hereby
expressly waive and relinquish all rights and benefits under that section and
any law of any jurisdiction of similar effect with respect to my release of
any
claims I may have against the Company.
5. Representations.
I hereby
represent that I have been paid all compensation owed and for all hours worked,
I have received all the leave and leave benefits and protections for which
I am
eligible, and I have not suffered any on-the-job injury for which I have not
already filed a workers’ compensation claim.
2.
6. Non-Disparagement.
I hereby
agree not to disparage the Company, or its officers, directors, employees,
shareholders or agents, in any manner likely to be harmful to its or their
business, business reputation, or personal reputation; provided,
however,
that I
will respond accurately and fully to any question, inquiry or request for
information when required by legal process.
I
acknowledge that to become effective, I must sign and return this Release to
the
Company on or before June 27, 2008 (but in no event before my last day of
employment with the Company), and I must not revoke it thereafter.
Xxxxxx
X. Xxxxxxx, M.D.
/s/ Xxxxxx
X. Xxxxxxx
Date: 6/6/08
3.
EXHIBIT
A
Acceptance
of Option Amendment
By
signing below, I hereby accept the offer of Sunesis
Pharmaceuticals, Inc. (the “Company”)
to
amend
my outstanding stock options (set forth on Schedule
1
hereto)
that have vested as of June 6, 2008, together with any options that will vest
in
the event I sign that certain Release Agreement provided to me by the Company
on
June 6, 2008 and I
allow
such
Release Agreement to
become
effective
(collectively, “Options”)
to
extend the post-termination exercise period of such Options until the earlier
of
(i) the original end of the term of each such Option or (ii) June 30, 2009.
I
understand that any Option so amended may cease to qualify as an “incentive
stock option” to the extent such Option previously would have qualified as an
“incentive stock option.” I
have been encouraged by the Company to consult with my tax advisor for guidance
on the tax implications of this Acceptance of Option
Amendment.
Except
as described in this Acceptance of Option Amendment, I understand that
my
right to
exercise any Option, and all other rights and obligations with respect to my
Options(s), will be as set forth in my stock option agreement(s), grant
notice(s) and applicable stock plan documents. I
have
reviewed such documents and am aware of their terms, including without
limitation the original end of the term of each Option. I understand that the
Company will not send me notice in the future regarding the timing of the
expiration of my stock options unless and until I request such information
in
writing from the Company’s stock plan administrator.
I
understand that if I do not sign and return this Acceptance of Option Amendment
on
or before July 1, 2008,
my
Options will not
be
amended as offered hereunder.
Xxxxxx
X. Xxxxxxx, M.D.
Date:
4.
