AMENDED AND RESTATED EXECUTIVE CHANGE IN CONTROL SEVERANCE BENEFITS AGREEMENT
Exhibit 10.9(iii)
AMENDED AND RESTATED
EXECUTIVE CHANGE IN CONTROL
SEVERANCE BENEFITS AGREEMENT
EXECUTIVE CHANGE IN CONTROL
SEVERANCE BENEFITS AGREEMENT
This Amended and Restated Executive Change in Control Severance Benefits
Agreement (the “Agreement”) is
entered into as of May 18, 2011 (the “Effective Date”),
between Xxxx Xxxxxx-Xxxxx (“Executive”) and Onyx Pharmaceuticals, Inc. (the
“Company”) and amends and restates the prior Executive Change in Control Severance Benefits
Agreement between the Company and Executive dated September 30, 2010 (the “Original Date”). This
Agreement is intended to provide Executive with certain compensation and benefits in the event that
Executive is subject to a qualifying termination of employment in connection with a Change in
Control. Certain capitalized terms used in this Agreement are defined in Article 5.
The Company and Executive hereby agree as follows:
ARTICLE 1
1.1 The Company desires to continue to employ Executive in the position of SVP,
Global Human Resources, and Executive wishes to continue to be employed by the Company in such
position.
1.2 The Company and Executive wish to clarify the compensation and benefits the
Executive shall be eligible to receive upon a Covered Termination as well as the manner of
compliance with, or exemption from, Code Section 409A and recent proposed health care regulations.
1.3 The duties and obligations of the Company to Executive under this Agreement
shall be in consideration for Executive’s past services to the Company, Executive’s continued
employment with the Company, and, with respect to the benefits described in Article 2, Executive’s
execution of an effective Release in accordance with Section 3.1.
1.4 This Agreement supersedes and replaces all prior agreements, plans, policies and
understandings on the subjects contained herein, including, but not limited to all prior executive
change in control severance benefits agreements (together, the “Prior Agreements”).
ARTICLE 2
2.1 Severance Benefits. Upon a Covered Termination, and subject to the terms and
conditions of this Agreement, Executive shall be entitled to receive the benefits set forth in this
Article 2.
1.
2.2 Cash Severance Benefits. The Company shall make a cash severance payment in a
lump sum to Executive in an amount equal to the product of (i) Executive’s Base Salary, and (ii)
the quotient obtained by dividing twenty-six (26) by twelve (12), less applicable tax withholdings.
This lump sum will be paid on the sixtieth (60th) day following the date of the Covered
Termination, but in no event later than as provided in Section 3.4 below.
(a) Provided that Executive is eligible for, and has made the necessary elections
pursuant to COBRA under a health, dental, or vision plan sponsored by the Company, Executive shall
be entitled to payment, as and when due to the COBRA carrier, by the Company in an amount equal to
the monthly total of the applicable premiums (inclusive of premiums for Executive’s eligible
dependents for such health, dental, or vision plan coverage as in effect immediately prior to the
date of the Covered Termination) for such health, dental, or vision plan coverage, less applicable
tax withholdings, until the earliest to occur of (i) eighteen (18) months after Executive’s
termination date, (ii) the date Executive becomes eligible for coverage under a health, dental, or
vision insurance plan of a subsequent employer and (iii) the date Executive or his dependents cease
to be eligible for COBRA coverage. In no way limiting Section 3.5 below, these payments will be
subject to any applicable tax withholdings (including tax withholdings necessary to ensure that the
provision of this benefit is not deemed a discriminatory practice giving rise to penalties to the
Company under applicable laws) and will be counted as coverage pursuant to COBRA to the maximum
extent permitted under applicable law. Executive shall be required to notify the Company
immediately if Executive becomes eligible for coverage under a health, dental, or vision insurance
plan of a subsequent employer. Upon the conclusion of such period of insurance premium payments
made by the Company, Executive will be responsible for the entire payment of such premiums required
under COBRA for the remaining duration of the COBRA period, if any.
(b) For purposes of this Section 2.3, (i) references to COBRA shall be deemed to
refer also to analogous provisions of state law, and (ii) the amount of the payment from the
Company shall not include any amounts payable by Executive under a Code Section 125 health care
reimbursement plan, which amounts, if any, are the sole responsibility of Executive.
2.4 Continued Life Insurance Benefit. Provided the Executive converts his coverage
under the Company’s basic group life insurance policy into individual coverage, the Company shall
pay, directly to the provider, as and when due, an amount equal to the same percentage of the cost
of such premiums for such basic (but not supplemental) group life insurance coverage that the
Company paid prior to the Covered Termination, less applicable tax withholdings, until the earliest
to occur of (i) eighteen (18) months after Executive’s termination date, (ii) the date Executive
becomes eligible for coverage under a group life insurance plan or policy of a subsequent employer
and (iii) the date Executive ceases to be eligible for such conversion coverage. Executive shall
be required to notify the Company in writing immediately if Executive becomes eligible for coverage
by a life insurance plan or policy of a subsequent employer.
2.5 Outplacement Assistance. On behalf of Executive, the Company shall reimburse
Executive for reasonable outplacement services actually incurred for a period of one
2.
(1) year
following a Covered Termination with an outplacement service provider selected by the Company;
provided, however, that the total cost to the Company of such outplacement services shall not
exceed twenty-five thousand dollars ($25,000), less applicable tax withholdings.
2.6 Stock Awards. The stock awards granted to Executive prior to the Original Date
were modified to contain, and stock awards granted to Executive on or after the Original Date do
and/or shall contain, the following provisions:
(a) Vesting and Exercisability. The vesting and exercisability of Executive’s
then-outstanding stock awards shall be accelerated in full upon a Covered Termination.
(b) Term. Executive shall have twelve (12) months following a Covered Termination
in which to exercise any outstanding stock options, but in no event shall such period exceed the
expiration of the term of the stock option as set forth in the stock option agreement, including
any early termination required in connection with a Change in Control.
ARTICLE 3
3.1 Release Prior to Payment of Benefits. Upon the occurrence of a Covered
Termination, and prior to the provision or payment of any benefits under this Agreement on account
of such Covered Termination, Executive must execute a general waiver and release in substantially
the form attached hereto and incorporated herein as Exhibit A, Exhibit B, or Exhibit C, as
appropriate (each a “Release”), and such release must become effective in accordance with its terms
and in all cases not later than the 60th day after the Covered Termination. The Company
may modify the Release in its discretion to comply with changes in applicable law until the date of
a Covered Termination. Such Release shall specifically relate to all of Executive’s rights and
claims in existence at the time of such execution and shall confirm Executive’s obligations under
the Company’s standard form of proprietary information and inventions agreement. It is understood
that, as specified in the applicable Release, Executive has a certain number of calendar days to
consider whether to execute such Release. If Executive does not execute such Release within the
applicable period, no benefits shall be provided or payable under this Agreement pursuant to a
Covered Termination. It is further understood that if Executive is age 40 or older at the time of
a Covered Termination, Executive may revoke the applicable Release within seven (7) calendar days
after its execution. If Executive revokes such Release within such subsequent seven (7) day
period, no benefits shall be provided or payable under this Agreement pursuant to such Covered
Termination.
(a) Parachute Payment Limitation. If any payment or benefit (including payments and
benefits pursuant to this Agreement) Executive would receive in connection with a Change in Control
from the Company or otherwise (“Payment”) would (i) constitute a “parachute payment” within the
meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax
imposed by Section 4999 of the Code (the “Excise Tax”),
3.
then the Company shall cause to be
determined, before any amounts of the Payment are paid to Executive, which of the following two
alternative forms of payment shall be paid to Executive: (i) payment in full of the entire amount
of the Payment (a “Full Payment”), or (ii) payment of only a part of the Payment so that Executive
receives the largest payment possible without the imposition of the Excise Tax (a “Reduced
Payment”). A Full Payment shall be made in the event that the quotient obtained by dividing (i)
the excess of (a) the Full Payment, over (b) the Reduced Payment, by (ii) the Reduced Payment, is
greater than ten percent (10%). A Reduced Payment shall be made in the event that the quotient
obtained by dividing (i) the excess of (a) the Full Payment, over (b) the Reduced Payment, by (ii)
the Reduced Payment, is less than or equal to ten percent (10%). If a Reduced Payment is made, (i)
the Payment shall be paid only to the extent permitted under the Reduced Payment alternative, and
Executive shall have no rights to any additional payments and/or benefits constituting the Payment,
and (ii) reduction in payments and/or benefits shall occur in the following order: (1) reduction of
cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options;
(3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid
to Executive. Within any such category of payments and benefits (that is, (1), (2), (3) or (4)), a
reduction shall occur first with respect to amounts that are not “deferred compensation” within the
meaning of Internal Revenue Code Section 409A and then with respect to amounts that are. In the
event that acceleration of compensation from a category of Executive’s equity awards is to be
reduced, such acceleration of vesting shall be canceled in the reverse order of the date of grant.
(b) The independent registered public accounting firm engaged by the Company for
general audit purposes as of the day prior to the effective date of the Change in Control shall
make all determinations required to be made under this Section 3.2. If the independent registered
public accounting firm so engaged by the Company is serving as accountant or auditor for the
individual, entity or group effecting the Change in Control, the Company shall appoint a nationally
recognized independent registered public accounting firm to make the determinations required
hereunder. The Company shall bear all expenses with respect to the determinations by such
independent registered public accounting firm required to be made hereunder.
(c) The independent registered public accounting firm engaged to make the
determinations hereunder shall provide its calculations, together with detailed supporting
documentation, to the Company and Executive within fifteen (15) calendar days after the date on
which Executive’s right to a Payment is triggered (if requested at that time by the Company or
Executive) or such other time as reasonably requested by the Company or Executive. If the
independent registered public accounting firm determines that no Excise Tax is payable with respect
to a Payment, either before or after the application of the Reduced Amount, it shall furnish the
Company and Executive with documentation that no Excise Tax will be imposed with respect to such
Payment. Any good-faith determinations of the accounting firm made hereunder shall be final,
binding and conclusive upon the Company and Executive.
3.3 Certain Reductions and Offsets. To the extent that any federal, state or local
laws, including, without limitation, the Worker Adjustment and Retraining Notification Act (the
“WARN Act”) or any other so-called “plant closing” laws, require the Company to give advance notice
or make a payment of any kind to Executive because of Executive’s involuntary termination due to a
layoff, reduction in force, plant or facility closing, sale of business, change
4.
in control, or any
other similar event or reason, the benefits payable under this Agreement shall be correspondingly
reduced. The benefits provided under this Agreement are intended to satisfy any and all statutory
obligations that may arise out of Executive’s involuntary termination of employment for the
foregoing reasons, and the parties shall construe and enforce the terms of this Agreement
accordingly.
3.4 Application of Section 409A. All payments provided under this Agreement are
intended to constitute separate payments for purposes of Code Section 409A, including but not
limited to Treasury Regulation Section 1.409A-2(b)(2).
(a) The cash severance payment provided under Section 2.2 shall be paid no later than March
15th of the calendar year following the calendar year in which the Covered Termination
occurs. It is the intention of the preceding sentence to apply the “short-term deferral rule” set
forth in Treasury Regulation Section 1.409A-1(b)(4) to such payments. If it is determined that the
cash severance payments do not satisfy the requirements for exemption under Treasury Regulation
Section 1.409A-1(b)(4), such payments are intended to be compliant with Treasury Regulation
Sections 1.409A-3(a) and will be construed as such, and paid not later than the later of (x)
December 31st of the year of the Covered Termination and (y) the 15th day of
the third calendar month following the date of the Covered Termination.
(b) Amounts paid pursuant to Section 2.3 (that is, continued health insurance premiums) are
intended to be exempt from Code Section 409A pursuant to Treasury Regulation Section
1.409A-1(b)(9)(v)(B) and to the extent not so exempt, that it is paid in compliance with Code
Section 409A under Treasury Regulation Section 1.409A-3(i)(1)(iv), the provisions of which are
expressly incorporated by reference herein.
(c) The continued life insurance benefit provided under Section 2.4 is intended to be exempt
from Code Section 409A under Treasury Regulation Section 1.409A-1(b)(9)(v)(C) and (D), and to the
extent not so exempt, that it is paid in compliance with Code Section 409A under Treasury
Regulation Section 1.409A-3(i)(1)(iv), the provisions of which are expressly incorporated by
reference herein.
(d) The outplacement assistance payments provided under Section 2.5 are intended to be exempt
from Code Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(9)(v)(A) and to the
extent not so exempt, that it is paid in compliance with Code Section 409A under Treasury
Regulation Section 1.409A-3(i)(1)(iv), the provisions of which are expressly incorporated by
reference herein (with the amount of expenses eligible for reimbursement in a given calendar month
equal to the monthly pro-rata amount of the total allowance).
(e) Payments pursuant to Section 2.6 are intended to be exempt from Code Section 409A pursuant
to Treasury Regulation Sections 1.409A-1(b)(4), (5) and (6).
(f) Notwithstanding any provision to the contrary in this Agreement, if Executive is deemed by
the Company at the time of his separation from service to be a “specified employee” for purposes of
Code Section 409A(a)(2)(B)(i), and if any of the payments upon separation from service set forth
herein and/or under any other agreement with the Company are
5.
deemed to be “deferred compensation”,
then to the extent delayed commencement of any portion of such payments is required in order to
avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse
taxation under Section 409A, such payments shall not be provided prior to the earliest of (i) the
expiration of the six-month period measured from the date of Executive’s separation from service
with the Company, (ii) the date of Executive’s death or (iii) such earlier date as permitted under
Section 409A without the imposition of adverse taxation. Upon the first business day following the
expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant
to this paragraph shall be paid in a lump sum to Executive or the applicable benefit carrier, and
any remaining payments due shall be paid as otherwise provided herein or in the applicable
agreement. No interest shall be due on any amounts so deferred.
3.5 Tax Withholding. All payments under this Agreement shall be subject to
applicable withholding for federal, state and local income and employment taxes. Executive
authorizes withholding from payroll and any other amounts payable to Executive, and otherwise
agrees to make adequate provision, for any sums required to satisfy the federal, state, local and
foreign tax withholding obligations of the Company that arise in connection with the payments and
benefits provided under this Agreement.
3.6 Indebtedness of Executive. If Executive is indebted to the Company on the
effective date of a Covered Termination, the Company reserves the right to offset any severance
payments under this Agreement by the amount of such indebtedness.
ARTICLE 4
Nothing in the Agreement shall prevent or limit Executive’s continuing or future participation
in any benefit, bonus, incentive or other plans, programs, policies or practices provided by the
Company and for which Executive may otherwise qualify, nor shall anything herein limit or otherwise
affect such rights as Executive may have under other agreements with the Company. Except as
otherwise expressly provided herein, amounts that are vested benefits or that Executive is
otherwise entitled to receive under any plan, policy, practice or program of the Company at or
subsequent to the date of a Change in Control shall be payable in accordance with such plan,
policy, practice or program.
ARTICLE 5
Unless otherwise provided, for purposes of the Agreement, the following definitions shall
apply:
5.1 “Base Salary” means the greater of (i) Executive’s annual base salary (excluding
incentive pay, premium pay, commissions, relocation assistance or benefits, housing allowances,
overtime, bonuses, and other forms of special or variable compensation) as in effect on the date of
a Covered Termination, or (ii) Executive’s annual base salary (excluding incentive pay,
6.
premium
pay, commissions, relocation assistance or benefits, housing allowances, overtime, bonuses, and
other forms of special or variable compensation) as in effect on the date of a Change in Control.
5.2 “Board” means the Board of Directors of the Company.
5.3 “Change in Control” means one or more of the following events:
(a) A consummated sale or other disposition of all or substantially all of the
assets of the Company (other than a sale to an entity in which at least fifty percent (50%) of the
combined voting power of the voting securities of such entity are owned by the stockholders of the
Company in substantially the same proportions as their ownership of the Company immediately prior
to such sale).
(b) Any person, entity or group (other than the Company, a subsidiary or affiliate of the
Company, or a Company employee benefit plan, including any trustee of such plan acting as trustee)
becomes the beneficial owner, directly or indirectly, of securities of the Company representing
fifty percent (50%) or more of the combined voting power of the Company’s then outstanding
securities other than by virtue of a merger, consolidation or similar transaction.
(c) A consummated merger, consolidation or similar transaction involving (directly or
indirectly) the Company, immediately after the consummation of which, the stockholders immediately
prior to the consummation of such transaction do not own, directly or indirectly, outstanding
voting securities representing more than fifty percent (50%) of the combined outstanding voting
power of the surviving entity in such transaction or more than fifty percent (50%) of the combined
outstanding voting power of the parent of the surviving entity in such transaction.
Notwithstanding the foregoing, to the extent that the Company determines that any of the
payments or benefits to Executive under this Agreement or otherwise that are payable in connection
with a Change in Control constitute deferred compensation under Section 409A that may only be paid
on a qualifying transaction (that is, the payments and benefits are not otherwise “exempt” under
409A), the foregoing definition of Change in Control shall apply only to the extent the transaction
also meets the definition used for purposes of Treasury Regulation Section 1.409A-3(a)(5), that is,
as defined under Treasury Regulation Section 1.409A-3(i)(5).
5.4 “COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended.
5.5 “Code” means the Internal Revenue Code of 1986, as amended.
5.6 “Company” means Onyx Pharmaceuticals, Inc. or, following a Change in Control,
the surviving entity resulting from such transaction, or any subsequent surviving entity resulting
from any subsequent Change in Control.
5.7 “Constructive Termination” means a voluntary termination of employment by
Executive resulting in a “separation from service” with the Company within the meaning of
7.
Treasury
Regulation Section 1.409A-1(h) within a period of ninety (90) days after Executive provides written
notice to the Company of the initial occurrence of one of the following actions taken without
Executive’s written consent (which written notice must be provided within ninety (90) days after
the initial occurrence of one of the following actions, and must reasonably specify the particulars
of the action); provided, however, following the receipt of notice by the Company, the Company
shall have a period of thirty (30) days during which to remedy the action giving rise to a
Constructive Termination; provided, further, if such action is remedied by the Company during such
period, Constructive Termination shall be deemed not to have occurred:
(a) the assignment to Executive of duties or responsibilities that results in a
material diminution in Executive’s function as in effect immediately prior to the effective date of
the Change in Control; provided, however, that a change in Executive’s title or reporting
relationships shall not constitute a Constructive Termination;
(b) a material reduction in Executive’s Base Salary, unless the reduction is made
pursuant to an across-the-board reduction of the base salaries of all executive officers of the
Company of no more than ten percent (10%);
(c) an adverse change in Executive’s business location that increases his or her one
way commute by more than thirty-five (35) miles;
(d) a material breach by the Company of any provision of this Agreement; or
(e) any failure by the Company to obtain the assumption of the material terms of
this Agreement by any successor or assign of the Company, such assumption to be effective no later
than the effective date of a Change in Control.
5.8 “Covered Termination” means an Involuntary Termination Without Cause or a
Constructive Termination, either of which occurs within twenty-four (24) months following the
effective date of a Change in Control.
5.9 “Involuntary Termination Without Cause” means Executive’s dismissal or discharge
for reasons other than Cause (and other than as a result of death or disability) resulting in a
“separation from service” with the Company within the meaning of Treasury Regulation Section
1.409A-1(h). For this purpose, “Cause” means that, in the reasonable determination of the Company,
Executive (i) has committed an intentional act or acted with gross negligence that has materially
injured the business of the Company; (ii) has intentionally refused or failed to follow lawful and
reasonable directions of the Board or the appropriate individual to whom Executive reports; (iii)
has willfully and habitually neglected Executive’s duties for the Company; or (iv) has been
convicted of a felony involving moral turpitude that is likely to inflict or has inflicted material
injury on the business of the Company. Notwithstanding the foregoing, Cause shall not exist based
on conduct described in clause (ii) or (iii) unless the conduct described in such clause has not
been cured within fifteen (15) days following Executive’s receipt of written notice from the
Company specifying the particulars of the conduct constituting Cause.
8.
ARTICLE 6
6.1 Employment Status. This Agreement does not constitute a contract of employment
or impose upon Executive any obligation to remain as an employee, or impose on the Company any
obligation (i) to retain Executive as an employee, (ii) to change the status of Executive as an
at-will employee or (iii) to change the Company’s policies regarding termination of employment.
6.2 Notices. Any notices provided hereunder must be in writing, and such notices or
any other written communication shall be deemed effective upon the earlier of personal delivery
(including personal delivery by facsimile) or the third day after mailing by first class mail, to
the Company at its primary office location or to Executive at Executive’s address as listed in the
Company’s payroll records. Any payments made by the Company to Executive under the terms of this
Agreement shall be delivered to Executive either in person or at the address as listed in the
Company’s payroll records.
6.3 Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement 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 will
not affect any other provision or any other jurisdiction, but this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provisions
had never been contained herein.
6.4 Waiver. If either party should waive any breach of any provision of this
Agreement, he or it shall not thereby be deemed to have waived any preceding or succeeding breach
of the same or any other provision of this Agreement.
6.5 Arbitration. Unless otherwise prohibited by law or specified below, all
disputes, claims and causes of action, in law or equity, arising from or relating to this Agreement
or its enforcement, performance, breach, or interpretation, including but not limited to statutory
claims, shall be resolved solely and exclusively by final and binding arbitration held in San
Francisco, California through JAMS, Inc. (“JAMS”) under the then-existing JAMS employment law
arbitration rules. However, nothing in this Section 6.5 is intended to prevent either party from
obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such
arbitration. By agreeing to this arbitration procedure, both Executive and the Company waive the
right to resolve any such dispute through a trial by jury or judge, or administrative proceeding.
The arbitrator shall: (a) have the authority to compel adequate discovery for the resolution of
the dispute and to award such relief as would otherwise be permitted by law; and (b) issue a
written arbitration decision, to include the arbitrator’s essential findings and conclusions and a
statement of the award. The arbitrator shall be authorized to award any or all remedies that
Executive or the Company would be entitled to seek in a court of law. The Company shall pay all
JAMS’ arbitration fees in excess of the amount of court fees that would be required if the dispute
were decided in a court of law. Each party in any such arbitration shall be responsible for its
own attorneys’ fees, costs and necessary disbursement;
9.
provided, however, that in the event one
party refuses to arbitrate and the other party seeks to compel arbitration by court order, if such
other party prevails, it shall be entitled to recover reasonable attorneys’ fees, costs and
necessary disbursements. Pursuant to California Civil Code Section 1717, each party warrants that
it was represented by counsel in the negotiation and execution of this Agreement, including the
attorneys’ fees provision herein.
6.6 Complete Agreement. This Agreement, including Exhibit A, Exhibit B and Exhibit
C, constitutes the entire agreement between Executive and the Company and is the complete, final,
and exclusive embodiment of their agreement with regard to this subject matter, wholly superseding
all written and oral agreements with respect to payments and benefits to Executive in the event of
employment termination. It is entered into without reliance on any promise or representation other
than those expressly contained herein.
6.7 Amendment or Termination of Agreement; Continuation of Agreement. This
Agreement may be changed or terminated only upon the mutual written consent of the Company and
Executive. The written consent of the Company to a change or termination of this Agreement must be
signed by an executive officer of the Company (other than Executive) after such change or
termination has been approved by the Board or duly authorized committee thereof. Unless so
terminated, this Agreement shall continue in effect for as long as Executive continues to be
employed by the Company or by any surviving entity following any Change in Control. In other
words, if, following a Change in Control, Executive continues to be employed by the surviving
entity without a Covered Termination and the surviving entity then undergoes a Change in Control,
following which Executive is terminated by the subsequent surviving entity in a Covered
Termination, then Executive shall receive the benefits described in Article 2 hereof.
6.8 Counterparts. This Agreement may be executed in separate counterparts, any one
of which need not contain signatures of more than one party, but all of which taken together will
constitute one and the same Agreement. Signatures transmitted via facsimile shall be deemed
equivalent to originals.
6.9 Headings. The headings of the Articles and Sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning
thereof.
6.10 Successors and Assigns. This Agreement is intended to bind and inure to the
benefit of and be enforceable by Executive, and the Company, and any surviving entity resulting
from a Change in Control and upon any other person who is a successor by merger, acquisition,
consolidation or otherwise to the business formerly carried on by the Company, and their respective
successors, assigns, heirs, executors and administrators, without regard to whether or not such
person actively assumes any rights or duties hereunder; provided, however, that Executive may not
assign any duties hereunder and may not assign any rights hereunder without the written consent of
the Company, which consent shall not be withheld unreasonably.
6.11 Choice of Law. All questions concerning the construction, validity and
interpretation of this Agreement will be governed by the law of the State of California, without
regard to such state’s conflict of laws rules.
10.
6.12 Construction of Agreement. In the event of a conflict between the text of the
Agreement and any summary, description or other information regarding the Agreement, the text of
the Agreement shall control.
6.13 Loss of ISO Status. The Executive acknowledges and agrees that by virtue of
entering into this Agreement, all stock options awarded to Executive prior to the Original Date
and/or Effective Date of this Agreement and which are both (a) designated “Incentive Stock Options”
and (b) “In the Money” by virtue of the fact that such options have an exercise price per share
less than the fair market value of one share of the Company’s common stock as of the Original Date
and/or Effective Date of this Agreement, may lose their status as tax favored incentive stock
options. Executive further acknowledges and agrees that that upon exercise of such options, to
the extent the options are not incentive stock options, Executive will have to make suitable
arrangements with the Company to satisfy all applicable federal and state income and employment
withholding taxes owing as a result of such exercise.
6.14 Circular 230 Disclaimer. The following disclaimer is provided in
accordance with the Internal Revenue Service’s Circular 230 (31 C.F.R. Part 10). Any tax advice
contained in this Agreement is intended to be preliminary, for discussion purposes only, and not
final. Any such advice is not intended to be used for marketing, promoting or recommending any
transaction or for the use of any person in connection with the preparation of any tax return.
Accordingly, this advice is not intended or written to be used, and it cannot be used, by any
person for the purpose of avoiding tax penalties that may be imposed on such person.
In Witness Whereof, the parties have executed this Agreement on the Effective Date written above.
Onyx Pharmaceuticals, Inc. | Executive | |||||||
By: Name: |
/s/ Xxxxxxx X. Xxxxx
|
/s/ Xxxx Xxxxxx-Xxxxx
|
||||||
Title:
|
Senior Vice President, General Counsel |
Exhibit A: Release (Individual Termination — Age 40 or Older)
Exhibit B: Release (Individual and Group Termination — Under Age 40)
Exhibit C: Release (Group Termination — Age 40 or Older)
Exhibit B: Release (Individual and Group Termination — Under Age 40)
Exhibit C: Release (Group Termination — Age 40 or Older)
11.
Exhibit A
RELEASE
(Individual Termination — Age 40 or Older)
(Individual Termination — Age 40 or Older)
Certain capitalized terms used in this Release are defined in the Amended and Restated
Executive Change in Control Severance Benefits Agreement (the “Agreement”) which I have executed
and of which this Release is a part.
I hereby acknowledge and reaffirm my continuing obligations under the Company’s proprietary
information and inventions agreement that I signed in connection with my employment.
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, including but not limited to my release of
unknown and unsuspected claims.
Except as otherwise set forth in this Release, in exchange for the benefits I will receive
under the Agreement which I am not otherwise entitled to receive, and as required by the Agreement,
I hereby generally and completely release, acquit and forever discharge the Company and its parent,
subsidiary, and affiliated entities, along with its and their predecessors and successors and their
respective directors, officers, employees, shareholders, stockholders, partners, agents, attorneys,
insurers, affiliates and assigns (collectively, the “Released Parties”), of and from any and all
claims, liabilities and obligations, both known and unknown, that arise from or are in any way
related to events, acts, conduct, or omissions occurring at any time prior to and including the
date that I sign this Release (collectively, the “Released Claims”). The Released Claims include,
but are not limited to: (a) all claims arising out of or in any way related to my employment with
the Company, or the termination of that employment; (b) all claims related to my compensation or
benefits from the Company, including salary, bonuses, commissions, other incentive compensation,
vacation pay and the redemption thereof, expense reimbursements, severance payments, fringe
benefits, stock, stock options, or any other ownership or equity interests in the Company; (c) all
claims for breach of contract, wrongful termination, and breach of the implied covenant of good
faith and fair dealing (including but not limited to claims based on or arising from the
Agreement); (d) all tort claims, including but not limited to claims for fraud, defamation,
emotional distress, and discharge in violation of public policy; and (e) all federal, state, and
local statutory claims, including but not limited to 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 (as amended), the federal Age
Discrimination in Employment Act of 1967 (as amended) (the “ADEA”), 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”): (a) any rights or claims for
indemnification I may have pursuant to any written indemnification
1.
agreement with the Company to
which I am a party, the charter, bylaws, or under applicable law; (b) any rights which are not
waivable as a matter of law; or (c) any claims for breach of the Agreement arising after the date
that I sign the Release. In addition, nothing in this Release prevents me from filing, cooperating
with, or participating in any investigation or proceeding before the Equal Employment Opportunity
Commission, the Department of Labor, the California Department of Fair Employment and Housing, or
any other government agency, except that I hereby waive my right to any monetary benefits in
connection with any such claim, charge, investigation, 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.
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have
under the ADEA, that the consideration given for the Release is in addition to anything of value to
which I was already entitled, and that I have been advised by this writing, as required by the
ADEA, that: (a) my release of claims does 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 voluntarily to sign it sooner); (d) I have seven (7) days following
the date I sign this Release to revoke it by providing written notice of my revocation to the
Chairman of the Company’s Board of Directors; and (e) this 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 (the “Effective Date”).
I hereby represent that I have been paid all compensation owed and for all hours worked, have
received all the leave and leave benefits and protections for which I am eligible, pursuant to the
Family and Medical Leave Act or otherwise, and have not suffered any on-the-job injury for which I
have not already filed a workers’ compensation claim.
In addition to the above: (a) I agree not to disparage the Company or any of the other
Released Parties in any manner likely to be harmful to its or their business, business reputations,
or personal reputations; (b) I agree to return, no later than my employment termination date, all
Company property, documents, information, and materials, including but not limited to any and all
embodiments (e.g., notes, computer-recorded information) of the Company’s proprietary or
confidential information (and all reproductions thereof, in whole or in part) in my possession or
control; and (c) I will not voluntarily provide assistance, information or advice, directly or
indirectly (including through agents or attorneys), to any person or entity in connection with any
claim or cause of action of any kind brought against the Company or its officers, directors, or
affiliated entities, nor induce or encourage any person or entity to bring such claims; provided
that it shall not violate this covenant if I testify truthfully when required to do so by a valid
subpoena or under similar compulsion of law.
Executive | ||||||
Date: | ||||||
2.
Exhibit B
RELEASE
(Individual and Group Termination — Under Age 40)
(Individual and Group Termination — Under Age 40)
Certain capitalized terms used in this Release are defined in the Amended and Restated
Executive Change in Control Severance Benefits Agreement (the “Agreement”) which I have executed
and of which this Release is a part.
I hereby acknowledge and reaffirm my continuing obligations under the Company’s proprietary
information and inventions agreement that I signed in connection with my employment.
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, including but not limited to my release of
unknown and unsuspected claims.
Except as otherwise set forth in this Release, in exchange for the benefits I will receive
under the Agreement which I am not otherwise entitled to receive, and as required by the Agreement,
I hereby generally and completely release, acquit and forever discharge the Company and its parent,
subsidiary, and affiliated entities, along with its and their predecessors and successors and their
respective directors, officers, employees, shareholders, stockholders, partners, agents, attorneys,
insurers, affiliates and assigns (collectively, the “Released Parties”), of and from any and all
claims, liabilities and obligations, both known and unknown, that arise from or are in any way
related to events, acts, conduct, or omissions occurring at any time prior to and including the
date that I sign this Release (collectively, the “Released Claims”). The Released Claims include,
but are not limited to: (a) all claims arising out of or in any way related to my employment with
the Company, or the termination of that employment; (b) all claims related to my compensation or
benefits from the Company, including salary, bonuses, commissions, other incentive compensation,
vacation pay and the redemption thereof, expense reimbursements, severance payments, fringe
benefits, stock, stock options, or any other ownership or equity interests in the Company; (c) all
claims for breach of contract, wrongful termination, and breach of the implied covenant of good
faith and fair dealing (including but not limited to claims based on or arising from the
Agreement); (d) all tort claims, including but not limited to claims for fraud, defamation,
emotional distress, and discharge in violation of public policy; and (e) all federal, state, and
local statutory claims, including but not limited to 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 (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”): (a) 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 under applicable law;
1.
(b) any rights which are not
waivable as a matter of law; or (c) any claims for breach of the Agreement arising after the date
that I sign the Release. In addition, nothing in this Release prevents me from filing, cooperating
with, or participating in any investigation or proceeding before the Equal Employment Opportunity
Commission, the Department of Labor, the California Department of Fair Employment and Housing, or
any other government agency, except that I hereby waive my right to any monetary benefits in
connection with any such claim, charge, investigation 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.
I acknowledge that the consideration given under the Agreement for the waiver and release in
the preceding paragraph hereof is in addition to anything of value to which I was already entitled.
I further acknowledge that I have been advised by this writing that: (a) my waiver and release do
not apply to any rights or claims that may arise on or after the date I sign this Release; (b) I
have the right to consult with an attorney prior to signing this Release (although I may choose
voluntarily not to do so); and (C) I have twenty-one (21) days to consider this Release (although I
may choose voluntarily to sign this Release earlier). This Release will be effective as of the
date that I sign and return it to the Company (the “Effective Date”).
I hereby represent that I have been paid all compensation owed and for all hours worked, have
received all the leave and leave benefits and protections for which I am eligible, pursuant to the
Family and Medical Leave Act or otherwise, and have not suffered any on-the-job injury for which I
have not already filed a workers’ compensation claim.
In addition to the above: (a) I agree not to disparage the Company or any of the other
Released Parties in any manner likely to be harmful to its or their business, business reputations,
or personal reputations; (b) I agree to return, no later than my employment termination date, all
Company property, documents, information, and materials, including but not limited to any and all
embodiments (e.g., notes, computer-recorded information) of the Company’s proprietary or
confidential information (and all reproductions thereof, in whole or in part) in my possession or
control; and (c) I will not voluntarily provide assistance, information or advice, directly or
indirectly (including through agents or attorneys), to any person or entity in connection with any
claim or cause of action of any kind brought against the Company or its officers, directors, or
affiliated entities, nor induce or encourage any person or entity to bring such claims; provided
that it shall not violate this covenant if I testify truthfully when required to do so by a valid
subpoena or under similar compulsion of law.
Executive | ||||||
Date: | ||||||
2.
Exhibit C
RELEASE
(Group Termination — Age 40 or Older)
(Group Termination — Age 40 or Older)
Certain capitalized terms used in this Release are defined in the Amended and Restated
Executive Change in Control Severance Benefits Agreement (the “Agreement”) which I have executed
and of which this Release is a part.
I hereby acknowledge and reaffirm my continuing obligations under the Company’s proprietary
information and inventions agreement that I signed in connection with my employment.
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, including but not limited to my release of
unknown and unsuspected claims.
Except as otherwise set forth in this Release, in exchange for the benefits I will receive
under the Agreement which I am not otherwise entitled to receive, and as required by the Agreement,
I hereby generally and completely release, acquit and forever discharge the Company and its parent,
subsidiary, and affiliated entities, along with its and their predecessors and successors and their
respective directors, officers, employees, shareholders, stockholders, partners, agents, attorneys,
insurers, affiliates and assigns (collectively, the “Released Parties”), of and from any and all
claims, liabilities and obligations, both known and unknown, that arise from or are in any way
related to events, acts, conduct, or omissions occurring at any time prior to and including the
date that I sign this Release (collectively, the “Released Claims”). The Released Claims include,
but are not limited to: (a) all claims arising out of or in any way related to my employment with
the Company, or the termination of that employment; (b) all claims related to my compensation or
benefits from the Company, including salary, bonuses, commissions, other incentive compensation,
vacation pay and the redemption thereof, expense reimbursements, severance payments, fringe
benefits, stock, stock options, or any other ownership or equity interests in the Company; (c) all
claims for breach of contract, wrongful termination, and breach of the implied covenant of good
faith and fair dealing (including but not limited to claims based on or arising from the
Agreement); (d) all tort claims, including but not limited to claims for fraud, defamation,
emotional distress, and discharge in violation of public policy; and (e) all federal, state, and
local statutory claims, including but not limited to 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 (as amended), the federal Age
Discrimination in Employment Act of 1967 (as amended) (the “ADEA”), 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”): (a) any rights or claims for
indemnification I may have pursuant to any written indemnification
1.
agreement with the Company to
which I am a party, the charter, bylaws, or under applicable law; (b) any rights which are not
waivable as a matter of law; or (c) any claims for breach of the Agreement arising after the date
that I sign the Release. In addition, nothing in this Release prevents me from filing, cooperating
with, or participating in any investigation or proceeding before the Equal Employment Opportunity
Commission, the Department of Labor, the California Department of Fair Employment and Housing, or
any other government agency, except that I hereby waive my right to any monetary benefits in
connection with any such claim, charge, investigation, 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.
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have
under the ADEA, that the consideration given for the Release is in addition to anything of value to
which I was already entitled, and that I have been advised by this writing, as required by the
ADEA, that: (a) my release of claims does 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 forty-five (45) days to consider this
Release (although I may choose voluntarily to sign it sooner); (d) I have seven (7) days following
the date I sign this Release to revoke it by providing written notice of my revocation to the
Chairman of the Company’s Board of Directors; and (e) this 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 (the “Effective Date”).
In addition, I acknowledge that I have received with this Release a written disclosure as
required under Title 29 U.S. Code Section 626(f)(1)(H)), which includes information concerning the
job titles and ages of all employees who were terminated as part of this group termination, the
criteria used by the Company in selecting employees for the group termination, and the job titles
and ages of all employees of the Company in the same job classification or organizational unit who
were not terminated as part of this group termination.
I hereby represent that I have been paid all compensation owed and for all hours worked, have
received all the leave and leave benefits and protections for which I am eligible, pursuant to the
Family and Medical Leave Act or otherwise, and have not suffered any on-the-job injury for which I
have not already filed a workers’ compensation claim.
2.
In addition to the above: (a) I agree not to disparage the Company or any of the other
Released Parties in any manner likely to be harmful to its or their business, business reputations,
or personal reputations; (b) I agree to return, no later than my employment termination date, all
Company property, documents, information, and materials, including but not limited to any and all
embodiments (e.g., notes, computer-recorded information) of the Company’s proprietary or
confidential information (and all reproductions thereof, in whole or in part) in my possession or
control; and (c) I will not voluntarily provide assistance, information or advice, directly or
indirectly (including through agents or attorneys), to any person or entity in connection with any
claim or cause of action of any kind brought against the Company or its officers, directors, or
affiliated entities, nor induce or encourage any person or entity to bring such claims; provided
that it shall not violate this covenant if I testify truthfully when required to do so by a valid
subpoena or under similar compulsion of law.
Executive | ||||||
Date: | ||||||
3.