FIRST AMENDMENT TO TRANSITION AGREEMENT
EXHIBIT 10.23
FIRST
AMENDMENT
TO
WHEREAS,
a
transition agreement (the “Agreement”) was entered into, effective as of August
10, 2005, between Genentech, Inc., Xxx XXX Xxx, Xxxxx Xxx Xxxxxxxxx, XX 00000,
and Xxxxxx Xxxxxx;
WHEREAS,
Section
6
of the Agreement provides that the parties to the Agreement are to cooperate
diligently and in good faith to take action to prevent the imposition of
penalties under Section 409A of the Internal Revenue Code (“Section 409A
Penalties”); and
WHEREAS,
the
parties have decided to amend the Agreement as contemplated by Section 6 of
the
Agreement in order to avoid the imposition of Section 409A
Penalties;
WHEREAS,
the
parties understand that further action, or amendments to the Agreement, may
need
to be made to avoid Section 409A Penalties as provided in Section 6 of the
Agreement;
NOW,
THEREFORE, the
Agreement is hereby, amended effective August 10, 2005, as follows:
I.
Section
5 is amended as
follows:
A. The
second paragraph of Section 5 is amended to read as follows:
Potter’s
currently outstanding stock options granted to her under Genentech’s 1999 Stock
Plan during the course of her employment will continue to vest and be
exercisable during her term as a consultant in the same manner as they were
during her employment. The stock options will cease to vest when her consultancy
ends either at the end of its term as set forth in Section 1 above or upon
its
earlier termination as set forth in Section 1 above. Potter’s options granted on
or after September 12, 2002 that are or become vested and exercisable shall
be
exercised in a cashless exercise in accordance with their terms as follows:
All
options granted on or after September 12, 2002 that become vested and
exercisable on or after January 2, 2006 shall be exercised on January 2, 2006
or
the first trading day thereafter. Options granted on or after September 12,
2002
that are not vested and exercisable on January 2, 2006 shall be exercised on
the
first trading day after the date they first become vested and exercisable.
For
illustration, a schedule showing, with respect to options granted on or after
September 12, 2002, exercise dates and
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number
of
options to be exercised is attached hereto as Exhibit X. Xxxxxx’x options
granted prior to September 12, 2002 are the subject of a property settlement
incident to divorce and will be exercised at the direction of Xxxxx Xxxxxx
pursuant to such settlement.
B. The
following sentence is added to the end of last paragraph of Section
5:
Notwithstanding
the foregoing, Potter shall be paid her accrued SERP benefit with Genentech
in a
lump sum cash payment on February 13, 2006.
II.
The
first
paragraph of Section 6 is amended by adding the following sentence to the end
thereof:
Notwithstanding
the foregoing provisions of this paragraph, in lieu of any and all information
technology support and security services to be provided as described above
after
March 16, 2006, commencing on March 16, 2006, Genentech will instead provide
to
Potter during the term of her consultancy a monthly payment equal to fifty
dollars ($50.00) payable March 16, 2006 and the 16th
day of
each subsequent month for the remainder of the term of the consulting
relationship (with any payments for partial months to be prorated
appropriately); provided that in the event the cost of such services to Potter
exceeds $350.00 in the aggregate, Potter may request in advance that Genentech
pay such excess. If Genentech approves Potter’s request, Genentech shall
promptly pay Potter such excess.
III.
The
following sentence is added to the end of Section 12:
Notwithstanding
the foregoing, any reimbursements for attorney’s fees and related costs incurred
by Potter will be made on or before March 15, 2006.
IV.
A
new
Exhibit
A
- Option
Exercise Plan - is added to the end of the Agreement to read as provided in
the
attachment hereto.
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V.
Except
as
otherwise provided herein, the Agreement shall remain in full force and
effect.
This
First Amendment to the Agreement may be executed in separate counterparts that
together constitute one instrument.
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GENENTECH,
INC.
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By:
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/s/
XXXXXXX XXXXXXXXXX
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Xxxxxxx
Xxxxxxxxxx
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Date:
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December
28, 2005
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XXXXXX
XXXXXX
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/s/
XXXXXX XXXXXX
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Date:
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December
29, 2005
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