RELEASE AGREEMENT
I
understand that my employment with Sunesis Pharmaceuticals, Inc. (the
“Company”)
is
terminating effective August 4, 2008. I further understand that between now
and
that date, I shall receive full pay and benefits from the Company pursuant
to
the Notice of Termination I received from the Company on June 3,
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 28, 2008: (1) a lump-sum
payment equal to six (6) 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 six (6) 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.
I
further
understand that if I sign this Release and allow it to become effective, then
the Company shall provide me with the following additional severance benefits:
(1) six (6) months of outplacement assistance through Xxx Xxxxx Xxxxxxxx, under
the terms of the Company’s contract with Xxx Xxxxx Xxxxxxxx; and (2) a bonus
payment equal to 12.5% of my annual base salary, less standard payroll
deductions and withholdings, payable in a lump-sum within thirty (30) days
after
the Effective Date of this Release.
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 my 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 Nondisclosure Agreement with the Company dated
as of December 8, 1999 and my Confidential Information and Invention Assignment
Agreement with the Company dated as of February 14, 2000.
1.
2. General
Release.
In
exchange for severance benefits and other consideration provided to me hereunder
and under 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.
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 at least forty-five (45) 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”).
I
have received with this Release all of the information required by the ADEA,
including without limitation a detailed list of the job titles and ages of
all
employees who were terminated in this group termination and the ages of all
employees of the Company in the same job classification or organizational unit
who were not terminated, along with information on the eligibility factors
used
to select employees for the group termination and any time limits applicable
to
this group termination program.
2.
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.
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 after my termination date of August 4, 2008 (or such earlier
date
as I cease to be employed by the Company), and I must not revoke it
thereafter.
Xxxxxx
X. XxXxxxxx, Ph.D.
/s/
Xxxxxx XxXxxxxx
Date:
August 4, 2008
3.
