Re: Separation and Consulting Agreement
Exhibit 10.32
September 30, 2010
Xxxx Xxxxxx
c/o Onyx Pharmaceuticals, Inc.
0000 Xxxxxx Xx.
Xxxxxxxxxx, XX 00000
c/o Onyx Pharmaceuticals, Inc.
0000 Xxxxxx Xx.
Xxxxxxxxxx, XX 00000
| Re: | Separation and Consulting Agreement |
Dear Xxxx:
As discussed, this letter sets forth the terms of the separation and consulting agreement (the
“Agreement”) between you and Onyx Pharmaceuticals, Inc. (“Onyx” or the “Company”).
1. Separation Date. As you know, the Company is in search for a new Senior Vice President of
Human Resources, and your employment with the Company is expected to terminate promptly following
the Company’s selection of a new Senior Vice President of Human Resources. The Company anticipates
that your employment will terminate on October 4, 2010. The specific date that your employment
ends is referred to in this Agreement as the “Separation Date.”
2. Final Accrued Salary and Vacation. On the Separation Date, the Company will pay you all
accrued base salary earned through the Separation Date, and all accrued and unused
vacation earned through the Separation Date (if any), subject to standard payroll deductions and
withholdings. You are entitled to these payments by law and will receive them regardless of
whether or not you sign this Agreement.
3. Consulting Relationship.
(a) Consulting Period. Provided your employment is not otherwise terminated for Cause (as
defined in the Executive Severance Benefit Plan (the “Severance Plan”)) or as a result of your
death or disability, and subject to your executing (and not revoking) a valid release of all claims
under the Severance Plan within the time period provided under the Severance Plan, the Company
agrees to retain you, and you agree to make yourself available to perform services as, a consultant
to the Company under the terms and conditions provided in this Agreement, effective on the
Separation Date and continuing for one (1) year thereafter unless terminated earlier by either
party as provided herein (the “Consulting Period”). The parties may terminate the Consulting
Period at any time and for convenience upon at least thirty (30) days advance written notice to the
other party, or immediately upon written notice to the other party if the other party materially
breaches this Agreement (or if you materially breach the Confidential Information Agreement (as
defined in Section 9)). The parties can extend the Consulting Period for more than one (1) year
after the Separation Date in a future signed written agreement, provided that, any such extension
of the Consulting Period shall not qualify as
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Continuous Service for purposes of the Awards (as defined and discussed further below). If
you form a business entity through which you will provide consulting services, you agree that the
consulting relationship provided in this Agreement will be assigned to, or otherwise assumed by,
such business entity, upon the Company’s written direction.
(b) Consulting Services. During the Consulting Period, you shall make yourself available to
provide consulting services (the “Services”) in the areas of organizational learning and
development, as requested by the Company from time to time during the Consulting Period. Your work
will be directed by the Senior Vice President of Human Resources and the Chief Executive Officer of
the Company. The amount of Services that you will provide will vary over time, with the
expectation that the initial amount of Services will require a significant amount of your
professional time — that is, more than 20% of your prior rate of services as an employee.
Notwithstanding the foregoing, the Company does not guarantee any specific amount of Services will
be requested during the Consulting Period. You shall exercise the highest degree of
professionalism and utilize your expertise and creative talents in performing the Services. During
the Consulting Period, you shall be free to pursue other employment or consulting engagements with
third parties, provided your other engagements do not unreasonably interfere with your performance
of your Services to the Company. The Company shall not require you to perform the Services in a
manner that would unreasonably interfere with your performance of your other professional duties;
any such potential conflicts should be discussed with the Senior Vice President of Human Resources.
(c) Consulting Compensation. You will receive the following as your sole compensation for the
Services:
(i) Consulting Fees. During the Consulting Period, the Company will pay you consulting fees
for provided Services at a daily rate of $3,500 per day (prorated for any partial days of Services)
(the “Consulting Fees”). For each month in which you provide Services, you will submit an invoice
to the Company which lists the dates and amount of Services you provided, along with a summary
description of the Services. The Company will pay your undisputed Consulting Fees (and any
reimbursable expenses, discussed in Section 3(g) below, which also must be listed on the monthly
invoice for the month in which the expenses were incurred), within thirty (30) days of receipt of
your invoices.
(ii) Equity. You and the Company agree that your conversion from an employee to an
independent contractor of the Company, as contemplated by this Agreement, will not result in a
termination of your “Continuous Service” for purposes of the Company’s 2005 Equity Incentive Plan,
as amended (the “Plan”) and your outstanding compensatory equity awards (the “Awards”).
Accordingly, to the extent consistent with the Plan and your stock award agreement(s), vesting of
your Awards will continue (subject to your Continuous Service) during the Consulting Period for up
to a maximum period of one (1) year after the Separation Date, and you will be able to exercise any
Awards that are vested options during such period of Continuous Service and during the applicable
period after the termination of your Continuous
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Service provided in your award agreements, which, for instance, provide for only a three (3)
month post-termination exercise period upon a normal termination of Continuous Service. However,
as consideration for entering into this Agreement, you agree that your Continuous Service for
purposes of your Awards shall be deemed to have terminated no later than one (1) year after the
Separation Date, even if the Consulting Period is extended thereafter. In no event will you be
able to exercise any options after expiration of the original term of such option. It is important
to understand that, to the extent your options otherwise qualify as incentive stock options for
purposes of the tax rules as of the Separation Date, such options may lose incentive stock option
status (and convert to nonstatutory options) if you fail to exercise your vested options within
three (3) months after the Separation Date. Notwithstanding the foregoing, the Company is not
providing any tax advice or guidance to you, and you are strongly encouraged to seek advice
concerning the tax aspects of this Agreement (including with respect to your Awards) from your
personal tax advisors. Except as amended hereby, your rights to the Awards are governed in full by
your stock award agreements and the Plan.
(d) Protection of Information. You agree that, during the Consulting Period and thereafter,
you will not, except for the purposes of performing your Services, use or disclose any confidential
or proprietary information or materials of the Company that you obtain or develop in the course of
performing the Services. Any and all work product you create in the course of performing the
Services will be the sole and exclusive property of the Company. You hereby assign to the Company
all right, title, and interest in all inventions, techniques, processes, materials, and other
intellectual property and work product developed in the course of performing the Services.
(e) Authority During Consulting Period. After the Separation Date, you will have no authority
to bind the Company to any contractual obligations, whether written, oral or implied, and you shall
not represent or purport to represent the Company in any manner whatsoever to any third party
unless authorized to do so in writing by the Company.
(f) Independent Contractor Status. You acknowledge and agree that during the Consulting
Period you will be an independent contractor of the Company and not an employee, and you will not
be entitled to any of the benefits that the Company may make available to its employees, such as
group insurance, workers’ compensation insurance coverage, profit sharing or retirement benefits,
other than your rights to continued group health insurance coverage under COBRA or as otherwise
provided by law. Because you will perform the Services as an independent contractor, Onyx will not
withhold from the Consulting Fees any amount for taxes, social security or other payroll
deductions, and the Consulting Fees shall be reported on an Internal Revenue Service Form 1099.
You acknowledge and agree to accept exclusive liability for complying with all applicable local,
state and federal laws governing self-employed individuals, including obligations such as payment
of taxes, Social Security, disability and other contributions related to the Consulting Fees. In
the event that any federal, state or local taxing authority determines that you are an employee
rather than an independent contractor, you agree to indemnify the Company for and against any
taxes, withholdings, interest and
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penalties (with the exception of employer’s share of Social Security, if any), arising from
the Company’s payment of the Consulting Fees.
(g) Expenses. The Company will reimburse you, pursuant to its regular business practice, for
reasonable, documented business expenses incurred in performing the Services (if any) provided that
these expenses have been pre-approved in writing by the Company’s Senior Vice President of Human
Resources or Chief Executive Officer.
(h) Indemnity Agreement. The parties agree that, for purposes of your Indemnity Agreement
with the Company dated February 4, 2010 (a copy of which is attached as Exhibit A), you will be
considered an agent of the Company only through your Separation Date..
4. Health Insurance. To the extent provided by the federal COBRA law or, if applicable, state
insurance laws (collectively, “COBRA”), and by the Company’s current group health insurance
policies, you will be eligible to continue your group health insurance benefits after the
Separation Date if you so elect. Later, you may be able to convert to an individual policy through
the provider of the Company’s health insurance, if you wish. You will be provided with a separate
notice of your COBRA rights and obligations within the timing required by law. As part of the
severance benefits that you may be eligible to receive under the Severance Plan (defined and
discussed in Section 5 below), the Company may pay your COBRA premiums for some period of time
following the Separation Date pursuant to the terms of the Severance Plan.
5. Executive Severance Benefit Plan. You may be eligible to receive certain severance
benefits from the Company following the Separation Date, based on the termination of your
employment, under the Severance Plan. The Company will determine your eligibility for such
benefits under the terms and conditions of the Severance Plan, and agrees, as part of this
Agreement, to waive the requirement that you must be subject to a “separation from service” (as
defined for purposes of Section 409A) prior to receipt of the severance benefits. To the extent
that you are so eligible, you will be required to comply with all requirements for receipt of
severance benefits under the Severance Plan, including the requirement of executing a general
waiver and release as provided under Section 5(a) of the Severance Plan. In addition, you agree,
as part of this Agreement and in exchange for the benefits that you will receive hereunder
(including but not limited to the Company’s waiver of the “separation from service” requirement and
the potential continuation of vesting of your Awards), that you are not eligible to, and will not,
receive the six (6) month period of extended exercisability of any Awards that are stock options
under the Severance Plan. You acknowledge and agree that, except for any benefits to which you may
be entitled under the Severance Plan, you have no entitlement to severance benefits in connection
with the termination of your employment on the Separation Date or otherwise.
6. Other Compensation Or Benefits. You acknowledge that, except as expressly provided in this
Agreement, you have not earned, are not owed, and will not receive from the
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Company any additional compensation, severance, equity vesting or equity awards, or benefits
on or after the Separation Date, with the exception of any vested benefits you may have under the
express terms of a written ERISA-qualified benefit plan (e.g., 401(k) account). By way of example
but not limitation, you acknowledge that you have not earned, are not owed, and will not be
provided, any bonus, incentive compensation, commissions, or equity, unless expressly provided
herein.
7. Employment-Related Expense Reimbursements. You agree that, within thirty (30) days after
the Separation Date, you will submit your final documented expense reimbursement statement
reflecting all business expenses you incurred through the Separation Date, if any, for which you
seek reimbursement. The Company will reimburse you for your legitimate and fully documented
expenses pursuant to its regular business practice.
8. Return Of Company Property. Unless the Company otherwise authorizes you to retain any
documents or property in connection with your consulting Services (which must be returned upon
termination of the Consulting Period or upon the Company’s earlier request, without retention of
any reproductions), you agree to return to the Company, no later than by the close of business on
the Separation Date, all Company documents (and all copies thereof) and other property of the
Company in your possession or control, including, but not limited to, Company files, notes,
correspondence, memoranda, notebooks, drawings, records, reports, lists, compilations of data,
research and development information, proposals, agreements, drafts, minutes, studies, plans,
forecasts, purchase orders, financial and operational information, product and training
information, contact lists or directories, sales and marketing information, personnel and
compensation information, vendor information, promotional literature and instructions, product
specifications and manufacturing information, computer-recorded information, electronic information
(including e-mail and correspondence), other tangible property and equipment (including, but not
limited to, computer equipment, facsimile machines, and cellular telephones), credit cards, entry
cards, identification badges and keys; and any materials of any kind that contain or embody any
proprietary or confidential information of the Company (and all reproductions thereof in whole or
in part). You agree that you will make a diligent search to locate any such documents, property
and information on the Separation Date. In addition, if you have used any personally owned
computer, server, or e-mail system to receive, store, review, prepare or transmit any Company
confidential or proprietary data, materials or information, then you agree to provide the Company,
no later than the Separation Date, with a computer-useable copy of all such information and then
permanently delete and expunge such Company confidential or proprietary information from those
systems without retaining any reproductions (in whole or in part); and you agree to provide the
Company access to your system as requested to verify that the necessary copying and/or deletion is
done. Your timely compliance with this Section 8 is a precondition to the consulting arrangement
provided under this Agreement.
9. Proprietary Information Obligations. Both during and after your employment you acknowledge
and reaffirm your continuing obligations under your Employee Confidential Information and
Inventions Assignment Agreement with the Company that you signed on March
September 30, 2010
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21, 2008 (the “Confidential Information Agreement”), which include but are not limited to your
obligations not to use or disclose any confidential or proprietary information of the Company
without prior written authorization from a duly authorized representative of the Company, and your
obligations not to engage in certain solicitations as provided under Section 4 of the Confidential
Information Agreement. A copy of your signed Confidential Information Agreement is attached hereto
as Exhibit B.
10. Confidentiality. The provisions of this Agreement will be held in strictest confidence by
you and the Company and will not be publicized or disclosed in any manner whatsoever; provided,
however, that: (a) you may disclose this Agreement in confidence to your immediate family; (b) the
parties may disclose this Agreement in confidence to their respective attorneys, accountants,
auditors, tax preparers, and financial advisors; (c) the Company may disclose this Agreement to
fulfill standard or legally required corporate reporting or disclosure requirements; and (d) the
parties may disclose this Agreement insofar as such disclosure may be necessary to enforce its
terms or as otherwise required by law. During the Consulting Period, you may inform third parties
that you are engaged as a consultant to the Company. In addition and notwithstanding the
foregoing, if this Agreement is filed with a government agency by the Company pursuant to
subsection (c) of the above sentence and as a result becomes publicly available, then the parties
shall not be subject to the foregoing confidentiality obligations.
11. Nondisparagement. You agree not to disparage the Company and its officers, directors,
employees, shareholders and agents, in any manner likely to be harmful to them or their business,
business reputations or personal reputations, and the Company agrees to direct its officers and
directors not to disparage you in any manner likely to be harmful to you or your business, business
reputation or personal reputation; provided that both you and the Company may respond accurately
and fully to any request for information to the extent required by legal process.
12. No Voluntary Adverse Action. You agree that you will not voluntarily (except in response
to legal compulsion) assist any person in bringing or pursuing any proposed or pending litigation,
arbitration, administrative claim or other formal proceeding against the Company, its parent or
subsidiary entities, affiliates, officers, directors, employees or agents.
13. Cooperation. You agree to cooperate fully with the Company in connection with its actual
or contemplated defense, prosecution, or investigation of any claims or demands by or against third
parties, or other matters arising from events, acts, or failures to act that occurred during the
period of your employment by the Company. Such cooperation includes, without limitation, making
yourself available to the Company upon reasonable notice, without subpoena, to provide complete,
truthful and accurate information in witness interviews, depositions, and trial testimony. The
Company will reimburse you for reasonable out-of-pocket expenses you incur in connection with any
such cooperation (excluding foregone wages) and will make reasonable efforts to accommodate your
scheduling needs. Moreover, you agree to execute all documents (if any) necessary to carry out the
terms of this Agreement.
September 30, 2010
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14. Dispute Resolution. To aid in the rapid and economical resolution of any disputes which
may arise under this Agreement, you and the Company agree that any and all claims, disputes or
controversies of any nature whatsoever arising from or regarding the interpretation, performance,
negotiation, execution, enforcement or breach of this Agreement, your employment or your consulting
relationship, or the termination of your employment or consulting relationship, including but not
limited to any statutory claims, shall be resolved by confidential, final and binding arbitration
conducted before a single arbitrator with JAMS, Inc. (“JAMS”) in San Francisco, California, in
accordance with JAMS’ then-applicable arbitration rules. The parties acknowledge that by agreeing
to this arbitration procedure, they waive the right to resolve any such dispute through a trial by
jury, judge or administrative proceeding. You will have the right to be represented by legal
counsel at any arbitration proceeding at your own expense. 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 available under applicable law in a court proceeding; and (b) issue a written
statement signed by the arbitrator regarding the disposition of each claim and the relief, if any,
awarded as to each claim, the reasons for the award, and the arbitrator’s essential findings and
conclusions on which the award is based. The Company shall bear JAMS’ arbitration fees and
administrative costs. Nothing in this Agreement shall prevent either you or the Company from
obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such
arbitration. Any awards or orders in such arbitrations may be entered and enforced as judgments in
the federal and state courts of any competent jurisdiction.
Miscellaneous. This Agreement, including Exhibit A and Exhibit B, constitutes the complete, final
and exclusive embodiment of the entire agreement between you and the Company with regard to this
subject matter. It is entered into without reliance on any promise or representation, written or
oral, other than those expressly contained herein, and it supersedes any other such promises,
warranties or representations. This Agreement may not be modified or amended except in a writing
signed by both you and a duly authorized officer of the Company. This Agreement will bind the
heirs, personal representatives, successors and assigns of both you and the Company, and inure to
the benefit of both you and the Company, their heirs, successors and assigns. If any provision of
this Agreement is determined to be invalid or unenforceable, in whole or in part, this
determination will not affect any other provision of this Agreement and the provision in question
will be modified by the court so as to be rendered enforceable. This Agreement shall be deemed to
have been entered into, and shall be construed and enforced, in accordance with the laws of the
State of California without regard to conflicts of law principles. This Agreement may be executed
in counterparts, each of which shall be deemed to be part of one original, and facsimile signatures
or signatures transmitted via .PDF file shall be equivalent to original signatures.
If this Agreement is acceptable to you, please sign below and return this signed Agreement to me
within five (5) business days. If you do not sign this Agreement and return it to the Company
within the aforementioned timeframe, the Company’s offer to enter into the consulting relationship
with you on the Separation Date will expire.
September 30, 2010
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We look forward to continuing to work with you during the period of your employment prior to the
Separation Date and throughout the Consulting Period. We wish you good luck in your future
endeavors.
Sincerely,
| Onyx Pharmaceuticals, Inc. |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Xxxxxxx Xxxxx | ||||
| Senior Vice President and General Counsel | ||||
Exhibit A — Indemnity Agreement
Exhibit B —Employee Confidential Information and Inventions Assignment Agreement
Exhibit B —Employee Confidential Information and Inventions Assignment Agreement
Understood and Agreed: |
||||
/s/ Xxxx Xxxxxx
|
9/30/10
|
This
Indemnity Agreement (this “Agreement”) dated as of this 4th day of
February, 2010, is made by and between
Onyx Pharmaceuticals, Inc., a Delaware corporation
(the “Company”), and
Xxxx Xxxxxx
(“Indemnitee”).
Recitals
A. The Company desires to attract and retain the services of highly qualified
individuals as directors, officers, employees and agents.
B. The Company’s bylaws (the “Bylaws”) require that the Company indemnify its
directors, and empowers the Company to indemnify its officers, employees and agents, as
authorized by the Delaware General Corporation Law, as amended (the “Code”), under which
the Company is organized and such Bylaws expressly provide that the indemnification provided
therein is not exclusive and contemplates that the Company may enter into separate agreements
with its directors, officers and other persons to set forth specific indemnification
provisions.
C. Indemnitee does not regard the protection currently provided by applicable law,
the Company’s governing documents and available insurance as adequate under the present
circumstances, and the Company has determined that Indemnitee and other directors, officers,
employees and agents of the Company may not be willing to serve or continue to serve in such
capacities without additional protection.
D. The Company desires and has requested Indemnitee to serve or continue to serve
as a director, officer, employee or agent of the Company, as the case may be, and has
proffered this Agreement to Indemnitee as an additional inducement to serve in such capacity.
E. Indemnitee is willing to serve, or to continue to serve, as a director, officer,
employee or agent of the Company, as the case may be, if Indemnitee is furnished the
indemnity provided for herein by the Company.
Agreement
| Now Therefore, in consideration of the mutual covenants and agreements set forth herein, the parties hereto, intending to be legally bound, hereby agree as follows: |
1. Definitions.
(a) Agent. For purposes of this Agreement, the term “agent” of the Company means any person
who: (i) is or was a director, officer, employee or other fiduciary of the Company or a subsidiary
of the Company; or (ii) is or was serving at the request or for the convenience of, or representing
the interests of, the Company or a subsidiary of the Company, as a director, officer, employee or
other fiduciary of a foreign or domestic corporation, partnership, joint venture, trust or other
enterprise.
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(b) Expenses. For purposes of this Agreement, the term “expenses” shall be broadly construed
and shall include, without limitation, all direct and indirect costs of any type or nature
whatsoever (including, without limitation, all attorneys’, witness, or other professional fees and
related disbursements, and other out-of-pocket costs of whatever nature), actually and reasonably
incurred by Indemnitee in connection with the investigation, defense or appeal of a proceeding or
establishing or enforcing a right to indemnification under this Agreement, the Code or otherwise,
and amounts paid in settlement by or on behalf of Indemnitee, but shall not include any judgments,
fines or penalties actually levied against Indemnitee for such individual’s violations of law.
The term “expenses” shall also include reasonable compensation for time spent by Indemnitee for
which he is not compensated by the Company or any subsidiary or third party (i) for any period
during which Indemnitee is not an agent, in the employment of, or providing services for
compensation to, the Company or any subsidiary; and (ii) if the rate of compensation and estimated
time involved is approved by the directors of the Company who are not parties to any action with
respect to which expenses are incurred, for Indemnitee while an agent of, employed by, or
providing services for compensation to, the Company or any subsidiary.
(c) Proceedings. For purposes of this Agreement, the term “proceeding” shall be broadly
construed and shall include, without limitation, any threatened, pending, or completed action,
suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative
hearing or any other actual, threatened or completed proceeding, whether brought in the right of
the Company or otherwise and whether of a civil, criminal, administrative or investigative nature,
and whether formal or informal in any case, in which Indemnitee was, is or will be involved as a
party or otherwise by reason of: (i) the fact that Indemnitee is or was a director or officer of
the Company; (ii) the fact that any action taken by Indemnitee or of any action on Indemnitee’s
part while acting as director, officer, employee or agent of the Company; or (iii) the fact that
Indemnitee is or was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, and in any such case described above, whether or not serving in any such capacity at
the time any liability or expense is incurred for which indemnification, reimbursement, or
advancement of expenses may be provided under this Agreement.
(d) Subsidiary. For purposes of this Agreement, the term “subsidiary” means any corporation
or limited liability company of which more than 50% of the outstanding voting securities or equity
interests are owned, directly or indirectly, by the Company and one or more of its subsidiaries,
and any other corporation, limited liability company, partnership, joint venture, trust, employee
benefit plan or other enterprise of which Indemnitee is or was serving at the request of the
Company as a director, officer, employee, agent or fiduciary.
(e) Independent Counsel. For purposes of this Agreement, the term “independent
counsel” means a law firm, or a partner (or, if applicable, member) of such a law firm,
that is experienced in matters of corporation law and neither presently is, nor in the past five
(5) years has been, retained to represent: (i) the Company or Indemnitee in any matter material to
either such party, or (ii) any other party to the proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term “independent counsel” shall not
include any person who, under the applicable standards of professional conduct then
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prevailing, would have a conflict of interest in representing either the Company or Indemnitee in
an action to determine Indemnitee’s rights under this Agreement.
2. Agreement to Serve. Indemnitee will serve, or continue to serve, as a director,
officer, employee or agent of the Company or any subsidiary, as the case may be, faithfully
and to the best of his or her ability, at the will of such corporation (or under separate
agreement, if such agreement exists), in the capacity Indemnitee currently serves as an agent of such
corporation, so long as Indemnitee is duly appointed or elected and qualified in accordance
with the applicable provisions of the bylaws or other applicable charter documents of such
corporation, or until such time as Indemnitee tenders his or her resignation in writing;
provided, however, that nothing contained in this Agreement is intended as an employment agreement
between Indemnitee and the Company or any of its subsidiaries or to create any right to
continued employment of Indemnitee with the Company or any of its subsidiaries in any
capacity.
The Company acknowledges that it has entered into this Agreement and assumes the obligations
imposed on it hereby, in addition to and separate from its obligations to Indemnitee under the
Bylaws, to induce Indemnitee to serve, or continue to serve, as a director, officer, employee or
agent of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement
in serving as a director, officer, employee or agent of the Company.
3. Indemnification.
(a) Indemnification in Third Party Proceedings. Subject to Section 10 below, the Company
shall indemnify Indemnitee to the fullest extent permitted by the Code, as the same may be amended
from time to time (but, only to the extent that such amendment permits Indemnitee to broader
indemnification rights than the Code permitted prior to adoption of such amendment), if Indemnitee
is a party to or threatened to be made a party to or otherwise involved in any proceeding, for any
and all expenses, actually and reasonably incurred by Indemnitee in connection with the
investigation, defense, settlement or appeal of such proceeding.
(b) Indemnification in Derivative Actions and Direct Actions by the Company. Subject to
Section 10 below, the Company shall indemnify Indemnitee to the fullest extent permitted by the
Code, as the same may be amended from time to time (but, only to the extent that such amendment
permits Indemnitee to broader indemnification rights than the Code permitted prior to adoption of
such amendment), if Indemnitee is a party to or threatened to be made a party to or otherwise
involved in any proceeding by or in the right of the Company to procure a judgment in its favor,
against any and all expenses actually and reasonably incurred by Indemnitee in connection with the
investigation, defense, settlement, or appeal of such proceedings.
4. Indemnification of Expenses of Successful Party. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been successful on the merits
or otherwise in defense of any proceeding or in defense of any claim, issue or matter to which
they are entitled to indemnification hereunder, including the dismissal of any action
without
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prejudice, the Company shall indemnify Indemnitee against all expenses actually and reasonably
incurred in connection with the investigation, defense or appeal of such proceeding.
5. Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement
to indemnification by the Company for some or a portion of any expenses actually and reasonably
incurred by Indemnitee in the investigation, defense, settlement or appeal of a proceeding, but is
precluded by applicable law or the specific terms of this Agreement to indemnification for the
total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof
to which Indemnitee is entitled.
6. Advancement of Expenses. To the extent not prohibited by law, the Company shall advance
the expenses incurred by Indemnitee in connection with any proceeding, and such advancement shall
be made within twenty (20) days after the receipt by the Company of a statement or statements
requesting such advances (which shall include invoices received by Indemnitee in connection with
such expenses but, in the case of invoices in connection with legal services, any references to
legal work performed or to expenditures made that would cause Indemnitee to waive any privilege
accorded by applicable law shall not be included with the invoice) and upon request of the
Company, an undertaking to repay the advancement of expenses if and to the extent that it is
ultimately determined by a court of competent jurisdiction in a final judgment, not subject, to
appeal, that Indemnitee is not entitled to be indemnified by the Company. Advances shall be
unsecured, interest free and without regard to Indemnitee’s ability to repay the expenses.
Advances shall include any and all expenses actually and reasonably incurred by Indemnitee
pursuing an action to enforce Indemnitee’s right to indemnification under this Agreement, or
otherwise and this right of advancement, including expenses incurred preparing and forwarding
statements to the Company to support the advances claimed. Indemnitee acknowledges that the
execution and delivery of this Agreement shall constitute an undertaking providing that Indemnitee
shall, to the fullest extent required by law, repay the advance if and to the extent that it is
ultimately determined by a court of competent jurisdiction in a final judgment, not subject to
appeal, that Indemnitee is not entitled to be indemnified by the Company. The right to advances
under this Section shall continue until final disposition of any proceeding, including any appeal
therein. This Section 6 shall not apply to any claim made by Indemnitee for which indemnity is
excluded pursuant to Section 10(b).
7. Notice and Other Indemnification Procedures.
(a) Notification of Proceeding. Indemnitee will notify the Company in writing promptly upon
being served with any summons, citation, subpoena, complaint, indictment, information or other
document, relating to any proceeding or matter which may be subject to indemnification or
advancement of expenses covered hereunder. The failure of Indemnitee to so notify the Company shall
not relieve the Company of any obligation which it may have to Indemnitee under this Agreement or
otherwise.
(b) Request for Indemnification and Indemnification Payments. Indemnitee shall notify the
Company promptly in writing upon receiving notice of any demand, judgment or other requirement for
payment that Indemnitee reasonably believes to be subject to indemnification under the terms of
this Agreement, and shall request payment thereof by the Company. Indemnification payments
requested by Indemnitee under Section 3 hereof shall be
4
made by the Company no later than sixty (60) days after receipt of the written request of
Indemnitee. Claims for advancement of expenses shall be made under the provisions of Section 6
herein.
(c) Application tor Enforcement. In the event the Company fails to make timely payments as
set forth in Sections 6 or 7(b) above, Indemnitee shall have the right to apply to any court of
competent jurisdiction for the purpose of enforcing Indemnitee’s right to indemnification or
advancement of expenses pursuant to this Agreement. In such an enforcement hearing or proceeding,
the burden of proof shall be on the Company to prove that indemnification or advancement of
expenses to Indemnitee is not required under this Agreement or permitted by applicable law. Any
determination by the Company (including its Board of Directors, stockholders or independent
counsel) that Indemnitee is not entitled to indemnification hereunder, shall not be a defense by
the Company to the action nor create any presumption that Indemnitee is not entitled to
indemnification or advancement of expenses hereunder.
(d) Indemnification of Certain Expenses. The Company shall indemnify Indemnitee against all
expenses incurred in connection with any hearing or proceeding under this Section 7 unless the
Company prevails in such hearing or proceeding on the merits in all material respects.
8. Assumption of Defense. In the event the Company shall be requested by Indemnitee to pay
the expenses of any proceeding, the Company, if appropriate, shall be entitled to assume the
defense of such proceeding, or to participate to the extent permissible in such proceeding, with
counsel reasonably acceptable to Indemnitee. Upon assumption of the defense by the Company and the
retention of such counsel by the Company, the Company shall not be liable to Indemnitee under this
Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same
proceeding, provided that Indemnitee shall have the right to employ separate counsel in such
proceeding at Indemnitee’s sole cost and expense. Notwithstanding the foregoing, if Indemnitee’s
counsel delivers a written notice to the Company stating that such counsel has reasonably
concluded that there may be a conflict of interest between the Company and Indemnitee in the
conduct of any such defense or the Company shall not, in fact, have employed counsel or otherwise
actively pursued the defense of such proceeding within a reasonable time, then in any such event
the fees and expenses of Indemnitee’s counsel to defend such proceeding shall be subject to the
indemnification and advancement of expenses provisions of this Agreement.
9. Insurance. To the extent that the Company maintains an insurance policy or policies
providing liability insurance for directors, officers, employees, or agents of the Company or of
any subsidiary (“D&O Insurance”), Indemnitee shall be covered by such policy or policies
in accordance with its or their terms to the maximum extent of the coverage available for any such
director, officer, employee or agent under such policy or policies. If, at the time of the receipt
of a notice of a claim pursuant to the terms hereof, the Company has D&O Insurance in effect, the
Company shall give prompt notice of the commencement of such proceeding to the insurers in
accordance with the procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all
amounts payable as a result of such proceeding in accordance with the terms of such policies.
5
10. Exceptions.
(a) Certain Matters. Any provision herein to the contrary notwithstanding, the Company shall
not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee on
account of any proceeding with respect to (i) remuneration paid to Indemnitee if it is determined
by final judgment or other final adjudication that such remuneration was in violation of law (and,
in this respect, both the Company and Indemnitee have been advised that the Securities and
Exchange Commission believes that indemnification for liabilities arising under the federal
securities laws is against public policy and is, therefore, unenforceable and that claims for
indemnification should be submitted to appropriate courts for adjudication, as indicated in
Section 10(d) below); (ii) a final judgment rendered against Indemnitee for an accounting,
disgorgement or repayment of profits made from the purchase or sale by Indemnitee of securities
of the Company against Indemnitee or in connection with a settlement by or on behalf of Indemnitee
to the extent it is acknowledged by Indemnitee and the Company that such amount paid in settlement
resulted from Indemnitee’s conduct from which Indemnitee received monetary personal profit,
pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended, or
other provisions of any federal, state or local statute or rules and regulations thereunder; (iii)
a final judgment or other final adjudication that Indemnitee’s conduct was in bad faith, knowingly
fraudulent or deliberately dishonest or constituted willful misconduct (but only to the extent of
such specific determination); or (iv) on account of conduct that is established by a final
judgment as constituting a breach of Indemnitee’s duty of loyalty to the Company or resulting in
any personal profit or advantage to which Indemnitee is not legally entitled. For purposes of the
foregoing sentence, a final judgment or other adjudication may be reached in either the underlying
proceeding or action in connection with which indemnification is sought or a separate proceeding
or action to establish rights and liabilities under this Agreement.
(b) Claims Initiated by Indemnitee. Any provision herein to the contrary notwithstanding, the
Company shall not be obligated to indemnify or advance expenses to
Indemnitee with respect to
proceedings or claims initiated or brought by Indemnitee against the Company or its directors,
officers, employees or other agents and not by way of defense, except (i) with respect to
proceedings brought to establish or enforce a right to indemnification under this Agreement or
under any other agreement, provision in the Bylaws or Certificate of Incorporation or applicable
law, or (ii) with respect to any other proceeding initiated by Indemnitee that is either approved
by the Board of Directors or Indemnitee’s participation is required by applicable law. However,
indemnification or advancement of expenses may be provided by the Company in specific cases if the
Board of Directors determines it to be appropriate.
(c) Unauthorized Settlements. Any provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee under this Agreement for any amounts paid in settlement of a proceeding effected without the
Company’s written consent. Neither the Company nor Indemnitee shall unreasonably withhold consent
to any proposed settlement; provided, however, that the Company may in any event decline to
consent to (or to otherwise admit or agree to any liability for indemnification hereunder in
respect of) any proposed settlement if the Company is also a
6
party in
such proceeding and determines in good faith that such settlement is not in the best
interests of the Company and its stockholders.
(d) Securities Act Liabilities. Any provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee or
otherwise act in violation of any undertaking appearing in and required by the rules and
regulations promulgated under the Securities Act of 1933, as amended (the “Act”), or in any
registration statement filed with the SEC under the Act. Indemnitee acknowledges that paragraph
(h) of Item 512 of Regulation S-K currently generally requires the Company to undertake in
connection with any registration statement filed under the Act to submit the issue of the
enforceability of Indemnitee’s rights under this Agreement in connection with any liability under
the Act on public policy grounds to a court of appropriate jurisdiction and to be governed by any
final adjudication of such issue. Indemnitee specifically agrees that any such undertaking shall
supersede the provisions of this Agreement and to be bound by any
such undertaking.
11. Nonexclusivity and Survival of Rights. The provisions for indemnification and advancement
of expenses set forth in this Agreement shall not be deemed exclusive of any other rights which
Indemnitee may at any time be entitled under any provision of
applicable law, the Company’s
Certificate of Incorporation, Bylaws or other agreements, both as to
action in Indemnitee’s
official capacity and Indemnitee’s action as an agent of the Company, in any court in which a
proceeding is brought, and Indemnitee’s rights hereunder shall
continue after Indemnitee has
ceased acting as an agent of the Company and shall inure to the benefit of the heirs, executors,
administrators and assigns of Indemnitee. The obligations and duties of the Company to
Indemnitee under this Agreement shall be binding on the Company and its successors and assigns
until terminated in accordance with its terms. The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all
of the business or assets of the Company, expressly to assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required to perform if no such
succession had taken place.
No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit
or restrict any right of Indemnitee under this Agreement in respect of any action taken or
omitted by such Indemnitee in his or her corporate status prior to such amendment, alteration or
repeal. To the extent that a change in the Code, whether by statute or judicial decision, permits
greater indemnification or advancement of expenses than would be afforded currently under the
Company’s Certificate of Incorporation, Bylaws and this Agreement, it is the intent of the parties
hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such
change. No right or remedy herein conferred is intended to be exclusive of any other right or
remedy, and every other right and remedy shall be cumulative and in
addition to every other
right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or
otherwise, by Indemnitee shall
not prevent the concurrent assertion or employment of any other right
or remedy by Indemnitee.
12.
Term. This Agreement shall continue until and terminate upon the later of: (a) five (5)
years after the date that Indemnitee shall have ceased to serve as a director or and/or
7
officer, employee or agent of the Company; or (b) one (1) year after the final termination of any
proceeding, including any appeal then pending, in respect to which Indemnitee was granted rights
of indemnification or advancement of expenses hereunder.
No legal action shall be brought and no cause of action shall be asserted by or in the
right of the Company against an Indemnitee or an Indemnitee’s estate, spouse, heirs, executors or
personal or legal representatives after the expiration of five (5) years from the date of accrual
of such cause of action, and any claim or cause of action of the Company shall be extinguished and
deemed released unless asserted by the timely filing of a legal action within such five-year
period; provided, however, that if any shorter period of limitations is otherwise applicable to
such cause of action, such shorter period shall govern.
13. Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who, at
the request and expense of the Company, shall execute all papers required and shall do everything
that may be reasonably necessary to secure such rights, including the execution of such documents
necessary to enable the Company effectively to bring suit to enforce such rights.
14. Interpretation of Agreement. It is understood that the parties hereto intend this
Agreement to be interpreted and enforced so as to provide indemnification to Indemnitee to the
fullest extent now or hereafter permitted by law.
15. Severability. If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable for any reason whatsoever, (a) the validity, legality and enforceability of the
remaining provisions of the Agreement (including without limitation, all portions of any paragraphs
of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that
are not themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby; and (b) to the fullest extent possible, the provisions of this Agreement (including,
without limitation, all portions of any paragraph of this Agreement containing any such provision
held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested by the provision
held invalid, illegal or unenforceable and to give effect to Section 14 hereof.
16. Amendment and Waiver. No supplement, modification, amendment, or cancellation of this
Agreement shall be binding unless executed in writing by the parties hereto. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
17. Notice. Except as otherwise provided herein, any notice or demand which, by the
provisions hereof, is required or which may be given to or served upon the parties hereto shall be
in writing and, if by telegram, telecopy or telex, shall be deemed to have been validly served,
given or delivered when sent, if by overnight delivery, courier or personal delivery, shall be
deemed to have been validly served, given or delivered upon actual delivery and, if mailed, shall
be deemed to have been validly served, given or delivered three (3) business days after deposit in
the United States mail, as registered or certified mail, with proper postage prepaid and addressed
to the party or parties to be notified at the addresses set forth on the signature page of this
8
Agreement (or such other address(es) as a party may designate for itself by like notice). If to
the Company, notices and demands shall be delivered to the attention of the Secretary of the
Company.
18. Governing Law. This Agreement shall be governed exclusively by and construed according
to the laws of the State of Delaware.
19. Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall for all purposes be deemed to be an original but all of which together shall constitute
but one and the same Agreement. Only one such counterpart need be produced to evidence the
existence of this Agreement.
20. Headings. The headings of the sections of this Agreement are inserted for convenience only
and shall not be deemed to constitute part of this Agreement or to affect the construction hereof.
21. Entire Agreement. This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior
agreements, understandings and
negotiations, written and oral, between the parties with respect to the subject matter of this
Agreement; provided, however, that this Agreement is a supplement to and in furtherance of the
Company’s Certificate of Incorporation, Bylaws, the Code and any
other applicable law, and shall
not be deemed a substitute therefor, and does not diminish or abrogate any rights of Indemnitee
thereunder.
9
In
Witness Whereof, the parties hereto have entered into this Agreement effective
as of the date first above written.
| Onyx Pharmaceuticals, Inc. | ||||||
| By: | /s/ N. Xxxxxxx Xxxxx
|
|||||
| Title: President & CEO | ||||||
| INDEMNITEE | ||||
| /s/ Xxxx Xxxxxx
|
||||
| Xxxx Xxxxxx
|
10
Exhibit B
EMPLOYEE CONFIDENTIAL INFORMATION AND INVENTIONS ASSIGNMENT
AGREEMENT
AGREEMENT
B-1
EMPLOYEE CONFIDENTIAL INFORMATION AND INVENTIONS ASSIGNMENT AGREEMENT
In consideration of my employment or continued employment by Onyx Pharmaceuticals, Inc or
its subsidiaries or affiliates (the “Company”), and the compensation paid to me now and during my
employment with the Company, I agree to the terms of this Agreement as follows:
1. Confidential Information Protections.
1.1 Nondisclosure; Recognition of Company’s Rights. At all times during and after my employment, I will hold in confidence and will not
disclose, use, lecture upon, or publish any of Company’s Confidential Information (defined below),
except as may be required in connection with my work for Company, or as expressly authorized in
writing by an officer of Company. I will obtain such officer’s written approval before publishing
or submitting for publication any material (written, oral, or otherwise) that relates to my work
at Company and/or incorporates any Confidential Information. I hereby assign to Company any rights
I have or may acquire in any and all Confidential Information and recognize that all Confidential
Information shall be the sole and exclusive property of Company and its assigns.
1.2 Confidential Information. The term “Confidential Information” shall mean any and all
confidential knowledge, data or information related to Company’s business or its actual or
demonstrably anticipated research or development, including without limitation (a) trade secrets,
inventions, ideas, processes, computer source and object code, data, formulae, programs, other
works of authorship, know-how, improvements, discoveries, developments, designs, techniques,
methodologies, techniques, processes, assay systems, procedures, tests, formulations, gene
sequences and loci, compounds, micro-organisms or other cell types, proteins, peptides, genetic
and other biological material, computer programs, algorithms, software, reports, documentation,
equipment, and devices; (b) information regarding products, services, plans for research and
development, unpublished test results, clinical trials, marketing and business plans, budgets,
financial statements, contracts, prices, suppliers, and customers; (c) information regarding the
skills and compensation of Company’s employees, contractors, and any other service providers of
Company; and (d) the existence of any business discussions, negotiations, or agreements between
Company and any third party.
1.3 Third Party Information. I understand that Company has received and in the future will
receive from third parties confidential or proprietary information (“Third Party Information”)
subject to a duty on Company’s part to maintain the confidentiality of such information and to use
it only for certain limited purposes. During and after the term of my employment, I will hold Third
Party Information in strict confidence and will not disclose to anyone (other than Company
personnel who need to know such information in connection with their
work for Company) or use.
Third Party Information, except in connection with my work for Company or unless expressly
authorized by an officer of Company in writing.
1.4 No Improper Use of Information of Prior Employers and Others. I represent that my employment by Company does not and will not breach any
agreement with any former employer, including any noncompete agreement or any agreement to keep in
confidence or refrain from using information acquired by me in confidence or trust prior to my
employment by Company. I further represent that I have not entered into, and will not enter into,
any agreement, either written or oral, in conflict with my obligations under this Agreement.
During my employment by Company, I will not improperly use or disclose any confidential
information or trade secrets of any former employer or other third party, nor will I bring onto
the premises of Company or use any unpublished documents or any property belonging to any former
employer or other third party, in violation of any lawful agreements with that former employer or
third party. I will use in the performance of my duties only information that is generally known
and used by persons with training and experience comparable to my own, is common knowledge in the
industry or otherwise legally in the public domain, or is otherwise provided or developed by
Company.
2. Inventions.
2.1 Inventions and Intellectual Property Rights. As used in this Agreement, the term
“Invention” means any ideas, concepts, information, materials, processes, methods, data, programs,
know-how, improvements, discoveries, developments, designs, artwork, formulae, other patentable
or copyrightable works, and techniques and all Intellectual Property Rights in any of the items
listed above. The term “Intellectual Property Rights” means all trade secrets, copyrights,
trademarks, mask work rights, patents and other intellectual property rights recognized by the
laws of any jurisdiction or country.
2.2 Prior Inventions. I have disclosed on Exhibit A a complete list of all Inventions that (a)
I have, or I have caused to be, alone or jointly with others, conceived, developed, or reduced to
practice prior to the commencement of my employment by Company; (b) in which I have an ownership
interest or which I have a license to use; and (c) I wish to have excluded from the scope of this
Agreement (collectively referred to as “Prior Inventions”). If no Prior Inventions are listed in
Exhibit A, I warrant that there are no Prior Inventions. I agree that I will not incorporate, or
permit to be incorporated, Prior Inventions in any Company Inventions (defined below) without
Company’s prior written consent. If, in the course of my employment with Company, I incorporate a
Prior Invention into a Company process, machine or other work, I hereby grant Company a
non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide license, with
rights to sublicense through multiple levels of
1
sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly
display in any form or medium, whether now known or later developed, make, have made, use, sell,
import, offer for sale, and exercise any and all present or future rights in, such Prior
Invention.
2.3 Assignment of Company Inventions.
Inventions assigned to the Company or to a third party as directed by the Company pursuant to the
section titled “Government or Third Party” are referred to in this Agreement as “Company
Inventions.” Subject to the section titled “Government or Third Party” and except for Inventions
that I can prove qualify fully under the provisions of California Labor Code section 2870 and that
I have set forth in Exhibit A, I hereby assign and agree to assign in the future (when any such
Inventions or Intellectual Property Rights are first reduced to practice or first fixed in a
tangible medium, as applicable) to Company all my right, title, and interest in and to any and all
Inventions (and all Intellectual Property Rights with respect thereto) made, conceived, reduced to
practice, or learned by me, either alone or with others, during the period of my employment by
Company.
2.4 Obligation to Keep Company Informed. During the period of my employment and for one (1)
year after my employment ends, I will promptly and fully disclose to Company in writing (a) all
Inventions authored, conceived, or reduced to practice by me, either alone or with others,
including any that might be covered under California Labor Code section 2870, and (b) all patent
applications filed by me or in which I am named as an inventor or co-inventor.
2.5 Government or Third Party. I agree that, as directed by the Company, I will assign to a
third party, including without limitation the United States, all my right, title, and interest in
and to any particular Company Invention.
2.6 Enforcement of Intellectual Property Rights and Assistance. During and after the period
of my employment, I will assist Company in every proper way to obtain and enforce United
States and foreign Intellectual
Property Rights relating to Company Inventions in all countries. If the Company is unable to
secure my signature on any document needed in connection with such purposes, I hereby irrevocably
designate and appoint Company and its duly authorized officers and agents as my agent and attorney
in fact, which appointment is coupled with an interest, to act on my behalf to execute and file
any such documents and to do all other lawfully permitted acts to further such purposes with the
same legal force and effect as if executed by me.
2.7 Incorporation of Software Code. I agree
that I will not incorporate into any Company software or
otherwise deliver to Company any software code licensed
under the GNU General Public License or Lesser General
Public License or any other license that, by its terms, requires
or conditions the use or distribution of such code on the
disclosure, licensing, or distribution of any source code owned
or licensed by Company.
3. Records. I agree to keep and maintain adequate and current records (in the form of notes,
sketches, drawings and in any other form that is required by the Company) of all Inventions made
by me during the period of my employment by the Company, which records shall be available to,
and remain the sole property of, the Company at all times.
4. Additional Activities. I agree that (a) during the term of my employment by Company,
I will not, without Company’s express written consent, engage in any employment or business
activity directly related to or competitive with the business in which the Company is now or
becomes involved, or would otherwise conflict with my obligations to the Company. To protect the
Company’s Intellectual Property Rights, and because of the position in the Company that I hold,
I agree that during my employment with the Company whether full-time or part-time and for a
period of one year after my last day of employment with the Company, I will not (a) directly or
indirectly, solicit, induce or encourage, or attempt to solicit, induce, or encourage or
otherwise cause any employee, consultant or independent contractor of the Company to terminate
his or her relationship with the Company in order to become an employee, independent contractor,
or consultant to or for any other person or entity (or any such employee, consultant or
independent contractor who has terminated their relationship with the Company within the six
months prior to the date of the action prohibited hereunder), or (b) directly or indirectly
solicit the business of any client or customer of the Company (other than on behalf of the
Company) if such solicitation would involve the unauthorized use or disclosure of the Company’s
Confidential Information.
5. Return Of Company Property. Upon termination of my employment or upon Company’s
request at any other time, I will deliver to Company all of Company’s property, equipment, and
documents, together with all copies thereof, and any other material containing or disclosing any
inventions, Third Party Information or Confidential Information and certify in writing that I
have fully complied with the foregoing obligation. I agree that I will not copy, delete, or
alter any information contained upon my Company computer or Company equipment before I return it
to Company. In addition, if I have used any personal computer, server, or e-mail system to
receive, store, review, prepare or transmit any Company information, including but not limited
to, Confidential Information, I agree to provide the Company with a computer-useable copy of all
such Confidential Information and then permanently delete and expunge such Confidential
Information from those systems; and I agree to provide the Company access to my system as
reasonably requested to verify that the necessary copying and/or deletion is completed. I
further agree that any property situated on Company’s premises and owned by Company is subject
to inspection by Company’s personnel at any time with or without further notice. Prior to the
termination of my employment or promptly after termination of my employment, I will cooperate
with Company in attending an exit interview and certify in writing that I have complied with the
requirements of this section.
2
6. Notification of New Employer. In the event that I leave the employ of
Company, I hereby consent to the notification of my new employer of my rights and obligations
under this Agreement, by Company providing a copy of this Agreement or otherwise.
7. General Provisions.
7.1 Governing Law and Venue. This Agreement and any action related thereto will be governed,
controlled, interpreted and defined by and under the laws of the State of California, without
giving effect to any conflicts of laws principles that require the application of the law of a
different state. I hereby expressly consent to the personal jurisdiction and venue in the state
and federal courts for the county in which Company’s principal place of business is located for
any lawsuit filed there against me by Company arising from or related to this Agreement.
7.2 Severability. If any provision of this Agreement is, for any reason, held to be invalid
or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or
unenforceable provision will be deemed modified so that it is valid and enforceable to the
maximum extent permitted by law.
7.3 Survival. This Agreement shall survive the termination of my employment and the
assignment of this Agreement by Company to any successor-in-interest or other assignee and be
binding upon my heirs and legal representatives.
7.4 Employment. I agree and understand that nothing in this Agreement shall give me any
right to continued employment by Company, and it will not interfere in any way with my right or
Company’s right to terminate my employment
at any time, with or without cause and with or without advance notice.
7.5 Notices. Each party must deliver all notices
or other communications required or permitted under this
Agreement in writing to the other party at the address listed on
the signature page, by courier, by certified or registered mail
(postage prepaid and return receipt requested), or by a
nationally-recognized express mail service. Notice will be
effective upon receipt or refusal of delivery. If delivered by
certified or registered mail, notice will be considered to have
been given five (5) business days after it was mailed, as
evidenced by the postmark. If delivered by courier or express mail service, notice will be
considered to have been given on the delivery date reflected by the courier or express mail
service receipt. Each party may change its address for receipt of notice by giving notice of such
change to the other party.
7.6 Injunctive Relief. I acknowledge that, because my services are personal and unique and
because I will have access to the Confidential Information of Company, any breach of this
Agreement by me would cause irreparable injury to Company for which monetary damages would not be
an adequate remedy and, therefore, will entitle Company to injunctive relief (including specific
performance). The rights and remedies provided to each party in this Agreement are cumulative and
in addition to any other rights and remedies available to such party at law or in equity.
7.7 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion
will not be deemed a waiver of any other provision or of such provision on any other occasion.
7.8 Export. I agree not to export, directly or indirectly, any U.S. technical data acquired
from Company or any products utilizing such data, to countries outside the United States, because
such export could be in violation of the United States export laws or regulations.
7.9 Entire Agreement. The obligations pursuant to sections of this Agreement titled
“Confidential Information Protections” and “Inventions” shall apply at any time during which I was
previously employed, or am in the future employed by Company or, to the fullest extent permitted by
law, to any time during which I was previously engaged, or am in the future engaged, by Company as
an independent contractor, if no other agreement governs nondisclosure and assignment of inventions
during such period. This Agreement is the final, complete and exclusive agreement of the parties
with respect to the subject matter hereof and supersedes and merges all prior communications
between us with respect to such matters. No modification of or amendment to this Agreement, or any
waiver of any rights under this Agreement, will be effective unless in writing and signed by me and
an officer of the Company. Any subsequent change or changes in my duties, salary or compensation
will not affect the validity or scope of this Agreement.
3
| This Agreement shall be effective as of the first day of my employment with Company. |
| EMPLOYEE: | ONYX PHARMACEUTICALS, INC.: | |||||||
| I have read, understand, and accept this agreement | Accepted and agreed: | |||||||
| and have been given the opportunity to discuss it | ||||||||
| with independent legal counsel. | ||||||||
| /s/ Xxxx Xxxxxx | /s/ Xxxxxx XxXxxxxxxx | |||||||
| (Signature) | (Signature) |
|||||||
By:
|
Xxxx Xxxxxx | By: | Xxxxxx XxXxxxxxxx | |||||
Title:
|
Vice President, Organizational Learning, Development & Human Resources | Title: | Senior Director, Human Resources | |||||
Date:
|
3/21/08 | Date: | 3/21/08 | |||||
Address:
|
00 Xxxxx Xxxxx, Xxxxxx, XX 00000 | Address: | Xxxxxxxxxx, XX | |||||
0
EXHIBIT A
INVENTIONS
1. Prior Inventions Disclosure. The following is a complete list of all Prior Inventions (as
provided in Section 2.2 of the
attached Employee Confidential Information and Inventions Assignment Agreement, defined herein as
the “Agreement”):
þ
|
None | |
o
|
See immediately below: | |
o
|
Additional sheets attached. | |
2. Due to a prior confidentiality agreement, I cannot complete the disclosure under Section I above
with respect to inventions or
improvements generally listed below and the proprietary rights and obligations with respect to
which I owe to the following party(ies):
| Invention or Improvement | Party(ies) | Relationship | ||||
1. |
||||||
2. |
||||||
3. |
||||||
| o | Additional sheets attached. |
3.
Limited Exclusion Notification.
This is to notify you in accordance with Section 2872 of the California Labor Code
that the foregoing Agreement between you and Company does not require you to assign or offer to
assign to Company any Invention that you develop entirely on your own time without using Company’s
equipment, supplies, facilities or trade secret information, except for those Inventions that
either:
a. Relate at the time of conception or reduction to practice to Company’s business, or actual
or demonstrably
anticipated research or development; or
b. Result from any work performed by you for Company.
To the extent a provision in the foregoing Agreement purports to require you to assign an
Invention otherwise excluded from the preceding paragraph, the provision is against the public
policy of this state and is unenforceable.
This limited exclusion does not apply to any patent or Invention covered by a contract
between Company and the United States or any of its agencies requiring full title to such patent
or Invention to be in the United States.
A-1
