EXECUTIVE SEVERANCE BENEFITS AGREEMENT
Exhibit
99.1
This
Executive
Severance Benefits Agreement
(the
“Agreement”)
is
entered into this 14th
day of
May, 2007 (the “Effective
Date”),
between
Xxxxxxx X. Xxxxxx (“Executive”)
and
Sunesis
Pharmaceuticals, Inc.
(the
“Company”).
This
Agreement is intended to provide Executive with the compensation and benefits
described herein upon the occurrence of specific events. Certain capitalized
terms used in this Agreement are defined in Article 6.
The
Company and Executive hereby agree as follows:
ARTICLE
1
Scope
of and Consideration for this Agreement
1.1 Position
and Duties. Executive
is currently employed by the Company as Senior Vice President, General Counsel
and Corporate Secretary. Executive has overall responsibility for the Company’s
corporate legal functions, including but not limited to, service as Secretary
of
the Board and Corporate Secretary. Executive reports directly to the Chief
Executive Officer.
1.2 Restrictions.
During
her employment by the Company, Executive agrees to the best of her ability
and
experience that she will at all times loyally and conscientiously perform all
of
the duties and obligations required of and from her as Senior Vice President
and
General Counsel. During the term of her employment, Executive further agrees
that she will devote all of her business time and attention to the business
of
the Company, the Company will be entitled to all of the benefits and profits
arising from or incident to all such work, services and advice, Executive will
not render commercial or professional services of any nature to any person
or
organization, whether or not for compensation, without the prior written consent
of the Board, and Executive will not directly or indirectly engage or
participate in any business that is competitive in any manner with the business
of the Company. Nothing in this Agreement will prevent Executive from accepting
speaking or presentation engagements in exchange for honoraria or from service
on boards of charitable organizations or otherwise participating in civic,
charitable or fraternal organizations, or from owning no more than one percent
(1%) of the outstanding equity securities of a corporation whose stock is listed
on a national stock exchange. It is contemplated that Executive may serve on
boards of directors of other, non-competitive companies and the Board will
not
unreasonably withhold its consent from such participation. Such participation
shall not exceed the greater of six (6) days
per
year or such number of days as is required for Executive to serve on the board
of directors of one (1) such company.
1.3 Professional
Requirements. The
Company shall pay the costs of Executive’s State Bar dues, her required
Continuing Legal Education courses and those professional education programs
reasonably necessary for the performance of Executive’s duties as SVP and
General Counsel. Executive’s participation in such programs will be considered
work time and the travel expenses associated with attendance at such conferences
will be paid according to the Company’s expense reimbursement
policies.
1
1.4 Confidential
Information and Invention Assignment Agreement.
Executive acknowledges that she has previously executed and delivered to an
officer of the Company the Company’s Confidential Information and Invention
Assignment Agreement (the “Confidentiality Agreement”)
and
that the Confidentiality Agreement remains in full force and
effect.
1.5 Confidentiality
of Terms.
Executive agrees to follow the Company’s strict policy that employees must not
disclose, either directly or indirectly, any information, including any of
the
terms of this Agreement, regarding salary, bonuses, or stock purchase or option
allocations to any person, including other employees of the Company;
provided,
however,
that
Executive may discuss such terms: (i) with members of her immediate family
and
any legal, tax or accounting specialists who provide Executive with individual
legal, tax or accounting advice; (ii) with other employees of the Company on
a
need to know basis if required to carry out Executive’s duties as the Company’s
SVP and General Counsel or at the request of the Board or any other superior
officer of the Company; (iii) as needed to enforce the terms of this Agreement;
and (iv) to the extent such information has entered the public domain through
no
fault of Executive or is disclosed with the approval of the
Company.
1.6 Benefits
Upon Change of Control. The
Company and Executive wish to set forth the compensation and benefits which
Executive shall be entitled to receive in the event of a Change of Control
or if
Executive’s employment with the Company is terminated under the circumstances
described herein.
1.7 Consideration.
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 Executive’s execution of a release in
accordance with Section 4.1.
ARTICLE
2
Option
Acceleration
2.1 Change
of Control Option
Acceleration. In
the
event of a Change of Control, the vesting and/or exercisability of fifty percent
(50%) of Executive’s outstanding Stock Awards shall be automatically accelerated
immediately prior to the effective date of such Change of Control.
2.2 Constructive
Termination Option Acceleration.
(a) In
the
event of a Covered Termination of Executive’s employment prior to or more than
twelve (12) months following the effective date of a Change of Control, the
vesting and/or exercisability of each of Executive’s outstanding Stock Awards
shall be automatically accelerated on the date of termination as to the number
of Stock Awards that would vest over the twelve (12) month period following
the
date of termination had Executive remained continuously employed by the Company
during such period.
2
(b) In
the
event of a Covered Termination of Executive’s employment within twelve (12)
months following the effective date of a Change of Control, the vesting and/or
exercisability of one hundred percent (100%) of Executive’s outstanding Stock
Awards shall be automatically accelerated on the date of
termination.
2.3 Outstanding
Stock Awards.
For the
avoidance of doubt, the fifty percent (50%), twelve (12) month and one hundred
percent (100%) accelerated vesting described in Sections 2.1 and 2.2 shall
apply
toward that portion of Executive’s outstanding Stock Awards that are unvested as
of the date of accelerated vesting.
ARTICLE
3
Severance
Benefits
3.1 Severance
Benefits.
A
Covered Termination of Executive’s employment prior to or more than twelve (12)
months following the effective date of a Change of Control entitles Executive
to
receive the benefits set forth in this Section 3.1.
(a) Base
Salary.
The
Company shall pay to Executive an amount equal to nine (9) months’ Base Salary.
Such severance amount shall be paid over
the
nine (9) month period commencing on the date of termination in equal monthly
installments and shall be subject to all required tax withholding.
(b) Health
Benefits.
Provided that Executive elects continued coverage under the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended (“COBRA”),
the
Company shall pay the premiums of Executive’s group health insurance coverage,
including coverage for Executive’s eligible dependents, for a maximum period of
nine (9) months following such Covered Termination; provided,
however,
that the
Company shall pay premiums for Executive’s eligible dependents only for coverage
for which those eligible dependents were enrolled immediately prior to the
Covered Termination. It being understood that it shall be Executive’s sole
responsibility to elect continuation of coverage pursuant to COBRA in the first
instance. No premium payments will be made following the effective date of
Executive’s coverage by a health insurance plan of a subsequent employer. For
the balance of the period that Executive is entitled to coverage under federal
COBRA law, if any, Executive shall be entitled to maintain such coverage at
Executive’s own expense.
3.2 Change
of Control Severance Benefits.
A
Covered Termination of Executive’s employment within twelve (12) months
following the effective date of a Change of Control entitles Executive to
receive the benefits set forth in this Section 3.2.
(a) Base
Salary. The
Company shall pay to Executive an amount equal to fourteen (14) months’ Base
Salary. Such severance amount shall be paid in cash in a lump sum within thirty
(30) days following the Covered Termination and shall be subject to all required
tax withholding.
(b) Bonus.
The
Company shall pay to Executive an amount equal to fourteen twelfths (14/12ths)
of Executive’s target annual bonus for the fiscal year during which the Covered
Termination occurs, with such bonus determined assuming that all of the
performance objectives for such fiscal year have been attained. Such severance
amount shall be paid in
cash
in a lump sum within thirty (30) days following the Covered Termination and
shall be subject to all required tax withholding.
3
(c) Health
Benefits.
Provided that Executive elects continued coverage under federal COBRA law,
the
Company shall pay the premiums of Executive’s group health insurance coverage,
including coverage for Executive’s eligible dependents, for a maximum period of
fourteen (14) months following such Covered Termination; provided,
however,
that the
Company shall pay premiums for Executive’s eligible dependents only for coverage
for which those eligible dependents were enrolled immediately prior to the
Covered Termination. It being understood that it shall be Executive’s sole
responsibility to elect continuation of coverage pursuant to COBRA in the first
instance. No premium payments will be made following the effective date of
Executive’s coverage by a health insurance plan of a subsequent employer. For
the balance of the period that Executive is entitled to coverage under federal
COBRA law, if any, Executive shall be entitled to maintain such coverage at
Executive’s own expense.
(d) No
Duplication of Benefits. The
payments and benefits provided for in this Section 3.2 shall only be payable
in
the event of a Covered Termination of Executive’s employment within twelve (12)
months following the effective date of a Change of Control. In the event of
a
Covered Termination of Executive’s employment prior to or more than twelve (12)
months following a Change Control, then Executive shall receive the payments
and
benefits described in Section 3.1 and shall not be eligible to receive any
of
the payments and benefits described in this Section 3.2.
3.3 Other
Terminations.
If
Executive’s employment is terminated by the Company for Cause, by Executive
other than pursuant to a Constructive Termination or as a result of Executive’s
death or disability, the Company shall not have any other or further obligations
to Executive under this Agreement (including any financial obligations) except
that Executive shall be entitled to receive (a) Executive’s fully earned but
unpaid base salary, through the date of termination at the rate then in effect,
and (b) all other amounts or benefits to which Executive is entitled under
any
compensation, retirement or benefit plan or practice of the Company at the
time
of termination in accordance with the terms of such plans or practices,
including, without limitation, any continuation of benefits required by federal
COBRA law or applicable law. In addition, subject to the provisions of the
Company’s equity compensation plans and the terms of Executive’s Stock Awards,
if Executive’s employment is terminated by the Company for Cause, by Executive
other than pursuant to a Constructive Termination or as a result of Executive’s
death or disability, all vesting of Executive’s unvested Stock Awards previously
granted to her by the Company shall cease and none of such unvested Stock Awards
shall be exercisable following the date of such termination. The foregoing
shall
be in addition to, and not in lieu of, any and all other rights and remedies
which may be available to the Company under the circumstances, whether at law
or
in equity.
3.4 Mitigation.
Except
as otherwise specifically provided herein, Executive shall not be required
to
mitigate damages or the amount of any payment provided under this Agreement
by
seeking other employment or otherwise, nor shall the amount of any payment
provided for under this Agreement be reduced by any compensation earned by
Executive as a result of employment by another employer or by any retirement
benefits received by Executive after the date of the Covered
Termination.
4
3.5 Exclusive
Remedy.
Except
as otherwise expressly required by law (e.g., COBRA) or as specifically provided
herein, all of Executive’s rights to salary, severance, benefits, bonuses and
other amounts hereunder (if any) accruing after the Covered Termination of
Executive’s employment shall cease upon such termination. In the event of a
Covered Termination of Executive’s employment with the Company, Executive's sole
remedy shall be to receive the payments and benefits described in this
Agreement.
ARTICLE
4
Limitations
And Conditions On Benefits
4.1 Release
Prior to Payment of Benefits.
Upon the
occurrence of a Covered Termination of Executive’s employment, and prior to the
payment of any benefits under this Agreement on account of such Covered
Termination, Executive shall execute a release (the “Release”)
in the
form attached hereto and incorporated herein as Exhibit A or
Exhibit B, as applicable. 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 Confidentiality 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, and
Executive may revoke such Release within seven (7) calendar days after
execution. In the event Executive does not execute such Release within the
applicable period, or if Executive revokes such Release within the subsequent
seven (7) day period, no benefits shall be payable under this
Agreement.
4.2
Termination of Benefits.
Benefits
under this Agreement shall terminate immediately if the Executive, at any time,
violates any proprietary information or confidentiality obligation to the
Company, including, without limitation, the Confidentiality
Agreement.
ARTICLE
5
Parachute
Payments
5.1 Best
Pay Provision. Anything
in this Agreement to the contrary notwithstanding, in the event it shall be
determined that any Payment under this Agreement would, when combined with
all
other Payments Executive receives from the Company or any successor or parent
or
subsidiary thereof, but for this Article 5, be subject to the Excise Tax, then
such Payments shall be either (a) the full amount of such Payments or (b) such
lesser amount (with cash payments being reduced before stock option
compensation) as would result in no portion of the Payments being subject to
the
Excise Tax, whichever of the foregoing amounts, taking into account the
applicable federal, state and local employment taxes, income taxes and the
Excise Tax, results in Executive’s receipt, on an after-tax basis, of the
greater amount of the Payments notwithstanding that all or some portion of
the
Payments may be subject to the Excise Tax.
5
5.2 Determinations.
All
determinations required to be made under this Article 5, including whether
and
to what extent the Payments shall be reduced and the assumptions to be utilized
in arriving at such determination, shall be made by the nationally recognized
certified public accounting firm used by the Company immediately prior to the
Change of Control or, if such firm declines to serve, such other nationally
recognized certified public accounting firm as may be designated by the
Executive (the “Accounting
Firm”).
The
Accounting Firm shall provide detailed supporting calculations both to the
Company and the Executive at such time as is requested by the Company. All
fees
and expenses of the Accounting Firm shall be borne solely by the Company. Any
determination by the Accounting Firm shall be binding upon the Company and
the
Executive. For purposes of making the calculations required by this Article
5,
the Accounting Firm may make reasonable assumptions and approximations
concerning applicable taxes and may rely on reasonable, good-faith
interpretations concerning the application of Sections 280G and 4999 of the
Code.
ARTICLE
6
Definitions
For
purposes of the Agreement, the following terms are defined as
follows:
6.1 “Base
Salary”
means
Executive’s annual base salary as in effect during the last regularly scheduled
payroll period immediately preceding the Covered Termination.
6.2 “Board”
means
the Board of Directors of the Company.
6.3 “Cause”
means
that, in the reasonable determination of the Company, Executive:
(a) has
committed an act of fraud or embezzlement or has intentionally committed some
other illegal act that has a material adverse impact on the Company or any
successor or parent or subsidiary thereof;
(b) has
been
convicted of, or entered a plea of “guilty” or “no contest” to, a felony which
causes or may reasonably be expected to cause substantial economic injury to
or
substantial injury to the reputation of the Company or any subsidiary or
affiliate of the Company;
(c) has
made
any unauthorized use or disclosure of confidential information or trade secrets
of the Company or any successor or parent or subsidiary thereof that has a
material adverse impact on any such entity;
(d) has
committed any other intentional misconduct that has a material adverse impact
on
the Company or any successor or parent or subsidiary thereof;
(e) has
intentionally refused or intentionally failed to act in accordance with any
lawful and proper direction or order of the Board or the appropriate individual
to whom Executive reports; provided such direction is not materially
inconsistent with the Executive’s customary duties and responsibilities;
or
(f) has
ceased to be certified by the Committee of Bar Examiners of the State of
California to practice law in the State of California.
6
6.4 “Change
of Control”
means
and includes each of the following:
(a) the
acquisition, directly or indirectly, by any “person” or “group” (as those terms
are defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange
Act
of 1934, as amended, and the rules thereunder) of “beneficial ownership” (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of
1934, as amended) of securities entitled to vote generally in the election
of
directors (“voting
securities”)
of the
Company that represent fifty percent (50%) or more of the combined voting power
of the Company’s then outstanding voting securities, other than:
(i) an
acquisition by a trustee or other fiduciary holding securities under any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any person controlled by the Company or by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any person controlled
by the Company, or
(ii)
an
acquisition of voting securities by the Company or a corporation owned, directly
or indirectly by the stockholders of the Company in substantially the same
proportions as their ownership of the stock of the Company;
Notwithstanding
the foregoing, the following event shall not constitute an “acquisition” by any
person or group for purposes of this Section: an acquisition of the Company’s
securities by the Company that causes the Company’s voting securities
beneficially owned by a person or group to represent fifty percent (50%) or
more
of the combined voting power of the Company’s then outstanding voting
securities; provided,
however,
that if
a person or group shall become the beneficial owner of fifty percent (50%)
or
more of the combined voting power of the Company’s then outstanding voting
securities by reason of share acquisitions by the Company as described above
and
shall, after such share acquisitions by the Company, become the beneficial
owner
of any additional voting securities of the Company, then such acquisition shall
constitute a Change of Control; or
(b) the
consummation by the Company (whether directly involving the Company or
indirectly involving the Company through one or more intermediaries) of
(x) a merger, consolidation, reorganization, or business combination or
(y) a sale or other disposition of all or substantially all of the
Company’s assets or (z) the acquisition of assets or stock of another
entity, in each case other than a transaction:
(i) which
results in the Company’s voting securities outstanding immediately before the
transaction continuing to represent (either by remaining outstanding or by
being
converted into voting securities of the Company or the person that, as a result
of the transaction, controls, directly or indirectly, the Company or owns,
directly or indirectly, all or substantially all of the Company’s assets or
otherwise succeeds to the business of the Company (the Company or such person,
the “Successor
Entity”))
directly or indirectly, at least a majority of the combined voting power of
the
Successor Entity’s outstanding voting securities immediately after the
transaction, and
(ii) after
which no person or group beneficially owns voting securities representing fifty
percent (50%) or more of the combined voting power of the Successor Entity;
provided,
however,
that no
person or group shall be treated for purposes of this clause (ii) as
beneficially owning fifty percent (50%) or more of combined voting power of
the
Successor Entity solely as a result of the voting power held in the Company
prior to the consummation of the transaction; or
7
(c) the
Company’s stockholders approve a liquidation or dissolution of the Company.
Notwithstanding
the foregoing, a transaction shall not constitute a Change of Control if: (i)
it
constitutes the Company’s initial public offering of its securities; or (ii) it
is a transaction effected primarily for the purpose of financing the Company
with cash (as determined by the Board in its discretion and without regard
to
whether such transaction is effectuated by a merger, equity financing or
otherwise). The Board shall have full and final authority, which shall be
exercised in its discretion, to determine conclusively whether a Change of
Control of the Company has occurred pursuant to the above definition, and the
date of the occurrence of such Change of Control and any incidental matters
relating thereto.
6.5 “Code”
means
the Internal Revenue Code of 1986, as amended from time to time and the Treasury
Regulations thereunder.
6.6 “Company”
means
Sunesis Pharmaceuticals, Inc. or, following a Change of Control, the surviving
entity resulting from such transaction.
6.7 “Constructive
Termination”
means
that Executive voluntarily terminates employment after any of the following
are
undertaken without Executive’s express written consent:
(a) the
removal of or a material reduction in the nature or scope of Executive’s
responsibilities or the assignment to Executive of duties that are materially
inconsistent with Executive’s position;
(b) other
than as a result from a Change in Control, a change in the Executive’s direct
reporting relationship so that Executive no longer reports directly to the
Company’s (or its successor’s) most senior executive officer;
(c) a
reduction in Executive’s base salary, unless the base salaries of all other
executives are similarly reduced;
(d) a
reduction in Executive’s target bonus within twelve (12) months following the
effective date of a Change of Control, unless the target bonuses of all other
executives are similarly reduced; or
(e) a
relocation of Executive’s place of employment by more than thirty (30) miles
from such Executive’s place of employment on the Effective Date.
The
termination of Executive’s employment as a result of Executive’s death or
disability will not be deemed to be a Constructive Termination.
8
6.8 “Covered
Termination”
means an
Involuntary Termination Without Cause or a Constructive
Termination.
6.9 “Excise
Tax”
means
the excise tax imposed by Section 4999 of the Code, together with any interest
or penalties imposed with respect to such excise tax.
6.10 “Involuntary
Termination Without Cause”
means
Executive’s dismissal or discharge other than for Cause. The termination of
Executive’s employment as a result of Executive’s death or disability will not
be deemed to be an Involuntary Termination Without Cause.
6.11 A
“Payment”
shall
mean any payment or distribution in the nature of compensation (within the
meaning of Section 280G(b)(2) of the Code) to or for the benefit of the
Executive, whether paid or payable pursuant to this Agreement or
otherwise.
6.12 “Stock
Awards”
means
all stock options, restricted stock and such other awards granted pursuant
to
the Company’s stock option and equity incentive award plans or agreements and
any shares of stock issued upon exercise thereof.
ARTICLE
7
General
Provisions
7.1 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
(a) to retain Executive as an employee, (b) to change the status of
Executive as an at-will employee, or (c) to change the Company’s policies
regarding termination of employment.
7.2 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 and
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.
7.3 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.
7.4 Waiver.
If
either party should waive any breach of any provisions of this Agreement, she
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.
9
7.5 Arbitration.
Any
dispute, claim or controversy based on, arising out of or relating to
Executive’s employment or this Agreement shall be settled by final and binding
arbitration in San Mateo County, California, before a single neutral arbitrator
in accordance with the National Rules for the Resolution of Employment Disputes
(the “Rules”)
of the
American Arbitration Association, and judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction. Arbitration may
be
compelled pursuant to the California Arbitration Act (Code of Civil Procedure
§§
1280 et seq.).
If
the parties are unable to agree upon an arbitrator, one shall be appointed
by
the AAA in accordance with its Rules. Each party shall pay the fees of its
own
attorneys, the expenses of its witnesses and all other expenses connected with
presenting its case; however,
Executive and the Company agree that, to the extent permitted by law, the
arbitrator may, in his or her discretion, award reasonable attorneys’ fees to
the prevailing party. Other costs of the arbitration, including the cost of
any
record or transcripts of the arbitration, AAA’s administrative fees, the fee of
the arbitrator, and all other fees and costs, shall be borne by the Company.
This Section 7.5 is intended to be the exclusive method for resolving any and
all claims by the parties against each other for payment of damages under this
Agreement or relating to Executive’s employment; provided,
however,
that
neither this Agreement nor the submission to arbitration shall limit the
parties’ right to seek provisional relief, including, without limitation,
injunctive relief, in any court of competent jurisdiction pursuant to California
Code of Civil Procedure § 1281.8 or any similar statute of an applicable
jurisdiction. Seeking any such relief shall not be deemed to be a waiver of
such
party’s right to compel arbitration. Both Executive and the Company expressly
waive their right to a jury trial. 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.
7.6 Complete
Agreement.
This
Agreement, including Exhibit A and Exhibit B, constitutes the entire
agreement between Executive and the Company, and is the complete, final, and
exclusive embodiment of their agreement, in each case with regard to severance
benefits to Executive in the event of employment termination, wholly superseding
all written and oral agreements with respect to severance 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.
Notwithstanding
anything herein to the contrary, this Agreement shall not supersede any
indemnification agreement between Executive and the Company.
7.7 Amendment
or Termination 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 after such change or termination has been approved by the
Board.
7.8 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.
7.9 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.
10
7.10 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
of
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.
7.11 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.
7.12 Non-Publication.
The
parties mutually agree not to disclose publicly the terms of this Agreement
except to the extent that disclosure is mandated by applicable law or regulation
or to their respective advisors (e.g.,
attorneys, accountants).
7.13 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.
7.14 Code
Section 409A.
This
Agreement shall be interpreted, construed and administered in a manner that
satisfies the requirements of Sections 409A of the Code, and any payment
scheduled to be made hereunder that would otherwise violate Section 409A of
the
Code shall be delayed to the extent necessary for this Agreement and such
payment to comply with Section 409A of the Code.
(Signature
Page Follows)
11
In
Witness Whereof,
the
parties have executed this Agreement on the Effective Date written
above.
|
Sunesis
Pharmaceuticals, Inc.
|
Xxxxxxx
X. Xxxxxx
|
|
By:
______________________________
|
_________________________________ |
|
Name:
____________________________
|
|
|
Title:
_____________________________
|
| Exhibit A: |
Release
(Individual Termination)
|
| Exhibit B: |
Release
(Group Termination)
|
12
Exhibit
A
RELEASE
(Individual
Termination)
Certain
capitalized terms used in this Release are defined in the Executive Severance
Benefits Agreement (the “Agreement”)
which
I have executed and of which this Release is a part.
I
hereby
confirm my obligations under the Company’s proprietary information and
inventions agreement.
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.
Except
as
otherwise set forth in this Release, I hereby release, acquit and forever
discharge the Company, its parents and subsidiaries, and their officers,
directors, agents, servants, employees, shareholders, successors, assigns and
affiliates, of and from any and all claims, liabilities, demands, causes of
action, costs, expenses, attorneys fees, damages, indemnities and obligations
of
every kind and nature, in law, equity, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed (other than any claim
for
indemnification I may have as a result of any third party action against me
based on my employment with the Company), arising out of or in any way related
to agreements, events, acts or conduct at any time prior to the date I execute
this Release, including, but not limited to: all such claims and demands
directly or indirectly arising out of or in any way connected with my employment
with the Company or the termination of that employment, including but not
limited to, claims of intentional and negligent infliction of emotional
distress, any and all tort claims for personal injury, claims or demands related
to salary, bonuses, commissions, stock, stock options, or any other ownership
interests in the Company, vacation pay, fringe benefits, expense reimbursements,
severance pay, or any other form of disputed compensation; claims pursuant
to
any federal, state or local law or cause of action including, but not limited
to, the federal Civil Rights Act of 1964, as amended; the federal Age
Discrimination in Employment Act of 1967, as amended (“ADEA”);
the
federal Employee Retirement Income Security Act of 1974, as amended; the federal
Americans with Disabilities Act of 1990; the California Fair Employment and
Housing Act, as amended; tort law; contract law; statutory law; common law;
wrongful discharge; discrimination; fraud; defamation; emotional distress;
and
breach of the implied covenant of good faith and fair dealing; provided,
however,
that
nothing in this paragraph shall be construed in any way to release the Company
from its obligation to indemnify me pursuant to the Company’s indemnification
obligation pursuant to agreement or applicable law.
1
I
acknowledge that I am knowingly and voluntarily waiving and releasing any rights
I may have under ADEA. I also 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, as required by the ADEA,
that:
(A) my
waiver and release do not apply to any rights or claims that may arise on or
after the date I execute this Release;
(B) I
have
the right to consult with an attorney prior to executing this
Release;
(C) I
have twenty-one (21) days to consider this Release (although I may choose to
voluntarily execute this Release earlier);
(D) I
have
seven (7) days following the execution of this Release by the parties to revoke
the Release; and
(E) this
Release shall not be effective until the date upon which the revocation period
has expired, which shall be the eighth day after this Release is executed by
me.
|
Xxxxxxx
X. Xxxxxx
|
|
| _________________________________ | |
|
Date:
_____________________________
|
2
Exhibit
B
RELEASE
(Group
Termination)
Certain
capitalized terms used in this Release are defined in the Executive Severance
Benefits Agreement (the “Agreement”)
which
I have executed and of which this Release is a part.
I
hereby
confirm my obligations under the Company’s proprietary information and
inventions agreement.
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.
Except
as
otherwise set forth in this Release, I hereby release, acquit and forever
discharge the Company, its parents and subsidiaries, and their officers,
directors, agents, servants, employees, shareholders, successors, assigns and
affiliates, of and from any and all claims, liabilities, demands, causes of
action, costs, expenses, attorneys fees, damages, indemnities and obligations
of
every kind and nature, in law, equity, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed (other than any claim
for
indemnification I may have as a result of any third party action against me
based on my employment with the Company), arising out of or in any way related
to agreements, events, acts or conduct at any time prior to the date I execute
this Release, including, but not limited to: all such claims and demands
directly or indirectly arising out of or in any way connected with my employment
with the Company or the termination of that employment, including but not
limited to, claims of intentional and negligent infliction of emotional
distress, any and all tort claims for personal injury, claims or demands related
to salary, bonuses, commissions, stock, stock options, or any other ownership
interests in the Company, vacation pay, fringe benefits, expense reimbursements,
severance pay, or any other form of disputed compensation; claims pursuant
to
any federal, state or local law or cause of action including, but not limited
to, the federal Civil Rights Act of 1964, as amended; the federal Age
Discrimination in Employment Act of 1967, as amended (“ADEA”);
the
federal Employee Retirement Income Security Act of 1974, as amended; the federal
Americans with Disabilities Act of 1990; the California Fair Employment and
Housing Act, as amended; tort law; contract law; statutory law; common law;
wrongful discharge; discrimination; fraud; defamation; emotional distress;
and
breach of the implied covenant of good faith and fair dealing; provided,
however,
that
nothing in this paragraph shall be construed in any way to release the Company
from its obligation to indemnify me pursuant to the Company’s indemnification
obligation pursuant
to agreement or applicable law.
1
I
acknowledge that I am knowingly and voluntarily waiving and releasing any rights
I may have under ADEA. I also 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, as required by the ADEA,
that:
(A) my
waiver
and release do not apply to any rights or claims that may arise on or after
the
date I execute this Release;
(B) I
have
the right to consult with an attorney prior to executing this
Release;
(C) I
have forty-five (45) days to consider this Release (although I may choose to
voluntarily execute this Release earlier);
(D) I
have seven (7) days following the execution of this Release by the parties
to
revoke the Release; (E) this
Release shall not be effective until the date upon which the revocation period
has expired, which shall be the eighth day after this Release is executed by
me;
and (F) I have received with this Release 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.
|
Xxxxxxx
X. Xxxxxx
|
|
| _________________________________ | |
|
Date:
_____________________________
|
2
