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Exhibit 10.2    
    


 
 

EMPLOYMENT AGREEMENT    
    


        THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into by and between Zogenix, Inc., a Delaware
corporation (the "Company"),
and                                    ("Executive"), and shall be effective as of
                                    (the "Effective Date"). 


        WHEREAS,
the Company desires to continue to employ Executive, and Executive desires to continue employment with the Company, on the terms and conditions set forth in this Agreement. 


        NOW,
THEREFORE, in consideration of the mutual promises herein contained, the parties agree as follows: 



        1.     Definitions.    As used in this Agreement, the following terms shall have the following meanings: 



        (a)   Board.    "Board" means the Board of Directors of the Company. 


        (b)   Bonus.    "Bonus" means an amount equal to the average of the
bonuses awarded to Executive for each of the three (3) fiscal years prior to the date of Executive's termination of employment, or such lesser number of years as may be applicable if Executive
has not been employed for three (3) full years on the date of Executive's termination of employment; provided, that to the extent Executive has
not received any bonus prior to the date of his or her termination of employment due to the fact that his or her employment commenced during the fiscal year in which his or her termination of
employment occurs, his or her "Bonus" for purposes of Section 4 shall be equal to his or her target bonus for the fiscal year in which such termination occurs (calculated by reference to the
target bonus level in effect on the date of termination) multiplied by the corporate performance achievement percentage approved by the Board or its designee with respect to the payment of executive
bonuses for the preceding fiscal year,
which bonus shall be annualized. For purposes of determining Executive's "Bonus," (i) to the extent Executive received no bonus in a year due to a failure to meet the applicable performance
objectives, such year will still be taken into account (using zero (0) as the applicable bonus) in determining Executive's "Bonus," and (ii) to the extent Executive was not employed for
an entire fiscal year, the bonus received by Executive for such fiscal year shall be annualized for purposes of the preceding calculation. If any portion of the bonuses awarded to Executive consisted
of securities or other property, the fair market value thereof shall be determined in good faith by the Board. 



        (c)   California WARN Act.    "California WARN Act" means California
Labor Code Sections 1400 et seq. 


        (d)   Cause.    "Cause" means any of the following: 



        (i)    the
commission of an act of fraud, embezzlement or dishonesty by Executive, or the commission of some other illegal act by Executive, that has a material adverse impact
on the Company or any successor or affiliate thereof; 


        (ii)   a
conviction of, or plea of "guilty" or "no contest" to, a felony by Executive; 


        (iii)  any
unauthorized use or disclosure by Executive of confidential information or trade secrets of the Company or any successor or affiliate thereof that has, or may
reasonably be expected to have, a material adverse impact on any such entity; 


        (iv)  Executive's
gross negligence, insubordination or material violation of any duty of loyalty to the Company or any successor or affiliate thereof, or any other material
misconduct on the part of Executive; 


        (v)   Executive's
ongoing and repeated failure or refusal to perform or neglect of Executive's duties as required by this Agreement, which failure, refusal or neglect
continues for fifteen (15) days following Executive's receipt of written notice from the Board [FOR 









 





CEO
DIRECT REPORTS: or the Company's Chief Executive Officer (the "CEO")][FOR NON-CEO DIRECT REPORTS: , the
Company's Chief Executive Officer (the "CEO") or the Supervising Officer (as defined in Section 2(a) below)] stating with specificity
the nature of such failure, refusal or neglect; or 


        (vi)  Executive's
breach of any Company policy or any material provision of this Agreement; 




provided, however, that prior to the determination that "Cause" under this Section 1(d) has
occurred, the Company shall (A) provide to Executive in writing, in reasonable detail, the reasons for the determination that such "Cause" exists, (B) other than with respect to
clause (v) above which specifies the applicable period of time for Executive to remedy his or her breach, afford Executive a reasonable opportunity to remedy any such breach, (C) provide
the Executive an opportunity to be heard prior to the final decision to terminate the Executive's employment hereunder for such "Cause" and (D) make any decision that such "Cause" exists in
good faith. 


        The
foregoing definition shall not in any way preclude or restrict the right of the Company or any successor or affiliate thereof to discharge or dismiss Executive for any other acts or
omissions, but such other acts or omissions shall not be deemed, for purposes of this Agreement, to constitute grounds for termination for Cause. 



        (e)   Change in Control.    "Change in Control" means and includes
each of the following: 



        (i)    a
transaction or series of transactions (other than an offering of the Company's common stock to the general public through a registration statement filed with the
Securities and Exchange Commission) whereby any "person" or related "group" of "persons" (as such terms are used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) (other than the Company, any of its subsidiaries, an employee benefit plan maintained by the Company or any of its
subsidiaries or a "person" that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial
ownership (within the meaning of Rule 13d-3 under the Exchange Act), of securities of the Company possessing more than fifty percent (50%) of the total combined voting power of the
Company's securities outstanding immediately after such acquisition; or 


        (ii)   the
consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (A) a merger,
consolidation, reorganization, or business combination or (B) a sale or other disposition of all or substantially all of the Company's assets in any single transaction or series of related
transactions or (C) the acquisition of assets or stock of another entity, in each case other than a transaction: 



        (1)   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 


        (2)   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 (2) as
beneficially owning fifty percent (50%) or more of combined voting power of the 





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Successor
Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction. 





        Notwithstanding
the foregoing, a transaction shall not constitute a "Change in Control" if: (i) its sole purpose is to change the
state of the Company's incorporation; (ii) its sole purpose is to create a holding company that will be owned in substantially the same proportions by the persons who held the Company's
securities immediately before such transaction; (iii) it constitutes the Company's initial public offering of its securities; or (iv) 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 in Control of the Company has occurred pursuant to the above
definition, and the date of the occurrence of such Change in Control and any incidental matters thereto. 


        (f)    Code.    "Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the Treasury Regulations and other interpretive guidance issued thereunder. 



        (g)   Good Reason.    "Good Reason" means the occurrence of any of
the following events or conditions without Executive's written consent: 



        (i)    a
material diminution in Executive's authority, duties or responsibilities; 


        (ii)   a
material diminution in Executive's base compensation, unless such a reduction is imposed across-the-board to senior management of the Company; 



        (iii)  a
material change in the geographic location at which Executive must perform his or her duties; or 


        (iv)  any
other action or inaction that constitutes a material breach by the Company or any successor or affiliate of its obligations to Executive under this Agreement. 




        Executive
must provide written notice to the Company of the occurrence of any of the foregoing events or conditions without Executive's written consent within ninety (90) days of
the occurrence of such event. The Company or any successor or affiliate shall have a period of thirty (30) days to cure such event or condition after receipt of written notice of such event
from Executive. 


        (h)   Involuntary Termination.    "Involuntary Termination" means
(i) the Executive's Separation from Service by reason of Executive's discharge by the Company other than for Cause, or (ii) the Executive's Separation from Service by reason of
Executive's resignation of employment with the Company for Good Reason. Executive's Separation from Service by reason of Executive's death or discharge by the Company following Executive's Permanent
Disability shall not constitute an Involuntary Termination. The Executive's Separation from Service by reason of resignation from employment with the Company for Good Reason shall be an "Involuntary
Termination" only if such Separation from Service occurs within two (2) years following the initial existence of the act or failure to act constituting Good Reason. The Executive's Separation
from Service by reason of resignation from employment with the Company for Good Reason shall be treated as involuntary. 


        (i)    Permanent Disability.    Executive's "Permanent Disability"
shall be deemed to have occurred if Executive shall become physically or mentally incapacitated or disabled or otherwise unable fully to discharge his or her duties hereunder for a period of ninety
(90) consecutive calendar days or for one hundred twenty (120) calendar days in any one hundred eighty (180) calendar-day period. The existence of Executive's
Permanent Disability shall be determined by the Company on the advice of a physician chosen by the Company and the Company reserves 



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the
right to have the Executive examined by a physician chosen by the Company at the Company's expense. 


        (j)    Separation from Service.    "Separation from Service," with
respect to the Executive, means the Executive's "separation from service," as defined in Treasury Regulation Section 1.409A-1(h). 


        (k)   Stock Awards.    "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. 



        (l)    WARN Act.    "WARN Act" shall mean the Worker Adjustment and
Retraining Notification Act, 29 U.S.C. Sections 2101 et seq., and the Department of Labor regulations thereunder. 




        2.     Services to Be Rendered.



        (a)   Duties and Responsibilities.    Executive shall serve
as                                    of the Company. In the
performance of
such duties, Executive shall report directly to the [FOR MR. HAWLEY: Board] [FOR CEO DIRECT REPORTS: CEO] [FOR NON-CEO DIRECT
REPORTS: Company's                                    (the
"Supervising Officer")] and shall be subject to the direction of the [Board]
[CEO] [Supervising Officer and the CEO] and to such limits upon Executive's authority as the  [Board] [CEO] [Supervising Officer and/or CEO] may from time to time impose.
[In the event of the Supervising Officer's and CEO's incapacity or unavailability, Executive shall be subject to the direction of the Board.] Executive hereby consents to serve
as an officer and/or director of the Company or any subsidiary or affiliate thereof without any additional salary or compensation, if so requested by the [Board]
[CEO] [Supervising Officer or CEO]. Executive shall be employed by the Company on a full time basis. Executive's primary place of work shall be the
Company's facility in [San Diego] [Emeryville], California, or such other location within [San Diego]
[Alameda] County as may be designated by the [Board] [CEO] [Supervising Officer or CEO] from time to
time. Executive shall also render services at such other places within or outside the United States as the [Board] [CEO] [Supervising
Officer or CEO] may direct from time to time. Executive shall be subject to and comply with the policies and procedures generally applicable to senior executives of the Company to the
extent the same are not inconsistent with any term of this Agreement. 



        (b)   Exclusive Services.    Executive shall at all times faithfully, industriously and to the best of his or her
ability, experience and talent perform to the satisfaction of the [Board] [Board and the CEO] [Board, the Supervising Officer and the
CEO] all of the duties that may be assigned to Executive hereunder and shall devote substantially all of his or her productive time and efforts to the performance of such duties. Subject
to the terms of the Employee Proprietary Information and Inventions Agreement referred to in Section 5(b), this shall not preclude Executive from devoting time to personal and family
investments or serving on community and civic boards, or participating in industry associations, provided such activities do not interfere with his or her duties to the Company, as determined in good
faith by the [Board] [CEO] [Supervising Officer or CEO]. Executive agrees that he or she will not join any boards, other than
community and civic boards (which do not interfere with his or her duties to the Company), without the prior approval of the [Board] [CEO]
[Supervising Officer or CEO]. 




        3.     Compensation and Benefits.    The Company shall pay or provide, as the case may be, to Executive the
compensation and other benefits and rights set forth in this Section 3. 



        (a)   Base Salary.    The Company shall pay to Executive a base salary of
$                        per year [FOR
CYNTHIA ROBINSON: (for an 80% time commitment)], payable in accordance with the Company's usual pay practices (and in any event no less frequently than monthly). Executive's base salary
shall be subject to review annually by and at the sole discretion of the [FOR ALL 



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OFFICERS
OTHER THAN MR. HAWLEY: Compensation Committee of the] Board or its designee. 



        (b)   Bonus.    Executive shall participate in any bonus plan that the Board or its designee may approve for the
senior executives of the Company. 


        (c)   Benefits.    Executive shall be entitled to participate in benefits under the Company's benefit plans and
arrangements, including, without limitation, any employee benefit plan or arrangement made available in the future by the Company to its senior executives, subject to and on a basis consistent with
the terms, conditions and overall administration of such plans and arrangements. The Company shall have the right to amend or delete any such benefit plan or arrangement made available by the Company
to its senior executives and not otherwise specifically provided for herein; provided, that any reduction of Executive's benefits such that Executive's
benefits are, in the aggregate, materially less favorable to Executive than those benefits offered to Executive as of the Effective Date shall be considered a material breach of this Agreement by the
Company. 


        (d)   Expenses.    The Company shall reimburse Executive for reasonable out-of-pocket
business expenses incurred in connection with the performance of his or her duties hereunder, subject to (i) such policies as the Company may from time to time establish,
[and] (ii) Executive furnishing the Company with evidence in the form of receipts satisfactory to the Company substantiating the claimed expenditures[,
(iii) Executive receiving advance approval from the Supervising Officer or CEO in the case of expenses for travel outside of North America, and (iv) Executive receiving advance approval
from the Supervising Officer or CEO in the case of expenses (or a series of related expenses) in excess of $5,000]. Any amounts payable under this Section 3(d) shall be made in
accordance with Treasury Regulation Section 1.409A-3(i)(1)(iv) and shall be paid on or before the last day of Executive's taxable year following the taxable year in which Executive
incurred the expenses. The amounts provided under this Section 3(d) during any taxable year of Executive's will not affect such amounts provided in any other taxable year of Executive's, and
Executive's right to reimbursement for such amounts shall not be subject to liquidation or exchange for any other benefit. 



        (e)   Paid Time Off.    Executive shall be entitled to such periods of paid time off
("PTO") each year as provided from time to time under the Company's PTO policy and as otherwise provided for senior executive officers. 


        (f)    Equity Plans.    Executive shall be entitled to participate in any equity or other employee benefit plan that
is generally available to senior executive officers, as distinguished from general management, of the Company. Except as otherwise provided in this Agreement, Executive's participation in and benefits
under any such plan shall be on the terms and subject to the conditions specified in the governing document of the particular plan. 


        (g)   Stock Award Acceleration.



        (i)    In
the event of a Change in Control, the vesting and exercisability of fifty percent (50%) of Executive's outstanding unvested Stock Awards shall be automatically
accelerated effective immediately prior to the consummation of such Change in Control. 


        (ii)   In
the event of Executive's Involuntary Termination or Executive's Separation from Service by reason of Executive's death or discharge by the Company following
Executive's Permanent Disability, the vesting and/or exercisability of each of Executive's outstanding unvested Stock Awards shall be automatically accelerated on the date of Executive's Separation
from Service as to the number of Stock Awards that would vest over the twelve (12) month period following the date of Executive's Separation from Service had Executive remained continuously
employed by the Company during such period. 




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        (iii)  In
the event of Executive's Involuntary Termination within three (3) months prior to or twelve (12) months following a Change in Control, the vesting
and/or exercisability of any outstanding unvested portions of such Stock Awards shall be automatically accelerated on the later of (A) the date of Executive's Separation from Service and
(B) the date of the Change in Control. In addition, with respect to Stock Awards granted to Executive on or after the Effective Date, such Stock Awards may be exercised by Executive (or
Executive's legal guardian or legal representative) until the latest of (A) three (3) months after the date of Executive's Separation from Service, (B) with respect to any portion
of the Stock Awards that become exercisable on the date of a Change in Control pursuant to this Section 3(g)(iii), three (3) months after the date of the Change in Control, or
(C) such longer period as may be specified in the applicable Stock Award agreement; provided,  however, that in no event shall any Stock Award remain
exercisable beyond the original outside expiration date of such Stock Award. 



        (iv)  The
vesting pursuant to clauses (i), (ii) and (iii) of this Section 3(g) shall be cumulative. The foregoing provisions are hereby deemed to
be a part of each Stock Award and to supersede any less favorable provision in any agreement or plan regarding such Stock Award. 





        4.     Severance.    Executive shall be entitled to receive benefits upon a Separation from Service only as set forth
in this Section 4: 



        (a)   At-Will Employment; Termination.    The Company and Executive acknowledge that Executive's
employment is and shall continue to be at-will, as defined under applicable law, and that Executive's employment with the Company may be terminated by either party at any time for any or
no reason, with or without notice. If Executive's employment terminates for any reason, Executive shall not be entitled to any payments, benefits, damages, awards or compensation other than as
provided in this Agreement. Executive's employment under this Agreement shall be terminated immediately on the death of Executive. 



        (b)   Separation from Service by Death or Following Permanent Disability.    Subject to Sections 4(e) and 9(o)
and Executive's continued compliance with Section 5, in the event of Executive's Separation from Service as a result of Executive's death or discharge by the Company following Executive's
Permanent Disability, Executive or Executive's estate, as applicable, shall be entitled to receive, in lieu of any severance benefits to which Executive or Executive's estate may otherwise be entitled
under any severance plan or program of the Company, the benefits provided below, which, with respect to clause (ii) and the last sentence of clause (iii) below, will be payable in a lump
sum within ten (10) days
following the effective date of Executive's Release (or, in the event of Executive's death, within ten (10) days following the date of Executive's death): 



        (i)    the
Company shall pay to Executive or Executive's estate, as applicable, Executive's fully earned but unpaid base salary, when due, through the date of Executive's
Separation from Service at the rate then in effect, plus all other benefits, if any, under any Company group retirement plan, nonqualified deferred compensation plan, equity award plan or agreement
(other than any such plan or agreement pertaining to Stock Awards whose treatment is prescribed by Section 3(g) above), health benefits plan or other Company group benefit plan to which
Executive or Executive's estate may be entitled pursuant to the terms of such plans or agreements at the time of Executive's Separation from Service; 


        (ii)   Executive
or Executive's estate, as applicable, shall be entitled to receive severance pay in an amount equal to twelve (12) multiplied by Executive's monthly
base salary as in effect immediately prior to the date of Executive's Separation from Service; and 




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        (iii)  for
the period beginning on the date of Executive's Separation from Service and ending on the date which is twelve (12) full months following the date of
Executive's Separation from Service (or, if earlier, the date on which the applicable continuation period under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA") expires), the Company shall arrange to provide Executive (in the case of Executive's Separation of Service as a result of discharge by the
Company following Executive's Permanent Disability) and/or his or her eligible dependents who were covered under the Company's health insurance plans as of the date of Executive's Separation from
Service with health (including medical and dental) insurance benefits substantially similar to those provided to Executive and his or her dependents immediately prior to the date of such Separation
from Service. If any of the Company's health benefits are self-funded as of the date of Executive's Separation from Service, instead of providing continued health insurance benefits as set
forth above, the Company shall instead pay to Executive or Executive's estate, as applicable, an amount equal to twelve (12) multiplied by the monthly premium Executive or his or her dependents
would be required to pay for continuation coverage pursuant to COBRA for Executive (if applicable) and his or her eligible dependents who were covered under the Company's health plans as of the date
of Executive's Separation from Service (calculated by reference to the premium as of the date of Executive's Separation from Service). 




        (c)   Severance Upon Involuntary Termination.    Subject to Sections 4(e) and 9(o) and Executive's continued
compliance with Section 5, if Executive's employment is Involuntarily Terminated, Executive shall be entitled to receive, in lieu of any severance benefits to which Executive may otherwise be
entitled under any severance plan or program of the Company, the benefits provided below, which, with respect to clause (ii) and the last sentence of clause (iii) (if applicable) will be
payable in a lump sum within ten (10) days following the effective date of Executive's Release: 



        (i)    the
Company shall pay to Executive his or her fully earned but unpaid base salary, when due, through the date of Executive's Involuntary Termination at the rate then in
effect, plus all other benefits, if any, under any Company group retirement plan, nonqualified deferred compensation plan, equity award plan or agreement (other than any such plan or agreement
pertaining to Stock Awards whose treatment is prescribed by Section 3(g) above), health benefits plan or other Company group benefit plan to which Executive may be entitled pursuant to the
terms of such plans or agreements at the time of Executive's Involuntary Termination; 



        (ii)   Executive
shall be entitled to receive severance pay in an amount equal to twelve (12) multiplied by Executive's monthly base salary as in effect immediately
prior to the date of Executive's Involuntary Termination; and 


        (iii)  for
the period beginning on the date of Executive's Involuntary Termination and ending on the date which is twelve (12) full months following the date of
Executive's Involuntary Termination (or, if earlier, the date on which the applicable continuation period under COBRA expires), the Company shall arrange to provide Executive and his or her eligible
dependents who were covered under the Company's health insurance plans as of the date of Executive's Involuntary Termination with health (including medical and dental) insurance benefits substantially
similar to those provided to Executive and his or her dependents immediately prior to the date of such Involuntary Termination. If any of the Company's health benefits are self-funded as
of the date of Executive's Involuntary Termination, instead of providing continued health insurance benefits as set forth above, the Company shall instead pay to Executive an amount equal to twelve
(12) multiplied by the monthly premium Executive would be required to pay for continuation coverage pursuant to COBRA for Executive and his or her eligible dependents who were covered under the 




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Company's
health plans as of the date of Executive's Involuntary Termination (calculated by reference to the premium as of the date of Involuntary Termination). 


        (iv)  Notwithstanding
anything to the contrary in this Section 4(c), and subject to Sections 4(e) and 9(o) and Executive's continued compliance with
Section 5, in the event of Executive's Involuntary Termination during the period commencing sixty (60) days prior to a Change in Control or twelve (12) months following a Change
in Control, Executive shall be entitled to receive, in addition to the severance benefits described in clauses (i), (ii) and (iii) above, an amount equal to [FOR MR.
HAWLEY: the sum of (A) six (6) multiplied by Executive's monthly base salary as in effect immediately prior to the date of Executive's Involuntary Termination plus (B)]
Executive's Bonus for the year in which Executive's Involuntary Termination occurs, which amount shall be payable in a lump sum within ten (10) days following the later of (A) the
effective date of Executive's Release and (B) the date of the Change in Control. 




        (d)   Termination for Cause or Voluntary Resignation Without Good Reason.    In the event of Executive's termination
of employment as a result of Executive's discharge by the Company for Cause or Executive's resignation without Good Reason (other than as a result of Executive's death or Separation
of Service by reason of discharge by the Company following Executive's Permanent 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 (i) Executive's fully earned but unpaid base salary, through the date of termination at the rate then in effect,
and (ii) 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 COBRA or applicable law. In addition, in the event of Executive's Separation from Service
as a result of Executive's discharge by the Company for Cause or Executive's resignation without Good Reason (other than as a result of Executive's death or Separation of Service by reason of
discharge by the Company following Executive's Permanent Disability), all vesting of Executive's unvested Stock Awards previously granted to him or 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. 


        (e)   Release.    As a condition to Executive's receipt of any post-termination benefits pursuant to
Sections 4(b) and (c) above, Executive shall execute and not revoke a general release of all claims in favor of the Company (the
"Release") in the form attached hereto as Exhibit A. In the event Executive's Release does not
become effective within the fifty-five (55) day period following the date of Executive's Separation from Service, Executive shall not be entitled to the aforesaid payments and
benefits. 


        (f)    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 termination of Executive's employment shall cease upon such
termination. In the event of Executive's termination of employment with the Company, Executive's sole remedy shall be to receive the payments and benefits described in this Section 4. In
addition, Executive acknowledges and agrees that he or she is not entitled to any reimbursement by the Company for any taxes payable by Executive as a result of the payments and benefits received by
Executive pursuant to this Section 4, including, without limitation, any excise tax imposed by Section 4999 of the Code. Any payments made to Executive under this Section 4 shall
be inclusive of any amounts or benefits to which Executive may be entitled pursuant to the WARN Act or the California WARN Act. 



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        (g)   No Mitigation.    Except as otherwise provided in Section 4(b)(iii) or 4(c)(iii) above, Executive shall
not be required to mitigate the amount of any payment provided for in this Section 4 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in
this Section 4 be reduced by any compensation earned by Executive as the result of employment by another employer or self-employment or by retirement benefits;  provided, however, that loans, advances or other amounts owed by Executive to the Company may be offset
by the Company against amounts payable to Executive under this Section 4. 


        (h)   Return of the Company's Property.    In the event of Executive's termination of employment for any reason, the
Company shall have the right, at its option, to require Executive to vacate his or her offices prior to or on the effective date of separation and to cease all activities on the Company's behalf. Upon
Executive's termination of employment in any manner, as a condition to the Executive's receipt of any severance benefits described in this Agreement, Executive shall immediately surrender to the
Company all lists, books and records of, or in connection with, the Company's business, and all other property belonging to the Company, it being distinctly understood that all such lists, books and
records, and other documents, are the property of the Company. Executive shall deliver to the Company a signed statement certifying compliance with this Section 4(h) prior to the receipt of any
severance benefits described in this Agreement. 


        (i)    Waiver of the Company's Liability.    Executive recognizes that his or her employment is subject to termination
with or without Cause for any reason and therefore Executive agrees that Executive shall hold the Company harmless from and against any and all liabilities, losses, damages, costs and expenses,
including but not limited to, court costs and reasonable attorneys' fees, which Executive may incur as a result of Executive's termination of employment. Executive further agrees that Executive shall
bring no claim or cause of action against the Company for damages or injunctive relief based on a wrongful termination of employment. Executive agrees that the sole liability of the Company to
Executive upon termination of this Agreement shall be that determined by this Section 4. In the event this covenant is more restrictive than permitted by laws of the jurisdiction in which the
Company seeks enforcement thereof, this covenant shall be limited to the extent permitted by law. 




        5.     Certain Covenants. 



        (a)   Noncompetition.    Except as may otherwise be approved by the Board, during the term of Executive's employment,
Executive shall not have any ownership interest (of record or beneficial) in, or have any interest as an employee, salesman, consultant, officer or director in, or otherwise aid or assist in any
manner, any firm, corporation, partnership, proprietorship or other business that engages in any county, city or part thereof in the United States and/or any foreign country in a business which
competes directly or indirectly (as determined by the Board) with the Company's business in such county, city or part thereof, so long as the Company, or any successor in interest of the Company to
the business and goodwill of the Company, remains engaged in such business in such county, city or part thereof or continues to solicit customers or potential customers therein;  provided, however, that Executive may own, directly or indirectly, solely as an investment, securities
of any entity which are traded on any national securities exchange if Executive (i) is not a controlling person of, or a member of a group which controls, such entity; or (ii) does not,
directly or indirectly, own one percent (1%) or more of any class of securities of any such entity. 


        (b)   Confidential Information.    Executive and the Company have entered into the Company's standard employee
proprietary information and inventions agreement (the "Employee Proprietary Information and Inventions Agreement"). Executive agrees to perform each and
every obligation of Executive therein contained. 


        (c)   Solicitation of Employees.    Executive shall not during the term of Executive's employment and for the
applicable severance period for which Executive receives severance benefits following 



9







 




any
termination hereof pursuant to Section 4(b) or (c) above (regardless of whether Executive receives payment of severance amounts payable thereunder in a lump sum) (the
"Restricted Period"), directly or indirectly, solicit or encourage to leave the employment of the Company or any of its affiliates, any employee of the
Company or any of its affiliates. 


        (d)   Solicitation of Consultants.    Executive shall not during the term of Executive's employment and for the
Restricted Period, directly or indirectly, hire, solicit or encourage to cease work with the Company or any of its affiliates any consultant then under contract with the Company or any of its
affiliates within one year of the termination of such consultant's engagement by the Company or any of its affiliates. 


        (e)   Rights and Remedies Upon Breach.    If Executive breaches or threatens to commit a breach of any of the
provisions of this Section 5 (the "Restrictive Covenants"), the Company shall have the following rights and remedies, each of which rights and
remedies shall be independent of the other and severally enforceable, and all of which rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to the
Company under law or in equity: 



        (i)    Specific Performance.    The right and remedy to have the Restrictive Covenants specifically enforced by any
court having equity jurisdiction, all without the need to post a bond or any other security or to prove any amount of actual damage or that money damages would not provide an adequate remedy, it being
acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide adequate remedy to the Company; and 



        (ii)   Accounting and Indemnification.    The right and remedy to require Executive (A) to account for and pay
over to the Company all compensation, profits, monies, accruals, increments or other benefits derived or received by Executive or any associated party deriving such benefits as a result of any such
breach of the Restrictive Covenants; and (B) to indemnify the Company against any other losses, damages (including special and consequential damages), costs and expenses, including actual
attorneys' fees and court costs, which may be incurred by them and which result from or arise out of any such breach or threatened breach of the Restrictive Covenants. 




        (f)    Severability of Covenants/Blue Pencilling.    If any court determines that any of the Restrictive Covenants, or
any part thereof, is invalid or unenforceable, the remainder of the Restrictive Covenants shall not thereby be affected and shall be given full effect, without regard to the invalid portions. If any
court determines that any of the Restrictive Covenants, or any part thereof, are unenforceable because of the duration of such provision or the area covered thereby, such court shall have the power to
reduce the duration or area of such provision and, in its reduced form, such provision shall then be enforceable and shall be enforced. Executive hereby waives any and all right to attack the validity
of the Restrictive Covenants on the grounds of the breadth of their geographic scope or the length of their term. 


        (g)   Enforceability in Jurisdictions.    The Company and Executive intend to and do hereby confer jurisdiction to
enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such covenants. If the courts of any one or more of such jurisdictions hold the Restrictive
Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the Company and Executive that such determination not bar or in any way affect the right of
the Company to the relief provided above in the courts of any other jurisdiction within the geographical scope of such covenants, as to breaches of such covenants in such other respective
jurisdictions, such covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants. 



10









 










 



        (h)   Definitions.    For purposes of this Section 5, the term
"Company" means not only Zogenix, Inc., but also any company, partnership or entity which, directly or indirectly, controls, is controlled by or
is under common control with Zogenix, Inc. 




        6.     Insurance; Indemnification. 



        (a)   Insurance.    The Company shall have the right to take out life, health, accident, "key-man" or
other insurance covering Executive, in the name of the Company and at the Company's expense in any amount deemed appropriate by the Company. Executive shall assist the Company in obtaining such
insurance, including, without limitation, submitting to any required examinations and providing information and data required by insurance companies. 



        (b)   Indemnification.    Executive will be provided with indemnification against third party claims related to his
or her work for the Company as required by Delaware law. The Company shall provide Executive with directors and officers liability insurance coverage at least as favorable as that which the Company
may maintain from time to time for members of the Board and other executive officers. 




        7.     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 Diego, 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; provided,  further,
that the prevailing party shall be reimbursed for such fees, costs and expenses within forty-five (45) days following any
such award, but in no event later than the last day of the Executive's taxable year following the taxable year in which the fees, costs and expenses were incurred;  provided, further, that the parties' obligations pursuant to this sentence shall terminate on the tenth
(10th) anniversary of the date of Executive's termination of employment. 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 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. 



        8.     General Relationship.    Executive shall be considered an employee of the Company within the meaning of all
federal, state and local laws and regulations including, but not limited to, laws and regulations governing unemployment insurance, workers' compensation, industrial accident, labor and taxes. 


        9.     Miscellaneous. 



        (a)   Modification; Prior Claims.    This Agreement and the Employee Proprietary Information and Inventions Agreement
set forth the entire understanding of the parties with respect to the subject matter hereof, supersedes all existing agreements between them concerning such subject 



11







 

matter,
including that certain offer letter dated                        ,
                        , between the Company and Executive. This Agreement may be amended or modified only with the written
consent of
Executive and an authorized representative of the Company. No oral waiver, amendment or modification will be effective under any circumstances whatsoever. 


        (b)   Assignment; Assumption by Successor.    The rights of the Company under this Agreement may, without the consent
of Executive, be assigned by the Company, in its sole and unfettered discretion, to any
person, firm, corporation or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly, acquires all or substantially all of the assets or business of
the Company. The Company will require any successor (whether direct or indirect, by purchase, merger or otherwise) to all or substantially all of the business or assets of the Company expressly to
assume and to agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place;  provided, however, that no such assumption shall relieve the Company of its obligations hereunder. As
used in this Agreement, the "Company" shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law or otherwise. 


        (c)   Survival.    The covenants, agreements, representations and warranties contained in or made in
Sections 3(g), 4, 5, 6, 7 and 9 of this Agreement shall survive any Executive's termination of employment. 


        (d)   Third-Party Beneficiaries.    This Agreement does not create, and shall not be construed as creating, any
rights enforceable by any person not a party to this Agreement. 


        (e)   Waiver.    The failure of either party hereto at any time to enforce performance by the other party of any
provision of this Agreement shall in no way affect such party's rights thereafter to enforce the same, nor shall the waiver by either party of any breach of any provision hereof be deemed to be a
waiver by such party of any other breach of the same or any other provision hereof. 


        (f)    Section Headings.    The headings of the several sections in this Agreement are inserted solely for the
convenience of the parties and are not a part of and are not intended to govern, limit or aid in the construction of any term or provision hereof. 


        (g)   Notices.    Any notice required or permitted by this Agreement shall be in writing and shall be delivered as
follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by email,
telecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt.
Notice shall be sent to Executive at the address listed on the Company's personnel records and to the Company at its principal place of business, or such other address as either party may specify in
writing. 


        (h)   Severability.    All Sections, clauses and covenants contained in this Agreement are severable, and in the
event any of them shall be held to be invalid by any court, this Agreement shall be interpreted as if such invalid Sections, clauses or covenants were not contained herein. 


        (i)    Governing Law and Venue.    This Agreement is to be governed by and construed in accordance with the laws of
the State of California applicable to contracts made and to be performed wholly within such State, and without regard to the conflicts of laws principles thereof. Except as provided in
Sections 5 and 7, any suit brought hereon shall be brought in the state or federal courts sitting in San Diego, California, the parties hereto hereby waiving any claim or defense that such
forum is not convenient or proper. Each party hereby agrees that any such court 



12







 




shall
have in personam jurisdiction over it and consents to service of process in any manner authorized by California law. 


        (j)    Non-transferability of Interest.    None of the rights of Executive to receive any form of
compensation payable pursuant to this Agreement shall be assignable or transferable except through a testamentary disposition or by the laws of descent and distribution upon the death of Executive.
Any attempted assignment, transfer, conveyance, or other disposition (other than as aforesaid) of any interest in the rights of Executive to receive any form of compensation to be made by the Company
pursuant to this Agreement shall be void. 


        (k)   Gender.    Where the context so requires, the use of the masculine gender shall include the feminine and/or
neuter genders and the singular shall include the plural, and vice versa, and the word "person" shall include any corporation, firm, partnership or other form of association. 



        (l)    Counterparts.    This Agreement may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same Agreement. 


        (m)  Construction.    The language in all parts of this Agreement shall in all cases be construed simply, according
to its fair meaning, and not strictly for or against any of the parties hereto. Without limitation, there shall be no presumption against any party on the ground that such party was responsible for
drafting this Agreement or any part thereof. 


        (n)   Withholding and other Deductions.    All compensation payable to Executive hereunder shall be subject to such
deductions as the Company is from time to time required to make pursuant to law, governmental regulation or order. 


        (o)   Code Section 409A Exempt. 



        (i)    This
Agreement is not intended to provide for any deferral of compensation subject to Section 409A of the Code, and, accordingly, the severance payments payable
under Sections 4(b) and 4(c) shall be
paid no later than the later of: (A) the fifteenth (15th) day of the third month following Executive's first taxable year in which such severance benefit is no longer subject to a substantial
risk of forfeiture, and (B) the fifteenth (15th) day of the third month following first taxable year of the Company in which such severance benefit is no longer subject to substantial risk of
forfeiture, as determined in accordance with Code Section 409A and any Treasury Regulations and other guidance issued thereunder. To the extent applicable, this Agreement shall be interpreted
in accordance with Code Section 409A and Department of Treasury regulations and other interpretive guidance issued thereunder. 



        (ii)   If
the Executive is a "specified employee" (as defined in Section 409A of the Code), as determined by the Company in accordance with Section 409A of the
Code, on the date of the Executive's Separation from Service, to the extent that the payments or benefits under this Agreement are subject to Section 409A of the Code and the delayed payment or
distribution of all or any portion of such amounts to which Executive is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of
the Code, then such portion deferred pursuant to this Section 9(o)(ii) shall be paid or distributed to Executive in a lump sum on the earlier of (A) the date that is six (6)-months
following Executive's Separation from Service, (B) the date of Executive's death or (C) the earliest date as is permitted under Section 409A of the Code. Any remaining payments
due under the Agreement shall be paid as otherwise provided herein. 


        (iii)  To
the extent applicable, this Agreement shall be interpreted in accordance with the applicable exemptions from Section 409A of the Code. If Executive and the
Company determine that any payments or benefits payable under this Agreement intended to comply 




13







 





with
Sections 409A(a)(2), (3) and (4) of the Code do not comply with Section 409A of the Code, Executive and the Company agree to amend this Agreement, or take such other
actions as Executive and the Company deem reasonably necessary or appropriate, to comply with the requirements of Section 409A of the Code and the Treasury Regulations thereunder (and any
applicable transition relief) while preserving the economic agreement of the parties. If any provision of the Agreement would cause such payments or benefits to fail to so comply, such provision shall
not be effective and shall be null and void with respect to such payments or benefits, and such provision shall otherwise remain in full force and effect. 



        (iv)  As
provided in Internal Revenue Service Notice 2007-86, notwithstanding any other provision of this Agreement, with respect to an election or amendment to
change a time and form of payment under this Agreement that is subject to Section 409A made on or after January 1, 2008 and on or before December 31, 2008, the election or
amendment may apply only to amounts that would not otherwise be payable in 2008 and may not cause an amount to be paid in 2008 that would not otherwise be payable in 2008. 




(Signature
Page Follows) 


14







 

        IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. 



	 	 	ZOGENIX, INC.
	

 	
 	
By:	


	

 	
 	

Name:	


	

 	
 	

Title:	


	

 	
 	
EXECUTIVE
	

 	
 	

[Name of Executive]




SIGNATURE
PAGE TO EMPLOYMENT AGREEMENT 


15



















 



 
 

EXHIBIT A    
    


 
  GENERAL RELEASE OF CLAIMS    
    


[The language in this Release may change based on legal developments and evolving best practices; this form is provided as an example of what will be included in
the final Release document.] 


        This
General Release of Claims ("Release") is entered into as of
this                        day
of                        ,
                        , between
                        ("Executive"), and Zogenix, Inc., a Delaware
corporation (the "Company")
(collectively referred to herein as the "Parties"). 


        WHEREAS,
Executive and the Company are parties to that certain Employment Agreement dated as of (the "Agreement"); 


        WHEREAS,
the Parties agree that Executive is entitled to certain severance benefits under the Agreement, subject to Executive's execution of this Release; and 


        WHEREAS,
the Company and Executive now wish to fully and finally to resolve all matters between them. 


        NOW,
THEREFORE, in consideration of, and subject to, the severance benefits payable to Executive pursuant to the Agreement, the adequacy of which is hereby acknowledged by Executive, and
which
Executive acknowledges that he or she would not otherwise be entitled to receive, Executive and the Company hereby agree as follows: 



        1.     General Release of Claims by Executive. 



        (a)   Executive,
on behalf of himself or herself and his or her executors, heirs, administrators, representatives and assigns, hereby agrees to release and forever discharge
the Company and all predecessors, successors and their respective parent corporations, affiliates, related, and/or subsidiary entities, and all of their past and present investors, directors,
shareholders, officers, general or limited partners, employees, attorneys, agents and representatives, and the employee benefit plans in which Executive is or has been a participant by virtue of his
or her employment with or service to the Company (collectively, the "Company Releasees"), from any and all claims, debts, demands, accounts, judgments,
rights, causes of action, equitable relief, damages, costs, charges, complaints, obligations, promises, agreements, controversies, suits, expenses, compensation, responsibility and liability of every
kind and character whatsoever (including attorneys' fees and costs), whether in law or equity, known or unknown, asserted or unasserted, suspected or unsuspected (collectively,
"Claims"), which Executive has or may have had against such entities based on any events or circumstances arising or occurring on or prior to the date
hereof or on or prior to the date hereof, arising directly or indirectly out of, relating to, or in any other way involving in any manner whatsoever Executive's employment by or service to the Company
or the termination thereof, including any and all claims arising under federal, state, or local laws relating to employment, including without limitation claims of wrongful discharge, breach of
express or implied contract, fraud, misrepresentation, defamation, or liability in tort, and claims of any kind that may be brought in any court or administrative agency including, without limitation,
claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000, et seq.; the Americans with Disabilities Act, as
amended, 42 U.S.C. § 12101 et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701  et seq.; the Civil Rights Act of 1866,
and the Civil Rights Act of 1991; 42 U.S.C. Section 1981, et
seq.; the Age Discrimination in Employment Act, as amended, 29 U.S.C. Section 621, et seq. (the
"ADEA"); the Equal Pay Act, as amended, 29 U.S.C. Section 206(d); regulations of the Office of Federal Contract Compliance, 41 C.F.R.
Section 60, et seq.; the Family and Medical Leave Act, as amended, 29 U.S.C. § 2601 et
seq.; the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq.; the Employee Retirement
Income Security Act, as amended, 29 U.S.C. § 1001 et seq.; and the California Fair Employment and Housing Act, California Government
Code Section 12940, et seq. 








 

        Notwithstanding
the generality of the foregoing, Executive does not release the following claims: 



        (i)    Claims
for unemployment compensation or any state disability insurance benefits pursuant to the terms of applicable state law; 



        (ii)   Claims
for workers' compensation insurance benefits under the terms of any worker's compensation insurance policy or fund of the Company; 


        (iii)  Claims
pursuant to the terms and conditions of the federal law known as COBRA; 


        (iv)  Claims
for indemnity under the bylaws of the Company, as provided for by California law or under any applicable insurance policy with respect to Executive's liability
as an employee, director or officer of the Company; 


        (v)   Claims
based on any right Executive may have to enforce the Company's executory obligations under the Agreement; and 


        (vi)  Claims
Executive may have to vested or earned compensation and benefits. 




        (b)   EXECUTIVE
ACKNOWLEDGES THAT HE OR SHE HAS BEEN ADVISED OF AND IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES 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."


BEING
AWARE OF SAID CODE SECTION, EXECUTIVE HEREBY EXPRESSLY WAIVES ANY RIGHTS HE OR SHE MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. 



[Note: Clauses (c), (d) and (e) apply only if Executive is age 40 or older at time of termination]



        (c)   Executive
acknowledges that this Release was presented to him or her on the date indicated above and that Executive is entitled to have
[twenty-one (21)][forty-five (45)] days' time in which to consider it. Executive further acknowledges that the Company has
advised him or her that he or she is waiving his or her rights under the ADEA, and that Executive should consult with an attorney of his or her choice before signing this Release, and Executive has
had sufficient time to consider the terms of this Release. Executive represents and acknowledges that if Executive executes this Release before [twenty-one
(21)][forty-five (45)] days have elapsed, Executive does so knowingly, voluntarily, and upon the advice and with the approval of Executive's legal
counsel (if any), and that Executive voluntarily waives any remaining consideration period. 



        (d)   Executive
understands that after executing this Release, Executive has the right to revoke it within seven (7) days after his or her execution of it. Executive
understands that this Release will not become effective and enforceable unless the seven (7) day revocation period passes and Executive does not revoke the Release in writing. Executive
understands that this Release may not be revoked after the seven (7) day revocation period has passed. Executive also understands that any revocation of this Release must be made in writing and
delivered to the Company at its principal place of business within the seven (7) day period. 


        (e)   Executive
understands that this Release shall become effective, irrevocable, and binding upon Executive on the eighth (8th) day after his or her execution
of it, so long as Executive has not revoked it within the time period and in the manner specified in clause (d) above. 



2







 

        (f)    Executive
further understands that Executive will not be given any severance benefits under the Agreement unless this Release is effective on or before the date that is
fifty-five (55) days following the date of Executive's termination of employment. 




        2.     No Assignment.    Executive represents and warrants to the Company Releasees that there has been no assignment
or other transfer of any interest in any Claim that Executive may have against the Company Releasees. Executive agrees to indemnify and hold harmless the Company Releasees from any liability, claims,
demands, damages, costs, expenses and attorneys' fees incurred as a result of any such assignment or transfer from Executive. 



        3.     Severability.    In the event any provision of this Release is found to be unenforceable by an arbitrator or
court of competent jurisdiction, such provision shall be deemed modified to the extent necessary to allow enforceability of the provision as so limited, it being intended that the parties shall
receive the benefit contemplated herein to the fullest extent permitted by law. If a deemed modification is not satisfactory in the judgment of such arbitrator or court, the unenforceable provision
shall be deemed deleted, and the validity and enforceability of the remaining provisions shall not be affected thereby. 



        4.     Interpretation; Construction.    The headings set forth in this Release are for convenience only and shall not
be used in interpreting this Agreement. This Release has been drafted by legal counsel representing the Company, but Executive has participated in the negotiation of its terms. Furthermore, Executive
acknowledges that Executive has had an opportunity to review and revise the Release and have it reviewed by legal counsel, if desired, and, therefore, the normal rule of construction to the effect
that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Release. Either party's failure to enforce any provision of this Release shall
not in any way be construed as a waiver of any such provision, or prevent that party thereafter from enforcing each and every other provision of this Release. 


        5.     Governing Law and Venue.    This Release will be governed by and construed in accordance with the laws of the
United States of America and the State of California applicable to contracts made and to be performed wholly within such State, and without regard to the conflicts of laws principles thereof. Any suit
brought hereon shall be brought in the state or federal courts sitting in San Diego County, California, the Parties hereby waiving any claim or defense that such forum is not convenient or proper.
Each party hereby agrees that any such court shall have in personam jurisdiction over it and consents to service of process in any manner authorized by California law. 


        6.     Entire Agreement.    This Release and the Agreement constitute the entire agreement of the Parties in respect of
the subject matter contained herein and therein and supersede all prior or simultaneous representations, discussions, negotiations and agreements, whether written or oral. This Release may be amended
or modified only with the written consent of Executive and an authorized representative of the Company. No oral waiver, amendment or modification will be effective under any circumstances whatsoever. 



        7.     Counterparts.    This Release may be executed in multiple counterparts, each of which shall be deemed to be an
original but all of which together shall constitute one and the same instrument. 


(Signature
Page Follows) 


3







 

        IN
WITNESS WHEREOF, and intending to be legally bound, the Parties have executed the foregoing Release as of the date first written above. 



	EXECUTIVE	 	ZOGENIX, INC.
	

	
 	

By:	


	

Print Name:	

	
 	

Print Name:	


	

 	

 	
 	

Title:	






4




















  
Schedule to Exhibit 10.2: The Form of Employment Agreement was entered into with the following employees with their respective titles and annual base salaries listed below and effective as of
the date listed below: 



	Name
 
	 	Title
	 	Effective Date
	 	Base Salary

	Roger L. Hawley	 	Chief Executive Officer	 	05/20/2008	 	$400,000
	

Stephen J. Farr, Ph.D. 	
 	

President and Chief Operating Officer	
 	

05/07/2008	
 	

$325,000
	

David W. Nassif, J.D. 	
 	

Executive Vice President, Chief Financial Officer, Secretary and Treasurer	
 	

05/07/2008	
 	

$260,000
	

Stephen J. Peroutka, M.D., Ph.D. 	
 	

Chief Medical Officer	
 	

05/07/2008	
 	

$270,000
	

Cynthia Y. Robinson, Ph.D. 	
 	

Chief Development Officer	
 	

05/07/2008	
 	

$210,000
	

J.D. Haldeman	
 	

Chief Commercial Officer	
 	

05/07/2008	
 	

$245,000

(effective

June 1, 2008

$255,000)
	

Bret E. Megargel	
 	

Vice President, Corporate Development	
 	

05/07/2008	
 	

$230,000
	

Jonathan M. Rigby	
 	

Vice President, Business Development	
 	

05/07/2008	
 	

$210,000
	

Mark R. Thompson	
 	

Vice President, Sales & Managed Markets	
 	

05/07/2008	
 	

$230,000
	

John J. Turanin	
 	

Vice President, Operations	
 	

05/07/2008	
 	

$227,000













QuickLinks



Exhibit 10.2


EMPLOYMENT AGREEMENT



EXHIBIT A

GENERAL RELEASE OF CLAIMS