Exhibit 10.6



 







EXHIBIT 10.6




THIRD AMENDMENT TO




SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT




     THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this
“Amendment”) is entered into effective as of March 31, 2006, by and between CancerVax
Corporation, a Delaware corporation (the “Company”), and Dennis Van Epps
(“Executive”).



     WHEREAS, the Company and Executive desire to amend that certain Second Amended and Restated
Employment Agreement dated as of November 15, 2004, between the Company and Executive (as amended
to date, the “Original Agreement”) on the terms and conditions set forth herein.



     NOW, THEREFORE, in consideration of the various covenants and agreements hereinafter set
forth, the parties hereto agree as follows:



     1. Deletion of Section 1(e). Section 1(e) of the Original Agreement is hereby deleted
and replaced with the words “Intentionally Omitted.”



     2. Amendment to Section 4(g). Section 4(g) of the Original Agreement is hereby
amended to read as follows:



          “(g) Acceleration In Connection With a Change of Control. Subject to any additional
acceleration of exercisability described in Sections 5(b), (c) and (d) below, in connection with a
Change of Control (as defined in Section 1 above):



               (i) The vesting and exercisability of fifty percent (50%) of Executive’s outstanding Stock
Awards shall be automatically accelerated on the date of such Change of Control.



               (ii) If Executive’s employment is terminated by the Company without Cause, or as a result of
Executive’s death or Permanent Disability, 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.



               (iii) With respect to Stock Awards granted prior to the Effective Date, if Executive’s
employment is terminated by the Company without Cause within twelve (12) months following a Change
of Control, the vesting and/or exercisability of any outstanding unvested portions of such Stock
Awards shall be automatically accelerated on the date of termination.



               (iv) With respect to Stock Awards granted on or after the Effective Date, if Executive’s
employment is terminated by the Company without Cause within six (6) months prior to or twelve (12)
months following a Change of 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
termination or (B) the date of the Change of Control.



               (v) The vesting pursuant to clauses (i), (ii), (iii) and (iv) of this Section 4(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.





 









 




Notwithstanding the foregoing, none of the Stock Awards granted to Executive on March 27, 2006
shall accelerate pursuant to clauses (i), (ii), (iii) or (iv) of this Section 4(g).”




     3. Amendment to Section 5(d). The first sentence of Section 5(d) of the Original
Agreement is hereby amended to read as follows:



          “(d) Termination without Cause. If Executive’s employment is terminated by the
Company without Cause, 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:”



     4. Amendment to Section 5(e). Section 5(e) of the Original Agreement is hereby
amended to read as follows:



          “(e) Termination for Cause, Voluntary Resignation or Expiration of Employment Period.
If Executive’s employment is terminated by the Company for Cause or by Executive for any reason
(other than as a result of Executive’s death or Permanent Disability), or if the Employment Period
expires, 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, if Executive’s
employment is terminated by the Company for Cause or by Executive for any reason (other than as a
result of Executive’s death or Permanent Disability), or if the Employment Period expires, 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.”



     5. Section 409A. A new Section 10(o) is hereby added to the Original Agreement as
follows:



          “(o) Section 409A. This Agreement shall be interpreted, construed and administered in
a manner that satisfies the requirements of Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), and the Treasury regulations and other guidance issued thereunder.
Notwithstanding any provision of this Agreement to the contrary, the Company may adopt such
amendments to this Agreement or adopt other policies and procedures (including amendments, policies
and procedures with retroactive effect), or take any other actions, that the Company determines are
necessary to comply with the requirements of Section 409A of the Code and the Treasury regulations
and other guidance issued thereunder. Notwithstanding anything to the contrary in this Agreement,
the parties acknowledge and agree that any payment to be made, or benefit provided, to the
Executive pursuant to this this Agreement shall be delayed to the extent necessary for this
Agreement and such payment or benefit to comply with Section 409A of the Code and the Treasury
regulations and other guidance issued thereunder.”



     6. No Other Amendments. Except as expressly provided for in this Amendment, no other
term or provision of the Original Agreement is amended or modified in any respect.



(Signature Page Follows)




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



	 	 	 	 	 
	 	 	CANCERVAX CORPORATION
	 
	 	 	 	 
	 

	 	By:
	 	/s/ David F. Hale
	 

	 	 	 	 
	 

	 	Name:
	 	David F. Hale
	 

	 	 	 	 
	 

	 	Title:
	 	President and Chief Executive Officer
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	/s/ Dennis Van Epps
	 	 	 
	 	 	Dennis Van Epps







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