**Exhibit 10.83**

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**ABGENIX, INC.**

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**CHANGE OF CONTROLSEVERANCE AGREEMENT**

 

 

This Change of Control Severance Agreement (the “Agreement”) is madeand entered into effective as of                                        ,                    (the “Effective Date”), by and between                                             (the “Employee”) and Abgenix, Inc., a Delaware corporation (the“Company”).  Certain capitalized termsused in this Agreement are defined in Section 1 below.

 

R E C I T A L S

 

A.                                   Itis expected that the Company from time to time will consider the possibility ofa Change of Control.  The Board ofDirectors of the Company (the “Board”) recognizes that such consideration canbe a distraction to the Employee and can cause the Employee to consider alternativeemployment opportunities.

 

B.                                     TheBoard believes that it is in the best interests of the Company and itsshareholders to provide the Employee with an incentive to continue hisemployment and to maximize the value of the Company upon a Change of Controlfor the benefit of its shareholders.

 

C.                                     Inorder to provide the Employee with enhanced financial security and sufficientencouragement to remain with the Company notwithstanding the possibility of aChange of Control, the Board believes that it is imperative to provide theEmployee with certain severance benefits upon the Employee’s termination ofemployment following a Change of Control.

 

AGREEMENT

 

In consideration of the mutual covenants herein contained and thecontinued employment of Employee by the Company, the parties agree as follows:

 

# 1.                                       Definitionof Terms.  The following termsreferred to in this Agreement shall have the following meanings:

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## (a)                                  Cause.  “Cause” shall mean (i) any act ofpersonal dishonesty taken by the Employee in connection with hisresponsibilities as an employee which is intended to result in substantialpersonal enrichment of the Employee, (ii) Employee’s conviction of afelony which the Board reasonably believes has had or will have a materialdetrimental effect on the Company’s reputation or business, (iii) awillful act by the Employee which constitutes misconduct and is injurious tothe Company, and (iv) continued willful violations by the Employee of theEmployee’s obligations to the Company after there has been delivered to theEmployee a written demand for performance from the Company which describes thebasis for the Company’s belief that the Employee has not substantiallyperformed his duties.

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## (b)                                 Changeof Control.  “Change of Control”shall mean the occurrence of any of the following events:

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### (i)                                                           theapproval by shareholders of the Company of a merger or consolidation of theCompany with any other corporation, other than a merger or consolidation whichwould result in the voting securities of the Company outstanding immediatelyprior thereto continuing to represent (either by remaining outstanding or bybeing converted into voting securities of the surviving entity) more than fiftypercent (50%) of the total voting power represented by the voting securities ofthe Company or such surviving entity outstanding immediately after such mergeror consolidation;

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### (ii)                                                        anyapproval by the shareholders of the Company of a plan of complete liquidationof the Company or an agreement for the sale or disposition by the Company ofall or substantially all of the Company’s assets;

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### (iii)                                                     any“person” (as such term is used in Sections 13(d) and 14(d) of theSecurities Exchange Act of 1934, as amended) becoming the “beneficial owner”(as defined in Rule 13d-3 under said Act), directly or indirectly, ofsecurities of the Company representing 50% or more of the total voting powerrepresented by the Company’s then outstanding voting securities; or

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### (iv)                                                    achange in the composition of the Board, as a result of which fewer than a majorityof the directors are Incumbent Directors. “Incumbent Directors” shall mean directors who either (A) aredirectors of the Company as of the date hereof, or (B) are elected, ornominated for election, to the Board with the affirmative votes of at least amajority of those directors whose election or nomination was not in connectionwith any transaction described in subsections (i), (ii) or (iii) or inconnection with an actual or threatened proxy contest relating to the electionof directors of the Company.

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## (c)                                  CompensationContinuation Period.  “CompensationContinuation Period” shall mean the period of time commencing with terminationof the Employee’s employment as a result of Involuntary Termination at any timewithin twenty four (24) months after a Change of Control and ending with thedate twelve (12) months following the date of the Employee’s termination.

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## (d)                                 InvoluntaryTermination.  “InvoluntaryTermination” shall mean (i) without the Employee’s express writtenconsent, a significant reduction of the Employee’s duties, position orresponsibilities relative to the Employee’s duties, position orresponsibilities in effect immediately prior to such reduction, or the removalof the Employee from such position, duties and responsibilities, unless theEmployee is provided with comparable duties, position  and responsibilities;(ii) without the Employee’s express written consent, a substantialreduction, without good business reasons, of the facilities and perquisites(including office space and location) available to the Employee immediatelyprior to such reduction; (iii) a reduction by the Company of theEmployee’s base salary or target bonus as in effect immediately prior to suchreduction; (iv) a material reduction by the Company in the kind or levelof employee benefits to which the Employee is entitled immediately prior tosuch reduction with the result that the Employee’s overall benefits package issignificantly reduced; (v) without the Employee’s express written consent,the relocation of the Employee to a facility or a location more thanthirty-five (35) miles from his current location; (vi) any purportedtermination of the Employee by the Company which is not effected for Cause orfor which the grounds relied upon are not valid; or (vii) the failure ofthe Company to obtain the assumption of this Agreement by any successorscontemplated in Section 6 below.

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# 2.                                       Termof Agreement.  This Agreement shallterminate upon the date that all obligations of the parties hereto under thisAgreement have been satisfied.

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# 3.                                       At-WillEmployment.  The Company and theEmployee acknowledge that the Employee’s employment is and shall continue to beat-will, as defined under applicable law. If the Employee’s employment terminates for any reason, the Employeeshall not be entitled to any payments, benefits, damages, awards orcompensation other than as provided by this Agreement, or as may otherwise beestablished under the Company’s then existing employee benefit plans orpolicies at the time of termination.

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# 4.                                       Changeof Control and Severance Benefits.

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## (a)                                  TerminationFollowing A Change of Control.

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### (i)                                                           SeverancePayments.  If the Employee’semployment with the Company terminates as a result of an InvoluntaryTermination at any time within twenty four (24) months after a Change ofControl, then the Employee shall be entitled to receive continuing payments ofseverance pay during the Compensation Continuation Period at a rate equal toone hundred (100)% of the Employee’s base salary and target bonus (as in effectimmediately prior to the Change of Control). Such severance payments shall be paid bi-weekly in accordance with theCompany’s normal payroll practices. In addition, during the CompensationContinuation Period, the Company shall continue to make available to theEmployee and Employee’s spouse and dependents covered under any group healthplans or life insurance plans of the Company on the date of such termination ofemployment, all group health, life and other similar insurance plans in whichEmployee or such Covered Dependents participate on the date of the Employee’stermination.

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### (ii)                                                        OptionAcceleration.  If the Employee’semployment with the Company terminates as a result of an Involuntary Terminationat any time within twenty four (24) months after a Change of Control, then eachoption granted to the Employee by the Company (the “Options”) shall immediatelybecome vested and exercisable in full.

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### (iii)                                                     OtherTermination.  If the Employee’semployment with the Company terminates other than as a result of an InvoluntaryTermination at any time within twenty four (24) months after a Change ofControl, then the Employee shall not be entitled to receive severance or otherbenefits hereunder, but may be eligible for those benefits (if any) as may thenbe established under the Company’s then existing severance and benefits plansand policies at the time of such termination.

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## (b)                                 TerminationApart from a Change of Control.  Ifthe Employee’s employment with the Company terminates for any or no reasonother than within twenty four (24) months following a Change of Control, thenthe Employee shall not be entitled to receive severance or other benefitshereunder, but may be eligible for those benefits (if any) as may then beestablished under the Company’s then existing severance and benefits plans andpolicies at the time of such termination.

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## (c)                                  AccruedWages and Vacation; Expenses. Without regard to the reason for, or the timing of, Employee’stermination of employment:  (i) theCompany shall pay the Employee any unpaid base salary due for periods prior tothe date of termination; (ii) the Company shall pay the 

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## Employeeall of the Employee’s accrued and unused vacation through the date oftermination; and (iii) following submission of proper expense reports bythe Employee, the Company shall reimburse the Employee for all expensesreasonably and necessarily incurred by the Employee in connection with the businessof the Company prior to the date of termination.  These payments shall be made promptly upon termination and withinthe period of time mandated by law.

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# 5.                                       GoldenParachute Excise Tax Gross-Up.  Inthe event that the severance and other benefits provided for in this Agreementor otherwise payable to Employee constitute “excess parachute payments” withinthe meaning of Section 280G of the Internal Revenue Code of 1986, as amended(the “Code”), and will be subject to the excise tax imposed by Section 4999 ofthe Code (the “Excise Tax”), then Employee shall receive (i) a paymentfrom the Company sufficient to pay the Excise Tax, and (ii) an additionalpayment from the Company sufficient to pay the Excise Tax arising from thepayments made by the Company to Employee pursuant to this sentence.  Unless the Company and Employee otherwiseagree in writing, the determination of Employee’s Excise Tax liability and theamount required to be paid under this Section 5 shall be made in writingby the Company’s independent public accountants (the “Accountants”).  In the event that the Excise Tax incurred byEmployee is determined by the Internal Revenue Service to be greater or lesserthan the amount determined by the Accountants, the Company and Employee agreeto promptly make such additional payment, including interest and any taxpenalties, to the other party as the Accountants reasonably determine isappropriate to ensure that the net economic effect to Employee under thisSection 5, on an after-tax basis, is as if the Excise Tax did not apply toEmployee.  For purposes of making thecalculations required by this Section 5, the Accountants may makereasonable assumptions and approximations concerning applicable taxes and mayrely on reasonable, good faith interpretations of the Code.  The Company and Employee shall furnish tothe Accountants such information and documents as the Accountants mayreasonably request in order to make a determination under this Section.  The Company shall bear all costs theAccountants may reasonably incur in connection with any calculationscontemplated by this Section 5.

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                                                Thegross-up payment to which Employee is entitled hereunder shall be paid by theCompany to Employee, in cash and in full, not later than thirty (30) calendardays following the date Employee becomes subject to the Excise Tax.

 

# 6.                                       Successors.

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## (a)                                  Company’sSuccessors.  Any successor to theCompany (whether direct or indirect and whether by purchase, lease, merger,consolidation, liquidation or otherwise) to all or substantially all of theCompany’s business and/or assets shall assume the Company’s obligations underthis Agreement and agree expressly to perform the Company’s obligations underthis Agreement in the same manner and to the same extent as the Company would berequired to perform such obligations in the absence of a succession.  For all purposes under this Agreement, theterm “Company” shall include any successor to the Company’s business and/orassets which executes and delivers the assumption agreement described in thissubsection (a) or which becomes bound by the terms of this Agreement byoperation of law.

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## (b)                                 Employee’sSuccessors.    Without the writtenconsent of the Company, Employee shall not assign or transfer this Agreement orany right or obligation under this Agreement to any other person or entity.Notwithstanding the foregoing, the terms of this Agreement and all

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## rightsof Employee hereunder shall inure to the benefit of, and be enforceable by,Employee’s personal or legal representatives, executors, administrators,successors, heirs, distributees, devisees and legatees.

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# 7.                                       Notices.

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## (a)                                  General.  Notices and all other communicationscontemplated by this Agreement shall be in writing and shall be deemed to havebeen duly given when personally delivered or when mailed by U.S. registered orcertified mail, return receipt requested and postage prepaid.  In the case of the Employee, mailed noticesshall be addressed to him at the home address that he most recentlycommunicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to itscorporate headquarters, and all notices shall be directed to the attention ofits Secretary.

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## (b)                                 Noticeof Termination.  Any termination bythe Company for Cause or by the Employee as a result of a voluntary resignationor an Involuntary Termination shall be communicated by a notice of terminationto the other party hereto given in accordance with this Section.  Such notice shall indicate the specifictermination provision in this Agreement relied upon, shall set forth inreasonable detail the facts and circumstances claimed to provide a basis fortermination under the provision so indicated. The failure by the Employee to include in the notice any fact orcircumstance which contributes to a showing of Involuntary Termination shallnot waive any right of the Employee hereunder or preclude the Employee fromasserting such fact or circumstance in enforcing his rights hereunder.

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# 8.                                       Arbitration.

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## (a)                                  Exceptas provided in Section 8(d) below, any dispute or controversy arising outof, relating to, or in connection with this Agreement, or the interpretation,validity, construction, performance, breach, or termination thereof, shall besettled by binding arbitration to be held in Palo Alto, California, inaccordance with the National Rules for the Resolution of Employment Disputesthen in effect of the American Arbitration Association (the “Rules”).  The arbitrator may grant injunctions or otherrelief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding onthe parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court havingjurisdiction.

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## (b)                                 Thearbitrator(s) shall apply California law to the merits of any dispute or claim,without reference to conflicts of law rules. The arbitration proceedings shall be governed by federal arbitration lawand by the Rules, without reference to state arbitration law.  Employee hereby consents to the personaljurisdiction of the state and federal courts located in California for anyaction or proceeding arising from or relating to this Agreement or relating toany arbitration in which the parties are participants.

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## (c)                                  Employeeunderstands that nothing in this Section modifies Employee’s at-will employmentstatus.  Either Employee or the Companycan terminate the employment relationship at any time, with or without cause.

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## (d)                                 EMPLOYEEHAS READ AND UNDERSTANDS THIS SECTION, WHICH DISCUSSES ARBITRATION.  EMPLOYEE UNDERSTANDS THAT SUBMITTING ANY

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## CLAIMSARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THEINTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATIONTHEREOF TO BINDING ARBITRATION TO THE EXTENT PERMITTED BY LAW, AND THAT THISARBITRATION CLAUSE CONSTITUTES A WAIVER OF EMPLOYEE’S RIGHT TO A JURY TRIAL ANDRELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EMPLOYEERELATIONSHIP, INCLUDING BUT NOT LIMITED TO, THE FOLLOWING CLAIMS:

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### (i)                                                           ANYAND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT; BREACH OF CONTRACT, BOTHEXPRESS AND IMPLIED; BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING,BOTH EXPRESS AND IMPLIED; NEGLIGENT OR INTENTIONAL INFLICTION OF EMOTIONALDISTRESS; NEGLIGENT OR INTENTIONAL MISREPRESENTATION; NEGLIGENT OR INTENTIONALINTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC ADVANTAGE; AND DEFAMATION.

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### (ii)                                                        ANYAND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL STATE OR MUNICIPAL STATUTE,INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THECIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THEAMERICANS WITH DISABILITIES ACT OF 1990, THE FAIR LABOR STANDARDS ACT, THECALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, AND LABOR CODE SECTION 201, *et seq*;

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### (iii)                                                     ANYAND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND REGULATIONS RELATING TOEMPLOYMENT OR EMPLOYMENT DISCRIMINATION.

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# 9.                                       MiscellaneousProvisions.

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## (a)                                  NoDuty to Mitigate.  The Employeeshall not be required to mitigate the amount of any payment contemplated bythis Agreement, nor shall any such payment be reduced by any earnings that theEmployee may receive from any other source.

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## (b)                                 Waiver.  No provision of this Agreement may bemodified, waived or discharged unless the modification, waiver or discharge isagreed to in writing and signed by the Employee and by an authorized officer ofthe Company (other than the Employee). No waiver by either party of any breach of, or of compliance with, anycondition or provision of this Agreement by the other party shall be considereda waiver of any other condition or provision or of the same condition orprovision at another time.

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## (c)                                  Integration.  This Agreement and the stock optionagreements representing the Options represent the entire agreement andunderstanding between the parties as to the subject matter herein and supersedeall prior or contemporaneous agreements, whether written or oral.

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## (d)                                 Choiceof Law.  The validity,interpretation, construction and performance of this Agreement shall begoverned by the internal substantive laws, but not the conflicts of law rules,of the State of California.

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## (e)                                  Severability.  The invalidity or unenforceability of anyprovision or provisions of this Agreement shall not affect the validity orenforceability of any other provision hereof, which shall remain in full forceand effect.

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## (f)                                    EmploymentTaxes.  All payments made pursuantto this Agreement shall be subject to withholding of applicable income andemployment taxes.

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## (g)                                 Counterparts.  This Agreement may be executed incounterparts, each of which shall be deemed an original, but all of whichtogether will constitute one and the same instrument.

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IN WITNESS WHEREOF, each of the parties has executed this Agreement, inthe case of the Company by its duly authorized officer, as of the day and yearfirst above written.

 
| COMPANY:  | **ABGENIX, INC.** |
|-----------|-------------------|
|      |              |   |
|      | By:               |   |
|      |              |   |
|      | Title:            |   |
|      |              |   |
|      |              |   |
|      |              |   |
| EMPLOYEE: |              |
|           |                   |  |  |

 

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