**Exhibit10.18**AMENDED AND RESTATED EMPLOYMENT AGREEMENT     THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) is entered into by andbetween Cadence Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and                     (“Executive”), and shall be effective as of                     , 2007 (the “Effective Date”).     WHEREAS, Executive and Company are parties to that certain Employment Agreement dated as of                    , ___(the “Original Agreement”).     WHEREAS, Executive and Company desire to amend and restate the Original Agreement on the termsand conditions set forth herein.     NOW, THEREFORE, in consideration of the mutual promises herein contained, the parties agree asfollows:     1. Definitions. As used in this Agreement, the following terms shall have the followingmeanings:          (a) Board. “Board” means the Board of Directors of the Company.          (b) Bonus. “Bonus” means an amount equal to (i) the bonus awarded to Executive for the fiscalyear prior to the date of termination (which bonus shall be annualized to the extent Executive wasnot employed for entire fiscal year prior to the date of termination), or (ii) if Executive has notreceived a bonus because Executive was not employed by the Company for a sufficient period of time,Executive’s target annual bonus for the fiscal year in which the date of termination occurs. If anyportion of the bonuses awarded to Executive consisted of securities or other property, the fairmarket value thereof shall be determined in good faith by the Board.          (c) Cause. “Cause” means any of the following:               (i) the commission of an act of fraud, embezzlement or dishonesty by Executive that has amaterial 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 tradesecrets of the Company or any successor or affiliate thereof that has a material adverse impact onany such entity;               (iv) Executive’s gross negligence, insubordination or material violation of any duty ofloyalty to the Company 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’sduties 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 or
 

 
the Company’s Chief Executive Officer (the “CEO”) [or the President] stating with specificitythe nature of such failure, refusal or neglect; or               (vi) Executive’s breach of any material provision of this Agreement; provided, however, thatprior to the determination that “Cause” under this Section 1(c) has occurred, the Company shall (w)provide to Executive in writing, in reasonable detail, the reasons for the determination that such“Cause” exists, (x) other than with respect to clause (v) above which specifies the applicableperiod of time for Executive to remedy his or her breach, afford Executive a reasonable opportunityto remedy any such breach, (y) provide the Executive an opportunity to be heard prior to the finaldecision to terminate the Executive’s employment hereunder for such “Cause” and (z) make anydecision that such “Cause” exists in good faith.          The foregoing definition shall not in any way preclude or restrict the right of the Company orany successor or affiliate thereof to discharge or dismiss Executive for any other acts oromissions, but such other acts or omissions shall not be deemed, for purposes of this Agreement, toconstitute grounds for termination for Cause.          (d) Change of Control. “Change of Control” means (i) a merger or consolidation of the Companywith or into any other corporation or other entity or person or (ii) a sale, lease, exchange orother transfer in one transaction or a series of related transactions of all or substantially allof the Company’s outstanding securities or all or substantially all of the Company’s assets;provided, however, that the following events shall not constitute a “Change of Control”: (A) amerger or consolidation of the Company in which the holders of the voting securities of the Companyimmediately prior to the merger or consolidation hold at least a majority of the voting securitiesin the successor corporation immediately after the merger or consolidation; (B) a sale, lease,exchange or other transaction in one transaction or a series of related transactions of all orsubstantially all of the Company’s assets to a wholly-owned subsidiary corporation; (C) a merereincorporation of the Company; or (D) a transaction undertaken for the sole purpose of creating aholding company that will be owned in substantially the same proportion by the persons who held theCompany’s securities immediately before such transaction.          (e) Code. “Code” means the Internal Revenue Code of 1986, as amended from time to time, andthe Treasury Regulations and other interpretive guidance issued thereunder.          (f) Good Reason. “Good Reason” means the occurrence of any of the following events orconditions 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, except in connection with ageneral reduction in the base compensation of the Company’s or any successor’s or affiliate’spersonnel with similar status and responsibilities;               (iii) a material change in the geographic location at which Executive must perform his duties;or
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               (iv) any other action or inaction that constitutes a material breach by the Company or anysuccessor 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 foregoingevents or conditions without Executive’s written consent within ninety (90) days of the occurrenceof such event. The Company or any successor or affiliate shall have a period of thirty (30) daysto cure such event or condition after receipt of written notice of such event from Executive. Anyvoluntary termination of Executive’s employment for “Good Reason” following such thirty (30) daycure period must occur no later than the date that is six (6) months following the initialoccurrence of one of the foregoing events or conditions without Executive’s written consent andsuch voluntary termination of Executive’s employment shall be treated as an involuntary terminationof employment.          (g) Permanent Disability. Executive’s “Permanent Disability” shall be deemed to have occurredif Executive shall become physically or mentally incapacitated or disabled or otherwise unablefully to discharge his or her duties hereunder for a period of ninety (90) consecutive calendardays or for one hundred twenty (120) calendar days in any one hundred eighty (180) calendar-dayperiod. The existence of Executive’s Permanent Disability shall be determined by the Company onthe advice of a physician chosen by the Company and the Company reserves the right to have theExecutive examined by a physician chosen by the Company at the Company’s expense.          (h) Stock Awards. “Stock Awards” means all stock options, restricted stock and such otherawards granted pursuant to the Company’s stock option and equity incentive award plans oragreements and any shares of stock issued upon exercise thereof.     2. Services to Be Rendered.          (a) Duties and Responsibilities. Executive shall serve as                      of the Company[, butshall not perform policy-making functions for the Company or be designated an “officer” of theCompany, as such term is defined under Rule 16a-1(f) of the Securities Exchange Act of 1934, asamended]. In the performance of such duties, Executive shall report directly to the[Board][CEO][President][Chief Medical Officer (“CMO”)] and shall be subject to the direction of the[Board][CEO][President][CMO] and to such limits upon Executive’s authority as the Board or the CEOor [President][CMO] may from time to time impose. [In the event of the [President][CMO]’sincapacity or unavailability, Executive shall report directly to the CEO [or President], or suchother officer of the Company as the CEO [or President] may designate, or be subject to thedirection of the Board or its designee.] Executive hereby consents to serve as an officer and/ordirector of the Company or any subsidiary or affiliate thereof without any additional salary orcompensation, if so requested by the [Board][CEO or President]. Executive shall be employed by theCompany on a full time basis. Executive’s primary place of work shall be the Company’s facility inSan Diego, California, or such other location within San Diego County as may be designated by the[Board][CEO or President] from time to time. Executive shall also render services at such otherplaces within or outside the United States as the [Board][CEO][or President][or CMO] may directfrom time to time. Executive shall be subject to and comply with the policies and proceduresgenerally applicable to senior executives of the Company to the extent the same are notinconsistent with any term of this Agreement.
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          (b) Exclusive Services. Executive shall at all times faithfully, industriously and to thebest of his or her ability, experience and talent perform to the satisfaction of the Board, the CEOand the President all of the duties that may be assigned to Executive hereunder and shall devotesubstantially 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 toin Section 5(b), this shall not preclude Executive from devoting time to personal and familyinvestments 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 ingood faith by the [Board][the CEO or the President]. Executive agrees that he or she will not joinany boards, other than community and civic boards (which do not interfere with his or her duties tothe Company), without the prior approval of the [Board][the CEO or the President].     3. Compensation and Benefits. The Company shall pay or provide, as the case may be, toExecutive 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,payable in accordance with the Company’s usual pay practices (and in any event no less frequentlythan monthly). Executive’s base salary shall be subject to review annually by and at the solediscretion of the Compensation Committee of the Board or its designee.          (b) Bonus. Executive shall participate in any bonus plan that the Board or its designee mayapprove for the senior executives of the Company.          (c) Benefits. Executive shall be entitled to participate in benefits under the Company’sbenefit plans and arrangements, including, without limitation, any employee benefit plan orarrangement made available in the future by the Company to its senior executives, subject to and ona basis consistent with the terms, conditions and overall administration of such plans andarrangements. The Company shall have the right to amend or delete any such benefit plan orarrangement made available by the Company to its senior executives and not otherwise specificallyprovided for herein.          (d) Expenses. The Company shall reimburse Executive for reasonable out-of-pocket businessexpenses 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 theCompany with evidence in the form of receipts satisfactory to the Company substantiating theclaimed expenditures[, (iii) Executive receiving advance approval from the CEO or the President inthe case of expenses for travel outside of North America, and (iv) Executive receiving advanceapproval from the CEO or the President in the case of expenses (or a series of related expenses) inexcess of $10,000].          (e) Paid Time Off. Executive shall be entitled to such periods of paid time off (“PTO”) eachyear as provided from time to time under the Company’s PTO guidelines; provided that Executiveshall be entitled to at least four (4) weeks of PTO per year.
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          (f) Equity Plans. Executive shall be entitled to participate in any equity or other employeebenefit plan that is generally available to senior executive officers, as distinguished fromgeneral management, of the Company. Except as otherwise provided in this Agreement, Executive’sparticipation in and benefits under any such plan shall be on the terms and subject to theconditions specified in the governing document of the particular plan.          (g) Stock Award Acceleration.               (i) If Executive’s employment is terminated by the Company without Cause, by Executive forGood Reason, or as a result of Executive’s death or Permanent Disability, the vesting and/orexercisability of each of Executive’s outstanding Stock Awards shall be automatically acceleratedon 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 theCompany during such period.               (ii) The vesting and exercisability of fifty percent (50%) of Executive’s outstanding StockAwards shall be automatically accelerated on the date of a Change of Control.               (iii) If Executive’s employment is terminated by the Company without Cause or by Executive forGood Reason within three (3) months prior to or twelve (12) months following a Change of Control,the vesting and/or exercisability of any outstanding unvested portions of Executive’s Stock Awardsshall be automatically accelerated on the later of (A) the date of termination or (B) the date ofthe Change of Control. In addition, Executive’s Stock Awards may be exercised by Executive (orExecutive’s guardian or legal representative) until the latest of (A) three (3) months after thedate of termination, (B) with respect to any portion of the Stock Awards that become exercisable onthe date of a Change of Control pursuant to this Section 3(g)(iii), three (3) months after the dateof the Change of Control, or (C) such longer period as may be specified in the applicable StockAward agreement; provided, however, that in no event shall any Stock Award remain exercisablebeyond 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 becumulative. The foregoing provisions are hereby deemed to be a part of each Stock Award and tosupersede any less favorable provision in any agreement or plan regarding such Stock Award.     4. Termination and Severance. Executive shall be entitled to receive benefits upontermination of employment only as set forth in this Section 4:          (a) At-Will Employment; Termination. The Company and Executive acknowledge that Executive’semployment is and shall continue to be at-will, as defined under applicable law, and thatExecutive’s employment with the Company may be terminated by either party at any time for any or noreason, with or without notice. If Executive’s employment terminates for any reason, Executiveshall not be entitled to any payments, benefits, damages, awards or compensation other than asprovided in this Agreement. Executive’s employment under this Agreement shall be terminatedimmediately on the death of Executive.
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          (b) Termination by Death. If Executive’s employment is terminated by death, Executive’sestate shall be entitled to receive (i) Executive’s fully earned but unpaid base salary, throughthe date of death at the rate then in effect, plus all other amounts to which Executive is entitledunder any compensation plan or practice of the Company at the time of Executive’s death, (ii) alump sum cash payment equal to Executive’s annual base salary as in effect immediately prior to thedate of death, payable within thirty (30) days following the date of Executive’s death, (iii) alump sum cash payment equal to Executive’s Bonus for the year in which Executive’s death occursprorated for the period during such year Executive was employed prior to his or her death, payablewithin thirty (30) days following the date of Executive’s death, and (iv) for the period beginningon the date of death and ending on the date which is twelve (12) full months following the date ofdeath (or, if earlier, the date on which the applicable continuation period under COBRA expires),the Company shall reimburse Executive’s eligible dependents for the costs associated withcontinuation coverage for such eligible dependents pursuant to the Consolidated Omnibus BudgetReconciliation Act of 1985, as amended (“COBRA”) (provided that Executive’s dependents shall besolely responsible for all matters relating to such continuation of coverage pursuant to COBRA,including, without limitation, election of such coverage and his or her timely payment ofpremiums).          (c) Termination for Permanent Disability. If Executive’s employment is terminated by theCompany as a result of Executive’s Permanent Disability, Executive shall be entitled to receive (i)Executive’s fully earned but unpaid base salary, through the date of termination at the rate thenin effect, plus all other amounts to which Executive is entitled under any compensation plan orpractice of the Company at the time such payments are due, (ii) subject to Executive’s continuedcompliance with Section 5, a lump sum cash payment equal to Executive’s annual base salary as ineffect immediately prior to the date of termination, payable within thirty (30) days following theeffective date of Executive’s Release (as defined below), but in no event later than two andone-half (2 1/2) months following the last day of the calendar year in which Executive’s terminationof employment occurs, (iii) subject to Executive’s continued compliance with Section 5, a lump sumcash payment equal to Executive’s Bonus for the year in which the date of termination occursprorated for the period during such year Executive was employed prior to the date of termination,within thirty (30) days following the effective date of Executive’s Release (as defined below), butin no event later than two and one-half (2 1/2) months following the last day of the calendar year inwhich Executive’s termination of employment occurs, (iv) subject to Executive’s continuedcompliance with Section 5, for the period beginning on the date of termination and ending on thedate which is twelve (12) full months following the date of termination (or, if earlier, the dateon which the applicable continuation period under COBRA expires), the Company shall (A) reimburseExecutive for the costs associated with continuation coverage pursuant to COBRA for Executive andhis or her eligible dependents who were covered under the Company’s health plans as of the date ofExecutive’s termination (provided that Executive shall be solely responsible for all mattersrelating to his or her continuation of coverage pursuant to COBRA, including, without limitation,his or her election of such coverage and his or her timely payment of premiums), and (v) theCompany shall pay for and provide Executive and such eligible dependents with a lump sum paymentsufficient to pay the premiums for life insurance benefits coverage for the twelve (12) monthperiod commencing on the date of termination to the extent such Executive and/or such dependentswere receiving such benefits prior to the date of Executive’s termination, which payment shall bepaid within thirty (30) days following the effective date of Executive’s Release, but in no eventlater than two and
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one-half (2 1/2) months following the last day of the calendar year in which the date ofExecutive’s termination of employment occurs.          (d) Termination Without Cause or For Good Reason.               (i) Termination Without Cause or For Good Reason. If Executive’s employment is terminated bythe Company without Cause or by Executive for Good Reason more than three (3) months prior to aChange of Control or more than twelve (12) months following a Change of Control, Executive shall beentitled to receive, in lieu of any severance benefits to which Executive may otherwise be entitledunder any severance plan or program of the Company (other than as provided in Section 3(g) of thisAgreement), the benefits provided below:               (A) the Company shall pay to Executive his or her fully earned but unpaid base salary,when due, through the date of termination at the rate then in effect, plus all other amountsto which Executive is entitled under any compensation plan or practice of the Company at thetime of termination;               (B) subject to Executive’s continued compliance with Section 5, Executive shall beentitled to receive a lump sum cash payment equal to Executive’s annual base salary as ineffect immediately prior to the date of termination, payable within thirty (30) daysfollowing the effective date of Executive’s Release (as defined below), but in no eventlater than two and one-half (2 1/2) months following the last day of the calendar year inwhich the date of Executive’s termination of employment occurs; plus               (C) subject to Executive’s continued compliance with Section 5, (1) for the periodbeginning on the date of termination and ending on the date which is twelve (12) full monthsfollowing the date of termination (or, if earlier, the date on which the applicablecontinuation period under COBRA expires), the Company shall reimburse Executive for thecosts associated with continuation coverage pursuant to COBRA for Executive and his or hereligible dependents who were covered under the Company’s health plans as of the date ofExecutive’s termination (provided that Executive shall be solely responsible for all mattersrelating to his or her continuation of coverage pursuant to COBRA, including, withoutlimitation, his or her election of such coverage and his or her timely payment of premiums),and (2) the Company shall pay for and provide Executive and such eligible dependents with alump sum payment sufficient to pay the premiums for life insurance benefits coverage for thetwelve (12) month period commencing on the date of termination to the extent such Executiveand/or such dependents were receiving such benefits prior to the date of Executive’stermination, which payment shall be paid within thirty (30) days following the effectivedate of Executive’s Release, but in no event later than two and one-half (2 1/2) monthsfollowing the last day of the calendar year in which the date of Executive’s termination ofemployment occurs; and               (D) subject to Executive’s continued compliance with Section 5, for the periodbeginning on the date of termination and ending on the date which is twelve (12) full monthsfollowing the date of termination, Executive shall be entitled to executive-leveloutplacement services at the Company’s expense, not to exceed $15,000. Such
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services shall be provided by a firm selected by Executive from a list compiled by theCompany.               (E) The payments and benefits provided for in this Section 4(d)(i) shall only bepayable in the event Executive’s employment is terminated by the Company without Cause or byExecutive for Good Reason more than three (3) months prior to a Change of Control or morethan twelve (12) months following a Change of Control. If Executive’s employment isterminated by the Company without Cause or by Executive for Good Reason within three (3)months prior to or twelve (12) months following a Change of Control, then Executive shallreceive the payments and benefits described in Section 4(d)(ii) in lieu of the payments andbenefits described in this Section 4(d)(i).               (ii) Termination Without Cause or By Executive For Good Reason In Connection With a Change ofControl. If Executive’s employment is terminated by the Company without Cause or by Executive forGood Reason within three (3) months prior to or twelve (12) months following a Change of Control,Executive shall be entitled to receive, in lieu of any severance benefits to which Executive mayotherwise be entitled under any severance plan or program of the Company (other than as provided inSection 3(g) of this Agreement), the benefits provided below:               (A) the Company shall pay to Executive his or her fully earned but unpaid base salary,when due, through the date of termination at the rate then in effect, plus all other amountsto which Executive is entitled under any compensation plan or practice of the Company at thetime of termination;               (B) subject to Executive’s continued compliance with Section 5, Executive shall beentitled to receive a lump sum cash payment, payable within thirty (30) days following theeffective date of Executive’s Release, but in no event later than two and one-half (2 1/2)months following the last day of the calendar year in which the date of Executive’stermination of employment occurs (or, in the event the date of termination precedes theconsummation of a Change of Control, because the payment of Executive’s prorated Bonuspursuant to clause (2) below shall not be administratively practicable by the foregoing datebecause it will not yet be known whether a Change of Control will occur within three (3)months following the date of termination, such prorated Bonus shall be paid within thirty(30) days following the date of the Change in Control), equal to the sum of:               (1) Executive’s annual base salary as in effect immediately prior tothe date of termination, plus               (2) an amount equal to Executive’s Bonus for the year in which the dateof termination occurs prorated for the period during such year Executive wasemployed prior to the date of termination;               (C) subject to Executive’s continued compliance with Section 5, (1) for the periodbeginning on the date of termination and ending on the date which is
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twelve (12) full months following the date of termination (or, if earlier, the date onwhich the applicable continuation period under COBRA expires), the Company shall reimburseExecutive for the costs associated with continuation coverage pursuant to COBRA forExecutive and his or her eligible dependents who were covered under the Company’s healthplans as of the date of Executive’s termination (provided that Executive shall be solelyresponsible for all matters relating to his or her continuation of coverage pursuant toCOBRA, including, without limitation, his or her election of such coverage and his or hertimely payment of premiums), and (2) the Company shall pay for and provide Executive andsuch eligible dependents with a lump sum payment sufficient to pay the premiums for lifeinsurance benefits coverage for the twelve (12) month period commencing on the date oftermination to the extent such Executive and/or such dependents were receiving such benefitsprior to the date of Executive’s termination, which payment shall be paid within thirty (30)days following the effective date of Executive’s Release, but in no event later than two andone-half (2 1/2) months following the last day of the calendar year in which the date ofExecutive’s termination of employment occurs; and               (D) subject to Executive’s continued compliance with Section 5, for the periodbeginning on the date of termination and ending on the date which is twelve (12) full monthsfollowing the date of termination, Executive shall be entitled to executive-leveloutplacement services at the Company’s expense, not to exceed $15,000. Such services shallbe provided by a firm selected by Executive from a list compiled by the Company.               (E) The payments and benefits provided for in this Section 4(d)(ii) shall only bepayable in the event Executive’s employment is terminated by the Company without Cause or byExecutive for Good Reason within three (3) months prior to or twelve (12) months following aChange of Control. If Executive’s employment is terminated by the Company without Cause orby Executive for Good Reason more than twelve (12) months following a Change of Control orprior to a Change of Control and such Change of Control is not consummated within three (3)months following such termination, then Executive shall receive the payments and benefitsdescribed in Section 4(d)(i) and shall not be eligible to receive any of the payments andbenefits described in this Section 4(d)(ii).          (e) Termination for Cause, Voluntary Resignation Without Good Reason. If Executive’semployment is terminated by the Company for Cause or by Executive without Good Reason (other thanas a result of Executive’s death or Permanent Disability), the Company shall not have any other orfurther obligations to Executive under this Agreement (including any financial obligations) exceptthat 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 benefitsto which Executive is entitled under any compensation, retirement or benefit plan or practice ofthe 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 Executivewithout Good Reason (other than as a result of Executive’s death or Permanent Disability), allvesting of Executive’s unvested Stock Awards previously granted to him or her by the Company shallcease and none of such unvested Stock Awards shall be exercisable following
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the date of such termination. The foregoing shall be in addition to, and not in lieu of, anyand all other rights and remedies which may be available to the Company under the circumstances,whether at law or in equity.          (f) Delay of Payments. If at the time of Executive’s termination of employment with theCompany Executive is a “specified employee” as defined in Section 409A of the Code, as determinedby the Company in accordance with Section 409A of the Code, and the deferral of the commencement ofany payments or benefits otherwise payable hereunder as a result of such termination of employmentis necessary in order to prevent any accelerated or additional tax under Section 409A of the Code,then the Company will defer the commencement of the payment of any such payments or benefitshereunder (without any reduction in such payments or benefits ultimately paid or provided toExecutive) until the date that is at least six (6) months following Executive’s termination ofemployment with the Company (or the earliest date as is permitted under Section 409A of the Code).          (g) Release. As a condition to Executive’s receipt of any post-termination benefits describedin this Agreement, Executive shall execute and not revoke a general release of all claims in favorof the Company (the “Release”) substantially in the form attached hereto.          (h) Exclusive Remedy. Except as otherwise expressly required by law (e.g., COBRA) or asspecifically provided herein, all of Executive’s rights to salary, severance, benefits, bonuses andother amounts hereunder (if any) accruing after the termination of Executive’s employment shallcease upon such termination. In the event of a termination of Executive’s employment with theCompany, Executive’s sole remedy shall be to receive the payments and benefits described in thisSection 4. In addition, Executive acknowledges and agrees that he or she is not entitled to anyreimbursement by the Company for any taxes payable by Executive as a result of the payments andbenefits received by Executive pursuant to this Section 4, including, without limitation, anyexcise tax imposed by Section 4999 of the Code.          (i) No Mitigation. The amount of any payment or benefit provided for in this Section 4 shallnot be reduced by any compensation earned by Executive as the result of employment by anotheremployer or self-employment or by retirement benefits and, as provided in Sections 4(b), (c) or(d), Executive’s (or his or her dependents’) right to continued healthcare and life insurancebenefits following his or her termination of employment will terminate on the date on which theapplicable continuation period under COBRA expires. In addition, loans, advances or other amountsowed by Executive to the Company may be offset by the Company against amounts payable to Executiveunder this Section 4.          (j) Return of the Company’s Property. If Executive’s employment is terminated for any reason,the Company shall have the right, at its option, to require Executive to vacate his or her officesprior to or on the effective date of termination and to cease all activities on the Company’sbehalf. Upon the termination of his or her employment in any manner, as a condition to theExecutive’s receipt of any post-termination benefits described in this Agreement, Executive shallimmediately surrender to the Company all lists, books and records of, or in connection with, theCompany’s business, and all other property belonging to the Company, it being distinctly understoodthat all such lists, books and records, and other documents, are the property of the Company.Executive shall deliver to the Company a signed
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statement certifying compliance with this Section 4(j) prior to the receipt of anypost-termination benefits described in this Agreement.          (k) Waiver of the Company’s Liability. Executive recognizes that his or her employment issubject to termination with or without Cause for any reason and therefore Executive agrees thatExecutive 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 the termination of Executive’s employment.Executive further agrees that Executive shall bring no claim or cause of action against the Companyfor damages or injunctive relief based on a wrongful termination of employment. Executive agreesthat the sole liability of the Company to Executive upon termination of this Agreement shall bethat determined by this Section 4. In the event this covenant is more restrictive than permittedby laws of the jurisdiction in which the Company seeks enforcement thereof, this covenant shall belimited to the extent permitted by law.     5. Certain Covenants.          (a) Noncompetition. Except as may otherwise be approved by the Board, during the term ofExecutive’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 otherwiseaid or assist in any manner, any firm, corporation, partnership, proprietorship or other businessthat engages in any county, city or part thereof in the United States and/or any foreign country ina business which competes directly or indirectly (as determined by the Board) with the Company’sbusiness in such county, city or part thereof, so long as the Company, or any successor in interestof the Company to the business and goodwill of the Company, remains engaged in such business insuch 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 (x) isnot a controlling person of, or a member of a group which controls, such entity; or (y) 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’sstandard employee proprietary information and inventions agreement (the “Employee ProprietaryInformation and Inventions Agreement”). Executive agrees to perform each and every obligation ofExecutive therein contained.          (c) Solicitation of Employees. Executive shall not during the term of Executive’s employmentand for the applicable severance period for which Executive receives severance benefits followingany termination hereof pursuant to Section 4(c) or (d) above (regardless of whether Executivereceives such severance benefits in a lump sum payment or over the length of the severance period)(the “Restricted Period”), directly or indirectly, solicit or encourage to leave the employment ofthe 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’semployment and for the Restricted Period, directly or indirectly, hire, solicit or
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encourage to cease work with the Company or any of its affiliates any consultant then undercontract with the Company or any of its affiliates within one year of the termination of suchconsultant’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 ofany of the provisions of this Section 5 (the “Restrictive Covenants”), the Company shall have thefollowing rights and remedies, each of which rights and remedies shall be independent of the otherand severally enforceable, and all of which rights and remedies shall be in addition to, and not inlieu 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 specificallyenforced by any court having equity jurisdiction, all without the need to post a bond or any othersecurity or to prove any amount of actual damage or that money damages would not provide anadequate remedy, it being acknowledged and agreed that any such breach or threatened breach willcause irreparable injury to the Company and that money damages will not provide adequate remedy tothe Company; and               (ii) Accounting and Indemnification. The right and remedy to require Executive (i) to accountfor and pay over to the Company all compensation, profits, monies, accruals, increments or otherbenefits derived or received by Executive or any associated party deriving such benefits as aresult of any such breach of the Restrictive Covenants; and (ii) to indemnify the Company againstany 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 resultfrom 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 theRestrictive Covenants, or any part thereof, is invalid or unenforceable, the remainder of theRestrictive Covenants shall not thereby be affected and shall be given full effect, without regardto the invalid portions. If any court determines that any of the Restrictive Covenants, or anypart thereof, are unenforceable because of the duration of such provision or the area coveredthereby, such court shall have the power to reduce the duration or area of such provision and, inits reduced form, such provision shall then be enforceable and shall be enforced. Executive herebywaives any and all right to attack the validity of the Restrictive Covenants on the grounds of thebreadth of their geographic scope or the length of their term.          (g) Enforceability in Jurisdictions. The Company and Executive intend to and do hereby conferjurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within thegeographical scope of such covenants. If the courts of any one or more of such jurisdictions holdthe 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 wayaffect the right of the Company to the relief provided above in the courts of any otherjurisdiction within the geographical scope of such covenants, as to breaches of such covenants insuch other respective jurisdictions, such covenants as they relate to each jurisdiction being, forthis purpose, severable into diverse and independent covenants.
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          (h) Definitions. For purposes of this Section 5, the term “Company” means not only CadencePharmaceuticals, Inc., but also any company, partnership or entity which, directly or indirectly,controls, is controlled by or is under common control with Cadence Pharmaceuticals, Inc.     6. 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 inany amount deemed appropriate by the Company. Executive shall assist the Company in obtaining suchinsurance, including, without limitation, submitting to any required examinations and providinginformation and data required by insurance companies.     7. Arbitration. Any dispute, claim or controversy based on, arising out of or relating toExecutive’s employment or this Agreement shall be settled by final and binding arbitration in SanDiego, California, before a single neutral arbitrator in accordance with the National Rules for theResolution of Employment Disputes (the “Rules”) of the American Arbitration Association, andjudgment 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 bythe AAA in accordance with its Rules. Each party shall pay the fees of its own attorneys, theexpenses 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 orher discretion, award reasonable attorneys’ fees to the prevailing party. Other costs of thearbitration, including the cost of any record or transcripts of the arbitration, AAA’sadministrative fees, the fee of the arbitrator, and all other fees and costs, shall be borne by theCompany. This Section 7 is intended to be the exclusive method for resolving any and all claims bythe parties against each other for payment of damages under this Agreement or relating toExecutive’s employment; provided, however, that neither this Agreement nor the submission toarbitration shall limit the parties’ right to seek provisional relief, including without limitationinjunctive relief, in any court of competent jurisdiction pursuant to California Code of CivilProcedure § 1281.8 or any similar statute of an applicable jurisdiction. Seeking any such reliefshall not be deemed to be a waiver of such party’s right to compel arbitration. Both Executive andthe Company expressly waive their right to a jury trial.     8. General Relationship. Executive shall be considered an employee of the Company within themeaning of all federal, state and local laws and regulations including, but not limited to, lawsand regulations governing unemployment insurance, workers’ compensation, industrial accident, laborand taxes.     9. Miscellaneous.          (a) Modification; Prior Claims. This Agreement and the Employee Proprietary Information andInventions Agreement set forth the entire understanding of the parties with respect to the subjectmatter hereof, supersede all existing agreements between them concerning such subject matter,including the Original Agreement, between the Company and Executive, and may be modified only by awritten instrument duly executed by each party.
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          (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 unfettereddiscretion, to any person, firm, corporation or other business entity which at any time, whether bypurchase, merger or otherwise, directly or indirectly, acquires all or substantially all of theassets or business of the Company. The Company will require any successor (whether direct orindirect, by purchase, merger or otherwise) to all or substantially all of the business or assetsof the Company expressly to assume and to agree to perform this Agreement in the same manner and tothe same extent that the Company would be required to perform it if no such succession had takenplace; provided, however, that no such assumption shall relieve the Company of its obligationshereunder. As used in this Agreement, the “Company” shall mean the Company as hereinbefore definedand any successor to its business and/or assets as aforesaid which assumes and agrees to performthis Agreement by operation of law or otherwise.          (c) Survival. The covenants, agreements, representations and warranties contained in or madein Sections 4, 5, 7 and 9 of this Agreement shall survive any termination of Executive’semployment.          (d) Third-Party Beneficiaries. This Agreement does not create, and shall not be construed ascreating, 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 theother party of any provision of this Agreement shall in no way affect such party’s rightsthereafter to enforce the same, nor shall the waiver by either party of any breach of any provisionhereof be deemed to be a waiver by such party of any other breach of the same or any otherprovision hereof.          (f) Section Headings. The headings of the several sections in this Agreement are insertedsolely 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. All notices, requests and other communications hereunder shall be in writing andshall be delivered by courier or other means of personal service (including by means of anationally recognized courier service or professional messenger service), or sent by telex ortelecopy or mailed first class, postage prepaid, by certified mail, return receipt requested, inall cases, addressed to:     If to the Company or the Board:Cadence Pharmaceuticals, Inc.