exv10w1






Exhibit 10.1


Onyx Pharmaceuticals, Inc.




Executive Severance Benefit Plan 




SECTION 1. Introduction.




     The Onyx Pharmaceuticals, Inc. Executive Severance Benefit Plan (the “Plan”) is hereby
established effective December 3, 2008 (the “Effective Date”). The purpose of the Plan is to provide for
the payment of severance benefits to certain eligible executive employees of Onyx Pharmaceuticals,
Inc. (the “Company”) in the event that such employees are subject to qualifying terminations of
employment. This Plan shall supersede any generally applicable severance plan, policy, or
practice, whether written or unwritten, with respect to each employee who becomes a Participant in
the Plan. For the purposes of the foregoing sentence, a generally applicable severance plan,
policy or practice is a plan, policy or practice in which benefits are not conditioned upon (i)
being designated a participant, (ii) receiving an award such as a stock option, or (iii) the
employee electing to participate. This Plan shall not supersede any individually negotiated
employment contract or agreement, or any written plans that are not of general application, and,
except as set forth in the Participation Notice, such Participant’s severance benefit, if any,
shall be governed by the terms of such individually negotiated employment contract, agreement, or
written plan, and shall be governed by this Plan only to the extent that the reduction pursuant to
Section 5(b) below does not entirely eliminate benefits under this Plan. This document also
constitutes the Summary Plan Description for the Plan.



SECTION 2. Definitions.




     For purposes of the Plan, except as set forth in an applicable Participation Notice, the
following terms are defined as follows:



     (a) “Base Salary” means the Participant’s annual base salary (excluding incentive pay, premium
pay, commissions, overtime, bonuses, and other forms of variable compensation) as in effect on the
date of a Covered Termination.



     (b) “Board” means the Board of Directors of the Company.



     (c) “Cause” means that, in the reasonable determination of the Company, Participant (i) has
committed an intentional act or acted with gross negligence that has materially injured the
business of the Company; (ii) has intentionally refused or failed to follow lawful and reasonable
directions of the Board or the appropriate individual to whom the Participant reports; (iii) has
willfully and habitually neglected Participant’s duties for the Company; (iv) has been convicted of
a felony involving moral turpitude that is likely to inflict or has inflicted material injury on
the business of the Company; or (v) has repeatedly failed to satisfactorily perform his or her job
duties and responsibilities.



     (d) “COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.



     (e) “Code” means the Internal Revenue Code of 1986, as amended.



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     (f) “Company” means Onyx Pharmaceuticals, Inc.



     (g) “Company Property” means all paper and electronic Company documents (and all copies
thereof) created and/or received by the Participant during his or her period of employment with the
Company and other Company materials and property which the Participant has in his or her possession
or control, including, but not limited to, Company files, notes, drawings records, plans,
forecasts, reports, studies, analyses, proposals, agreements, financial information, research and
development information, sales and marketing information, operational and personnel information,
specifications, code, software, databases, computer-recorded information,
tangible property and equipment (including, but not limited to, leased vehicles, computers,
computer equipment, software programs, facsimile machines, mobile telephones, servers), credit and
calling cards, entry cards, identification badges and keys; and any materials of any kind which
contain or embody any proprietary or confidential information of the Company (and all reproductions
thereof in whole or in part).



     (h) “Constructive Termination” means a Participant voluntarily terminates employment and
incurs a “separation from service” with the Company within the meaning of Treasury Regulation
Section 1.409A-1(h) (without regard to any permissible alternative definition thereunder) after one
of the following is undertaken without the Participant’s express written consent:



          (i) a material diminution in the Participant’s Base Salary, unless such reduction is made
pursuant to an across-the-board reduction of the base salaries of all executive officers of the
Company of no more than ten percent (10%); or




          (ii) a material diminution in the Participant’s authorities, duties, or responsibilities;
provided, however, that a change in Participant’s title or reporting relationships shall not
constitute a Constructive Termination; or




          (iii) a change in Participant’s business location of more than thirty-five (35) miles from the
Company’s principal executive office as of the Effective Date.




     Notwithstanding the foregoing, in order to qualify as “Constructive Termination,” the
Participant must submit to the Company a written notice, within ninety (90) days after the initial
occurrence of any of the foregoing actions or events, describing the applicable actions or events,
and provide the Company with at least thirty (30) days from its receipt of the Participant’s
written notice in which to cure such actions or events prior to termination of the Participant’s
employment, and provided that, the Participant’s employment must terminate no later than twelve
(12) months after the applicable actions or events described in (i), (ii) and (iii) above.



     (i) “Covered Termination” means either (i) an Involuntary Termination Without Cause, or (ii) a
Constructive Termination. Termination of employment of a Participant due to death or disability
shall not constitute a Covered Termination unless a voluntary termination of employment by the
Participant immediately prior to the Participant’s death or disability would have qualified as a
Constructive Termination.



     (j) “Eligible Employee” means an individual who is employed by the Company and is either (i)
an executive officer of the Company subject to short-swing liability under Section



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16(b) of the
Securities Exchange Act of 1934, as amended; or (ii) a “named executive officer” of the Company
within the meaning of Regulation S-K, Item 402(a)(3).




     (k) “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.



     (l) “Involuntary Termination Without Cause” means a termination by the Company of a
Participant’s employment relationship with the Company of the Company for any reason other than for
Cause and the Participant incurs a “separation from service” with the Company within the meaning of
Treasury Regulation Section 1.409A-1(h) (without regard to any permissible alternative definition
thereunder).



     (m) “Participant” means an individual (i) who is an Eligible Employee and (ii) who has
received a Participation Notice from the Company and executed and returned such Participation
Notice to the Company.



     (n) “Participation Notice” means the latest notice delivered by the Company to a Participant
informing the employee that the employee is a Participant in the Plan, substantially in the form of
Annex I hereto.



     (o) “Plan Administrator” means the Board or any committee duly authorized by the Board to
administer the Plan. The Plan Administrator may, but is not required to be, the Compensation
Committee of the
Board. The Board may at any time administer the Plan, in whole or in part, notwithstanding
that the Board has previously appointed a committee to act as the Plan Administrator.



SECTION 3. Eligibility For Benefits.




     (a) General Rules. Subject to the limitations set forth in this Section 3 and Section 5, in
the event of a Covered Termination, the Company shall provide the severance benefits described in
Section 4 to each affected Participant. For the avoidance of doubt, a person who is not (and was
not) a Participant shall not be eligible for benefits pursuant to the Plan whether or not such
person is (or was) an Eligible Employee.



     (b) Exceptions to Benefit Entitlement. A Participant will not receive benefits under the Plan
(or will receive reduced benefits under the Plan) in the following circumstances, as determined by
the Plan Administrator in its sole discretion:



          (i) The Participant has executed an individually negotiated employment contract or agreement
with the Company relating to severance benefits that is in effect on his or her termination date
and which provides benefits that the Plan Administrator, in its sole discretion, determines to be
of greater value than the benefits provided for in this Plan, in which case such Participant’s
severance benefit, if any, shall be governed by the terms of such individually negotiated
employment contract or agreement and shall be governed by this Plan only to the extent that the
reduction pursuant to Section 5(b) below does not entirely eliminate benefits under this Plan.





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          (ii) The Participant is entitled to receive benefits under another severance benefit plan
maintained by the Company on his or her termination date and which provides benefits that the Plan
Administrator, in its sole discretion, determines to be of greater value than the benefits provided
for in this Plan, in which case such Participant’s severance benefit, if any, shall be governed by
the terms of such other severance benefit plan and shall be governed by this Plan only to the
extent that the reduction pursuant to Section 5(b) below does not entirely eliminate benefits under
this Plan.




          (iii) The Participant’s employment terminates or is terminated for any reason other than a
Covered Termination.




          (iv) The Participant does not confirm in writing that he or she shall be subject to the
Company’s Proprietary Information and Inventions Agreement.




          (v) The Participant has failed to execute or has revoked the release described in Section
5(a).




          (vi) The Participant has failed to return all Company Property. As a condition to receiving
benefits under the Plan, Participants must not make or retain copies, reproductions or summaries of
any such Company documents, materials or property. However, a Participant is not required to
return his or her personal copies of documents evidencing the Participant’s hire, termination,
compensation, benefits and stock options and any other documentation received as a shareholder of
the Company.




     (c) Termination of Benefits. A Participant’s right to receive benefits under this Plan shall
terminate immediately if, at any time prior to or during the period for which the Participant is
receiving benefits hereunder, the Participant, without the prior written approval of the Plan
Administrator:



          (i) willfully breaches a material provision of the Company’s Proprietary Information and
Inventions Agreement;




          (ii) encourages or solicits any of the Company’s then current employees to leave the Company’s
employ for any reason or interferes in any other manner with employment relationships at the time
existing between the Company and its then current employees; or




          (iii) induces any of the Company’s then current clients, customers, suppliers, vendors,
distributors, licensors, licensees or other third party to terminate their existing business
relationship with the Company or interferes in any other manner with any existing business
relationship between the Company and any then current client, customer, supplier, vendor,
distributor, licensor, licensee or other third party.




SECTION 4. Amount of Benefits. 




     In the event of a Participant’s Covered Termination, the Participant shall be entitled to
receive the benefits provided by this Section 4 except as may otherwise be provided in the
Participant’s Participation Notice.



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     (a) Cash Severance Benefits. The Company shall make a cash severance payment to the
Participant in an amount equal to Base Salary in a lump sum. Such severance payments shall be paid
in accordance with Section 6.



     (b) Health Continuation Coverage.



          (i) Provided that the Participant is eligible for, and has made an election at or timely after
the Covered Termination pursuant to COBRA under a health, dental, or vision plan sponsored by the
Company, each such Participant shall be entitled to payment by the Company of all of the applicable
premiums (inclusive of premiums for the Participant’s dependents for such health, dental, or vision
plan coverage as in effect immediately prior to the date of the Covered Termination) for such
health, dental, or vision plan coverage for a period of twelve (12) months following the date of
the Covered Termination, with such coverage counted as coverage pursuant to COBRA.




          (ii) No such premium payments (or any other payments for health, dental, or vision coverage by
the Company) shall be made following the Participant’s death or the effective date of the
Participant’s coverage by a health, dental, or vision insurance plan of a subsequent employer.
Each Participant shall be required to notify the Plan Administrator immediately if the Participant
becomes covered by a health, dental, or vision insurance plan of a subsequent employer. Upon the
conclusion of such period of insurance premium payments made by the Company, the Participant will
be responsible for the entire payment of premiums required under COBRA for the duration of the
COBRA period.




          (iii) For purposes of this Section 4(b), (i) references to COBRA shall be deemed to refer also
to analogous provisions of state law, and (ii) any applicable insurance premiums that are paid by
the Company shall not include any amounts payable by the Participant under an Internal Revenue Code
Section 125 health care reimbursement plan, which amounts, if any, are the sole responsibility of
the Participant.




     (c) Extended Exercisability of Stock Options. Participant shall have six (6) months following
the Covered Termination in which to exercise any outstanding stock options, but in no event shall
such period exceed the later of: (i) the maximum term of the stock option as set forth in the stock
option agreement, or (ii) ten (10) years from the date of grant of the stock option.
Notwithstanding the foregoing, in the event that such extension of the exercisability of a stock
option would adversely affect a Participant’s stock option (including, without limitation, its
status as an incentive stock option under Section 422 of the Code) that is outstanding on the date
the Participant commences participation in the Plan, such extended exercisability shall be deemed
null and void as to such stock option unless the affected Participant consents in writing to such
extended exercisability as to such stock option within thirty (30) days after becoming a
Participant in the Plan.



     (d) Additional Benefits. Notwithstanding the foregoing, the Plan Administrator may, in its
sole discretion, provide benefits in addition to those pursuant to Sections 4(a), 4(b), and 4(c)
to one or more Participants chosen by the Plan Administrator, in its sole discretion, and the
provision of any such benefits to a Participant shall in no way obligate the Company to provide
such benefits to any other Participant, even if similarly situated.



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     (e) Other Employee Benefits. All other benefits (such as life insurance, disability coverage,
and 401(k) plan coverage) shall terminate as of the Participant’s termination date (except to the
extent that a conversion privilege may be available thereunder).



SECTION 5. Limitations on Benefits.




     (a) Release. In order to be eligible to receive benefits under the Plan, a Participant must
execute a general waiver and release in substantially the form attached hereto as Exhibit A,
Exhibit B, or Exhibit C, as appropriate, and such release must become effective in accordance with
its terms; provided, however, no such release shall require the Participant to forego any unpaid
salary, any accrued but unpaid vacation pay or any benefits payable pursuant to this Plan. With
respect to any outstanding option held by the Participant, no provision set forth in this Plan
granting the Participant additional rights to exercise the option can be exercised unless and until
the release becomes effective. The Plan Administrator, in its sole discretion, may modify the form
of the required release to comply with applicable law and shall determine the form of the required
release, which may be incorporated into a termination agreement or other agreement with the
Participant.



     (b) Certain Reductions. The Plan Administrator, in its sole discretion, shall have the
authority to reduce a Participant’s severance benefits, in whole or in part, by any other severance
benefits, pay in lieu of notice, or other similar benefits payable to the Participant by the
Company that become payable in connection with the Participant’s termination of employment pursuant
to (i) any applicable legal requirement, including, without limitation, the Worker Adjustment and
Retraining Notification Act or comparable state law (collectively, the “WARN Act”), (ii) a written
employment, severance agreement, or Executive Change in Control Severance Benefit Agreement with
the Company, or (iii) any Company policy or practice providing for the Participant to remain on the
payroll for a limited period of time after being given notice of the termination of the
Participant’s employment. The benefits provided under this Plan are intended to satisfy, in whole
or in part, any and all statutory obligations and other contractual obligations of the Company,
including benefits provided by offer letter or employment agreements, that may arise out of a
Participant’s termination of employment, and the Plan Administrator shall so construe and implement
the terms of the Plan. The Plan Administrator’s decision to apply such reductions to the severance
benefits of one Participant and the amount of such reductions shall in no way obligate the Plan
Administrator to apply the same reductions in the same amounts to the severance benefits of any
other Participant, even if similarly situated. In the Plan Administrator’s sole discretion, such
reductions may be applied on a retroactive basis, with severance benefits previously paid being
re-characterized as payments pursuant to the Company’s statutory or other contractual obligations.



     (c) Parachute Payments. Except as otherwise provided in an agreement between a Participant
and the Company, if any payment or benefit a Participant would receive pursuant to a change in
control from the Company pursuant to this Plan or otherwise (“Payment”) would (i) constitute a
“parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence,
be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such
Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest
portion of the Payment that would result in no portion of the Payment being subject to the Excise
Tax or (y) the largest portion, up to and including the total, of the



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Payment, whichever amount,
after taking into account all applicable federal, state and local employment taxes, income taxes,
and the Excise Tax (all computed at the highest applicable marginal rate), results in the
Participant’s receipt of the greatest economic benefit notwithstanding that all or some portion of
the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting
“parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall
occur in a manner necessary to provide the Participant with the greatest economic benefit. If more
than one manner of reduction of payments or benefits necessary to arrive at the Reduced Amount
yields the greatest economic benefit, the payments and benefits shall be reduced pro rata.



     (d) Mitigation. Except as otherwise specifically provided herein, a Participant shall not be
required to mitigate damages or the amount of any payment provided under this Plan by seeking other
employment or otherwise, nor shall the amount of any payment provided for under this Plan be
reduced by any compensation earned by a Participant as a result of employment by another employer
or any retirement benefits received by such
Participant after the date of the Participant’s termination of employment with the Company,
except for health continuation coverage provided pursuant to Section 4(b).



     (e) Non-Duplication of Benefits. Except as otherwise specifically provided for herein, no
Participant is eligible to receive benefits under this Plan or pursuant to other contractual
obligations more than one time. This Plan is designed to provide certain severance pay benefits to
Participants pursuant to the terms and conditions set forth in this Plan. The payments pursuant to
this Plan are in addition to, and not in lieu of, any unpaid salary, bonuses or benefits to which a
Participant may be entitled for the period ending with the Participant’s Covered Termination.



SECTION 6. Time of Payment and Form Of Benefits.




     (a) General Rules. Except as otherwise set forth in this Plan, the cash severance benefits
under Section 4(a) of the Plan, if any, shall be paid in a single lump sum payment on the first
payroll date following the Participant’s Covered Termination. In no event shall payment of any
Plan benefit set forth in Section 4 be made prior to the effective date of the release described in
Section 5(a).



     (b) Application of Section 409A. Any cash severance payment provided under Section 4(a) and
any additional benefits provided under Section 4(c) shall be paid no later than the later of: (i)
December 31st of the calendar year in which the Covered Termination occurs, or (ii) the fifteenth
(15th) day of the third calendar month following the date of the Covered Termination. It is the
intention of the preceding sentence to apply the “short-term deferral” rule set forth in Treasury
Regulation Section 1.409A-1(b)(4) to such payments. Amounts paid pursuant to Section 4(b) are
intended to be paid pursuant to the exception provided by Treasury Regulation Section
1.409A-1(b)(9)(v)(B). Benefits provided pursuant to Section 4(c) are intended to be paid pursuant
to the exception provided by Treasury Regulation Section 1.409A-1(b)(5)(v)(C)(1).



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     (c) Withholding. All payments under the Plan will be subject to all applicable withholding
obligations of the Company, including, without limitation, obligations to withhold for federal,
state and local income and employment taxes.



     (d) Indebtedness of Participants. If a Participant is indebted to the Company on the
effective date of his or her Covered Termination, the Plan Administrator reserves the right to
offset any severance payments under the Plan by the amount of such indebtedness.



SECTION 7. Reemployment. 




     In the event of a Participant’s reemployment by the Company during the period of time in
respect of which severance benefits pursuant to Section 4 have been paid, the Plan Administrator,
in its sole and absolute discretion, may require such Participant to repay to the Company all or a
portion of such severance benefits as a condition of reemployment.



SECTION 8. Right To Interpret Plan; Amendment and Termination.




     (a) Exclusive Discretion. The Plan Administrator shall have the exclusive discretion and
authority to establish rules, forms, and procedures for the administration of the Plan, and to
construe and interpret the Plan and to decide any and all questions of fact, interpretation,
definition, computation or administration arising in connection with the operation of the Plan,
including, but not limited to, the eligibility to participate in the Plan and amount of benefits
paid under the Plan. The rules, interpretations, computations and other actions of the Plan
Administrator shall be binding and conclusive on all persons.



     (b) Amendment or Termination. The Company reserves the right to amend or terminate this Plan,
any Participation Notice issued pursuant to the Plan, or the benefits provided hereunder at any
time; provided, however, that no such amendment or termination shall occur following a Covered
Termination as to any Participant
who would be adversely affected by such amendment or termination unless such Participant
consents in writing to such amendment or termination. Any action amending or terminating the Plan
or any Participation Notice shall be in writing and executed by a duly authorized officer of the
Company.



SECTION 9. No Implied Employment Contract.




     The Plan shall not be deemed (i) to give any employee or other person any right to be retained
in the employ of the Company, or (ii) to interfere with the right of the Company to discharge any
employee or other person at any time, with or without cause, and with or without advance notice,
which right is hereby reserved.



SECTION 10. Legal Construction.




     This Plan is intended to be governed by and shall be construed in accordance with ERISA and,
to the extent not preempted by ERISA, the laws of the State of California.



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SECTION 11. Claims, Inquiries And Appeals. 




     (a) Applications for Benefits and Inquiries. Any application for benefits, inquiries about
the Plan or inquiries about present or future rights under the Plan must be submitted to the Plan
Administrator in writing by an applicant (or his or her authorized representative). The Plan
Administrator is set forth in Section 13(d).



     (b) Denial of Claims. In the event that any application for benefits is denied in whole or in
part, the Plan Administrator must provide the applicant with written or electronic notice of the
denial of the application, and of the applicant’s right to review the denial. Any electronic
notice will comply with the regulations of the U.S. Department of Labor. The notice of denial will
be set forth in a manner designed to be understood by the applicant and will include the following:



          (i) the specific reason or reasons for the denial;




          (ii) references to the specific Plan provisions upon which the denial is based;




          (iii) a description of any additional information or material that the Plan Administrator
needs to complete the review and an explanation of why such information or material is necessary;
and




          (iv) an explanation of the Plan’s review procedures and the time limits applicable to such
procedures, including a statement of the applicant’s right to bring a civil action under Section
502(a) of ERISA following a denial on review of the claim, as described in Section 11(d) below.




     This notice of denial will be given to the applicant within ninety (90) days after the Plan
Administrator receives the application, unless special circumstances require an extension of time,
in which case, the Plan Administrator has up to an additional ninety (90) days for processing the
application. If an extension of time for processing is required, written notice of the extension
will be furnished to the applicant before the end of the initial ninety (90) day period.



     This notice of extension will describe the special circumstances necessitating the additional
time and the date by which the Plan Administrator is to render its decision on the application.



     (c) Request for a Review. Any person (or that person’s authorized representative) for whom an
application for benefits is denied, in whole or in part, may appeal the denial by submitting a
request for a review to the Plan Administrator within sixty (60) days after the application is
denied. A request for a review shall be in writing and shall be addressed to:



Onyx Pharmaceuticals, Inc.

Attn: Human Resources Department

2100 Powell Street

Emeryville, California 94608




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     A request for review must set forth all of the grounds on which it is based, all facts in
support of the request and any other matters that the applicant feels are pertinent. The applicant
(or his or her representative) shall have the opportunity to submit (or the Plan Administrator may
require the applicant to submit) written comments, documents, records, and other information
relating to his or her claim. The applicant (or his or her representative) shall be provided, upon
request and free of charge, reasonable access to, and copies of, all documents, records and other
information relevant to his or her claim. The review shall take into account all comments,
documents, records and other information submitted by the applicant (or his or her representative)
relating to the claim, without regard to whether such information was submitted or considered in
the initial benefit determination.



     (d) Decision on Review. The Plan Administrator will act on each request for review within
sixty (60) days after receipt of the request, unless special circumstances require an extension of
time (not to exceed an additional sixty (60) days), for processing the request for a review. If an
extension for review is required, written notice of the extension will be furnished to the
applicant within the initial sixty (60) day period. This notice of extension will describe the
special circumstances necessitating the additional time and the date by which the Plan
Administrator is to render its decision on the review. The Plan Administrator will give prompt,
written or electronic notice of its decision to the applicant. Any electronic notice will comply
with the regulations of the U.S. Department of Labor. In the event that the Plan Administrator
confirms the denial of the application for benefits in whole or in part, the notice will set forth,
in a manner calculated to be understood by the applicant, the following:



          (i) the specific reason or reasons for the denial;




          (ii) references to the specific Plan provisions upon which the denial is based;




          (iii) a statement that the applicant is entitled to receive, upon request and free of charge,
reasonable access to, and copies of, all documents, records and other information relevant to his
or her claim; and




          (iv) a statement of the applicant’s right to bring a civil action under Section 502(a) of
ERISA.




     (e) Rules and Procedures. The Plan Administrator will establish rules and procedures,
consistent with the Plan and with ERISA, as necessary and appropriate in carrying out its
responsibilities in reviewing benefit claims. The Plan Administrator may require an applicant who
wishes to submit additional information in connection with an appeal from the denial of benefits to
do so at the applicant’s own expense.



     (f) Exhaustion of Remedies. No legal action for benefits under the Plan may be brought until
the applicant (i) has submitted a written application for benefits in accordance with the
procedures described by Section 11(a) above, (ii) has been notified by the Plan Administrator that
the application is denied, (iii) has filed a written request for a review of the application in
accordance with the appeal procedure described in Section 11(c) above, and (iv) has been notified
that the Plan Administrator has denied the appeal. Notwithstanding the foregoing, if the Plan
Administrator does not respond to an applicant’s claim or appeal within the



10.









 




relevant time limits
specified in this Section 11, the applicant may bring legal action for benefits under the Plan
pursuant to Section 502(a) of ERISA.




SECTION 12. Basis Of Payments To And From Plan.




     The Plan shall be unfunded, and all benefits hereunder shall be paid only from the general
assets of the Company.



SECTION 13. Other Plan Information.




     (a) Employer and Plan Identification Numbers. The Employer Identification Number assigned to
the Company (which is the “Plan Sponsor” as that term is used in ERISA) by the Internal Revenue
Service is 94-3154463. The Plan Number assigned to the Plan by the Plan Sponsor pursuant to the
instructions of the Internal Revenue Service is 515.



     (b) Ending Date for Plan’s Fiscal Year. The date of the end of the fiscal year for the
purpose of maintaining the Plan’s records is December 31.



     (c) Agent for the Service of Legal Process. The agent for the service of legal process with
respect to the Plan is:



Onyx Pharmaceuticals, Inc.

Attn: Legal Department

2100 Powell Street

Emeryville, California 94608




     (d) Plan Sponsor and Administrator. The “Plan Sponsor” of the Plan is:



Onyx Pharmaceuticals, Inc.

Attn: Human Resources Department

2100 Powell Street

Emeryville, California 94608



The “Plan Administrator” of the Plan is as set forth in Section 2(o). The Plan Sponsor’s and Plan
Administrator’s telephone number is (510) 597-6500. The Plan Administrator is the named fiduciary
charged with the responsibility for administering the Plan.




SECTION 14. Statement Of ERISA Rights.




     Participants in this Plan (which is a welfare benefit plan sponsored by Onyx Pharmaceuticals,
Inc.) are entitled to certain rights and protections under ERISA. If you are a Participant, you
are considered a participant in the Plan for the purposes of this Section 14 and, under ERISA, you
are entitled to:



     (a) Receive Information About Your Plan and Benefits



          (i) Examine, without charge, at the Plan Administrator’s office and at other specified
locations, such as worksites, all documents governing the Plan and a copy of the latest




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annual
report (Form 5500 Series), if applicable, filed by the Plan with the U.S. Department of Labor and
available at the Public Disclosure Room of the Employee Benefits Security Administration;




          (ii) Obtain, upon written request to the Plan Administrator, copies of documents governing the
operation of the Plan and copies of the latest annual report (Form 5500 Series), if applicable, and
an updated (as necessary) Summary Plan Description. The Administrator may make a reasonable charge
for the copies; and




          (iii) Receive a summary of the Plan’s annual financial report, if applicable. The Plan
Administrator is required by law to furnish each participant with a copy of this summary annual
report.




     (b) Prudent Actions By Plan Fiduciaries. In addition to creating rights for Plan
participants, ERISA imposes duties upon the people who are responsible for the operation of the
employee benefit plan. The people who operate the Plan, called “fiduciaries” of the Plan, have a
duty to do so prudently and in the interest of you and other Plan participants and beneficiaries.
No one, including your employer, your union or any other person,
may fire you or otherwise discriminate against you in any way to prevent you from obtaining a
Plan benefit or exercising your rights under ERISA.



     (c) Enforce Your Rights.



          (i) If your claim for a Plan benefit is denied or ignored, in whole or in part, you have a
right to know why this was done, to obtain copies of documents relating to the decision without
charge, and to appeal any denial, all within certain time schedules.




          (ii) Under ERISA, there are steps you can take to enforce the above rights. For instance, if
you request a copy of Plan documents or the latest annual report from the Plan, if applicable, and
do not receive them within 30 days, you may file suit in a Federal court. In such a case, the
court may require the Plan Administrator to provide the materials and pay you up to $110 a day
until you receive the materials, unless the materials were not sent because of reasons beyond the
control of the Plan Administrator.




          (iii) If you have a claim for benefits which is denied or ignored, in whole or in part, you
may file suit in a state or Federal court.




          (iv) If you are discriminated against for asserting your rights, you may seek assistance from
the U.S. Department of Labor, or you may file suit in a Federal court. The court will decide who
should pay court costs and legal fees. If you are successful, the court may order the person you
have sued to pay these costs and fees. If you lose, the court may order you to pay these costs and
fees, for example, if it finds your claim is frivolous.




     (d) Assistance With Your Questions. If you have any questions about the Plan, you should
contact the Plan Administrator. If you have any questions about this statement or about your
rights under ERISA, or if you need assistance in obtaining documents from the Plan Administrator,
you should contact the nearest office of the Employee Benefits Security Administration, U.S.
Department of Labor, listed in your telephone directory or the Division of



12.









 






Technical Assistance and
Inquiries, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution
Avenue N.W., Washington, D.C. 20210. You may also obtain certain publications about your rights
and responsibilities under ERISA by calling the publications hotline of the Employee Benefits
Security Administration.




SECTION 15. General Provisions.




     (a) Notices. Any notice, demand or request required or permitted to be given by either the
Company or a Participant pursuant to the terms of this Plan shall be in writing and shall be deemed
given when delivered personally or deposited in the U.S. mail, First Class with postage prepaid,
and addressed to the parties, in the case of the Company, at the address set forth in Section 13(d)
and, in the case of a Participant, at the address as set forth in the Company’s employment file
maintained for the Participant as previously furnished by the Participant or such other address as
a party may request by notifying the other in writing.



     (b) Transfer and Assignment. The rights and obligations of a Participant under this Plan may
not be transferred or assigned without the prior written consent of the Company. This Plan shall
be binding upon any person who is a successor by merger, acquisition, consolidation or otherwise to
the business formerly carried on by the Company without regard to whether or not such person or
entity actively assumes the obligations hereunder.



     (c) Waiver. Any Party’s failure to enforce any provision or provisions of this Plan shall not
in any way be construed as a waiver of any such provision or provisions, nor prevent any Party from
thereafter enforcing each and every other provision of this Plan. The rights granted the Parties
herein are cumulative and shall not constitute a waiver of any Party’s right to assert all other
legal remedies available to it under the circumstances.



     (d) Severability. Should any provision of this Plan be declared or determined to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired.



     (e) Section Headings. Section headings in this Plan are included for convenience of reference
only and shall not be considered part of this Plan for any other purpose.



SECTION 16. Execution.




     To record the adoption of the Plan as set forth herein, Onyx Pharmaceuticals, Inc. has caused
its duly authorized officer to execute the same as of the Effective Date.



	 	 	 	 	 	 	 
	 	 	Onyx Pharmaceuticals, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






13.









 







ANNEX I




ONYX PHARMACEUTICALS, INC. EXECUTIVE SEVERANCE BENEFIT PLAN




PARTICIPATION NOTICE




	 	 	 	 	 
	To:
	 	 	 	 
	 

	 	 

	 	 
	Date:
	 	 	 	 
	 

	 	 

	 	 






     Onyx Pharmaceuticals, Inc. (the “Company”) has adopted the Onyx Pharmaceuticals, Inc.
Executive Severance Benefit Plan (the “Plan”). The Company is providing you with this
Participation Notice to inform you that you have been designated as a Participant in the Plan.



     A copy of the Plan document is attached to this Participation Notice. The terms and conditions
of your participation in the Plan are as set forth in the Plan and this Participation Notice, which
together also constitute a summary plan description of the Plan.



     Please return to [                    ] a copy of this Participation Notice signed by you and retain a copy of
this Participation Notice, along with the Plan document, for your records.



	 	 	 	 	 	 	 
	 

	 	Onyx
	 	Pharmaceuticals, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 

	 	 
	 
	 

	 	Its:	 	 	 	 
	 

	 	 	 

	 	 






14.









 






ACKNOWLEDGEMENT




     The undersigned Participant hereby acknowledges receipt of the foregoing Participation Notice.
In the event the undersigned holds outstanding stock options as of the date of this Participation
Notice, the undersigned hereby:*



	 	 	 	 	 
	 

	 	o
	 	accepts all of the benefits of Section 4(b) of the Plan regardless of any potential
adverse effects on any outstanding stock option
	 
	 	 	 	 
	 

	 	o
	 	accepts the benefits of Section 4(b) of the Plan that have no adverse effect on
outstanding stock options and rejects the benefits of Section 4(b) of the Plan as to
those outstanding stock options that would have potential adverse effects
	 
	 	 	 	 
	 

	 	o
	 	other (please describe):
	 

	 	 	 	
 

	 
	 	 	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	 	 	 






The undersigned acknowledges that the undersigned has been advised to obtain tax and financial
advice regarding the consequences of this election including the effect, if any, on the status of
the stock options for tax purposes under Section 422 of the Internal Revenue Code.




	 	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 

	 	Print name





 





*    Please check one box; failure to check a box will be deemed the selection of the second
alternative (i.e., accepting the benefits of Section 4(b) of the Plan that have no adverse
effect on outstanding stock options and rejecting the benefits of Section 4(b) of the Plan
as to those outstanding stock options that would have potential adverse effects).






15.









 








For Employees Age 40 or Older

Individual Termination




Exhibit A




RELEASE AGREEMENT




     I understand and agree completely to the terms set forth in the Onyx Pharmaceuticals, Inc.
Executive Severance Benefit Plan (the “Plan”).



     I understand that this Release, together with the Plan, constitutes the complete, final and
exclusive embodiment of the entire agreement between the Company and me with regard to the subject
matter hereof. I am not relying on any promise or representation by the Company that is not
expressly stated therein. Certain capitalized terms used in this Release are defined in the Plan.



     I hereby confirm my obligations under the Company’s Proprietary Information and Inventions
Agreement.



     Except as otherwise set forth in this Release, I hereby generally and completely release Onyx
Pharmaceuticals, Inc. and its current and former directors, officers, employees, shareholders,
partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers,
affiliates, and assigns (collectively, the “Released Parties”) from any and all claims,
liabilities and obligations, both known and unknown, that arise out of or are in any way related
to events, acts, conduct, or omissions occurring prior to my signing this Agreement (collectively,
the “Released Claims”). The Released Claims include, but are not limited to: (1) all claims
arising out of or in any way related to my employment with the Company, or the termination of that
employment; (2) all claims related to my compensation or benefits from the Company, including
salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe
benefits, stock, stock options, or any other ownership interests in the Company; (3) all claims
for breach of contract, wrongful termination, and breach of the implied covenant of good faith and
fair dealing; (4) all tort claims, including claims for fraud, defamation, emotional distress, and
discharge in violation of public policy; and (5) all federal, state, and local statutory claims,
including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims
arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with
Disabilities Act of 1990, the federal Age Discrimination in Employment Act of 1967 (as amended)
(“ADEA”), and the California Fair Employment and Housing Act (as amended). Notwithstanding the
foregoing, the following are not included in the Released Claims (the “Excluded Claims”): (1) any
rights or claims for indemnification I may have pursuant to any written indemnification agreement
with the Company to which I am a party, the charter, bylaws, or operating agreements of the
Company, or under applicable law; or (2) any rights which are not waivable as a matter of law.
In addition, nothing in this Release prevents me from filing, cooperating with, or participating
in any proceeding before the Equal Employment Opportunity Commission, the Department of Labor, or
the California Department of Fair Employment and Housing, except that I hereby waive my right to
any monetary benefits in connection with any such claim, charge or proceeding. I hereby represent
and warrant that, other than the Excluded Claims, I am not aware of any claims I have or might
have against any of the Released Parties that are not included in the Released Claims.



16.









 





     I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have
under the ADEA. I also acknowledge that the consideration given for the Released Claims is in
addition to anything of value to which I was already entitled. I further acknowledge that I have
been advised by this writing, as required by the ADEA, that: (a) the Released Claims do not apply
to any rights or claims that arise after the date I sign this Release; (b) I should consult with an
attorney prior to signing this Release (although I may choose voluntarily not to do so); (c) I have
twenty-one (21) days to consider this Release (although I may choose to voluntarily to sign it
sooner); (d) I have seven (7) days following the date I sign this Release to revoke the Release by
providing written notice to an officer of the Company; and (e) the Release will not be effective
until the date upon which the revocation period has expired unexercised, which will be the eighth
day after I sign this Release (“Effective Date”).



     I acknowledge that I have read and understand Section 1542 of the California Civil Code which
reads as follows: “A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which if known by him or
her must have materially affected his or her settlement with the debtor.” I hereby expressly waive
and relinquish all rights and benefits
under that section and any law of any jurisdiction of similar effect with respect to my
release of any claims hereunder.



     I hereby represent that I have been paid all compensation owed and for all hours worked, I
have received all the leave and leave benefits and protections for which I am eligible, and I have
not suffered any on-the-job injury for which I have not already filed a workers’ compensation
claim.



     I acknowledge that to become effective, I must sign and return this Release to the Company so
that it is received not later than twenty-one (21) days following the date it is provided to me,
and I must not revoke it thereafter.



	 	 	 	 	 
	 	 	Employee
	 
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Date:	 	 
	 

	 	 	 	 





17.









 






For Employees Age 40 or Older

Group Termination




Exhibit B




RELEASE AGREEMENT




     I understand and agree completely to the terms set forth in the Onyx Pharmaceuticals, Inc.
Executive Severance Benefit Plan (the “Plan”).



     I understand that this Release, together with the Plan, constitutes the complete, final and
exclusive embodiment of the entire agreement between the Company and me with regard to the subject
matter hereof. I am not relying on any promise or representation by the Company that is not
expressly stated therein. Certain capitalized terms used in this Release are defined in the Plan.



     I hereby confirm my obligations under the Company’s Proprietary Information and Inventions
Agreement.



     Except as otherwise set forth in this Release, I hereby generally and completely release Onyx
Pharmaceuticals, Inc. and its current and former directors, officers, employees, shareholders,
partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers,
affiliates, and assigns (collectively, the “Released Parties”) from any and all claims,
liabilities and obligations, both known and unknown, that arise out of or are in any way related
to events, acts, conduct, or omissions occurring prior to my signing this Agreement (collectively,
the “Released Claims”). The Released Claims include, but are not limited to: (1) all claims
arising out of or in any way related to my employment with the Company, or the termination of that
employment; (2) all claims related to my compensation or benefits from the Company, including
salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe
benefits, stock, stock options, or any other ownership interests in the Company; (3) all claims
for breach of contract, wrongful termination, and breach of the implied covenant of good faith and
fair dealing; (4) all tort claims, including claims for fraud, defamation, emotional distress, and
discharge in violation of public policy; and (5) all federal, state, and local statutory claims,
including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims
arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with
Disabilities Act of 1990, the federal Age Discrimination in Employment Act of 1967 (as amended)
(“ADEA”), and the California Fair Employment and Housing Act (as amended). Notwithstanding the
foregoing, the following are not included in the Released Claims (the “Excluded Claims”): (1) any
rights or claims for indemnification I may have pursuant to any written indemnification agreement
with the Company to which I am a party, the charter, bylaws, or operating agreements of the
Company, or under applicable law; or (2) any rights which are not waivable as a matter of law.
In addition, nothing in this Release prevents me from filing, cooperating with, or participating
in any proceeding before the Equal Employment Opportunity Commission, the Department of Labor, or
the California Department of Fair Employment and Housing, except that I hereby waive my right to
any monetary benefits in connection with any such claim, charge or proceeding. I hereby represent
and warrant that, other than the Excluded Claims, I am not aware of any claims I have or might
have against any of the Released Parties that are not included in the Released Claims.



18.









 





     I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have
under the ADEA. I also acknowledge that the consideration given for the Released Claims is in
addition to anything of value to which I was already entitled. I further acknowledge that I have
been advised by this writing, as required by the ADEA, that: (a) the Released Claims do not apply
to any rights or claims that arise after the date I sign this Release; (b) I should consult with an
attorney prior to signing this Release (although I may choose voluntarily not to do so); (c) I have
forty-five (45) days to consider this Release (although I may choose to voluntarily to sign it
sooner); (d) I have seven (7) days following the date I sign this Release to revoke the Release by
providing written notice to an officer of the Company; and (e) the Release will not be effective
until the date upon which the revocation period has expired unexercised, which will be the eighth
day after I sign this Release (“Effective Date”).



     I have received with this Release all of the information required by the ADEA, including
without limitation a detailed list of the job titles and ages of all employees who were terminated
in this group termination and the ages of all employees of the Company in the same job
classification or organizational unit who were not terminated, along with information on the
eligibility factors used to select employees for the group termination and any time
limits applicable to this group termination program.



     I acknowledge that I have read and understand Section 1542 of the California Civil Code which
reads as follows: “A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which if known by him or
her must have materially affected his or her settlement with the debtor.” I hereby expressly waive
and relinquish all rights and benefits under that section and any law of any jurisdiction of
similar effect with respect to my release of any claims hereunder.



     I hereby represent that I have been paid all compensation owed and for all hours worked, I
have received all the leave and leave benefits and protections for which I am eligible, and I have
not suffered any on-the-job injury for which I have not already filed a workers’ compensation
claim.



     I acknowledge that to become effective, I must sign and return this Release to the Company so
that it is received not later than forty-five (45) days following the date it is provided to me,
and I must not revoke it thereafter.



	 	 	 	 	 
	 	 	Employee
	 
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Date:	 	 
	 

	 	 	 	 





19.









 






For Employees Under Age 40

Individual and Group Termination




Exhibit C




RELEASE AGREEMENT




     I understand and agree completely to the terms set forth in the Onyx Pharmaceuticals, Inc.
Executive Severance Benefit Plan (the “Plan”).



     I understand that this Release, together with the Plan, constitutes the complete, final and
exclusive embodiment of the entire agreement between the Company and me with regard to the subject
matter hereof. I am not relying on any promise or representation by the Company that is not
expressly stated therein. Certain capitalized terms used in this Release are defined in the Plan.



     I hereby confirm my obligations under the Company’s Proprietary Information and Inventions
Agreement.



     Except as otherwise set forth in this Release, I hereby generally and completely release Onyx
Pharmaceuticals, Inc. and its current and former directors, officers, employees, shareholders,
partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers,
affiliates, and assigns (collectively, the “Released Parties”) from any and all claims,
liabilities and obligations, both known and unknown, that arise out of or are in any way related
to events, acts, conduct, or omissions occurring prior to my signing this Agreement (collectively,
the “Released Claims”). The Released Claims include, but are not limited to: (1) all claims
arising out of or in any way related to my employment with the Company, or the termination of that
employment; (2) all claims related to my compensation or benefits from the Company, including
salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe
benefits, stock, stock options, or any other ownership interests in the Company; (3) all claims
for breach of contract, wrongful termination, and breach of the implied covenant of good faith and
fair dealing; (4) all tort claims, including claims for fraud, defamation, emotional distress, and
discharge in violation of public policy; and (5) all federal, state, and local statutory claims,
including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims
arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with
Disabilities Act of 1990, and the California Fair Employment and Housing Act (as amended).
Notwithstanding the foregoing, the following are not included in the Released Claims (the
“Excluded Claims”): (1) any rights or claims for indemnification I may have pursuant to any
written indemnification agreement with the Company to which I am a party, the charter, bylaws, or
operating agreements of the Company, or under applicable law; or (2) any rights which are not
waivable as a matter of law. In addition, nothing in this Release prevents me from filing,
cooperating with, or participating in any proceeding before the Equal Employment Opportunity
Commission, the Department of Labor, or the California Department of Fair Employment and Housing,
except that I hereby waive my right to any monetary benefits in connection with any such claim,
charge or proceeding. I hereby represent and warrant that, other than the Excluded Claims, I am
not aware of any claims I have or might have against any of the Released Parties that are not
included in the Released Claims.



20.









 





     I acknowledge that I have read and understand Section 1542 of the California Civil Code which
reads as follows: “A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which if known by him or
her must have materially affected his or her settlement with the debtor.” I hereby expressly waive
and relinquish all rights and benefits under that section and any law of any jurisdiction of
similar effect with respect to my release of any claims hereunder.



     I hereby represent that I have been paid all compensation owed and for all hours worked, I
have received all the leave and leave benefits and protections for which I am eligible, and I have
not suffered any on-the-job injury for which I have not already filed a workers’ compensation
claim.



     I acknowledge that to become effective, I must sign and return this Release to the Company so
that it is received not later than fourteen (14) days following the date it is provided to me.



	 	 	 	 	 
	 	 	Employee
	 
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Date:	 	 
	 

	 	 	 	 






21.