Amended and Restated Employment Agreement



 Exhibit 10.2 
 AMENDED AND RESTATED 
 EMPLOYMENT AGREEMENT 
 This AGREEMENT (the “Agreement”) is made this 21st day of May, 2009, by and between COUGAR BIOTECHNOLOGY, INC., a Delaware corporation
with principal executive offices at 10990 Wilshire Boulevard, Suite 1200, Los Angeles, CA 90024 (the “Company”), and ALAN H. AUERBACH (the “Executive”). 
 W I T N E S S E T H: 
 WHEREAS, the Company currently employs Executive as its
President and Chief Executive Officer; and 
 WHEREAS, the terms of Executive’s employment with the Company are governed by an
Employment Agreement dated September 28, 2006, as amended and restated effective September 26, 2008 (the “Original Agreement”); and 
 WHEREAS, the Company desires to continue employing Executive, and Executive desires to continue serving the Company, as its President and Chief Executive Officer, upon the terms and subject to the conditions contained
in this Agreement, which will supersede the Original Agreement in all respects. 
 NOW, THEREFORE, in consideration of the mutual covenants
and agreements herein contained, the parties hereto hereby agree as follows: 
 1. Employment. The Company agrees to employ the
Executive, and the Executive agrees to be employed by the Company, upon the terms and subject to the conditions of this Agreement. 
 2.
Term. The employment of the Executive by the Company as provided in Section 1 shall be for a period of one year commencing on September 26, 2008, unless sooner terminated in accordance with the provisions of Section 9 below
(the “Term”); provided, however, that the Term shall be extended automatically for additional one-year periods unless one party shall advise the other in writing at least 60 days before the initial expiration of the
Term or an anniversary date thereof that this Agreement shall no longer be so extended. 
 3. Duties; Best Efforts; Place of
Performance. 
 (a) The Executive shall serve as President and Chief Executive Officer of the Company and shall perform, subject to the
direction of the Board of Directors of the Company (the “Board”), such duties as are customarily performed by the President and Chief Executive Officer. The Executive shall also have such other powers and duties as may be from time
to time directed by the Board, provided that the nature of the Executive’s powers and duties so prescribed shall not be inconsistent with the Executive’s position and duties hereunder. 
 (b) The Executive shall devote substantially all of his business time, attention and energies to the business and affairs of the Company and shall use
his best efforts to advance the best interests of the Company and shall not during the Term be actively engaged in any other 








 
business activity, whether or not such business activity is pursued for gain, profit or other pecuniary advantage, that will interfere with the performance
by the Executive of his duties hereunder or the Executive’s availability to perform such duties or that will adversely affect, or negatively reflect upon, the Company. 
 4. Directorship. Subject to the provisions of applicable law and approval by the Company’s stockholders, Executive shall serve as a member of
the Company’s Board of Directors throughout the Term and shall be included in the management slate for election as a director at every stockholders meeting during the Term at which his term as a director would otherwise expire. The Executive
agrees to accept election, and to serve during the Term, as director of the Company, without any compensation therefor other than as specified in this Agreement. 
 5. Compensation. As full compensation for the performance by the Executive of his duties under this Agreement, the Company shall pay the Executive as follows: 
 (a) Base Salary. The Company shall pay the Executive a base salary (the “Base Salary”) at a rate of $470,000 per annum, payable in
equal semi-monthly installments during the Term, or otherwise in accordance with the Company’s regular payroll practices in effect from time to time; provided, however, that notwithstanding the foregoing, the Base Salary shall be
retroactive to June 1, 2008. The Board shall annually review the Base Salary to determine whether an increase in the amount thereof is warranted. 
 (b) Discretionary Bonus. At the sole discretion of the Board, the Executive shall be eligible to receive an annual discretionary bonus (the “Discretionary Bonus”) in an amount up to fifty
percent (50%) of the Base Salary, based upon his performance on behalf of the Company during the prior year. The Discretionary Bonus shall be paid within 30 days of the date the Discretionary Bonus is awarded by the Board. In addition, the
Board shall annually review the Discretionary Bonus to determine whether an increase in the amount thereof is warranted. 
 (c)
Performance Bonus. The Company shall pay the Executive a one-time milestone-based bonus payment in the amount of Two Million Dollars ($2,000,000) (the “Milestone Bonus”) upon such time as the Market Capitalization (as defined
below) is at least $1 Billion (the “Milestone Target”). The Milestone Bonus shall be paid within 30 days of the date on which the Milestone Target has been attained. Executive acknowledges and agrees that the bonuses described in
subparagraphs (i), (ii) and (iii) of Section 5(c) of the Original Agreement have been paid and satisfied in full and that the Company has no further obligation to Executive with respect to such bonus amounts. “Market
Capitalization” means the aggregate value of the Company’s issued and outstanding capital stock, as determined by multiplying the closing sale price of the Company’s common stock as reported on the Nasdaq Global Market or such
other exchange or automated quotation system as the common stock is then listed or quoted by the total number of issued and outstanding shares of the Company’s capital stock on a fully-diluted basis (i.e., assuming the issuance of all shares
issuable upon the exercise of outstanding options, warrants and other convertible securities); provided, however, that in the event the Company has outstanding a class or series of capital stock that is convertible into common stock,
the number of issued and outstanding shares of such convertible class or series of stock shall be 

  

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deemed to be the number of shares of common stock issuable upon conversion thereof. Notwithstanding anything to the contrary contained in this
Section 5(c), Executive shall be deemed to have earned the Milestone Bonus only when the Market Capitalization of $1 Billion is either (A) maintained for a period of at least twenty (20) consecutive business days, or (B) averages
such amount over a period of thirty (30) consecutive business days. 
 (d) Withholding. The Company shall withhold all applicable
federal, state and local taxes and social security and such other amounts as may be required by law from all amounts payable to the Executive under this Section 5. 
 (e) Stock Option Awards. The Board shall review the aggregate number of stock options granted to the Executive not less frequently than annually in order to determine whether an increase in the number thereof
is warranted. Executive agrees and acknowledges that the Company has satisfied its obligation to issue the stock option described in Section 5(e) of the Original Agreement. 
 (f) Expenses. The Company shall reimburse the Executive for all normal, usual and necessary expenses incurred by the Executive in furtherance of
the business and affairs of the Company, including reasonable travel and entertainment, upon timely receipt by the Company of appropriate vouchers or other proof of the Executive’s expenditures and otherwise in accordance with any expense
reimbursement policy as may from time to time be adopted by the Company. 
 (g) Other Benefits. The Executive shall be entitled to all
rights and benefits for which he shall be eligible under any benefit or other plans (including, without limitation, dental, medical, medical reimbursement and hospital plans, pension plans, employee stock purchase plans, profit sharing plans, bonus
plans and other so-called “fringe” benefits) as the Company shall make available to its senior executives from time to time. 
 (h)
Vacation. Executive shall, during the Term, be entitled to a vacation of four (4) weeks per annum, in addition to holidays observed by the Company; provided, however, that Executive shall not be entitled to accrue more than
six (6) weeks of accrued vacation time at any given time. In the event that Executive has accrued the maximum of six (6) weeks accrued and unused vacation time, Executive shall cease accruing further vacation time until such time as
Executive’s accrued and unused vacation time is less than such maximum amount. 
 6. Confidential Information and Inventions.

 (a) The Executive recognizes and acknowledges that in the course of his duties he is likely to receive confidential or proprietary
information owned by the Company, its subsidiaries or third parties with whom the Company has an obligation of confidentiality. Accordingly, during and after the Term, the Executive agrees to keep confidential and not disclose or make accessible to
any other person or use for any other purpose other than in connection with the fulfillment of his duties under this Agreement, any Confidential and Proprietary Information (as defined below) owned by, or received by or on behalf of, the Company or
any of its subsidiaries. “Confidential and Proprietary Information” shall include, but shall not be limited to, confidential or proprietary scientific or technical information, 

  

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data, formulas and related concepts, business plans (both current and under development), client lists, promotion and marketing programs, trade secrets, or
any other confidential or proprietary business information relating to development programs, costs, revenues, marketing, investments, sales activities, promotions, credit and financial data, manufacturing processes, financing methods, plans or the
business and affairs of the Company or of any subsidiary of the Company or client of the Company. The Executive expressly acknowledges the trade secret status of the Confidential and Proprietary Information and that the Confidential and Proprietary
Information constitutes a protectable business interest of the Company. The Executive agrees: (i) not to use any such Confidential and Proprietary Information for himself or others; and (ii) not to take any Company material or
reproductions (including but not limited to writings, correspondence, notes, drafts, records, invoices, technical and business policies, computer programs or disks) thereof from the Company’s offices at any time during his employment by the
Company, except as required in the execution of the Executive’s duties to the Company. The Executive agrees to return immediately all Company material and reproductions (including but not limited, to writings, correspondence, notes, drafts,
records, invoices, technical and business policies, computer programs or disks) thereof in his possession to the Company upon request and in any event immediately upon termination of employment. Notwithstanding anything herein to the contrary the
following shall not constitute Confidential and Proprietary Information: (i) information that Executive can demonstrate was already known to him prior to the commencement of his employment with the Company, including the period prior to the
date of this Agreement, (ii) information that is in or has entered the public domain through no breach of this Agreement or other wrongful act of Executive, and (iii) information that has been rightly received from a third party who is not
under any obligation of confidentiality with respect to such information. 
 (b) Except with prior written authorization by the Company or
until such time as such information becomes available in the public domain other than as a result of Executive’s violation of the provisions of this Section 6, the Executive agrees not to disclose or publish any of the Confidential and
Proprietary Information, or any confidential, scientific, technical or business information of any other party to whom the Company or any of its subsidiaries owes an obligation of confidence, at any time during or after his employment with the
Company. 
 (c) The Executive agrees that all inventions, discoveries, improvements and patentable or copyrightable works
(“Inventions”) initiated, conceived or made by him, either alone or in conjunction with others, during the Term shall be the sole property of the Company to the maximum extent permitted by applicable law and, to the extent permitted
by law, shall be “works made for hire” as that term is defined in the United States Copyright Act (17 U.S.C.A., Section 101). The Company shall be the sole owner of all patents, copyrights, trade secret rights, and other intellectual
property or other rights in connection therewith. The Executive hereby assigns to the Company all right, title and interest he may have or acquire in all such Inventions; provided, however, that the Board may in its sole discretion
agree to waive the Company’s rights pursuant to this Section 6(c) with respect to any Invention that is not directly or indirectly related to the Company’s business. The Executive further agrees to assist the Company in every proper
way (but at the Company’s expense) to obtain and from time to time enforce patents, copyrights or other rights on such Inventions in any and all countries, and to that end the Executive will execute all documents necessary: 
 (i) to apply for, obtain and vest in the name of the Company alone (unless the Company otherwise directs) letters patent, copyrights or other analogous
protection in any country throughout the world and when so obtained or vested to renew and restore the same; and 
  

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 (ii) to defend any opposition proceedings in respect of such applications and any opposition proceedings
or petitions or applications for revocation of such letters patent, copyright or other analogous protection. 
 (d) The Executive
acknowledges that while performing the services under this Agreement the Executive may locate, identify and/or evaluate patented or patentable inventions having commercial potential in the fields of pharmacy, pharmaceutical, biotechnology,
healthcare, technology and other fields which may be of potential interest to the Company or one of its subsidiaries (the “Third Party Inventions”). The Executive understands, acknowledges and agrees that all rights to, interests in
or opportunities regarding, all Third-Party Inventions identified by the Company, any of its subsidiaries or either of the foregoing persons’ officers, directors, employees (including the Executive), agents or consultants during the Employment
Term shall be and remain the sole and exclusive property of the Company or such subsidiary and the Executive shall have no rights whatsoever to such Third-Party Inventions and will not pursue for himself or for others any transaction relating to the
Third-Party Inventions which is not on behalf of the Company. 
 (e) The provisions of this Section 6 shall survive any termination of
this Agreement. 
 7. Non-Solicitation and Non-Disparagement. 
 (a) During the Term and for a period of 18 months following the termination of Executive’s employment with the Company, the Executive shall not,
directly or indirectly, without the prior written consent of the Company solicit or induce any employee of the Company or any of its subsidiaries to leave the employ of the Company or any such subsidiary or any employee who has left the employment
of the Company or any subsidiary within one year of the termination of such employee’s employment with the Company. 
 (b) Each of the
Company and the Executive agree that, both during the Term and at all times following the termination of Executive’s employment with the Company, (i) the Company (including its officers and directors) shall not directly or indirectly
disparage, whether or not true, the name or reputation of the Executive, and (ii) Executive shall not directly or indirectly disparage, whether or not true, the name or reputation of the Company (including its officers and directors).

 (c) In the event that the Executive breaches any provisions of Section 6 or this Section 7 or there is a threatened breach,
then, in addition to any other rights which the Company may have, the Company shall (i) be entitled, without the posting of a bond or other security, to injunctive relief to enforce the restrictions contained in such Sections and (ii) have
the right to require the Executive to account for and pay over to the Company all compensation, profits, monies, accruals, increments and other benefits (collectively “Benefits”) derived or received by 

  

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the Executive as a result of any transaction constituting a breach of any of the provisions of Sections 6 or 7 and the Executive hereby agrees to account for
and pay over such Benefits to the Company. 
 (d) Each of the rights and remedies enumerated in Section 7(c) shall be independent of the
others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. If any of the covenants contained in this Section 7, or any part of any of them, is hereafter construed or
adjudicated to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants or rights or remedies which shall be given full effect without regard to the invalid portions. If any of the covenants contained in this
Section 7 is held to be invalid or unenforceable because of the duration of such provision or the area covered thereby, the parties agree that the court making such determination shall have the power to reduce the duration and/or area of such
provision and in its reduced form such provision shall then be enforceable. No such holding of invalidity or unenforceability in one jurisdiction shall bar or in any way affect the Company’s right to the relief provided in this Section 7
or otherwise in the courts of any other state or jurisdiction within the geographical scope of such covenants as to breaches of such covenants in such other respective states or jurisdictions, such covenants being, for this purpose, severable into
diverse and independent covenants. 
 (e) In the event that an actual proceeding is brought in equity to enforce the provisions of
Section 6 or this Section 7, the Executive shall not urge as a defense that there is an adequate remedy at law nor shall the Company be prevented from seeking any other remedies which may be available. 
 (f) The provisions of this Section 7 shall survive any termination of this Agreement. 
 8. Representations and Warranties by the Executive. The Executive hereby represents and warrants to the Company as follows: 
 (a) Neither the execution or delivery of this Agreement nor the performance by the Executive of his duties and other obligations hereunder violate or will
violate any statute, law, determination or award, or conflict with or constitute a default or breach of any covenant or obligation under (whether immediately, upon the giving of notice or lapse of time or both) any prior employment agreement,
contract, or other instrument to which the Executive is a party or by which he is bound. 
 (b) The Executive has the full right, power and
legal capacity to enter and deliver this Agreement and to perform his duties and other obligations hereunder. This Agreement constitutes the legal, valid and binding obligation of the Executive enforceable against him in accordance with its terms.
No approvals or consents of any persons or entities are required for the Executive to execute and deliver this Agreement or perform his duties and other obligations hereunder. 
  

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 9. Termination. Executive’s employment hereunder shall be terminated upon the
Executive’s death and may be terminated as follows: 
 (a) The Executive’s employment hereunder may be terminated by the Board for
Cause. Any of the following actions by the Executive shall constitute “Cause”: 
 (i) The willful failure, disregard or
refusal by the Executive to perform his duties hereunder except where the performance of such duties is deemed unlawful; 
 (ii) Any
willful, intentional or grossly negligent act by the Executive having the effect of injuring, in a material way (whether financial or otherwise and as determined in good-faith by a majority of the Board), the business or reputation of the Company or
any of its subsidiaries, taken as a whole; 
 (iii) Willful misconduct by the Executive in respect of the duties or obligations of the
Executive under this Agreement, including, without limitation, insubordination with respect to lawful directions received by the Executive from the Board; 
 (iv) The Executive’s conviction of any felony or a misdemeanor involving moral turpitude (including entry of a nolo contendere plea); 
 (v) The determination by the Company, after a reasonable and good-faith investigation by the Company (which shall include interviewing Executive)
following a written allegation by another employee of the Company, that the Executive engaged in some form of harassment prohibited by law (including, without limitation, age, sex or race discrimination), unless the Executive’s actions were
specifically directed by the Board; 
 (vi) Any misappropriation or embezzlement of the property of the Company or its subsidiaries (whether
or not a misdemeanor or felony); 
 (vii) Breach by the Executive of any of the provisions of Sections 6, 7 or 8 of this Agreement; and

 (viii) Breach by the Executive of any provision of this Agreement other than those contained in Sections 6, 7 or 8 which is not cured by
the Executive within thirty (30) days after notice thereof is given to the Executive by the Company. 
 (b) The Executive’s
employment hereunder may be terminated by the Board due to the Executive’s Disability. For purposes of this Agreement, a termination for “Disability” shall occur (i) when the Board has provided a written termination notice
to the Executive supported by a written statement from a reputable independent physician to the effect that the Executive shall have become so physically or mentally incapacitated as to be unable to resume, within the ensuing twelve
(12) months, his employment hereunder by reason of physical or mental illness or injury, or (ii) upon rendering of a written termination notice by the Board after the Executive has been unable to substantially perform his duties hereunder
for 90 or more consecutive days, or more than 120 days in any consecutive twelve month period, by reason of any physical or mental illness or injury. For purposes of this Section 9(b), the Executive agrees to make himself available and to
cooperate in any reasonable examination by a reputable independent physician retained by the Company. 
  

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 (c) The Executive’s employment hereunder may be terminated by the Company (or its successor) upon
the occurrence of a Change of Control. For purposes of this Agreement, “Change of Control” means (i) the acquisition, directly or indirectly, following the date hereof by any person (as such term is defined in
Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended), in one transaction or a series of related transactions, of securities of the Company representing in excess of fifty percent (50%) or more of the combined
voting power of the Company’s then outstanding securities if such person or his or its affiliate(s) do not own in excess of 50% of such voting power on the date of this Agreement, or (ii) the future disposition by the Company (whether
direct or indirect, by sale of assets or stock, merger, consolidation or otherwise) of all or substantially all of its business and/or assets in one transaction or series of related transactions (other than a merger effected exclusively for the
purpose of changing the domicile of the Company). 
 (d) The Executive’s employment may be terminated by the Executive for Good Reason.
“Good Reason” means the occurrence of any one or more of the following events without the Executive’s prior written consent, unless the Company fully corrects the circumstances constituting Good Reason (provided such
circumstances are capable of correction) prior to the date of termination: 
 (i) a material diminution in the Executive’s Base Salary;

 (ii) a material diminution in the Executive’s authority, duties or responsibilities, including, without limitation, any circumstance
in which the Executive ceases to serve as the Chief Executive Officer of a corporation whose stock is publicly traded (other than a circumstance where the corporation’s stock ceases to be publicly traded in connection with, or as a result of, a
Management Buyout (as defined below)); 
 (iii) a change in the geographic location at which the Executive must perform services to a
location that is greater than 25 miles from 10990 Wilshire Boulevard, Los Angeles, CA 90024; or 
 (iv) any other action or inaction that
constitutes a breach by the Company (including its officers and directors) of its obligations under this Agreement; 
 provided,
however, that no termination shall be deemed a termination by the Executive for Good Reason unless and until (x) the Executive provides the Board with written notice of the circumstances constituting Good Reason within 90 days after the
date that Executive first becomes aware of the existence of such circumstances; (y) the Company fails to correct the circumstance so identified within 30 days after the receipt of such notice (if capable of correction), provided,
however, that the Executive shall not be required to provide notice of, nor shall the Company be entitled to cure, a breach by the Company (including its officers and directors) of the provisions of Section 7(b) of this Agreement; and
(z) the effective date of the Executive’s termination of employment occurs no later than 150 days after the date that Executive first becomes aware of the of the event or circumstances constituting Good Reason. 
  

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 For purposes of this Agreement, “Management Buyout” shall mean a Change of Control
transaction in which the Executive, alone or together with other persons who serve immediately prior to the Change of Control as executive officers of the Company, acquires beneficial ownership of Equity Interests (as
defined below) representing, or which give such persons the right to acquire, more than 33% of the total outstanding voting securities of the Company or any successor-in-interest to the Company, or equivalent control over a partnership, limited
liability company or other similar entity. “Equity Interests” shall mean capital stock, options, warrants, calls, pre-emptive rights, subscriptions, equity or equity-based compensation awards or other rights, agreements,
arrangements or commitments of any kind, including any stockholder rights plan, relating to the issued or unissued capital stock of the Company, obligating the Company to issue, transfer or sell or cause to be issued, transferred or sold any shares
of capital stock or other equity or equity-based interest in, the Company or securities convertible into or exchangeable for such shares or equity or equity-based interests, or obligating the Company to grant, extend or enter into any such option,
warrant, call, subscription, equity or equity-based compensation awards, or other right, agreement, arrangement or commitment. 
 (e) The
Executive’s employment may also be terminated by Executive or by the Company for any reason or no reason, subject in all cases to the provisions of Section 10 hereof. 
 10. Compensation upon Termination. The Company shall be obligated to pay the compensation and other benefits to Executive described in this
Section 10 in the event Executive’s employment is terminated during the Term: 
 (a) Death or Disability. If the
Executive’s employment is terminated as a result of his death or Disability, the Company shall pay to the Executive or to the Executive’s estate, as applicable, in each case through the date of his Death or Disability, his Base Salary, any
earned and unpaid Discretionary or Milestone Bonus, expense reimbursement amounts and the cash value of any accrued but unused vacation time. 
 (b) For Cause. If the Executive’s employment is terminated by the Board for Cause, then the Company shall pay to the Executive his Base Salary, any earned and unpaid Discretionary or Milestone Bonus and the cash value of any
accrued but unused vacation time through the date of his termination and the Executive shall have no further entitlement to any other compensation or benefits from the Company. 
 (c) Change of Control. Subject to Section 10(g)(iii) below, if, during the period beginning 60 days prior to and ending 18 months after the
occurrence of a Change of Control, the Executive’s employment is terminated by the Company (or its successor) without Cause or by the Executive for Good Reason, then the Company (or its successor) shall provide the following compensation and
benefits to the Executive: 
 (i) A lump-sum cash payment equal to the sum of (A) twice his then current Base Salary, (B) the
amount of any earned but unpaid Milestone Bonus, (C) the maximum amount of the Discretionary Bonus to which Executive was eligible for the year in which such termination occurs and (D) the cash value of any accrued but unused vacation time


  

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through the date of termination, with the payments described in (A) and (C) being paid immediately following the effective date of the Release
Agreement contemplated by Section 10(f) and the payments described in (B) and (D) being paid on the date of termination; provided, however, in the event that the Executive executes and subsequently revokes such Release
Agreement pursuant to its terms, the Executive shall repay to the Company the payments described in (A) and (C); 
 (ii) All unvested
stock options and other stock-based incentives held by Executive and issued by the Company whether pursuant to a stock option or stock incentive plan approved by the Company’s stockholders or otherwise (collectively, the
“Incentives”) shall immediately vest and such Incentives shall remain exercisable for a period of 12 months following such termination; provided, that the exercise period for any Incentive shall not extend beyond the expiration of
the maximum term of such Incentive; and 
 (iii) If Executive timely elects continued coverage under the Consolidated Omnibus Budget
Reconciliation Act of 1986, as amended (“COBRA”), the Company shall pay the full amount of the Executive’s COBRA premiums on behalf of the Executive for the Executive’s continued coverage under the Company’s medical
or health insurance plan, including coverage for the Executive’s eligible dependents, for a period of 18 months following such termination (the “COBRA Period”); provided, however, that if the COBRA Period exceeds
the length of time that the Executive is entitled to coverage under COBRA (including any additional period under analogous provisions of state law), the Company or any resulting or acquiring entity or transferee entity (in the case of an asset sale)
involved in a Change of Control, as applicable, shall be required to provide health, dental and vision insurance coverage for the Executive and his or her eligible dependents for any portion of the COBRA Period that exceeds the length of time that
the Executive is entitled to coverage under COBRA (including any additional period under analogous provisions of state law), at a level of coverage that is substantially similar to the continued coverage that the Executive and his eligible
dependents received under the Company’s health, dental and vision plans; provided further, however, that no such premium payments (or any other payments for medical, dental or vision coverage by the Company) shall be made following the
Executive’s death or such time as Executive is eligible for coverage by a medical or health insurance plan of a subsequent employer. Executive shall be required to notify the Company immediately if the Executive becomes eligible to be covered
by a medical or health insurance plan of a subsequent employer. Upon the conclusion of the COBRA Period (or such shorter period during which the Company is obligated to pay premiums pursuant to this subparagraph (iv)), the Executive will be
responsible for the entire payment of premiums required under COBRA. 
 (d) Other Termination. Subject to Section 10(g)(iii)
below, if (i) the Executive terminates his employment with the Company for Good Reason or (ii) the Executive’s employment is terminated by the Company other than as a result of the Executive’s death or Disability and other than
as specified in Sections 10(b) or (c), then the Company shall pay Executive (A) his then current annualized Base Salary for a period of one year following such termination, which shall be payable in equal monthly installments on the first day
of each of the 12 months immediately following the effective date of the Release Agreement contemplated by Section 10(f), (B) a lump sum amount on the date of termination equal to the sum of the cash value of all accrued but unused
vacation, any earned and unpaid Discretionary or Milestone 

  

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Bonus and expense reimbursement amounts owed through the date of termination, and (C) the full amount of the Executive’s COBRA premiums on behalf
of the Executive for the Executive’s continued coverage under the Company’s medical or health insurance plan, including coverage for the Executive’s eligible dependents, for a period of 18 months following such termination, as
otherwise described in Section 10(c)(iii) above. 
 (e) Parachute Payments. 
 (i) Parachute Payment Limitation. If any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of
the Code) to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement 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 the Company shall cause to be determined, before any amounts of the Payment are paid to
Executive, which of the following two alternative forms of payment shall be paid to Executive: (i) payment in full of the entire amount of the Payment (a “Full Payment”), or (ii) payment of only a part of the Payment so
that Executive receives the largest payment possible without the imposition of the Excise Tax (a “Reduced Payment”). A Full Payment shall be made in the event that the quotient obtained by dividing (i) the excess of
(a) the Full Payment, over (b) the Reduced Payment, by (ii) the Reduced Payment, is greater than ten percent (10%). A Reduced Payment shall be made in the event that the quotient obtained by dividing (i) the excess of
(a) the Full Payment, over (b) the Reduced Payment, by (ii) the Reduced Payment, is less than or equal to ten percent (10%). If a Reduced Payment is made, (i) the Payment shall be paid only to the extent permitted under the
Reduced Payment alternative, and Executive shall have no rights to any additional payments and/or benefits constituting the Payment, and (ii) reduction in payments and/or benefits shall occur in the following order unless Executive elects in
writing a different order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other
benefits paid to Executive. In the event that acceleration of compensation from Executive’s equity awards is to be reduced, such acceleration of vesting shall be canceled in the reverse order of the date of grant unless Executive elects in
writing a different order for cancellation. 
 (ii) Gross-Up Payment. If it is determined that the Payment would result in an Excise
Tax, the Company shall pay and Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) from the Company in an amount that after the payment of all taxes (including, without limitation, (i) any income
or employment taxes, (ii) any interest or penalties imposed with respect to such taxes, and (iii) any additional excise tax imposed by Section 4999 of the Code) on the Gross-Up Payment, Executive shall retain an amount equal to the
full Excise Tax. In no event shall any such Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 10(e) be made later than the end of the Executive’s taxable year next following the
Executive’s taxable year in which the Executive remits the related taxes. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to have: (x) paid federal income taxes at the highest marginal rate of
federal income and employment taxation for the calendar year in which the Gross-Up Payment is to be made, and (y) paid applicable state and local income taxes at the highest rate of taxation for the calendar year in which the Gross-Up Payment
is to be made, net 

  

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of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Except as otherwise provided herein,
Executive shall not be entitled to any additional payments or other indemnity arrangements in connection with the Payment or the Gross-Up Payment. 
 (iii) The independent registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall make all determinations required to be made under this
Section 10 (d). If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Company shall appoint a nationally
recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made
hereunder. 
 (iv) The independent registered public accounting firm engaged to make the determinations hereunder shall provide its
calculations, together with detailed supporting documentation, to the Company and Executive within fifteen (15) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or
Executive) or such other time as requested by the Company or Executive. If the independent registered public accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced
Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be
final, binding and conclusive upon the Company and Executive. 
 (f) This Section 10 sets forth the only obligations of the Company with
respect to the termination of the Executive’s employment with the Company, and the Executive acknowledges that, upon the termination of his employment, he shall not be entitled to any payments or benefits which are not explicitly provided in
Section 10. Further, notwithstanding anything to the contrary contained in this Section 10, the Company shall have no obligation to pay, and Executive shall have no obligation to receive, any compensation, benefits or other consideration
provided for in this Section 10 following termination of Executive’s employment unless Executive executes a separate agreement, in the form attached hereto as Exhibit A (the “Release Agreement”), which Release
Agreement shall be provided by the Company within 5 days of the date of the termination of the Executive’s employment with the Company and shall be executed by the parties within the time limit set forth therein, releasing the Company from any
and all liability in connection with the termination of Executive’s employment; provided, however, that the failure to execute the Release Agreement shall not relieve the Company of its obligation to pay to Executive, and
Executive shall be entitled to receive, the amount of any earned but unpaid, in each case as of the date of termination: (i) Base Salary, (ii) Discretionary Bonus, Milestone Bonus or other bonus, (iii) the cash value of any accrued
but unused vacation time or the amount of unreimbursed expenses as of the date of termination. 
  

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 (g) Section 409A. 
 (i) For purposes of Section 409A of the Code, any right to a series of installment payments pursuant to this Agreement, including without limitation
any severance payment and COBRA continuation reimbursement payment, will be considered as a right to a series of separate payments. To the extent permitted under Section 409A of the Code, any separate payment or benefit under this Agreement or
otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A of the Code and Section 10(g)(iii) hereof to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4),
Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A of the Code. 
 (ii) To the extent that
compensation or benefits payable under this Agreement constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code, and are designated under this Agreement as payable upon (or within a specified time
following) the Executive’s termination of employment, such compensation or benefits shall, subject to Section 10(g)(iii) hereof, be payable only upon (or, as applicable, within the specified time following) the Executive’s
“separation from service” from the Company (within the meaning of Section 409A(a)(2)(A)(i) of the Code). 
 (iii)
Notwithstanding anything to the contrary in this Agreement, no compensation or benefits, including without limitation any termination payments or benefits payable under Sections 10(c) and (d) of this Agreement, shall be paid to the Executive
during the 6-month period following the Executive’s separation from service, to the extent that (i) the Executive is a specified employee (within the meaning of Section 409A and using the identification methodology selected by the
Company from time to time) and (ii) the Company makes a good faith determination that paying such amounts at the time or times indicated in this Agreement would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If
the payment of any such amounts is delayed as a result of the previous sentence, then the Company will pay the Executive the cumulative amount that would have otherwise been payable to the Executive during such 6-month period in a lump sum on the
first business day after such six-month period (or such earlier date upon which such amount can be paid under Section 409A of the Code without resulting in a prohibited distribution, including as a result of the Executive’s death),
together with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street Journal) in effect as of the dates the payments should otherwise have been provided. 
 (iv) To the extent that any payments or reimbursements provided to the Executive under this Agreement, including, without limitation under
Section 5(f), are deemed to constitute compensation to which Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts shall be paid or reimbursed to Executive as promptly as practical and in any event not later than the
last day of the calendar year after the calendar year in which the expenses are incurred. The amount of such expenses eligible for reimbursement during any calendar year will not affect the amount of expenses eligible for reimbursement in any other
calendar year, and the Executive’s right to such payments or reimbursement shall not be subject to liquidation or exchange for any other benefit. 
  

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 (v) To the extent applicable, this Agreement shall be interpreted and applied consistent and in
accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation
or benefits payable under this Agreement may not be either exempt from or compliant with Section 409A of the Code and related Department of Treasury guidance, the Company may in its sole discretion adopt such amendments to this Agreement or
adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to (i) exempt the compensation and benefits payable
under this Agreement from Section 409A of the Code and/or preserve the intended tax treatment of such compensation and benefits, or (ii) comply with the requirements of Section 409A of the Code and related Department of Treasury
guidance; provided, however, that this Section 10(g)(v) does not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action. Notwithstanding the foregoing, to the extent
that the Executive would be subject to the additional 20% tax imposed on certain deferred compensation arrangements pursuant to Section 409A of the Code as a result of any provision of this Agreement, such provision shall be deemed amended to
the minimum extent necessary to avoid application of such tax and the parties shall promptly execute any amendment reasonably necessary to implement this Section 10(g); provided, that the Executive and the Company agree to cooperate to
make such amendments to the terms of this Agreement as may be necessary to avoid the imposition of penalties and additional taxes under Section 409A of the Code to the extent possible; provided, however, that the Company agrees that any
such amendment shall provide the Executive with economically equivalent payments and benefits, and the Executive agrees that any such amendment will not materially increase the cost to, or liability of, the Company with respect to any payments.

 (h) The Company shall withhold all applicable federal, state and local taxes and social security and such other amounts as may be required
by law from all amounts payable to the Executive under this Section 10. 
 (i) Upon termination of the Executive’s employment
hereunder for any reason, the Executive shall be deemed to have resigned as director of the Company, effective as of the date of such termination. 
 (j) The provisions of this Section 10 shall survive any termination of this Agreement. 
 11. Miscellaneous. 

(a) This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of California, without giving effect
to its principles of conflicts of laws. 
 (b) Any dispute arising out of, or relating to, this Agreement or the breach thereof (other than
Sections 6 or 7 hereof), or regarding the interpretation thereof, shall be finally settled by arbitration conducted in the City of Los Angeles, California in accordance with the rules of the JAMS then in effect before a single arbitrator appointed
in accordance with such 

  

 14 








 
rules. Judgment upon any award rendered therein may be entered and enforcement obtained thereon in any court having jurisdiction. The arbitrator shall have
authority to grant any form of appropriate relief, whether legal or equitable in nature, including specific performance. For the purpose of any judicial proceeding to enforce such award or incidental to such arbitration or to compel arbitration and
for purposes of Sections 6 and 7 hereof, the parties hereby submit to the non-exclusive jurisdiction of the state and federal courts located in the City of Los Angeles, California, and agree that service of process in such arbitration or court
proceedings shall be satisfactorily made upon it if sent by registered mail addressed to it at the address referred to in paragraph (g) below. The costs of such arbitration shall be borne proportionate to the finding of fault as determined by
the arbitrator; provided, however, that the Executive shall be entitled to recover reasonable attorneys’ fees if the arbitrator determines that the Executive is the prevailing party. Judgment on the arbitration award may be entered by any court
of competent jurisdiction. 
 (c) This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective
heirs, legal representatives, successors and assigns. 
 (d) This Agreement, and the Executive’s rights and obligations hereunder, may
not be assigned by the Executive. The Company may assign its rights, together with its obligations, hereunder in connection with any sale, transfer or other disposition of all or substantially all of its business or assets. 
 (e) This Agreement cannot be amended orally, or by any course of conduct or dealing, but only by a written agreement signed by the parties hereto.

 (f) The failure of either party to insist upon the strict performance of any of the terms, conditions and provisions of this Agreement
shall not be construed as a waiver or relinquishment of future compliance therewith, and such terms, conditions and provisions shall remain in full force and effect. No waiver of any term or condition of this Agreement on the part of either party
shall be effective for any purpose whatsoever unless such waiver is in writing and signed by such party. 
 (g) All notices, requests,
consents and other communications, required or permitted to be given hereunder, shall be in writing and shall be delivered personally or by an overnight courier service or sent by registered or certified mail, postage prepaid, return receipt
requested, to the parties at the addresses set forth on the first page of this Agreement, and shall be deemed given when so delivered personally or by overnight courier, or, if mailed, five days after the date of deposit in the United States mails.
Either party may designate another address, for receipt of notices hereunder by giving notice to the other party in accordance with this paragraph (g). 
 (h) This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior agreements, arrangements and understandings, written or oral,
relating to the subject matter hereof, including without limitation, the Original Agreement. No representation, promise or inducement has been made by either party that is not embodied in this Agreement, and neither party shall be bound by or liable
for any alleged representation, promise or inducement not so set forth. 
  

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 (i) In the event that any one or more of the provisions of this Agreement shall be or become invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby. 
 (j) As used in this Agreement, “affiliate” of a specified Person shall mean and include any Person controlling, controlled by or under common control with tile specified Person. 
 (k) The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement

 (l) This Agreement may be executed in any number of counterparts, each of which shall constitute an original, but all of which together
shall constitute one and the same instrument. 
 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
above written. 
  

			
	COUGAR BIOTECHNOLOGY, INC.
		
	By:	 	  

	Name:	 	Michael S. Richman
	Title:	 	Chair, Compensation Committee
	
	EXECUTIVE
	
	  

		 	Alan H. Auerbach


  

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 Exhibit A 
 [Form of] 
 Release Agreement 
 THIS RELEASE AGREEMENT (the “Agreement”) is entered into as of [DATE] by and between Alan H. Auerbach (the “Executive”) and Cougar
Biotechnology, Inc., a Delaware corporation (the “Company”). 
 WHEREAS, Executive and the Company are parties to that certain
Amended and Restated Employment Agreement dated                     , 2009 (the “Employment Agreement”), which set forth the terms of
Executive’s employment with the Company as its President and Chief Executive Officer; 
 WHEREAS, Section 10 of the Employment
Agreement sets forth certain compensation and other benefits payable to Executive in certain circumstances upon the termination of his employment with the Company; 
 WHEREAS, paragraph (t) of Section 10 provides that the Company’s obligation to pay to Executive the compensation and other benefits described in Section 10 of the Employment Agreement is
conditioned upon the Executive’s execution of a Release Agreement (as defined therein); and 
 WHEREAS, the parties intend that this
Agreement shall constitute the Release Agreement described in Section 10(f) of the Employment Agreement. 
 NOW, THEREFORE, in
consideration of the foregoing, the parties hereby agree as follows: 
 1. Separation of Employment. Executive’s employment with
the Company terminated effective as of [DATE] under the circumstances described in Section 9([insert applicable paragraph of Sec. 9]) of the Employment Agreement. As a result of such termination, Executive is entitled to the payments and
benefits described in Section 10([insert applicable paragraph of Sec. 10]), subject to his entry into this Agreement. Executive acknowledges that he has been paid his final salary, any earned but unpaid Discretionary Bonus or Milestone Bonus
(as those terms are defined in the Employment Agreement), any expense reimbursement amounts and the cash value of any accrued but unused vacation time through his last day of employment. 
 2. Release of Claims. In consideration for the payments and other benefits described in Section 10 of the Employment Agreement, Executive
hereby fully and finally releases, waives, and discharges any and all legal claims against the Company that he has through the date on which he signs this Agreement. This full and final release, waiver, and discharge extends to legal and equitable
claims of any kind or nature whatsoever including, without limitation, the following: 
 (a) All claims that Executive has now, whether or not
he now knows about the claims; 







 (b) All claims for attorney’s fees and costs; 
 (c) All claims for alleged discrimination against him under any applicable federal, state, and local law including, without limitation, rights and claims
of age discrimination under the federal Age Discrimination in Employment Act (“ADEA”) and federal Older Workers Benefits Protection Act (“OWBPA”); and discrimination claims under the California Fair Employment and Housing Act
(“CFEHA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Americans With Disabilities Act (“ADA”); 
 (d) All claims arising out of his employment and the termination of his employment and service as an officer with the Company, including, but not limited to, any alleged breach of contract, wrongful termination, termination in violation of
public policy, defamation, invasion of privacy, fraud, negligence, infliction of emotional distress, breach of implied contract and breach of the covenant of good faith and fair dealing; 
 (e) All claims for any other alleged unlawful employment practices arising out of or relating to his employment or separation from employment and service
as an officer with the Company; and 
 (f) All claims for any other form of pay, for example bonus pay, incentive pay, holiday pay, and sick
pay. 
 Provided, however, that the foregoing does not constitute a release or waiver of Executive’s rights, if any, to
(a) indemnification under any applicable directors & officers liability insurance policy, applicable state and federal law, and the Company’s certificate of incorporation and bylaws, (b) any vested interest he may have in any
40l(k) plan by virtue of his employment with the Company, (c) any rights or claims that may arise after this Agreement is signed, (d) any rights to any unemployment compensation benefits to which he is entitled taking into consideration
all payments he receives, (e) the payments and benefits specifically promised to Executive under this Agreement, or (f) the right to institute legal action for the purpose of enforcing the provisions of this Agreement. 
 Executive also hereby waives any right to reinstatement to employment with the Company. 
 For purposes of this Section 2, “Executive” includes anyone who has or obtains any legal rights or claims through Executive, and the term “Company” means Cougar Biotechnology, Inc., and its
past and present parents and subsidiaries, if any, and each of them; and past and present agents, officers, directors, employees, insurers, indemnitors, attorneys, successors or assigns of any or all of the foregoing entities. 
 3. Rights to Counsel, Consider, and Revoke and Rescind. 
 (a) Executive acknowledges that he consulted with an attorney prior to signing the Employment Agreement. The Company hereby advises Executive to consult with an attorney prior to signing this Agreement. 
 (b) Executive understands that he has the right to take up to 21 days to consider his waiver of age discrimination rights and claims under the ADEA and
OWBPA, 

  

 A-2 








 
beginning the date on which he received this Agreement. He further understands that, if he signs this Agreement, he may revoke his waiver of age
discrimination rights and claims under the ADEA and OWBPA within seven days thereafter, and his waiver will not be effective or enforceable until this seven-day period has expired. 
 4. Charges. This Agreement does not prohibit Executive from filing an administrative charge of discrimination with, or cooperating or
participating in an investigation or proceeding conducted by, the Equal Employment Opportunity Commission or other federal or state regulatory or law enforcement agency. 
 5. Notice of Section 1542 Rights. The Company and Executive expressly agree that this Agreement extends to all claims of every nature and kind, known or unknown, suspected or unsuspected, vested or
contingent, past, present, or future, whether arising from or attributable to Executive, or to the Company’s officers, directors, employees, and agents, acting within or beyond the scope of their employment; whether relating to his employment
by the Company or performance of services for the Company occurring before the execution of this Agreement. They also expressly agree that any and all rights granted under § 1542 of the California Civil Code or any analogous state law or
federal law or regulation are hereby expressly waived. Section 1542 of the California Civil Code reads as follows: 
 §1542. A
general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of the executing the release, which if known to him must have materially affected his settlement with the debtor. 
 6. Notice of Section 1541 Rights. This Agreement is in full accord, satisfaction and discharge of doubtful and disputed claims that
the Company and Executive have against each other, and they have signed this Agreement with the express intention of releasing and extinguishing all claims they may have against each other, in accordance with Section 1541 of the California
Civil Code, which section reads as follows: 
 §1541. An obligation is extinguished by a release therefrom given to the debtor by the
creditor, upon a new consideration, or in writing, with or without new consideration. 
 7. Other Agreements. 
 (a) Executive’s obligations under Sections 6 and 7 of the Employment Agreement shall remain in full force and effect and will survive the termination
of Executive’s employment with the Company in accordance with the terms of the Employment Agreement. Nothing in this Agreement shall be construed to supersede or otherwise relieve Executive of such obligations. 
 (b) The Company agrees that no amendment or modification of its certificate of incorporation or bylaws adopted after the date hereof that reduces
Executive’s rights to seek and obtain indemnification from the Company in his capacity as officer and/or director shall be effective against Executive. 
 8. Miscellaneous. This Agreement states the entire agreement between Executive and the Company with respect to the subject matter hereof and supersedes and merges all prior 

  

 A-3 








 
negotiations, agreements, and understandings, if any. No modification, release, discharge, or waiver, of any provision of this Agreement shall be of any
force or effect unless made in writing and signed by Executive and the Company, and specifically identified as a modification, release, or discharge, of this Agreement. If any term, clause, or provision of this Agreement shall for any reason be
adjudged invalid, unenforceable, or void, the same shall not impair or invalidate any of the other provisions of the Agreement, all of which shall be performed in accordance with their respective terms. This Agreement shall inure to the benefit of
the successors and assigns of the Company. 
 Executive represents that this Agreement, and the release contained in this Agreement, have
been given voluntarily and free from duress or undue influence on the part of any person or entity released by this Agreement, or by any third party. Executive acknowledges and understands that he has no obligation to enter into this Agreement, but
that the Company has no obligation to provide to Executive the payments and benefits described under Section 10([ ]) of the Employment Agreement if he does not enter into this Agreement. 
 Executive has read this Agreement carefully and understands all of its terms. He acknowledges that he has had the opportunity to discuss this Agreement
with his own attorneys prior to signing it, and to make certain that he understands the meaning of the terms and conditions contained in this Agreement and fully understands the content and effect of this Agreement. In agreeing to sign this
Agreement, Executive acknowledges that he has not relied on any representations or statements, whether oral or written, other than the express statements of this Agreement. 
 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date(s) set forth below. 
  

									
	EXECUTIVE:	 		 	COUGAR BIOTECHNOLOGY, INC.
				
	  
	 		 	By:	 	  

	Alan H. Auerbach	 		 	Its:	 	
					
	Dated:	 	  
	 		 	Dated:	 	  


  

 A-4