Exhibit 10.2
CONFIDENTIAL
BENEFITS WAIVER
THIS BENEFITS WAIVER is made and
entered into as of this 9th day of November, 2006, by and between
Dr. Nancy T. Chang (“Dr. Chang”) and Tanox,
Inc., a Delaware Corporation (the “ Company ”),
in connection with, and subject to the consummation of the merger
of Green Acquisition Corporation, a Delaware corporation (“
Merger Sub ”) with and into the Company (the “
Merger ”) contemplated by the Agreement and Plan of
Merger and Reorganization (the “ Merger Agreement
”) to be entered into by and among Genentech, Inc. a Delaware
corporation (“ Parent ”), Company, and Merger
Sub. Capitalized terms will have the meaning given to them in the
Employment Agreement entered into by and between Dr. Chang and
the Company effective as of September 12, 2006 (the “
Employment Agreement ”).
WHEREAS, the Company, Parent and
Merger Sub desire to enter into the Merger Agreement, which
provides for the terms and conditions of the Merger;
WHEREAS, pursuant to the Employment
Agreement, Dr. Chang may be entitled to severance benefits
and/or early termination payments from the Company upon a Change of
Control or as a result of the termination of the Services Period
for certain reasons;
WHEREAS, Dr. Chang has agreed
to execute this Benefits Waiver in exchange for the Parent agreeing
to provide additional severance benefits to the employees of the
Company in the amounts set forth on Appendix A, attached hereto,
with other customary terms and conditions as Parent will determine;
and
WHEREAS, as a holder of a
significant number of shares of Company common stock and options to
purchase Company common stock, Dr. Chang will receive
significant consideration in connection with the Merger.
NOW, THEREFORE, in consideration of,
and as an inducement to, Parent entering into the Merger Agreement
and for the other reasons stated above, Dr. Chang hereby
agrees as follows:
1. Severance
. Effective immediately prior to and
contingent upon (i) the closing of the Merger and
(ii) the adoption of a severance plan as described above,
Dr. Chang hereby forever waives any and all rights
Dr. Chang may have to fifty percent (50%) of the value of
the cash severance payments to which Dr. Chang may have been
entitled under the Employment Agreement as of the Effective Time
(as defined in the Merger Agreement), and the Employment Agreement
is hereby deemed amended to reflect the foregoing as of the
Effective Time (as defined in the Merger Agreement). Dr. Chang
understands that at and following the Closing of the Merger,
Dr. Chang shall only be entitled to receive fifty percent
(50%) of the remaining value of the cash severance payment
provided pursuant to the Employment Agreement after the Effective
Time, subject to the conditions set forth in the Employment
Agreement (including, without limitation, the execution and
delivery of a release of claims as described in the Employment
Agreement).
2. Arbitration
. The parties agree that any and all
disputes arising out of, or relating to, the terms of this Benefits
Waiver, their interpretation, and any of the matters herein
released, shall be subject to Section 4.1(j) of the Employment
Agreement .
3.
