FIFTH AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.4
FIFTH
AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
THIS
FIFTH
AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (this
“Amendment”)
made
this 9th
day of
July, 2008 by and between ACURA
PHARMACEUTICALS, INC.,
a New
York corporation (the “Corporation”),
with
offices at 000 X. Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000 and
XXXXX
X. XXXXXXX
(the
“Employee”).
RECITALS
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A.
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The
Corporation and the Employee executed an Executive Employment Agreement
dated as of March 10, 1998, as amended (as amended, the “Employment
Agreement”).
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B.
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The
Corporation and the Employee now desire to further amend the Employment
Agreement as provided herein.
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NOW,
THEREFORE,
in
consideration of the mutual covenants and undertakings herein contained, the
parties agree as follows:
1. Section
8.4 of the Employment Agreement is hereby amended to add the following two
sentences at the end of such Section to read as follows:
“With
respect to other Sections of this Agreement, termination “Without Cause” shall
also mean a termination of
the
Employee’s employment with the Corporation following notice by the Corporation
to the Employee to not renew this Agreement pursuant to Section 2. In such
case,
in the absence of the Employee’s prior termination of this Agreement for Good
Reason pursuant to Section 8.5, the effective date of such termination shall
be
the expiration of the Term.”
2. Section
8.5 of the Employment Agreement is hereby amended by deleting clause (v) in
the
definition of “Good Reason” and replacing same with the following:
“(v)
the
failure of the Corporation to obtain the agreement, in a form reasonably
satisfactory to Employee, from any successor to the Corporation to assume and
agree to perform this Agreement or (vi) notice by the Corporation to the
Employee to not renew this Agreement pursuant to Section 2.”
3. Except
as
expressly amended by this Amendment, the Employment Agreement remains in full
force and effect. Capitalized terms used herein shall have the same meaning
as
in the Employment Agreement unless otherwise defined herein. This Amendment
shall be governed and construed and enforced in accordance with the local laws
of the State of New York applicable to agreements made and to be performed
entirely in New York.
4. This
Amendment may be executed in one or more facsimile or original counterparts,
each of which shall be deemed an original, but all of which taken together
will
constitute one and the same instrument.
IN
WITNESS WHEREOF,
the
parties have executed this Amendment as of the date first above
written.
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By: /s/
Xxxxxx X. Xxxxxxx
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Name:
Xxxxxx X. Xxxxxxx
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Title:
President and
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Chief Executive Officer
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EMPLOYEE
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By:
/s/ Xxxxx
X. Xxxxxxx
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Xxxxx
X. Xxxxxxx
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