FIRST AMENDMENT TO RESTRICTED STOCK UNIT AGREEMENT
Exhibit
10.3
FIRST
AMENDMENT TO
This
FIRST AMENDMENT TO RESTRICTED STOCK UNIT AGREEMENT (the “First Amendment”), is
entered into effective September 28, 2007, by and between POZEN Inc. (“POZEN” or
the “Company”), and Xxxx X. Xxxxxxxxx (the “Grantee”).
RECITALS
WHEREAS,
a Restricted Stock Unit Agreement dated as of February 14, 2007, and issued
under the POZEN Inc. 2000 Equity Compensation Plan, as amended and restated,
was
delivered by POZEN to the Grantee (the “Original Agreement”); and
WHEREAS,
POZEN and the Grantee desire to amend certain terms of the Original Agreement
as
set forth below.
NOW,
THEREFORE, the parties to this Agreement, intending to be legally bound hereby,
agree as follows:
1. Any
capitalized terms not defined herein shall have the meanings ascribed to
such
terms in the Original Document.
2. Section
5(a) of the Original Agreement is hereby amended and restated in its
entirety as follows:
“(a)
(i) It
is intended that the Restricted Units will be distributed in accordance with
Section 409A of the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder (“Section 409A”). On the fifth
(5th) business
day after the Grantee separates from service with POZEN (as defined under
Section 409A), POZEN will issue to the Grantee one share of Common Stock
for
each whole Restricted Unit credited to the Restricted Unit Account that was
vested on the date of Grantee’s separation from service (without regard to any
acceleration of vesting provided for in Paragraph 4(b)), subject to satisfaction
of the Grantee’s tax withholding obligations as described below, and except as
described below. If applicable, on the ninetieth (90th) day
after the
Grantee separates from service with POZEN, POZEN will issue to the Grantee
one
additional share of Common Stock for each whole Restricted Unit that shall
have
vested pursuant to the acceleration provisions of Paragraph 4(b), provided
that
Grantee has executed and not revoked the Release and subject to satisfaction
of
the Grantee’s tax withholding obligations as described below, and except as
described below.
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(ii) If
a Change of Control (as defined below) occurs before the Grantee has separated
from service with POZEN, on the closing date of the Change of Control, subject
to and in accordance with Paragraph 6 below and the other provisions of the
Plan
applicable to a Change of Control, POZEN will issue to the Grantee one share
of
Common Stock for each whole vested Restricted Unit credited to the Restricted
Unit Account, subject to satisfaction of the Grantee’s tax withholding
obligations as described below. Any vested amounts representing partial shares
shall be paid in cash.
(iii) Notwithstanding
the foregoing provisions of this Section 5, if the Grantee on the date of
Grantee’s separation from service is a “specified employee” (as defined under
Section 409A and as determined in accordance with the permissible method
then in
use by POZEN, or, if none, in accordance with the applicable default provisions
of Section 409A, relating to “specified employees),” then if and to the extent
required in order to avoid the imposition on the Grantee of any tax under
Section 409A, the foregoing shares of Common Stock shall not be issued by
the
Company until the first business day after the date that is six (6) months
after
the date of Grantee’s separation from service.”
3. Section
6
of the Original Agreement is hereby amended and restated in its entirety
as
follows:
“Change
of Control. The provisions of the Plan applicable to a Change of
Control shall apply to the Restricted Units; provided, however, that for
purposes of this Agreement, a “Change of Control” shall be deemed to have
occurred:
(i) if
any “person” (as such term is used in sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended) (other than the Company or any trustee
or
fiduciary holding securities under an employee benefit plan of the Company)
becomes a “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing more than
50%
of the voting power of the then outstanding securities of the Company; provided
that a Change of Control shall not be deemed to occur as a result of a
transaction in which the Company becomes a subsidiary of another corporation
and
in which the stockholders of the Company, immediately prior to the transaction,
will beneficially own, immediately after the transaction, shares entitling
such
stockholders to more than 50% of all votes to which all stockholders of the
parent corporation would be entitled in the election of directors (without
consideration of the rights of any class of stock to elect directors by a
separate class vote); or
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(ii) upon
the consummation of (A) a merger or consolidation of the Company with another
corporation where the stockholders of the Company, immediately prior to the
merger or consolidation, will beneficially own, immediately after the merger
or
consolidation, shares entitling such stockholders to less than 50% of all
votes
to which all stockholders of the surviving corporation would be entitled
in the
election of directors (without consideration of the rights of any class of
stock
to elect directors by a separate class vote) or (B) a sale or other disposition
of all or substantially all of the assets of the Company.
In
the
event of a Change of Control, the Committee may take such actions as it deems
appropriate pursuant to the Plan, provided that all payments in settlement
of
the Restricted Units pursuant to the Plan shall be made on or within 30 days
of
the occurrence of the Change of Control, notwithstanding anything to the
contrary set forth in Section 15(c) of the Plan.”
4. Section
10 of the Original Agreement is hereby amended and restated in its entirety
as
follows:
“Assignment
and Transfers. The rights and interests of the Grantee under this
Agreement may not be sold, assigned, encumbered or otherwise transferred
except,
in the event of the death of the Grantee, by will or by the laws of descent
and
distribution. In the event of any attempt by the Grantee to alienate,
assign, pledge, hypothecate, or otherwise dispose of the Restricted Units
or any
right hereunder, or in the event of the levy or any attachment, execution
or
similar process upon the rights or interests hereby conferred, POZEN may
terminate the Restricted Units by notice to the Grantee, and the Restricted
Units and all rights hereunder shall thereupon become null and
void. The rights and protections of POZEN hereunder shall extend to
any successors or assigns of POZEN and to POZEN’s parents, subsidiaries, and
affiliates. This Agreement may be assigned by POZEN without the
Grantee’s consent.”
5. Except
as herein amended, the terms and provisions of the Original Agreement shall
remain in full force and effect as originally executed.
6. This
First Amendment shall be governed by and construed and enforced in accordance
with the laws of the State of Delaware, without reference to the choice of
law
provisions of such laws.
7. This
First Amendment may be executed in any number of counterparts, each of which
shall constitute one agreement binding on all parties hereto.
8. This
First Amendment and the Original Agreement, as amended and modified by this
First Amendment, shall constitute and be construed as a single
agreement.
[Signature
page follows.]
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IN
WITNESS WHEREOF, POZEN has caused its duly authorized officer to execute
this
First Amendment to Restricted Stock Unit Agreement, and the Grantee has placed
his signature hereon, effective as of the date first written above.
POZEN
INC.
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By:
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/s/ Xxxxxxx X. Xxxxxx | |
Name:
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Xxxxxxx X. Xxxxxx | |
Title:
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Sr. Vice President & Chief Financial Officer | |
GRANTEE:
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/s/
Xxxx X. Xxxxxxxxx
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Xxxx
X. Xxxxxxxxx, Pharm.D.
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