Contract
Exhibit
10.4
FIRST
AMENDMENT TO
POZEN
INC.
This
FIRST AMENDMENT TO LONG TERM INCENTIVE CASH AWARD AGREEMENT (the “First
Amendment”) is entered into effective as of September 28, 2007, by and between
POZEN Inc. (“POZEN” or the “Company”) and Xxxx X. Xxxxxxxxx
(“Executive”).
WHEREAS,
a Long Term Incentive Cash award Agreement dated February 14, 2007 (the
“Original Agreement”) was entered into between the Company and Executive;
and
WHEREAS,
POZEN and Executive desire to amend certain terms of the Original Agreement
as
set forth below.
NOW
THEREFORE, the parties hereto agree as follows:
1. Any
capitalized terms not defined herein shall have the meanings ascribed to
such
terms in the Original Agreement.
2. Section
2 of the Original Agreement is hereby amended and restated in its entirety
as
follows:
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“Change
of Control. Notwithstanding anything to the contrary
herein, in the event of and conditioned upon a Change of Control
(as
defined below) and unless otherwise determined by the Committee,
the
Award, to the extent not previously paid, shall accelerate and
become
payable in full, subject to (i) Executive’s continuing to be employed by
or provide service to the Company to such date, and (ii) with respect
to
the Contingent Portion, the satisfaction of the performance conditions
set
forth in Section 1(a)(ii) above, subject to the discretion of the
Committee. Notwithstanding the foregoing, if a Change of Control
occurs
prior to December 31, 2007 and receipt of the Trexima Approval
has not
occurred, the Contingent Portion shall accelerate and become payable
in
full. Payment of any portion of the Award that becomes payable
pursuant to this Section 2 shall be made in a lump sum payment
on the date
of closing of the Change of
Control.
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For
purposes of this Agreement, a “Change of Control” shall be deemed to have
occurred:
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(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
(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.”
3. Section
3(b) of the Original Agreement is hereby amended and restated in its entirety
as
follows:
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“(b)
Payment of any amounts payable pursuant to this Section 3 shall
be made to
Executive in a lump sum payment on the ninetieth (90th)
day
following the date of Executive’s termination of employment, provided that
Executive has executed and not revoked the
Release. Notwithstanding the foregoing, if Executive on the
date of such termination is a “specified employee” (as defined in Section
409A of the Internal Revenue Code, as amended, and the regulations
promulgated thereunder (“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 Executive of any excise tax under
Section
409A, such payment, if any, shall not be made until, and shall
be made on,
the second business day after the date that is six (6) months following
the date of Executive’s termination of employment, provided that Executive
has executed and not revoked the
Release.”
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4. Except
as herein amended, the terms and provisions of the Original Agreement shall
remain in full force and effect as originally executed.
5. 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.
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6. This
First Amendment may be executed in any number of counterparts, each of which
shall constitute one agreement binding on all parties hereto.
7. 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, the parties have executed this First Amendment to Long Term
Incentive Cash Award Agreement as of the day and year first above
written.
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POZEN
INC.
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By:
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/s/ Xxxxxxx X. Xxxxxx | |
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Name:
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Xxxxxxx X. Xxxxxx | |
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Title:
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Sr. Vice President & Chief Financial Officer | |
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GRANTEE:
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/s/
Xxxx X. Xxxxxxxxx
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Xxxx
X. Xxxxxxxxx, Pharm.D.
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