FIRST AMENDMENT TO RETENTION PLAN AGREEMENT
Exhibit (e)(3)(P)
This First Amendment (the “Amendment”) to the Retention Plan Agreement by and between Eurand
N.V., a Netherlands corporation (the “Company”), Eurand Pharmaceuticals, Inc. and Xxxxx Xxxxx (the
“Executive”), dated as of September 20, 2010 (the “Retention Plan Agreement”), is entered into
between the Company and the Executive.
WITNESSETH:
WHEREAS, the Company and the Executive are parties to the Retention Plan Agreement, and the
Company and the Executive now desire to amend the Retention Plan Agreement to provide an additional
incentive to the Executive to remain employed with the Company through a period of uncertainty.
WHEREAS, this Amendment shall become effective as of November 28, 2010.
WHEREAS, Section 5 of the Retention Plan Agreement permits amendments to the Retention Plan
Agreement by written agreement between the Company and the Executive.
NOW, THEREFORE, the Retention Plan Agreement is hereby amended as follows:
1. All references to March 31, 2011 in the Retention Plan Agreement are hereby amended to
refer to November 30, 2011.
2. Section 1 is amended to add a new subsection (e) to the end to read as follows:
(e) In addition to the amounts payable under Section 1(a) above, the
Executive shall be entitled to receive an additional amount equal to forty percent
(40%) of the Retention Payment (the “Additional Payment”) on the first to occur of
(A) October 31, 2011, or (B) the date of the consummation of a Change in Control
(as applicable, the “Fourth Trigger Date”), subject to the Executive’s
employment with the Company and/or its subsidiary on the Fourth Trigger Date. If
paid under this subsection (e), the Additional Payment shall be paid on the Fourth
Trigger Date and shall be subject to applicable tax withholding.
3. Section 2 is amended to add a new subsection (d) to the end to read as follows:
(d) Except as otherwise set forth in this subsection (d), upon any termination
of Executive’s employment with the Company and/or its subsidiary for any reason
prior to the Fourth Trigger Date, Executive shall be ineligible to receive the
Additional Payment. If Executive’s employment with the Company and/or its
subsidiary is terminated by the Company without Cause prior to the Fourth Trigger
Date, Executive shall be entitled to receive the Additional Payment on the next
regular payroll date immediately following the date of such
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termination. The Additional Payment shall be subject to applicable tax withholding.
4. A new Section 10 is added to the end to read as follows:
10. Effect of Section 280G.
(a) Notwithstanding the foregoing, in the event that it shall be determined
that any payment in the nature of compensation (within the meaning of section
280G(b)(2) of the Internal Revenue Code of 1986, as amended (“Code”)) to or for
the benefit of Executive, whether paid or payable pursuant to the terms of this
Retention Plan Agreement or otherwise (the “Payments”), would constitute an
“excess parachute payment” within the meaning of section 280G of the Code, the
Company shall reduce (but not below zero) the aggregate present value of the
Payments under this Retention Plan Agreement to the Reduced Amount (as defined
below), if but only if reducing the Payments under this Retention Plan
Agreement will provide Executive with a greater net after-tax amount than would be
the case if no reduction was made. The Payments shall be reduced as described in
the preceding sentence only if (A) the net amount of the Payments, as so reduced
(and after subtracting the net amount of federal, state and local income and
payroll taxes on the reduced Payments), is greater than or equal to (B) the net
amount of the Payments without such reduction (but after subtracting the net
amount of federal, state and local income and payroll taxes on the Payments and
the amount of Excise Tax (as defined below) to which Executive would be subject
with respect to the unreduced Payments). Only amounts payable under this
Retention Plan Agreement shall be reduced pursuant to this subsection (a).
(b) The “Reduced Amount” shall be an amount expressed in present value that
maximizes the aggregate present value of the Payments without causing any Payment
under this Retention Plan Agreement to be subject to the Excise Tax, determined in
accordance with section 280G(d)(4) of the Code. The term “Excise Tax” means the
excise tax imposed under section 4999 of the Code, together with any interest or
penalties imposed with respect to such excise tax. The calculations under this
Section 10 shall maximize the amounts payable to Executive under this Retention
Plan Agreement consistent with the requirements of sections 280G and 4999.
(c) All determinations to be made under this Section 10 shall be made by an
independent consulting firm or registered public accounting firm selected by the
Company immediately prior to a change in control (the “Firm”), which shall provide
its determinations and any supporting calculations both to the Company and the
Executive within 10 days of the change in control. Any such determination by the
Firm shall be binding upon the Company and the Executive. All of the fees and
expenses of the Firm in performing the determinations referred to in this Section
shall be borne solely by the Company.
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5.
Effective Date. This Amendment shall be effective as of November 28, 2010.
6.
Effect of Amendment. Except to the extent expressly amended hereby, the
Retention Plan Agreement shall remain in full force and effect in all respects.
IN WITNESS WHEREOF, this Amendment has been duly executed by the parties hereto as of the day and
year first written above.
| EURAND N.V. |
||||
| /s/ Xxxxx Xxxxxx | ||||
| By: | Xxxxx Xxxxxx | |||
| Title: | Director | |||
| EURAND PHARMACEUTICALS, INC. |
||||
| /s/ Xxxx-Xxxxx Xxxxxxx | ||||
| By: | Xxxx-Xxxxx Xxxxxxx | |||
| Title: | President | |||
| XXXXX XXXXX |
||||
| /s/ Xxxxx Xxxxx | ||||
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