FIRST AMENDMENT TO RESTRICTED STOCK UNIT AGREEMENT
Exhibit
10.2
FIRST
AMENDMENT TO
This
FIRST AMENDMENT TO RESTRICTED STOCK UNIT AGREEMENT (the “First Amendment”), is
entered into as of September 28, 2007, by and between POZEN Inc. (“POZEN”) and
Xxxx X. Xxxxxxxxx (the “Grantee”).
WHEREAS,
a Restricted Stock Unit Agreement dated as of May 4, 2004, 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, in consideration of the foregoing and the provisions and mutual
promises herein contained and other good and valuable consideration, the
parties
hereby agree as follows:
1. Any
capitalized terms not defined herein shall have the meanings ascribed to
such
terms in the Original Agreement.
2. Section
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is hereby amended and restated in its entirety as follows:
“Restricted
Unit Account. Restricted Units represent hypothetical shares of
Common Stock, and not actual shares of stock. POZEN shall establish
and maintain a Restricted Unit account, as a bookkeeping account on its records,
for the Grantee and shall record in such account the number of Restricted
Units
granted to the Grantee. No shares of stock shall be issued to the
Grantee at the time the grant is made, and the Grantee shall not be, nor
have
any of the rights or privileges of, a stockholder of POZEN with respect to
any
Restricted Units recorded in the account. The Grantee shall not have
the right to receive any dividends or other distributions with respect to
hypothetical shares of stock recorded in the Restricted Unit account; provided,
however, that the Committee shall appropriately adjust the number and kind
of
Restricted Units in the event of a stock split, stock dividend or other change
in capitalization of POZEN, as described in the Plan. The Grantee
shall not have any interest in any fund or specific assets of POZEN by reason
of
this award or the Restricted Unit account established for the
Grantee.”
3. Section
5(a) of the Restricted Stock Unit Agreement is hereby amended and restated
in
its entirety as follows:
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“(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
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 vested Restricted Unit credited to the Restricted Unit Account,
subject to satisfaction of the Grantee’s tax withholding obligations as
described below, and except as described below.
(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 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 on the closing date.
(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.”
4. Section
6 of the Restricted Stock Unit 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:
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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.
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 payment in settlement
of the
Restricted Units pursuant to the Plan shall be made on or within thirty (30)
days of the occurrence of the Change of Control, notwithstanding anything
to the
contrary set forth in Section 15(c) of the Plan.”
5. 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.”
6. Except
as herein amended, the terms and provisions of the Original Agreement shall
remain in full force and effect as originally executed.
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7. 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.
8. This
First Amendment may be executed in any number of counterparts, each of which
shall constitute one agreement binding on all parties hereto.
9. 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 hereto have executed this First Amendment to
Restricted Stock Unit Agreement as of the day and year first above
written.
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POZEN:
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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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