exhibit10_2.htm


    Exhibit
      10.2

     

    

      FIRST
        AMENDMENT TO

      RESTRICTED
        STOCK UNIT AGREEMENT

       

      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
        John R. Plachetka (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
        2
        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.

      


      
        	 	
                POZEN:

              
	 	 	 
	 	
                POZEN
                  INC.

              
	 	 	 
	 	 	 
	 	
                By:

              	 /s/
                William L. Hodges
	 	
                Name:

              	 William
                L. Hodges
	 	
                Title:

              	 Sr.
                Vice President & Chief Financial Officer
	 	 	 
	 	 	 
	 	
                GRANTEE:

              
	 	 	 
	 	 	 
	 	 	
                /s/
                  John R. Plachetka

              
	 	 	
                John
                  R. Plachetka, Pharm.D.

              
	 	 	 
	 	 	 


      

      



      
        
          
          

        

        
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