exhibit10_4.htm


    Exhibit
      10.4

     

    
      FIRST
        AMENDMENT TO

      POZEN
        INC.

      LONG
        TERM INCENTIVE CASH AWARD AGREEMENT

      


      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 John R. Plachetka
        (“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:

      


      
        	
                 

              	
                “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.

              


      

      


      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:

       

      
        	
                 

              	
                “(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.”

              


      

       

      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.

      


      
        	 	
                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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