exhibit10_6.htm


    Exhibit
      10.6

     

    

      FIRST
        AMENDMENT TO

      EXECUTIVE
        EMPLOYMENT AGREEMENT

      


      This
        FIRST AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (the “First Amendment”), is
        entered into as of September 28, 2007, by and between POZEN Inc. (the “Company”)
        and Marshall E. Reese, Ph.D. (“Executive”).

      


      WITNESSETH:

      


      WHEREAS,
        the Company and Executive entered into that certain Executive Employment
        Agreement dated November 8, 2004 (the “Original Agreement”); and

      


      WHEREAS,
        the Company and Executive desire to amend certain terms of the Original
        Agreement, as set forth below, in order to facilitate compliance with Section
        409A of the Internal Revenue Code of 1986, as amended.

      


      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.  All
        capitalized terms that are not defined herein shall have the meanings ascribed
        to such terms in the Original Agreement.

       

      2.  Section
        4(b) of the Original Agreement is hereby amended and restated in its entirety
        as
        follows:

       

      “(b)           Bonus.  Executive
        shall be eligible to receive an annual cash incentive bonus of up to forty
        percent (40%) of Executive’s annual base salary as may be set by the Committee
        by March 31 of each year.  The determination of the actual bonus
        earned, if any, shall be at the sole discretion of the Committee and shall
        be
        based upon the Committee’s assessment of Executive’s performance and the
        achievement of certain objectives which shall be set by the Committee from
        time
        to time. Executive’s performance shall be evaluated by the Committee on an
        annual basis, and the Committee shall adjust Executive’s salary in its sole
        discretion.  Nothing in this section shall be construed as
        guaranteeing Executive a bonus in any amount.  If an annual bonus is
        awarded, it shall be paid in the year following the year in which such bonus
        was
        earned, on or before March 15 of such following year.”

      


      3.  Section
        5(c) of the Original Agreement is hereby amended and restated in its entirety
        as
        follows:


      
        
          
          

        

        
          -
            1
            -

          
            

          

        

        
          
          

        

      


      “(c)           Obligations
        upon Certain Terminations.  Upon voluntary termination of this
        Agreement, or termination of Executive’s employment by the Company for Cause (as
        defined above) or upon Executive’s death or disability, or termination by
        Executive for other than Good Reason (as defined below), the Company shall
        have
        no further obligations hereunder other than the payment of all compensation
        and
        other benefits payable to Executive through the date of such
        termination.  Such amounts shall be paid on the Company’s next
        regularly scheduled payroll date unless any such amount is not then calculable,
        in which case payment of such amount shall be made on the first regularly
        scheduled payroll date after the amount is calculable but no later than March
        15
        of the year following the year in which the Executive’s employment
        terminated.”

      


      4.  Section
        5(d) of the Original Agreement is hereby amended and restated in its entirety
        as
        follows:

      


      “(d)           Severance.

      


      (i)           In
        the event of termination of Executive’s employment (A) by the Company for
        reasons other than Cause or Executive’s death or disability, or (B) by Executive
        for Good Reason, and provided Executive executes and does not revoke a Release
        and Settlement Agreement (the “Release”) in a form acceptable to the Company,
        Executive shall receive a severance benefit, subject to any applicable taxes
        and
        withholdings, in an amount equal to one (1) year’s base salary (the “Salary
        Benefit”) plus the average annual bonus awarded Executive over the previous two
        (2) years (the “Bonus”, and, together with the Salary Benefit, the “Severance
        Benefit”).  Subject to Section 5(d)(ii) below, the Company shall pay
        the Salary Benefit, in monthly installments, on the fifth business day of
        each
        month commencing with the second month following the month in which Executive’s
        termination of employment occurred. The Company shall pay the Bonus in a
        lump
        sum payment within ninety (90) days of the date of termination of Executive’s
        employment (the “Termination Date”), but in no event later than March 15 of the
        year following the year in which such termination of employment occurred,
        or in
        the event of termination pursuant to Section 5(e)(iv), no later than March
        15 of
        the year following the year in which the Change of Control
        occurred.  Executive shall also continue to be entitled to receive all
        Company nontaxable health and other nontaxable employee benefits to which
        Executive was entitled as of the Termination Date, subject to the terms of
        all
        applicable benefit plans and to the extent such benefits can be provided
        to
        non-employees (or to the extent such benefits cannot be provided to
        non-employees, then the amount the Company was paying for those benefits
        immediately prior to the Termination Date), at the same average level and
        on the
        same terms and conditions which applied immediately prior to the Termination
        Date, for the shorter of (i) one year following the Termination Date or (ii)
        until Executive obtains comparable coverage from another employer (the
“Continuing Benefits”).


      
        
          
          

        

        
          -
            2
            -

          
            

          

        

        
          
          

        

      

       

      (ii)           Notwithstanding
        the foregoing, if Executive is on the termination date a “specified employee”
(as defined in Section 409A of the Internal Revenue Code, as amended (the
        “Code”), and the regulations promulgated under such Section 409A (“Code Section
        409A”) and as determined in accordance with the permissible method then in use
        by the Company, or, if none, in accordance with the applicable default
        provisions of Code 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 Code Section 409A, the payment of any Severance Benefit,
        Continuing Benefits or other payments under this Section 5 shall not commence
        until, and shall be made on, the first business day after the date that is
        six
        (6) months following the Termination Date, and in such event the initial
        payment
        shall include a catch-up amount covering amounts that would otherwise have
        been
        paid during the six-month period following the Termination Date.”

      


      5.  Section
        5(f) of the Original Agreement is hereby amended and restated in its entirety
        as
        follows:

      


      “(f)           Tax
        Gross-Up for Parachute Payments.

      


      (A)           If
        at any time or from time to time it shall be determined that any payment
        to
        Executive pursuant to this Agreement or any other payment or benefit hereunder
        or under any other plan or agreement or otherwise (“Potential Parachute
        Payment”) would constitute an “excess parachute payment” within the meaning of
        Section 280G of the Code, and thus would be subject to the excise tax imposed
        by
        Section 4999 of the Code, or any similar tax payable under any United States
        federal, state, local, foreign or other law (“Excise Tax”), then Executive shall
        receive and the Company shall pay or cause to be paid a Tax Gross-Up Payment
        with respect to all Taxes as defined below.  The Tax Gross-Up Payment
        is intended to compensate Executive for all such excise taxes and federal,
        state, local, foreign or other income, employment or excise taxes or other
        taxes
        (“Taxes”) payable by Executive with respect to the Tax Gross-Up Payment and
        shall be in an amount such that after payment of Taxes on such amount there
        remains a balance sufficient to pay the taxes being reimbursed.  For
        purposes of determining the amount of the Tax Gross-Up Payment, Executive
        shall
        be deemed to pay federal income tax and employment taxes at the highest marginal
        rate of federal income and employment taxation in the calendar year in which
        the
        Tax Gross-Up Payment is to be made and state and local income taxes at the
        highest marginal rate of taxation in the state and locality of Executive’s
        residence (or, if greater, the state and locality in which Executive is required
        to file a nonresident income tax return with respect to the Potential Parachute
        Payment), net of the maximum reduction in federal income taxes that may be
        obtained from the deduction of such state and local taxes.


      
        
          
          

        

        
          -
            3
            -

          
            

          

        

        
          
          

        

      


      (B)           The
        determinations to be made under this Section 5(f) shall be made by the Company’s
        independent public accountants (the “Accounting Firm”), which firm shall provide
        its determinations and any supporting calculations both to the Company and
        to
        Executive.  Any such determination by the Accounting Firm shall be
        binding upon the Company and Executive.  All fees and expenses of the
        Accounting Firm in performing the determinations referred to in this Section
        5(f) shall be borne solely by the Company, and the Company shall indemnify
        and
        hold harmless the Accounting Firm of and from any and all claims, damages
        and
        expenses resulting therefrom, except for claims, damages or expenses resulting
        from the gross negligence or willful misconduct of the Accounting
        Firm.

       

      (C)           Any
        Tax Gross-Up Payment, as determined pursuant to this Section 5(f), shall
        be paid
        by the Company to Executive as and when the Excise Tax is incurred on a
        Potential Parachute Payment, or at such later date as mutually agreed by
        the
        parties hereto, but in no event later than the end of Executive’s taxable year
        next following the taxable year in which Executive remits the applicable
        Excise
        Tax to the IRS and any applicable state taxing authorities.  The Tax
        Gross-Up Payment shall be paid in accordance with Code Section 409A, to the
        extent applicable, including, to the extent applicable, subject to and in
        compliance with Section 5(d)(ii).”

      


      6.  Section
        5(h) of the Original Agreement is hereby amended and restated in its entirety
        as
        follows:

      


      “(h)           Change
        of Control.  For purposes of this Agreement, a “Change of Control”
shall be deemed to have occurred:

      


      (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 (the “Exchange Act”)) (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


      
        
          
          

        

        
          -
            4
            -

          
            

          

        

        
          
          

        

      


      (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 not beneficially own, immediately after the
        merger
        or consolidation, shares entitling such stockholders to more 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.”

      


      7.  Except
        as
        herein amended, the terms and provisions of the Original Agreement shall
        remain
        in full force and effect as originally executed.

       

      8.  This
        First Amendment shall be governed by and construed and enforced in accordance
        with the laws of the State of North Carolina, without reference to the choice
        of
        law provisions of such laws.

       

      9.  This
        First Amendment may be executed in any number of counterparts, each of which
        shall constitute one agreement binding on all parties hereto.

       

      10.  This
        First Amendment and the Original Agreement, as amended and modified by this
        First Amendment, shall constitute and be construed as a single
        agreement.

      


      IN
        WITNESS WHEREOF, the parties hereto have executed this First Amendment to
        Executive Employment Agreement as of the day and year first above
        written.

      


      
        	 	
                COMPANY:

              
	 	 	 
	 	
                POZEN
                  INC.

              
	 	 	 
	 	 	 
	 	
                By:

              	
                /s/
                  John R. Plachetka

              
	 	 	
                John
                  R. Plachetka, Pharm.D.

              
	 	 	
                Chairman,
                  President and CEO

              
	 	 	 
	 	 	 
	 	
                EXECUTIVE:

              
	 	 	 
	 	 	 
	 	 	
                /s/
                  Marshall E. Reese

              
	 	 	
                Marshall
                  E. Reese. Ph.D.

              
	 	 	 
	 	 	 


      

      



      
        
          
          

        

        
          -
            5
            -