EXHIBIT
10.(w.2)


 


FIRST
AMENDMENT TO EMPLOYMENT AGREEMENT


 


THIS FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT (this “First Amendment”) is made as of this 31st
day of October, 2001 (the “Effective Date”), by and between DUSA
Pharmaceuticals, Inc., a corporation duly organized and existing under the laws
of the State of New Jersey, having offices located at 25 Upton Drive,
Wilmington, Massachusetts (“DUSA”), and Mark C. Carota, an individual who
resides at 144 Old Westford Road, Chelmsford, Massachusetts 01824 (“Carota”,
and collectively with DUSA, the “Parties”).


 


WHEREAS, DUSA and Carota
are parties to that certain Employment Agreement dated February 14, 2000
(the “Agreement”), pursuant to which DUSA employs Carota as the Vice President,
Operations and Carota accepts such employment; and


 


WHEREAS, DUSA and Carota
wish to amend the Agreement to add a “change in control” provision; and


 


NOW, THEREFORE, in
consideration of the various promises and undertakings set forth in this
Amendment, the Parties agree to amend the Agreement as follows:


 


1.                                       As
of the date of this First Amendment, the Agreement is hereby amended to add the
following:


 


“21.                           Change of Control: If Carota’s employment is terminated by
DUSA without cause upon the consummation of a “change in control” as defined
herein, Carota shall receive, within five (5) days after such termination from
DUSA or its successor, a lump sum payment equal to three (3) times his base
salary during the last fiscal year in which Carota is associated with DUSA
(including any amounts due as severance under Paragraph 11B.(i) of this
Agreement).  For the purposes hereof, “change
in control” shall mean a change in control of a nature that would be required
to be reported in response to Item 5 of Schedule 14D promulgated pursuant
to Section 14 of the Securities Exchange Act of 1934, as amended (the 1934
Act”), whether or not DUSA is then subject to such reporting requirements;
provided that, without limitations, such a change in control shall be deemed to
have occurred if (i) any person other than a trustee or other fiduciary holding
securities under an employee benefit plan of DUSA is or becomes the beneficial
owner, directly or indirectly, of securities of DUSA representing twenty
percent (20%) or more of the combined voting power of DUSA’s then outstanding
securities and thereafter the Board adopts a resolution to the effect that, for
the purposes of this Agreement, a change in control of DUSA has occurred; such
ownership shall be defined pursuant to Rule 13d-3 of the 1934 Act and includes
mergers or acquisitions whereby an outside party has in excess of twenty
percent (20%) of the combined voting power; (ii) when DUSA merges or
consolidates with any other person or, entity other than a subsidiary and, upon
consummation of such transaction own less than fifty percent (50%) of the
equity securities of the surviving or consolidated entity; or (iii) a
substantial portion of the assets of DUSA are sold or transferred to another
person or entity.”


 


9. Expenses:  All reasonable travel and other expenses
incident to the rendering of services by Carota on behalf of and in promoting
the interests of DUSA shall be paid by DUSA, including but not limited to an
automobile allowance in the amount of $6,000 per year.  If such


 





















 


expenses are paid in the
first instance by Carota, DUSA agrees that it will reimburse him therefore upon
presentation of appropriate statements, vouchers, bills and invoices as and
when required by DUSA to support the reimbursement request.


 


4.                                       Effect of Amendment. 
Except as amended specifically by this First Amendment, the Agreement
shall remain in full force and effect and shall be unaffected by this First
Amendment.


 


5.                                       Defined Terms.  All
terms used in this First Amendment and not otherwise defined in this First
Amendment shall have the meanings assigned to such terms in the Agreement.


 


6.                                       Governing Law.  This
First Amendment shall be governed by the laws of the State of New Jersey.


 


7.                                       Counterparts.  This
First Amendment may be executed in counterparts, each of which, when taken
together, shall be deemed to be one and the same instrument.


 


IN WITNESS WHEREOF, the
Parties have executed this First Amendment, by their respective officers
hereunto duly authorized, the day and the year first written above.


 


	
  ATTEST:

  	
  DUSA PHARMACEUTICALS,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ John E. Mattern

  	
   

  	
  By:

  	
  /s/ D. Geoffrey Shulman

  
	
   

  	
   

  	
  D. Geoffrey
  Shulman, MD, FRCPC

  
	
   

  	
   

  	
  President and
  Chief Executive

  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   Dated: 10/31/01

  
	
  WITNESS:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Marianne Mullin

  	
   

  	
  /s/ Mark C. Carota

  
	
   

  	
  Mark C. Carota, Vice
  President, Operations

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   Dated: 10/11/01

  



 


 


DUSA Confidential


 


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