exv10w2






Exhibit 10.2




SOMAXON PHARMACEUTICALS, INC.




AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT




     AMENDMENT NO. 1 TO Employment Agreement (this “Amendment”) made and entered into
effective as of August 7, 2008, between Somaxon Pharmaceuticals, Inc., a Delaware
corporation (the “Company”), and David F. Hale, an individual (“Executive”).



W I T N E S S E T H:




     Whereas, the Company and Executive are parties to that certain Employment Agreement
dated as of December 6, 2007 (the “Employment Agreement”);



     Whereas, the Company and Executive desire to amend the Employment Agreement upon the
terms and conditions hereinafter set forth;



     Now, Therefore, in consideration of the premises and the mutual covenants hereinafter
set forth, and intending to be legally bound hereby, it is hereby agreed as follows:



          1. Amendment to Section 1 of the Employment Agreement. Section 1 of the Employment
Agreement is hereby amended to read as follows:





          1. Position and Duties. Executive shall diligently and conscientiously devote
Executive’s time, attention, energy, skill and efforts to the business of the Company and the
discharge of Executive’s duties hereunder. Executive’s duties under this Agreement shall be
to serve as Executive Chairman of the Board of Directors and Interim Chief Executive
Officer, with the responsibilities, rights, authority and duties customarily pertaining
to such office and as may be established from time to time by or under the direction of the
Board of Directors of the Company (the “Board”) or its designees; provided, however, that on
and after August 11, 2008, Executive shall serve solely as the Executive Chairman of the
Board. Executive shall also act as an officer and/or director and/or manager of such
affiliates of the Company as may be designated by the Board from time to time, commensurate
with Executive’s office, all without further compensation, other than as provided in this
Agreement. As an exempt, salaried employee, Executive will be expected to work such hours as
required by the nature of Executive’s work assignments.



          2. Amendment to Section 2(b) of the Employment Agreement. Section 2(b) of the
Employment Agreement is hereby amended to read as follows:





          (b) Executive’s employment under this Agreement shall commence on December 6, 2007, and
continue until the earliest to occur of: (i) the date of the Company’s 2009 annual meeting
of stockholders or such later date as may be mutually agreed upon by Executive and the
Board, or (ii) Executive’s resignation from the position of Executive Chairman of the Board.
Following the termination of Executive’s employment as Executive Chairman of the Board,
Executive’s duties will revert to those of non-executive Chairman of the Board and Executive
will continue to be compensated for his service as non-executive Chairman of the Board only,
as described below in Section 3(a). Executive’s employment may be terminated by either
Executive or the Board at any time, for any reason or no reason. If this Agreement
terminates for any reason, Executive shall not be entitled to any payments, benefits,
damages, awards or other compensation other than as provided in this Agreement.



 









 





          3. Amendment to Section 3 of the Employment Agreement. Section 3 of the Employment
Agreement is hereby amended to read as follows:





          3. Compensation.




               (a) Base Salary. The Company shall pay to Executive monthly base salary
compensation as follows: (i) for service as interim Chief Executive Officer of the Company,
the Company shall pay Executive $15,000 for each month or portion thereof that Executive
holds such position, beginning January 1, 2008; and (ii) for service as the Company’s
Chairman of the Board (regardless of whether Executive is acting as Executive Chairman or
non-executive Chairman of the Board), the Company shall pay Executive $15,000 for each month
or portion thereof that Executive holds such position, beginning December 6, 2007 and
continuing through the date of the Company’s 2009 annual meeting of stockholders.
Executive’s annual base salary payable hereunder, as it may be adjusted from time to time,
is referred to herein as “Base Salary.” Base Salary shall be paid in equal installments in
accordance with the Company’s payroll practices in effect from time to time for executive
officers, but in no event less frequently than monthly. If Executive is to act as the
Company’s non-executive Chairman of the Board after his service as Executive Chairman has
come to an end and is no longer to be an employee of the Company, Executive shall be
compensated for such service as provided under the Company’s Director Compensation Policy,
as the same shall be adjusted or modified by the Board from time to time. For purposes of
clarity, if Executive ceases to serve as Executive Chairman as of the date of the Company’s
2009 annual meeting of stockholders but is still serving on the Board at such time, he will
be eligible for an annual option grant pursuant to the Company’s Director Compensation
Policy and will be eligible to begin to receive the applicable cash retainer thereunder
effective as of such date. Executive will not be eligible to receive compensation
(including cash retainers and equity awards) pursuant to the Company’s Director Compensation
Policy while he is serving as Interim Chief Executive Officer or Executive Chairman and
instead will receive the cash compensation outlined above.




               (b) Management Incentive Plan. The Company has adopted a management incentive
compensation plan providing for annual bonus awards to Executive and the Company’s other
eligible employees dependent upon, among other things, the achievement of certain
performance levels by the Company (the “Company Management Incentive Plan”).




                    (i) With respect to the Company’s 2008 fiscal year, Executive will be entitled to
receive a bonus under the Company Management Incentive Plan based solely on the achievement
of corporate performance levels during such fiscal year, with his target bonus being 45% of
the sum of (A) the amount of total Base Salary ($30,000 per month) that he receives during
the portion of such fiscal year that he serves as interim Chief Executive Officer (for
example, if Executive serves as interim Chief Executive Officer for six (6) months during
the 2008 fiscal year, his total Base Salary to be taken into account for purposes of his
bonus determination shall be $180,000), plus (B) the amount of total Base Salary ($15,000
per month) that he receives during the portion of such fiscal year that he serves solely as
Executive Chairman of the Board. Such bonus will be determined by the Compensation
Committee of the Board and paid to Executive at the same time that the determination and
payment of performance-based annual bonuses are made under the Company Management Incentive
Plan with respect to the Company’s other executive officers for such fiscal year, but in no
event later than March 15, 2009.




                    (ii) With respect to the Company’s 2009 fiscal year, Executive will be entitled to
receive a bonus under the Company Management Incentive Plan



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based solely on the achievement of corporate performance levels during such fiscal
year, with his target bonus being 45% of the amount of total Base Salary ($15,000 per month)
that he receives during the portion of such fiscal year that he serves as Executive Chairman
of the Board. Such bonus will be determined by the Compensation Committee of the Board and
paid to Executive at the same time that the determination and payment of performance-based
annual bonuses are made under the Company Management Incentive Plan with respect to the
Company’s other executive officers for such fiscal year, but in no event later than March
15, 2010.




     (iii) No annual bonus will be payable to Executive with respect to his service solely
as non-Executive Chairman of the Board (i.e., for such service his sole cash compensation
shall be the retainer and/or per-meeting fees specified in the Company’s Director
Compensation Policy), unless otherwise set forth in any amendments to the Company’s Director
Compensation Policy or as otherwise determined by the Board.



          4. Amendment to Section 7(c) of the Employment Agreement. Section 7(c) of the
Employment Agreement is hereby amended to read as follows:





          (c) If Executive’s employment is terminated for any reason other than as a result of
Executive’s death or Disability, without limiting or prejudicing any other legal or
equitable rights or remedies which the Company may have upon such termination by Executive,
(i) the Company shall pay Executive his accrued but unpaid Base Salary and any accrued but
unused PTO (plus all accrued and unpaid expenses reimbursable in accordance with Paragraph
6) through the date of termination, payable in a lump sum on the date of termination, and
(ii) if Executive is thereafter to remain the Company’s non-executive Chairman of the Board,
(A) the Company shall pay Executive $15,000 for each month or portion thereof that Executive
holds such position, beginning December 6, 2007 and continuing through the date of the
Company’s 2009 annual meeting of stockholders, and (B) the Board will review Executive’s
role with the Company from and after the date of the Company’s 2009 annual meeting of
stockholders and will determine Executive’s compensation for periods thereafter; provided
that if Executive is to act as the Company’s non-executive Chairman of the Board thereafter
and is no longer to be an employee of the Company, Executive shall be compensated for such
service as provided under the Company’s Director Compensation Policy, as the same shall be
adjusted or modified by the Board from time to time. Executive will not be eligible to
receive compensation (including cash retainers and equity awards) pursuant to the Company’s
Director Compensation Policy while he is receiving payments pursuant to clause (A) above.



          5. Entire Agreement, Amendments.





               (a) No amendment or modification of this Amendment shall be effective unless set forth in a
writing signed by the Company and Executive. No waiver by either party of any breach by the
other party of any provision or condition of this Amendment shall be deemed a waiver of any
similar or dissimilar provision or condition at the same or any prior or subsequent time. Any
waiver must be in writing and signed by the waiving party.




               (b) This Amendment, together with the Employment Agreement and the documents referred to
herein and therein, sets forth the entire understanding and agreement of the parties with respect
to the subject matter hereof and supersedes all prior oral and written understandings and
agreements. Except as expressly provided for in this Amendment, no other term or provision of
the Employment Agreement is amended or modified in any respect.



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          6. Governing Law. This Amendment shall be governed by and construed in accordance
with the laws of the State of California without reference to principles of conflict of laws.




          7. Headings, Etc. The headings set forth herein are included solely for the purpose
of identification and shall not be used for the purpose of construing the meaning of the provisions
of this Amendment. Unless otherwise provided, references herein to Paragraphs refer to Paragraphs
of this Amendment.




          8. Construction. Each party has cooperated in the drafting and preparation of this
Amendment. Therefore, in any construction to be made of this Amendment, the same shall not be
construed against any party on the basis that the party was the drafter.




(Signature Page Follows)




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     In Witness Whereof, the parties have executed this Amendment as of the date first
above written.



	 	 	 	 	 
	 	COMPANY:



Somaxon Pharmaceuticals, Inc.

 	 
	 	By  	/s/ Meg M. McGilley
 	 
	 	 	Name:  	Meg M. McGilley 	 
	 	 	Title:  	Vice President and


Chief Financial Officer 	 
	 
	 
	 	EXECUTIVE:

 	 
	 	/s/ David F. Hale
 	 
	 	David F. Hale 	 
	 	 	 



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