exv10w4





Exhibit 10.4


EXECUTION VERSION


FIRST AMENDMENT TO

EXECUTIVE EMPLOYMENT AGREEMENT


     This FIRST AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (this “Amendment”) is made and entered
into as of the 12th day of June, 2009 (the “Amendment Date”), by and between Cornerstone BioPharma,
Inc., a Delaware corporation (the “Company”), and Steven M. Lutz (the “Executive”). The Company
and the Executive may be referred to herein as the “parties.”


W I T N E S S E T H :


     WHEREAS, the Company and the Executive entered into an Executive Employment Agreement
effective as of March 1, 2006 (the “Executive Employment Agreement”) and a Proprietary Information,
Inventions, Non-competition, and Non-solicitation Agreement effective as of the same date (the
“Proprietary Information Agreement”), the terms of which were expressly made a part of the
Executive Employment Agreement;


     WHEREAS, the Company and the Executive had previously entered into an Agreement Regarding
Employment, Employee Duties, Ownership of Employee Developments, and Confidentiality dated as of
July 13, 2004 (the “Duties Agreement”), which provided in Section 2.2 thereof for the accelerated
vesting of all of the Executive’s then unvested stock, stock options, benefits and otherwise upon
the occurrence of any change in control, defined therein as the transfer of greater than 50% of the
common ownership of the group to an unrelated third party;


     WHEREAS, the Executive Employment Agreement and the Proprietary Information Agreement
contained merger and integration clauses, which had the legal effect of superseding the Duties
Agreement in its entirety, including Section 2.2 thereof;


     WHEREAS, the parties acknowledge and agree that, notwithstanding the merger and integration
clauses contained in the Executive Employment Agreement and the Proprietary Information Agreement,
it was the intention of the parties that Section 2.2 of the Duties Agreement would continue in full
force and effect; that Section 2.2 would not be terminated by the Executive Employment Agreement or
the Proprietary Information Agreement; and that the accelerated vesting provided by Section 2.2
would be in addition to, and not restrictive of, any accelerated vesting provided under any equity
incentive plan in which the Executive participates or any equity award granted to the Executive
thereunder;


     WHEREAS, effective October 31, 2008, Neptune Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of Critical Therapeutics, Inc. (“Transitory Subsidiary”), merged with and
into Cornerstone BioPharma Holdings, Inc., a Delaware corporation and the parent company of the
Company (“CBHI”), as contemplated by the Agreement and Plan of Merger (the “Merger Agreement”),
dated as of May 1, 2008, as amended, by and among Critical Therapeutics, Inc., Transitory
Subsidiary and CBHI (the “Merger”);


     WHEREAS, by virtue of the Merger, the Company became an indirect wholly owned subsidiary of
Critical Therapeutics, Inc., which subsequently changed its name to Cornerstone Therapeutics Inc.
(“Cornerstone Therapeutics”), and, in accordance with the Merger Agreement, all stock options held
by the Executive that were exercisable for CBHI common stock were assumed by


 








 







Cornerstone Therapeutics and became options to acquire Cornerstone Therapeutics common stock;
and



     WHEREAS, following the Merger, the Company and the Executive desire to amend the Executive
Employment Agreement to reflect the parties’ intentions regarding accelerated vesting of
Cornerstone Therapeutics stock, stock options, benefits and otherwise held by or accruing to the
Executive in the event of a change in control of Cornerstone Therapeutics.



     NOW, THEREFORE, in consideration of the premises set forth above and the mutual terms and
conditions set forth below and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and the Executive agree as follows:



     1. Effective as of the Amendment Date, the Executive Employment Agreement shall be amended to
include a new Section 4.(i) as follows:




     “4.(i) Change in Control. Immediately prior to a Change in Control,
any of the Executive’s unvested rights in Cornerstone Therapeutics Inc., a Delaware
corporation and, effective October 31, 2008, the ultimate parent company of the
Company (“Cornerstone Therapeutics”), stock, stock options, benefits or otherwise
that are currently unvested and would have become vested through the passage of time
shall immediately vest. For purposes of this agreement, a Change in Control is
defined as the acquisition by an individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) unrelated to Cornerstone Therapeutics or any of its subsidiaries (a
“Third Party”) of beneficial ownership of any capital stock of Cornerstone
Therapeutics if, as a result of such acquisition, such Third Party becomes the
beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of more than 50% of the combined voting power of the then-outstanding
securities of Cornerstone Therapeutics entitled to vote generally in the election of
directors. The parties acknowledge and agree that the rights contained in this
Section 4.(i) shall be in addition to, and not restrictive of, any accelerated
vesting provided under any equity incentive plan in which the Executive participates
or any equity award granted to the Executive thereunder. Notwithstanding the
foregoing, this Section 4.(i) shall not apply to any grants of stock, stock options,
benefits or otherwise made to the Executive on or after May 28, 2009.”



     2. Except as hereby amended, the terms and conditions of the Executive Employment Agreement as
in effect immediately prior to this Amendment remain in full force and effect.



[signature page follows]




2









 








[Signature Page to First Amendment to Executive Employment Agreement]




     IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first set
forth above.



	 	 	 	 	 
	 	CORNERSTONE BIOPHARMA, INC.

 	 
	 	By:  	/s/ Craig A. Collard
 	 
	 	 	Name:  	Craig A. Collard 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 
	 	EXECUTIVE

 	 
	 	 	/s/ Steven M. Lutz
 	 
	 	 	Name:  	Steven M. Lutz 	 
	 	 	 
	 



ACKNOWLEDGED AND AGREED:




CORNERSTONE THERAPEUTICS INC.




	 	 	 	 	 	 	 
	By:	 	/s/ Craig A. Collard	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Craig A. Collard	 	 
	 

	 	Title:
	 	President and Chief Executive Officer