exv10w2







Exhibit 10.2




EXECUTION VERSION




FIRST AMENDMENT TO

EXECUTIVE RETENTION AGREEMENT




     This FIRST AMENDMENT TO EXECUTIVE RETENTION AGREEMENT (this “Amendment”) is made and entered
into as of the 18th day of June, 2009 (the “Amendment Date”), by and between Cornerstone BioPharma,
Inc., a Delaware corporation (the “Company”), and Craig A. Collard (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 Retention Agreement as of
February 8, 2006 (the “Executive Retention Agreement”);



     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’s common stock were assumed by Cornerstone
Therapeutics and became options to acquire Cornerstone Therapeutics common stock; and



     WHEREAS, the Company and the Executive desire to amend the Executive Retention Agreement to
immediately accelerate vesting of certain Cornerstone Therapeutics stock, stock options, benefits
and otherwise held by or accruing to the Executive contemporaneously with 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, Section 1.1.(a) of the Executive Retention Agreement
shall be deleted and the following inserted in lieu thereof:



               “(a) an 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.”




     2. Effective as of the Amendment Date, the Executive Retention Agreement shall be amended to
include a new Section 4.5 as follows:



         “4.5 Change in Control. Notwithstanding the above, 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. The
parties acknowledge and agree that the rights contained in this Section 4.5 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 4.5 shall not apply to any grants of stock, stock
options, benefits or otherwise made to the Executive on or after May 28, 2009.”




     3. Effective as of the Amendment Date, Section 7 of the Executive Retention Agreement shall be
deleted and the following inserted in lieu thereof:



     “7. Notice. All notices, instructions and other communications given hereunder or in
connection herewith shall be in writing. Any such notice, instruction or communication shall be
sent either (i) by registered or certified mail, return receipt requested, postage prepaid, or (ii)
prepaid via a reputable nationwide overnight courier service, in each case addressed to the Company
at 1255 Crescent Green Drive, Suite 250, Cary, NC 27518, and to the Executive at the Executive’s
address indicated on the signature page of this Agreement (or to such other address as either the
Company or the Executive may have furnished to the other in writing in accordance herewith). Any
such notice, instruction or communication shall be deemed to have been delivered five business days
after it is sent by registered or certified mail, return receipt requested, postage prepaid, or one
business day after it is sent via a reputable nationwide overnight courier service. Either party
may give any notice, instruction or other communication hereunder using any other means, but no
such notice, instruction or other communication shall be deemed to have been duly delivered unless
and until it actually is received by the party for whom it is intended.”



     4. Except as hereby amended, the terms and conditions of the Executive Retention 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 Retention 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/ David Price
 	 
	 	 	Name:  	David Price 	 
	 	 	Title:  	Executive Vice President, Finance,


and Chief Financial Officer 	 
	 
	 	EXECUTIVE	 
	 
	 
	 	/s/ Craig A. Collard 

Name: Craig A. Collard	 	 
	 
	 	 	 	 
	 
	 	Address:	 	 
	 
	 	107 Trellingwood Drive	 	 
	 
	 	Morrisville, NC 27560	 	 






ACKNOWLEDGED AND AGREED:




CORNERSTONE THERAPEUTICS INC.




	 	 	 	 	 
	By:

	 	/s/ David Price 

Name: David Price	 	 
	 

	 	Title: Executive Vice President, Finance,

          and Chief Financial Officer