exhibit10_1.htm


    EXHIBIT
10.1

    
 

    CONSULTING
AGREEMENT

    


    THIS CONSULTING AGREEMENT (the “Agreement”) is effective as of
the 1st day of April, 2009 (the “Effective Date”) by and between POZEN
Inc., a Delaware corporation (the “Company”), which has its
principal place of business at Suite 400, 1414 Raleigh Road, Chapel Hill, NC,
Reese Associates Consulting, LLC, a [North Carolina] limited liability company
("Consultant"), and
Marshall E. Reese, Ph.D., an individual residing at 306 Edinburgh Drive, Cary,
NC 27511 (“Dr.
Reese”).

     

    W I T N E
S S E T H:

    


    WHEREAS, the Company and Dr. Reese are
parties to that certain Executive Employment Agreement dated as of November 8,
2004, as amended (the “Employment Agreement”)
pursuant to which Dr. Reese has previously provided services to the Company as
Executive Vice President, Product Development; and

    


    WHEREAS, in connection with Dr. Reese
’s retirement from the Company as Executive Vice President, Product Development,
Dr. Reese and the Company wish to terminate the Employment Agreement; and


    


    WHEREAS, in connection with Dr. Reese’s
retirement and the termination of the Employment Agreement, the Company desires
to have Dr. Reese perform certain services for the Company and to engage
Consultant as an independent contractor who will assign Dr. Reese, a member and
manager of Consultant, to perform the duties listed below, and Consultant wishes
to accept such engagement.

    


    NOW, THEREFORE, for and in
consideration of this Agreement, the engaging of Consultant and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:

    


    1.           ENGAGEMENT.  The
Company hereby engages Consultant, and Consultant accepts such engagement as an
independent contractor, to provide the services set forth in Exhibit
A (the “Services”) attached hereto and
incorporated herein by reference.  Consultant shall perform Services
for the Company for not less than forty (40) hours each month (ten (10) hours
per week) during the Term (as defined below).  This engagement is not
exclusive, and nothing in this Agreement shall be construed to preclude the
Company from soliciting or engaging others to act as an independent contractor
on behalf of the Company for similar services. Consultant shall have the
right to perform work for others as long as Consultant fulfills Consultant’s
obligations hereunder and subject to Dr. Reese’s obligations pursuant to the
Inventions Agreement (as defined below).  Consultant acknowledges and
agrees that only Dr. Reese will perform Services for the Company pursuant to
this Agreement and that Consultant may not delegate or assign Consultant's
responsibilities hereunder to any other consultant or any other employee or
agent of Consultant other than Dr. Reese.

    



    
      
         


      

      
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    2.           BASIC OBLIGATIONS AND
DUTIES.  Consultant and Dr. Reese represent and warrant that
each has the knowledge, skills and experience necessary to undertake the
Services.  Consultant and Dr. Reese agree that during the term of this
Agreement Consultant and Dr. Reese will diligently perform Consultant’s assigned
duties in accordance with the terms hereof, and abide by the provisions of the
published policies of the Company which are currently in effect and as they are
from time to time changed by the Company.  To the extent that the
Services are performed at the facilities of the Company, the Company shall
provide to Consultant reasonable and adequate office space, supplies and
administrative support.

    


    3.           TERM.  Subject
to the provisions for termination hereinafter provided, this Agreement shall
become effective as of the date and year first above written, and shall continue
until the earlier of: (i) September 30, 2009 and (ii) the date that the U.S.
Food and Drug Administration accepts the filing of the Company’s New Drug
Application for its product candidate PN 400, whichever shall first occur (the
“Term”).  This
Agreement shall be extended only by a written agreement signed by all
parties.

    


    4.           COMPENSATION.  As
compensation for the Services to be provided hereunder by Dr. Reese, Consultant
shall receive a fee of Six Hundred and Twenty Five Dollars ($625.00)
per hour during the Term (the “Consulting
Fee”).    The Consulting Fee shall be paid by the
Company every two weeks calculated based on a ten-hour work week by
Consultant.  The Company will also reimburse Consultant for all
reasonable business expenses incurred in performing the Services hereunder which
have been approved in advance by Company.

    


    5.           CONFIDENTIAL OR PROPRIETARY
INFORMATION; INVENTIONS.   Consultant and Dr. Reese hereby
acknowledge and agree that Dr. Reese shall continue to be bound by the terms of
that certain Non-Disclosure, Invention and Non-Competition Agreement between the
Company and Dr. Reese dated November 8, 2004 (the “Inventions Agreement”) and
that upon the expiration or termination for any reason of this Agreement, Dr.
Reese’s obligations under the terms of the Inventions Agreement shall survive as
contemplated therein. The parties hereto further agree that the provision of the
Services hereunder shall be subject to the terms and conditions of the
Inventions Agreement such that the duties and obligations of Dr. Reese and the
rights of the Company under the Inventions Agreement shall apply equally to the
Services to be provided hereunder.  For the avoidance of doubt, for
this purpose, all references in the Inventions Agreement to Dr. Reese shall be
deemed to apply equally to Consultant and all references to employment in the
Inventions Agreement shall be deemed to apply equally to the consultancy and the
provision of the Services hereunder.

    


    



    
      
         


      

      
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    6.           OPTIONS.  The
Company, Consultant and Dr. Reese, each hereby acknowledges and agrees that,
notwithstanding the termination of the Employment Agreement and engagement of
Consultant hereunder, it is the intent of the parties that, in accordance with
the applicable plan documents, all outstanding options to purchase shares of the
Company’s Common Stock issued to Dr. Reese pursuant to those stock option and
other agreements set forth on Exhibit
B (the “Options”)
shall continue to vest for so long as Dr. Reese is performing services for the
Company under this Agreement on behalf of Consultant and shall otherwise remain
in full force and effect in accordance with their terms; provided, however, that
Dr. Reese hereby acknowledges and agrees that any incentive stock option issued
to Dr. Reese prior to the execution of this Agreement may not qualify for tax
treatment as an incentive stock option and may be treated as a nonqualified
stock option for tax purposes.

    


    7.           TERMINATION OF EMPLOYMENT
AGREEMENT.  Effective as of the Effective Date, the Employment
Agreement shall be deemed terminated by the mutual agreement of Dr. Reese and
the Company, and Dr. Reese and the Company hereby acknowledge and agree that
neither party shall have any continuing obligations
thereunder.  Specifically and without limiting the foregoing, Dr.
Reese hereby agrees and acknowledges that he shall have no right to receive and
the Company shall not be obligated to pay any future amounts to Dr. Reese
pursuant to the Employment Agreement in connection with the termination of Dr.
Reese’s ’s employment and termination of the Employment Agreement as set forth
herein, including, without limitation, any Severance Benefit (as defined in the
Employment Agreement) pursuant to Section 5(d) of the Employment
Agreement.

    


    8.           INDEPENDENT CONTRACTOR
STATUS.  Nothing contained in this Agreement shall be deemed or
construed as creating a joint venture or partnership between Consultant or Dr.
Reese and the Company.  Neither Consultant nor the Company is by
virtue of this Agreement authorized as an agent, employee or legal
representative of the other.  Except as specifically set forth herein,
neither Consultant nor the Company shall have the power to control the
activities and operations of the other and Consultant’s status at all times will
continue to be that of an independent contractor.  Except as provided
herein, neither Consultant nor the Company shall have any power or authority to
bind or commit the other.  Consultant shall pay all taxes of any kind
whatsoever which arise from the compensation paid to Consultant hereunder and
shall indemnify and hold the Company harmless from failure to pay such
taxes.

    


    9.           SEVERABILITY.  The
invalidity or unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provision.

    


    10.           ENTIRE AGREEMENT; MODIFICATION.  This
Agreement, the Inventions Agreement and the Options agreements embody the entire
agreement between the Company, Dr. Reese, and Consultant relating to the subject
matter hereof and thereof.  This Agreement may be changed, modified or
discharged only if consented to in writing by all parties.

    


    11.           GOVERNING
LAW.  This Agreement shall be governed by and according to the
laws of the State of North Carolina without regard to its conflicts of law
rules.

    



    
      
         


      

      
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    12.           ASSIGNMENT.  This
Agreement shall be binding upon and shall inure to the benefit of the Company,
its successors and assigns, including without limitation, any entity which may
acquire all or substantially all of the Company’s assets and business or into
which the Company may be consolidated or merged, Consultant and its successors
and assigns and Dr. Reese’s personal heirs, executors, administrators, and legal
representatives. Consultant may not assign or otherwise in any manner transfer
or delegate any obligations under this Agreement.

    


    13.           COUNTERPARTS. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.

    


    [Remainder
of page intentionally left blank]

    



    
      
         


      

      
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    IN WITNESS WHEREOF, the parties have
executed this Agreement on the day and year first above written.

    


    COMPANY:

    


    POZEN
Inc.

    


    
      
        	
                By:

              	 
      /s/ John R. Plachetka 
	
                Name:

              	 
      John R. Plchetka, Pharm.D.
	
                Title:

              	 
      Chairman, President and CEO


      

    

    


     

    


     

    CONSULTANT:

    


     

    REESE
ASSOCIATES CONSULTING, LLC

     

    


     

    
      
        	
                By:

              	 
      /s/ Marshall E. Reese
	 
      	
                Marshall
      E. Reese, Ph.D., Member and
Manager

              


      

    

    


     

    


     

    DR.
REESE:

     

    


     

    
      
        	
                By:

              	 
      /s/ Marshall E. Reese
	 
      	
                Marshall
      E. Reese, Ph.D., Individually

              


      

    

    


     


    
      
         


      

      
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    EXHIBIT
A

     

    


     

    SERVICES

     

    


     

    


     

    Mentor
and support SVP, Product Development in his new role

     

    


     

    Provide
strategic advice with respect to the Company’s product candidates, as
requested

     

    


     

    Assist
with the preparation and filing of the New Drug Application for PN 400, as
requested

     

    


     

    Assist
with the interface with AstraZeneca regarding the PN 400 collaboration, as
requested

     

    


     

    Provide
such other product development support and services as the Company may from time
to time request

     

    


     


    
      
         


      

      
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    EXHIBIT
B

     

    


     

    Options

     

    


     

    


     

    
      
        
          
            
              
                	
                        Date of Grant

                      	
                        Strike Price

                      	
                        Number of Options

                      	
                        Vesting Schedule

                      
	
                        10/18/2004

                      	
                        $8.88

                      	
                        100,000

                      	
                        (1)

                      
	
                        1/3/2006

                      	
                        $10.52

                      	
                        75,000

                      	
                        (1)

                      
	
                        1/3/2007

                      	
                        $16.90

                      	
                        30,000

                      	
                        (1)

                      
	
                        5/6/2008

                      	
                        $14.45

                      	
                        20,000

                      	
                        (2)

                      
	
                        5/6/2008

                      	
                        $14.45

                      	
                        21,100

                      	
                        (3)

                      


              

            

          

        

      

    

    


     

    


     

    
      	
              (1)  

            	
              –
      Option vests 25% annually over 4 years from date of
  grant

            


    

     

    
      	
              (2)  

            	
              –
      Option vests upon the acceptance of the PN 400 NDA by the FDA for
      review

            


    

     

    
      	
              (3)  

            	
              –
      Option vests 25% upon the acceptance of the PN 400 NDA by the FDA for
      review and 75% upon approval of the
NDA

            


    

     

    


     


    
      
         


      

      
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