exv10w34






Exhibit 10.34




SOMAXON PHARMACEUTICALS, INC.




AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT




     AMENDMENT NO. 2 TO Employment Agreement (this “Amendment”) made and entered into
effective as of November 28, 2008, between Somaxon Pharmaceuticals, Inc., a Delaware
corporation (the “Company”), and David F. Hale, an individual (“Executive”).



WITNESSETH:




     Whereas, the Company and Executive are parties to that certain Employment Agreement
dated as of December 6, 2007, as amended (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 3 of the Employment Agreement. The following shall be added
to Section 3(a) of the Employment Agreement:





     Beginning January 1, 2008, Executive’s Base Salary
shall be payable in Restricted Stock Units (“RSUs”)
under the Option Plan, as follows: after the end of
each calendar month with respect to which Executive is
entitled to Base Salary, Executive shall be issued a
number of RSUs calculated by dividing (a) the
difference between (i) the Base Salary to which
Executive is entitled relating to such calendar month
and (ii) the amounts of any healthcare benefit plan
contributions and flexible healthcare spending account
contributions elected to be made by Executive relating
to such calendar month by (b) the closing price of the
Company’s common stock on the Nasdaq Global Market on
the last trading day of such calendar month, rounded
down to the nearest whole share. Such issuances of
RSUs shall be automatic, with no further action of the
Board required, and shall continue until the Board
makes a determination, if any, of a date that
Executive’s Base Salary shall thereafter be payable in
cash. Such RSUs shall vest upon the first date
included within an open trading window under the
Company’s Insider Trading Policy (the “Policy”)
following the first commercial sale of the Company’s
product Silenor® (doxepin) in the United States,
subject to Executive’s continued service to the
Company on such date. Any such RSUs issued after such
date will vest upon the first date included within an
open trading window under the Policy following the
date of issuance of such RSUs, subject to Executive’s
continued service to the Company on such date. In the
event of a Change in Control prior to the vesting of
such RSUs, 100% of the unvested RSUs will vest upon
the consummation of the Change in Control.



          2. 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.



          3. 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.




          4. 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.




          5. 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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