Exhibit 10.28
AMENDMENT NO. 1
TO EMPLOYMENT
AGREEMENT
THIS AMENDMENT NO. 1
(this “ Amendment
” ) to the Employment Agreement by and between Pascal
Druzgala (“ Executive ”) and ARYX
THERAPEUTICS, INC. , a Delaware corporation (the “
Company ”) dated July 23, 2002 (the
“ Prior Agreement ”), is entered into and
effective as of December 19, 2008 (the “ Effective
Date ”). Capitalized terms not herein defined shall
have the meanings ascribed to them in the Prior
Agreement.
WHEREAS , the Company and the Executive previously
entered into the Prior Agreement; and
WHEREAS , the Company and the Executive wish to amend
the Prior Agreement by entering into this Amendment to comply with
the parties’ intent that the Prior Agreement be interpreted,
construed and administered in a manner that satisfies
Section 409A of the Internal Revenue Code of 1986, as amended
from time to time, among other things.
NOW, THEREFORE
, in consideration of the mutual
promises and covenants contained herein, the Company and the
Executive, intending to be legally bound, hereby amend the Prior
Agreement effective as of the Effective Date and agree as
follows:
SECTION 1.
AMENDMENT TO THE PRIOR
AGREEMENT
Effective as of the Effective Date,
the following sections of the Prior Agreement are hereby amended
and restated in their entirety to read as follows:
1.
Section 5.1(c) shall
read:
Termination Without
Cause. If the
Company terminates Executive’s employment at any time without
Cause (and other than as a result of death) and such termination is
a “separation from service” under Treasury Regulation
Section 1.409A-1(h), (i) the Company shall make a lump
sum severance payment to Executive in an amount equal to six
(6) months of Executive’s then-current base salary,
subject to withholdings and deductions, payable within ten
(10) days after the effective date of the release executed in
satisfaction of the requirements set forth in Section 8 of
this Agreement, (ii) if you timely elect COBRA health
insurance coverage, the Company will reimburse your COBRA premiums
for a maximum of either six (6) months following the date your
employment terminates or until you secure health insurance coverage
from another source, whichever occurs sooner (but in no event after
Executive ceases to be eligible for COBRA), and (iii) the
vesting of the Option shall immediately accelerate with respect to
the number of shares that would otherwise vest if the Executive was
to remain employed by the Company over the six (6) month
period following the date of such termination. Executive
shall not be entitled to this severance pay and Option acceleration
unless and until the release requirements set forth in
Section 8 of this Agreement are satisfied.
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