Exhibit 10.2
AMENDMENT TO
EMPLOYMENT
AGREEMENT
This Amendment (the
“Amendment”) is entered into as of May 1, 2009 (the
“Effective Date”), between Daniel B. Carr, M.D.
(“Executive”) and Javelin Pharmaceuticals, Inc., a
Delaware corporation (the “Company”), and amends the
Employment Agreement dated July 7, 2007 by and between the Company
and the Executive (the “Agreement”).
WHEREAS , the parties to this Amendment desire to amend
the Agreement to implement changes to the executive compensation
structure of the Company:
NOW, THEREFORE
, in consideration of the premises
and mutual covenants contained herein, the parties agree as
follows:
Compensation
1. Section 5(a) of
the Agreement is amended to by replacing “Four Hundred Fifty
Thousand Dollars ($450,000)” with “Three Hundred
Thousand Dollars ($300,000).”
2. The Executive
shall not be entitled to receive the Performance Cash Bonus as
provided for in paragraph 5(b) of the Agreement. The
foregoing shall not apply to the Special Incremental Incentive
agreed to in the memorandum attached to the June 3, 2008 E-mail to
Executive from David B. Bernstein, which agreement remains in full
force and effect in accordance with its terms.
Section 409A
3. Section 9(d) is
amended by adding the following after “shall
mean”:
the following, provided that, the Executive must
notify the Company of the existence of a Good Reason within 90 days
of the initial event giving rise to such Good Reason, and the
Company shall have 30 days from the date of such notice to cure and
remediate such condition, if curable or remediable, and thereby
eliminate the Good Reason:
4. New Section 11(m)
is added which reads as follows:
This Agreement
is intended to comply with the requirements of Section 409A of the
Internal Revenue Code (the “Code”), to the extent
applicable, and the Agreement shall be interpreted in accordance
with such requirements. Notwithstanding any other
provisions of this Agreement to the contrary, any payment or
benefits otherwise due to the Executive upon the Executive’s
termination from employment with the Company shall not be made
until and unless such termination from employment constitutes a
“Separation from Service”, as such term is defined
under Section 409A of the Code. The preceding provision
shall have no effect on payments or benefits otherwise due or
payable under this Agreement to the Executive or on the
Executive’s behalf, which are not on account of the
Executive’s termination from employment with the Company,
including as a result of the Executive’s
death. Furthermore, if the Company reasonably determines
that the Executive is a “Specified Employee”
as
