EXHIBIT 10.56
AMENDMENT
TO THE
EMPLOYMENT AGREEMENT
BETWEEN
STAR SCIENTIFIC, INC.
AND
ROBERT E. POKUSA
This Amendment (this
“Amendment”) to that certain Employment Agreement
between Star Scientific, Inc., a Delaware corporation (together
with any successor thereto, the “Company”) and Robert
E. Pokusa (the “Executive”) dated as of March 30,
2001 (the “Employment Agreement”) is made as of this
19th day of December, 2008 (the “Amendment Date”), by
and among the Company and the Executive. Except as set forth in
this Amendment, capitalized terms used herein but not defined
herein shall have the meanings ascribed to them in the Employment
Agreement.
WITNESSETH
WHEREAS, the Company and the
Executive desire to amend the terms of the Employment Agreement as
a result of Section 409A of the Internal Revenue Code of 1986,
as amended;
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Executive and the Company (collectively
the “Parties”) hereby agree as of the Amendment Date to
the following:
1. Amendments to the Employment
Agreement . Effective as of the Amendment Date, the Employment
Agreement is hereby amended as follows:
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(a)
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Section 2(b) of the Employment Agreement is
amended to read as follows:
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“(b) Discretionary
Bonus . In addition to the Base Salary, and assuming that this
Agreement remains in effect, Executive shall be eligible for a
discretionary bonus (the amount of such bonus to be at the
discretion of the Company’s Chairman, President and Chief
Operating Officer and/or the Company’s Chief Executive
Officer), based on a variety of effective performance based
factors. Any discretionary bonus earned with respect to any
calendar year shall be paid no earlier than January 1 and no
later than December 31 of the calendar year following the
calendar year with respect to which it is earned.”
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(b)
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The following
new Section 19 is added after Section 18 of the
Employment Agreement as follows:
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“19. Section 409A
.
Notwithstanding anything to the
contrary in this Agreement, Executive shall not be entitled to any
payment or benefit pursuant to Section 4 unless
Executive’s termination of employment constitutes a
Separation from Service. For purposes of this Agreement, a
Separation from Service shall mean the Executive’s
“separation from service” with the Company as such term
is defined in Treasury Regulation Section 1.409A-1(h) and any
successor provision thereto.
Notwithstanding anything to the
contrary in this Agreement, if at the time of Executive’s
termination of employment with the Company, Executive is a
Specified Employee, as determined by the Company in accordance with
Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”), and the deferral of the commencement of
any payments or benefits otherwise payable hereunder as
a
