FIRST AMENDMENT TO EMPLOYMENT
AGREEMENT
BY AND BETWEEN DUSA PHARMACEUTICALS, INC. AND
MR. ROBERT F. DOMAN
THIS FIRST
AMENDMENT TO EMPLOYMENT AGREEMENT (this “First
Amendment”) is made as of the 26th day of November,
2008 (the “Effective Date”), by and between DUSA
Pharmaceuticals, Inc., a corporation duly organized under the laws
of the Commonwealth of Massachusetts, having offices located at 25
Upton Drive, Wilmington, Massachusetts (“DUSA”), and
Robert F. Doman, currently residing at 30 Monument Square,
Suite 410, Charlestown, Massachusetts 02129
(“Doman” and collectively with DUSA, the
“Parties”).
WHEREAS, DUSA and
Doman are parties to that certain employment agreement dated
December 29, 2004 (the “Agreement”), pursuant to
which DUSA employs Doman as President and Chief Executive Officer
and Doman continues to accept such employment; and
WHEREAS,
Doman’s bonus opportunity was increased at the time of his
promotion to Chief Executive Officer and the parties desire to
reflect this change in his Employment Agreement; and
WHEREAS, DUSA and
Doman wish to amend the Agreement to ensure that separation pay
that is payable under the Agreement will not constitute a deferral
of compensation under Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”); and
NOW, THEREFORE, in
consideration of the various promises and undertakings set forth in
this Amendment, the Parties agree to amend the Agreement as
follows:
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1.
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Paragraph 3 of the Agreement (
Remuneration ), which reads in relevant part:
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Following the
end of each fiscal year, the Board may award a cash bonus to Doman
in an amount up to Forty percent (40%) of his current base salary
for such year, as determined by the Board in its sold
discretion.
Shall be amended
to reflect an increase in the cash bonus opportunity percentage to
read:
Following the
end of each fiscal year, the Board may award a cash bonus to Doman
in an amount up to Fifty percent (50%) of his current base salary
for such year, as determined by the Board in its sold
discretion.
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2.
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As
of the Effective Date, Subsections 10.B.(i) and (iii) of the
Agreement are hereby deleted in their entirety and replaced with
the following:
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“10.
Termination of Employment .
B.
If Doman’s employment is terminated by the COMPANY without
cause the COMPANY shall:
(i)
pay Doman a severance allowance equivalent to twelve months then
current base salary, payable as a lump sum, within sixty
(60) days following the date of such termination
;
