FIRST AMENDMENT TO
EXECUTIVE EMPLOYMENT AGREEMENT
This FIRST
AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (this
“Amendment”) is made and entered into as of the 12th
day of June, 2009 (the “Amendment Date”), by and
between Cornerstone BioPharma, Inc., a Delaware corporation (the
“Company”), and Brian Dickson, M.D. (the
“Executive”). The Company and the Executive may be
referred to herein as the “parties.”
WHEREAS ,
the Company and the Executive entered into an Executive Employment
Agreement effective as of March 1, 2006 (the “Executive
Employment Agreement”) and a Proprietary Information,
Inventions, Non-competition, and Non-solicitation Agreement
effective as of the same date (the “Proprietary Information
Agreement”), the terms of which were expressly made a part of
the Executive Employment Agreement;
WHEREAS ,
the Company and the Executive had previously entered into an
Agreement Regarding Employment, Employee Duties, Ownership of
Employee Developments, and Confidentiality dated as of
May 2005 (the “Duties Agreement”), which provided
in Section 2.2 thereof for the accelerated vesting of all of
the Executive’s then unvested stock, stock options, benefits
and otherwise upon the occurrence of any change in control, defined
therein as the transfer of greater than 50% of the common ownership
of the group to an unrelated third party;
WHEREAS ,
the Executive Employment Agreement and the Proprietary Information
Agreement contained merger and integration clauses, which had the
legal effect of superseding the Duties Agreement in its entirety,
including Section 2.2 thereof;
WHEREAS ,
the parties acknowledge and agree that, notwithstanding the merger
and integration clauses contained in the Executive Employment
Agreement and the Proprietary Information Agreement, it was the
intention of the parties that Section 2.2 of the Duties
Agreement would continue in full force and effect; that
Section 2.2 would not be terminated by the Executive
Employment Agreement or the Proprietary Information Agreement; and
that the accelerated vesting provided by Section 2.2 would be
in addition to, and not restrictive of, any accelerated vesting
provided under any equity incentive plan in which the Executive
participates or any equity award granted to the Executive
thereunder;
WHEREAS ,
effective October 31, 2008, Neptune Acquisition Corp., a
Delaware corporation and a wholly owned subsidiary of Critical
Therapeutics, Inc. (“Transitory Subsidiary”), merged
with and into Cornerstone BioPharma Holdings, Inc., a Delaware
corporation and the parent company of the Company
(“CBHI”), as contemplated by the Agreement and Plan of
Merger (the “Merger Agreement”), dated as of
May 1, 2008, as amended, by and among Critical Therapeutics,
Inc., Transitory Subsidiary and CBHI (the
“Merger”);
WHEREAS ,
by virtue of the Merger, the Company became an indirect wholly
owned subsidiary of Critical Therapeutics, Inc., which subsequently
changed its name to Cornerstone Therapeutics Inc.
(“Cornerstone Therapeutics”), and, in accordance with
the Merger Agreement, all stock options held by the Executive that
were exercisable for CBHI common stock were assumed by Cornerstone
Therapeutics and became options to acquire Cornerstone Therapeutics
common stock;
WHEREAS ,
following the Merger, the Company and the Executive desire to amend
the Executive Employment Agreement to reflect the parties’
intentions regarding accelerated vesting of Cornerstone
Therapeutics stock, stock options, benefits and otherwise held by
or accruing to the Executive in
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