SOMAXON PHARMACEUTICALS,
INC.
AMENDMENT NO. 1 TO EMPLOYMENT
AGREEMENT
AMENDMENT NO. 1 TO Employment
Agreement (this “ Amendment ”)
made and entered into effective as of August 7, 2008, between
Somaxon Pharmaceuticals,
Inc. , a Delaware corporation (the “
Company ”), and David F. Hale, an individual
(“ Executive ”).
Whereas , the Company and
Executive are parties to that certain Employment Agreement dated as
of December 6, 2007 (the “Employment
Agreement”);
Whereas, the Company and
Executive desire to amend the Employment Agreement upon the terms
and conditions hereinafter set forth;
Now, Therefore, in
consideration of the premises and the mutual covenants hereinafter
set forth, and intending to be legally bound hereby, it is hereby
agreed as follows:
1.
Amendment to Section 1 of the Employment Agreement .
Section 1 of the Employment Agreement is hereby amended to
read as follows:
1.
Position and Duties . Executive shall diligently and
conscientiously devote Executive’s time, attention, energy,
skill and efforts to the business of the Company and the discharge
of Executive’s duties hereunder. Executive’s duties
under this Agreement shall be to serve as Executive Chairman of the Board of
Directors and Interim Chief Executive Officer , with the
responsibilities, rights, authority and duties customarily
pertaining to such office and as may be established from time to
time by or under the direction of the Board of Directors of the
Company (the “ Board ”) or its designees;
provided, however, that on and after August 11, 2008,
Executive shall serve solely as the Executive Chairman of the Board .
Executive shall also act as an officer and/or director and/or
manager of such affiliates of the Company as may be designated by
the Board from time to time, commensurate with Executive’s
office, all without further compensation, other than as provided in
this Agreement. As an exempt, salaried employee, Executive will be
expected to work such hours as required by the nature of
Executive’s work assignments.
2.
Amendment to Section 2(b) of the Employment Agreement .
Section 2(b) of the Employment Agreement is hereby amended to read
as follows:
(b)
Executive’s employment under this Agreement shall commence on
December 6, 2007, and continue until the earliest to occur of:
(i) the date of the Company’s 2009 annual meeting of
stockholders or such later date as may be mutually agreed upon by
Executive and the Board, or (ii) Executive’s resignation
from the position of Executive Chairman of the Board. Following the
termination of Executive’s employment as Executive Chairman
of the Board, Executive’s duties will revert to those of
non-executive Chairman of the Board and Executive will continue to
be compensated for his service as non-executive Chairman of the
Board only, as described below in Section 3(a).
Executive’s employment may be terminated by either Executive
or the Board at any time, for any reason or no reason. If this
Agreement terminates for any reason, Executive shall not be
entitled to any payments, benefits, damages, awards or other
compensation other than as provided in this Agreement.
3.
Amendment to Section 3 of the Employment Agreement .
Section 3 of the Employment Agreement is hereby amended to
read as follows:
(a)
Base Salary . The Company shall pay to Executive monthly
base salary compensation as follows: (i) for service as
interim Chief Executive Officer of the Company, the Company shall
pay Executive $15,000 for each month or portion thereof that
Executive holds such position, beginning January 1, 2008; and
(ii) for service as the Company’s Chairman of the Board
(regardless of whether Executive is acting as Executive Chairman or
non-executive Chairman of the Board), the Company shall pay
Executive $15,000 for each month or portion thereof that Executive
holds such position, beginning December 6, 2007 and continuing
through the date of the Company’s 2009 annual meeting of
stockholders. Executive’s annual base salary payable
hereunder, as it may be adjusted from time to time, is referred to
herein as “ Base Salary .” Base Salary
shall be paid in equal installments in accordance with the
Company’s payroll practices in effect from time to time for
executive officers, but in no event less frequently than monthly.
If Executive is to act as the Company’s non-executive
Chairman of the Board after his service as Executive Chairman has
come to an end and is no longer to be an employee of the Company,
Executive shall be compensated for such service as provided under
the Company’s Director Compensation Policy, as the same shall
be adjusted or modified by the Board from time to time
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