Exhibit 10.111
AMENDMENT NO. 1 TO SEVERANCE
AGREEMENT
This Amendment No. 1 to
Severance Agreement (this “ Amendment ”) is
entered into between Maria S. Messinger (“ Executive
”) and Cortex Pharmaceuticals, Inc. (the “
Company ”) effective as of this 22 day of December
2008.
R
E C I
T A L S
WHEREAS, Executive and the Company
are parties to a Severance Agreement entered into as of
October 26, 2000 (the “ Severance Agreement
”).
WHEREAS, since the execution of the
Severance Agreement, there have been certain changes to Internal
Revenue Code of 1986, as amended, including Section 409A and
the regulations thereunder.
WHEREAS, in order to comply with
Internal Revenue Code Section 409A and the regulations issued
under such section, Executive and the Company desire to amend the
Severance Agreement as set forth below.
NOW THEREFORE, in consideration of
the above and the mutual covenants and conditions contained below,
Executive and the Company agree as follows:
1. PART ONE — DEFINITIONS,
Section 5 of the Severance Agreement shall be amended and
restated in its entirety to read in full as follows:
“5. ‘Termination For
Good Reason’ means your employment pursuant to this Agreement
is terminated by you, as a result of any of the
following:
(i) A material breach by the Company
of any representation, covenant or agreement contained in this
Agreement;
(ii) A material change in your title
or a reduction or alteration of your duties that are materially
inconsistent with the duties performed by a Chief Financial
Officer; or
(iii) A requirement that you
relocate outside of Orange County, California.
provided that (A) you shall
have given written notice to the Company of your intent to resign
pursuant to this Section 5 within 90 days after you become
aware of the occurrence of any such event (specifying in detail the
nature and scope of the event), and (B) such event or
occurrence shall not have been resolved within 30 days of the
Company’s receipt of such notice, and (C) any
termination by you pursuant to this Section 5 following such
30 day cure period must occur no later than the date that is 2
years following the initial occurrence of one of the foregoing
events or conditions without your written consent. A Termination
For Good Reason shall be treated as involuntary.”
2. The heading “PART TWO
– CHANGE IN CONTROL BENEFITS” shall be amended and
restated to read “PART TWO – CHANGE IN CONTROL AND
SEVERANCE BENEFITS.”
1
3. PART TWO – CHANGE IN
CONTROL AND SEVERANCE BENEFITS, Section 5 shall be added in
its entirety and read as follows:
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“5.
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Section 409A Payment Delay
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(i) Payment Delay .
Notwithstanding anything in this Agreement to the contrary, to the
extent any payments to you pursuant to Section 1 of Part Two
are treated as non-qualified deferred compensation subject to
Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”), then (A) no amount shall be payable
pursuant to such section unless your termination of employment
constitutes a “separation from service” with the
Compan
