Confidential
Exhibit 10.4
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made effective as of
this 1st day of October, 2002, by and between HYBRIDON, INC., a Delaware
corporation with its principal place of business at 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000 XXX ("Hybridon"), and Pillar SA, a French Limited Liability
company with offices located at 0, Xxx xxx Xxxxxxxxx, 00000 Xxxxx, Xxxxxx
("Pillar SA"). In consideration of the mutual promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which is
acknowledged, the parties agree as follows:
1. ENGAGEMENT AND SERVICES. Hybridon hereby engages Pillar SA to render, and
Pillar agrees to perform, the consulting services described in EXHIBIT A
attached hereto and other such services as may be agreed to in writing by
Hybridon and Pillar SA from time to time.
2. TERM. The term of this Agreement the "Consulting Period") shall be deemed to
have commenced as of October 1, 2002 and shall continue until January 31, 2003
or upon the early termination by either party pursuant to Section 3.
3. EARLY TERMINATION.
(a) This Agreement may be terminated without cause by either party upon not
less than fifteen (15) days prior written notice by either party to the
other.
(b) If Pillar SA ceases performing its Duties under Section 3(a), then the
consulting fee shall cease and terminate as of such date.
(c) Upon termination under Section 3(a), neither party shall have any
further obligations under this Agreement, except for the obligations
which by their terms survive this termination as noted in Section 18
hereof. Upon termination and, in any case, upon Hybridon's request,
Pillar SA shall return immediately to Hybridon all Confidential
Information, as hereinafter defined, and copies thereof.
4. COMPENSATION. Hybridon shall pay to Pillar SA, monthly in arrears within
fifteen (15) days of the last day of the calendar month in which an invoice is
received from Pillar SA, a consulting fee and expenses as described and detailed
in EXHIBIT B attached hereto. Pillar SA, its employees or agents shall not be
entitled to any benefits, coverages, or privileges, including those made
available to the employees of Hybridon.
5. CONFIDENTIALITY AND ASSIGNMENT OF INVENTIONS. Pillar SA acknowledges that it
has, through its duly authorized officer, on or prior to the date of this
Agreement, executed and delivered to Hybridon Confidential Disclosure Agreement
(the "Confidentiality Agreement"); such Confidentiality Agreement is attached
hereto at EXHIBIT C. Pillar SA hereby affirms and ratifies its obligations
thereunder.
6. NONCOMPETITION.
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(a) During the Consulting Period, Pillar SA shall not engage in any
consulting, employment, business, or other activity involving
developing, producing, marketing, performing, or selling products or
services of the kind or type contemplated (to the knowledge of Pillar
SA), under development, produced, marketed, performed, or sold by
Hybridon while Pillar SA during the Consulting Period, and Pillar SA
shall not assist any other person or organization in developing,
producing, marketing, performing, or selling such products or services
without the prior written consent of Hybridon.
(b) Notwithstanding any other provision of this Agreement, for a period of
one (1) year after termination of this Agreement, Pillar SA shall not,
directly or indirectly, employ, solicit for employment, or advise or
recommend to any other person that such other person employ or solicit
for employment, any person employed or under contract, whether as a
consultant, employee or otherwise, by or to Hybridon during the period
of such person's association with Hybridon and one year thereafter.
(c) If any restriction set forth in this Section 5 is found by any court of
competent jurisdiction to be unenforceable because it extends for too
long a period of time, over too great a range of activities, in too
broad a geographic area, or for any other reason, it shall be
interpreted to extend only to the maximum extent, whether period of
time, range of activities, geographic area or other term, as to which
it may be enforceable.
7. NOTICES. All notices required or permitted under this Agreement shall be in
writing and shall be deemed effective (i) upon personal delivery, (ii) two
business days after deposit with an express courier service for delivery no
later than two business days after such deposit, addressed to the other party at
the address shown above, or at such other address or addresses as either party
shall designate to the other in accordance with this section 7, or (iii) upon
confirmation of transmittal by telecopy, with a hard copy sent in accordance
with the preceding clause (ii), to the telecopy number set forth beneath a
party's signature below or at such other telecopy number or numbers as either
party shall designate to the other in accordance with this section 7.
8. ENTIRE AGREEMENT. This Agreement, together with the Confidentiality
Agreement, constitute the entire agreement between the parties with respect to,
and supersede all prior agreements and understandings, whether written or oral,
relating to, the subject matter of this Agreement. This Agreement may be amended
only by the prior written consent of both parties.
9. REPRESENTATIONS AND WARRANTIES. Pillar SA represents and warrants (i) that
its retention as a consultant with Hybridon and its performance under this
Agreement does not, and shall not, breach any agreement, whether written or
oral, that obligates it to keep in confidence any trade secrets or confidential
or proprietary information of it or of any other party or to refrain from
competing, directly or indirectly, with the business of any other party, (ii)
that each of its officers, agents and employees who may have contact with
Confidential or proprietary information under this Agreement or who may
otherwise be involved with provision of services by Pillar SA hereunder shall be
bound by agreements relating to the nondisclosure of confidential information
and assignment on terms substantially identical to those contained in the
Confidentiality Agreement
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attached at EXHIBIT C hereto, (iii) that the performance of the Duties and
Services as defined in Exhibit A hereto, called for by this Agreement do not and
will not violate any applicable law, rule, regulation or any other proprietary
or other right of any third party, and (iv) that Pillar SA will not use in the
performance of its responsibilities under this Agreement any confidential or
proprietary information of any other person or entity.
10. INDEMNIFICATION. Pillar SA hereby indemnifies and agrees to defend and hold
harmless Hybridon, its officers and employees from and against any and all
claims, demands, and actions, and any liabilities, damages or expenses resulting
therefrom, including court costs and reasonable attorney's fees, arising out of
or relating to the Duties and Services performed by Pillar SA under this
Agreement or the representations and warranties made by Pillar SA pursuant to
Section 9 hereof. Hybridon hereby indemnifies and agrees to defend and hold
harmless Pillar SA, its officers and employees from and against any and all
claims, demands, and actions, and any liabilities, damages or expenses resulting
therefrom, including court costs and reasonable attorney's fees, arising out of
or relating to the duties under this Agreement.
11. GOVERNING LAW. This Agreement shall be construed, interpreted and enforced
in accordance with the laws of the Commonwealth of Massachusetts, United States
of America without giving effect to conflict of laws provisions, whether foreign
or domestic.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, successors and
assigns. This Agreement may be assigned by Hybridon in connection with a merger
or sale of all or substantially all of its assets, and in other instances with
Pillar's SA consent which consent shall not be unreasonably withheld or delayed.
This Agreement may not be assigned by Pillar SA without Hybridon's prior written
consent.
13. NECESSARY ACTS. Pillar SA agrees to perform any further acts and execute and
deliver any documents that may be reasonably necessary to carry out the
provisions of this Agreement.
14. COMPLIANCE WITH LAW. In connection with the services and duties rendered
hereunder, Pillar SA agrees to abide by all United States federal, state and
local laws, ordinances and regulations and all other applicable laws, ordinances
and regulations.
15. REMEDY FOR BREACH. The parties agree that in the event of breach or
threatened breach of this Agreement, the damage or imminent damage to the value
and the goodwill of Hybridon's business will be immeasurable, therefore any
remedy at law or in damages may be inadequate. Accordingly, the parties agree
that Hybridon shall be entitled to, in addition to any and all remedies of law,
the right to an injunction, specific performance or other equitable relief to
prevent the violation or threatened violation of Pillar's SA obligations
hereunder.
16. WAIVER. Any waiver by either party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of the same or any other provision hereof. All waivers by shall be in writing.
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17. INDEPENDENT CONTRACTOR. The relationship between Pillar SA and Hybridon
under this Agreement is that of independent contractor under a "work for hire"
relationship. All work product developed by Pillar SA shall be deemed owned and
assigned to Hybridon. This Agreement is not authority for Pillar SA to act or on
behalf of Hybridon as its agent or make commitments for Hybridon.
18. SURVIVAL. The provisions of Sections 5, 6, 9, 10, 11, 13, 14 and 15 of this
Agreement shall survive the expiration of the term or the early termination of
this Agreement. This Agreement supersedes all prior agreements, written or oral,
between Pillar SA and Hybridon relating to the subject matter of this Agreement.
19. EXECUTION AND COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original and all of which shall
be deemed a single agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
HYBRIDON, INC. PILLAR SA
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Youssef El Zein
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Name: Xxxxxxx X. Xxxxxx Name: Youssef El Zein
Title: Chief Executive Officer Title: Chief Executive Officer
Telecopy: 617.679.5542 Telecopy: 011.331.4070.8009
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Confidential
EXHIBIT A
DUTIES AND SERVICES.
Hybridon's shareholder base continues to include a substantial percentage of
overseas shareholders. These shareholders have been long-term holders of
Hybridon securities and have continued to support Hybridon's business plan and
scientific discovery efforts.
(a) Pillar's SA duties and responsibilities to Hybridon will consist
of substantial support for the International Investor Relations ("IR") efforts
of Hybridon with the purpose of:
1. Maintaining the continued support of the current long term
shareholders,
2. Increasing the visibility of Hybridon among European institutional
investors
3. Actively seeking out the interest of new investors in Hybridon.
To achieve the above purpose, Pillar SA will work closely with Hybridon
management and at the request of Hybridon on the following services over the
Consulting Period:
1. Advise Hybridon on the structure of a new corporate presentation to
address the international investors of Hybridon and to continuously
update this presentation as the developments in Hybridon dictate.
2. Identify the current long-term shareholders of Hybridon, establish
direct contact, supply them with the latest corporate information
package approved by Hybridon and maintain a dialogue to respond to
their queries within the FD rules and regulations and all other
applicable securities laws.
3. Identify interested biotech institutional investors in Europe and
particularly in France, Belgium Denmark and Switzerland and develop
their interest in Hybridon through information supply and direct
meetings.
4. Organize frequent (at least once a month) conference calls between
Hybridon management and interested existing and new investors to enter
into direct dialogues following initial contact by Pillar SA.
5. Organize and participate in at least two "road shows" (or equivalent
investor presentations) over the four month period, giving Hybridon
management the opportunity to meet with new and exiting investors and
generally raising awareness and interest in Hybridon.
(collectively, the "Duties" or "Services").
(b) Pillar SA agrees that during the Consulting Period it will devote
at least ten (10) days per month to its Duties. Pillar SA will supply Hybridon
management with periodic progress reports on its activities to include the
following:
1. Lists of the long-term shareholders that will be contacted including
their investment history in Hybridon and their investment objective.
These are estimated to be in excess of 40 shareholders whose current
holdings exceed 20 million shares of the outstanding common equity of
Hybridon, all of whom participated in the EEP in the summer of 2001.
2. Reactions and questions raised by these shareholders for Hybridon to
respond to.
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Confidential
3. Lists of new investors contacted, including their profile and
investment objective to allow Hybridon to position itself with these
new investors to respond to their investment criteria.
4. Questions raised by the new investors for Hybridon to address in their
periodic conference calls and road shows to be organized by Pillar SA.
Pillar SA will continue to enter into discussions with Hybridon management to
update the proposed IR campaign and to recommend IR strategy to respond to the
findings so as to render this campaign an interactive and responsive one to
ensure its success. The information supplied by Pillar SA to Hybridon during
this Consulting Period will be comprehensive to allow Hybridon to update its
data base on its investors and to give Hybridon the tools to move forward in the
future with other campaigns as it sees fit.
In addition to the above, Hybridon may periodically provide Pillar SA with a
schedule of the requested hours, responsibilities and deliverables for the
applicable period of time. The Duties will be scheduled on an as-needed basis.
(c) Pillar SA represents and warrants to Hybridon that it is under no
contractual or other restrictions or obligations which are inconsistent with the
execution of this Agreement, or which will interfere with the performance of
his/her Duties. Pillar SA represents and warrants that the execution and
performance of this Agreement will not violate any policies or procedures of any
other person or entity for which he/she performs Services concurrently with
those performed herein.
(d) In performing the Services, Pillar SA shall comply, to the best of
his/her knowledge, with all business conduct, regulatory and health and safety
guidelines established by Hybridon for any governmental authority with respect
to Hybridon's business.
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Confidential
EXHIBIT B
CONSULTING FEES AND EXPENSES.
(a) Subject to the provisions hereof, Hybridon will pay Pillar SA a
consulting fee of fifteen thousand (US$15,000.00) Dollars for each full month of
Duties and Services, as described in Exhibit A, provided to the Company during
the term of this Agreement (the "Consulting Fee"). Pillar SA shall submit
monthly an invoice, including a listing of hours, the Duties and Services
performed and a summary of activities. Hybridon shall pay to Pillar SA, monthly
in arrears within fifteen (15) days of the last day of the calendar month in
which an invoice is received from Pillar SA.
(b) Pillar SA shall be entitled to reimbursement for all expenses
incurred in the performance of its Duties or Services, upon submission and
approval of written statements and receipts in accordance with the then regular
procedures of Hybridon. In accordance with expense reimbursement rates approved
by Hybridon's Board of Directors, the following limits shall be in effect under
the Agreement:
- Hotel - not to exceed two hundred and seventy-five (US$275.00) dollars
per night;
- Meals - not to exceed one hundred and twenty-five (US$125.00) dollars
per day;
- Airfare for International travel - Business Class
- Airfare for travel within Europe or within the US - Economy Class
- Total for all expenses during the term of the Agreement - not to
exceed twenty thousand (US$20,000.00) dollars over the period of
engagement without prior written approval.
(c) Pillar SA agrees to pay all taxes including, self-employment taxes
and withholding taxes due in respect of the Consulting Fee and any other fees or
expenses payable hereto and to indemnify Hybridon in the event Hybridon is
required to pay any such taxes on behalf of Pillar SA.
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Confidential
EXHIBIT C
[Attach executed copy of Confidential Disclosure Agreement (Confidentiality
Agreement")]
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