Exhibit 10.4
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement (this "Amendment"), made as of
the 20th day of August, 2004, is entered into by Hybridon, Inc., a Delaware
corporation with its principal place of business at 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000 (the "Company"), and Xx. Xxxxxxx X. Xxxxxx residing at 00
Xxxxx Xxxx, Xxxxxx, XX 00000 ("Executive").
WHEREAS, the Company and Executive are parties to an Employment
Agreement dated as of July 25, 2001 (the "Employment Agreement"); and
WHEREAS, the Company and Executive desire to provide Executive with
specified rights to severance benefits if Executive or the Company give notice
of the termination of the Executive's employment during the period commencing on
the date hereof and ending on the date 90 days after the date hereof (the
"Transition Period");
NOW THEREFORE, in consideration of these premises, the mutual covenants
and promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties hereto agree as
follows:
1. Defined Terms. The capitalized terms used herein but not
otherwise defined shall have the meanings assigned to them in the Employment
Agreement.
2. Voluntary Resignation. The Employment Agreement is hereby
amended by inserting the following clause immediately after clause (v) of
Section 7(a) of the Employment Agreement and renumbering clauses (vi) and (vii)
of Section 7(a) and all references to such sections of the Employment Agreement,
as amended by this Amendment, to reflect the following clause:
"(vi) Termination by Executive Other than for Good Reason.
Executive may terminate his employment under this Agreement
for any reason at any time upon thirty (30) days' prior
written notice to the Company. If Executive's employment
hereunder is terminated by Executive under this clause (vi),
the Company shall pay Executive any Accrued Obligations,
provided that such amount shall be paid in a lump sum cash
payment within thirty (30) days after such termination date.
Executive shall remain subject to the provisions of this
Agreement that, by their terms, survive the termination of
Executive's employment with the Company."
3. Severance Benefits in the Event of Voluntary Resignation. In
the event that, during the Transition Period, Executive gives notice of
termination of his employment under the Employment Agreement pursuant to Section
7(a)(vi) of the Employment Agreement, as amended by this Amendment, then,
notwithstanding the provisions of Section 7(a)(vi) to the contrary, the Company
shall provide Executive with all of the benefits to which Executive would have
been entitled under Section 7(a)(v) of the Employment Agreement if he had
terminated his employment and the Employment Agreement for Good Reason pursuant
to Section 7(a)(v) of the Employment Agreement, including but not limited to
benefits with respect to Executive's Base Salary, Accrued Obligations and stock
options.
4. Cause. The Company and Executive agree that, during the
Transition Period, the term "Cause," as defined in Appendix A to the Employment
Agreement, shall have the meaning set forth below in lieu of the meaning
currently set forth on Appendix A.
"Cause. "Cause" shall mean Executive's (i) material breach of
any material term of this Agreement, (ii) plea of guilty or
nolo contendre to, or conviction of, the commission of a
felony offense or (iii) repeated unexplained or unjustified
absence, or refusals to carry out the lawful directions of the
Board, provided that any action or inaction described by (i)
or (iii) above shall not be the basis of a termination of
Executive's employment with the Company for "Cause" unless the
Company provided Executive with at least twenty (20) days
advance written notice specifying in reasonable detail the
conduct in need of being cured and such conduct was not cured
within the notice period."
5. Miscellaneous
(a) The captions of the sections of this Amendment are for
convenience of reference only and in no way define, limit, or affect the scope
or substance of any section of this Amendment.
(b) This Amendment shall be construed, interpreted, and enforced
in accordance with the laws of the Commonwealth of Massachusetts, without giving
effect to conflict of laws provisions.
(c) This Amendment, together with the Employment Agreement,
constitute the entire agreement between the parties and supersedes all prior
agreements and understandings, whether written or oral, relating to the subject
matter hereof.
(d) In all respects other than as specifically provided in this
Amendment, the Employment Agreement is hereby ratified and affirmed.
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In witness whereof, the parties hereto have executed this Amendment as
of the day and year set forth above.
HYBRIDON, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
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Title: Chairman of the Board of Directors
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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