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Exhibit 10.6.1    
    


 
 

AMENDMENT TO EMPLOYMENT AGREEMENT    
    


        THIS AMENDMENT TO EMPLOYMENT AGREEMENT (the "Amendment") is made
and entered into as of February 24, 2008 (the "Effective Date"), by and between CYDEX
PHARMACEUTICALS, INC., a Delaware corporation (the "Company") and John M. Siebert
("Employee"). 


 
 

RECITALS    
    


        A.    The
Company retains the services of Employee pursuant to that certain Employment Agreement, dated June 21, 2006 (the "Employment
Agreement"). 


        B.    Employee
is also a party to that certain Severance Compensation Agreement between the Company and Employee, dated January 1, 2004 (as may be amended from time to
time) (the "Severance Agreement"). 


        C.    The
Employment Agreement provides for the payment of severance benefits in the event that Employee's employment is terminated without Cause (as defined in the Employment
Agreement). The Severance Agreement provides for payment of severance benefits in the event that Employee's employment is terminated without Cause (as defined in the Severance Agreement) or Employee
terminates employment for Good Reason (as defined in the Severance Agreement) in connection with a Change in Control of the Company (as defined in the Severance Agreement). 


        D.    The
Company and Employee wish to amend the Employment Agreement: (i) to comply with the requirements of Section 409A of the Internal Revenue Code of 1986,
as amended, and (ii) clarify that Employee will not receive severance benefits under the Employment Agreement should Employee also receive severance benefits under the Severance Agreement. 


 
 

AGREEMENT    
    


        Paragraph 10(a) of the Employment Agreement is hereby amended and restated in its entirety to read as follows: 



        a)    Termination by Death or Disability.    Subject to applicable state or federal law, in the event Employee shall
die during the period of his employment hereunder, or become permanently disabled as evidenced by notice to the Company and Employee's inability to carry out his job responsibilities for a continuous
period of more than three (3) months as a result of any medically determinable physical or mental impairment certified by a physician, selected by Employee and reasonably acceptable to the
Company, Employee's employment and the Company's obligation to make payments hereunder shall cease upon such termination of employment, except the Company shall pay Employee any salary earned but
unpaid prior to termination, any benefits accrued prior to termination, all accrued but unused personal time and sick leave, and any business expenses referred to in paragraph 8(b) that were
incurred but not reimbursed as of the date of termination. Upon a permanent disability resulting in a "separation from service" with the Company within the meaning of Treas. Reg.
Section 1.409A-1(h), the Company shall provide term life insurance for a period of up to five (5) years with a benefit of $1 million with the beneficiary to be
designated by Employee; provided that, the premium for such policy is not more than ten thousand dollars ($10,000) per year. 




        Paragraph 10(d)
of the Employment Agreement is hereby amended and restated in its entirety to read as follows: 



        d)    Termination by the Company without Cause.    The Company will have the right to terminate Employee's employment
with Company at any time without Cause. In the event Employee's employment is terminated without Cause and such termination is a "separation from service" with the Company within the meaning of Treas.
Reg. Section 1.409A-1(h) during the term of this Agreement, and upon the execution of a release by Employee in the form attached hereto 








 

as
Exhibit C ("Release"), and upon the written acknowledgement of his continuing obligations
under paragraph 9 hereof and the Nondisclosure Agreement, Employee shall be entitled to receive the equivalent of twelve (12) months of his base salary as in effect immediately prior to
the date of such "separation from service," paid on the same basis and at the same time as previously paid. 




        Paragraph 10(e)
of the Employment Agreement is hereby amended and restated in its entirety to read as follows: 



        e)     Compliance with Internal Revenue Code Section 409A.    If Employee is a "specified employee" of the
Company or any affiliate thereof (or any successor entity thereto) within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code of 1986, as amended (the
"Code") on the date of any "separation from service" with the Company within the meaning of Treas. Reg. Section 1.409A-1(h), then
(i) any term life insurance premiums to be paid by the Company pursuant to paragraph 10(a) (the "Life Insurance Premiums") shall not be
paid by the Company (and Employee shall make his own provision to pay such premiums) until the earlier of: (x) the date that is six (6) months after the date of such "separation from
service," or (y) the date of Employee's death (such date, the "Delayed Life Insurance Premium Payment Date"), and the Company (or the successor
entity thereto, as applicable) shall (A) pay to Employee a lump sum amount equal to the sum of the Life Insurance Premiums that otherwise would have been paid on Employee's behalf on or before
the Delayed Life Insurance Premium Payment Date, without any adjustment on account of such delay, and (B) continue the Life Insurance Premiums in accordance with the balance of any remaining
period required by paragraph 10(a); and (ii) any severance payments pursuant to paragraph 10(d) (the "Severance Payments") shall be
delayed until the earlier of: (x) the date that is six (6) months after the date of such "separation from service," or (y) the date of Employee's death (such date, the
"Delayed Payment Date"), and the Company (or the successor entity thereto, as applicable) shall (A) pay to Employee a lump sum amount equal to
the sum of the Severance Payments that otherwise would have been paid to Employee on or before the Delayed Payment Date, without any adjustment on account of such delay, and (B) continue the
Severance Payments in accordance with any applicable payment schedule set forth for the balance of the period specified in paragraph 10(d). 




        A
new paragraph 10(f) of the Employment Agreement is hereby added, to read in its entirety as follows: 



        f)     No Duplication of Benefits.    In the event that Employee receives severance benefits in connection with the
termination of Employee's employment pursuant to that certain Severance Compensation Agreement between the Company and Employee, dated January 1, 2004 (as may be amended from time to time),
Employee will not be entitled to receive any severance payments pursuant to paragraph 10(d). 



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        IN WITNESS WHEREOF, the Company and Employee have executed this Amendment on the dates set forth below, to be effective immediately as of
the Effective Date. 


CYDEX PHARMACEUTICALS, INC.



	/s/ Allen K. Roberson
	 	 
	

By:	

Allen K. Roberson
	
 	

 
	

Its:	

Chief Financial Officer
	
 	

 
	

Date:	

February 26, 2008
	
 	

 
	


 JOHN M. SIEBERT	

 	



 
	



/s/ John M. Siebert
	

 	



 
	

Date:	

February 24, 2008
	
 	

 




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Exhibit 10.6.1


AMENDMENT TO EMPLOYMENT AGREEMENT

RECITALS

AGREEMENT