EXECUTIVE EMPLOYMENT
AGREEMENT
This Employment Agreement (the
“Agreement” ) is made and entered into
effective as of December 21, 2006 (the “Effective
Date” ), by and between Intrabiotics Pharmaceuticals,
Inc. , (the “Company” ), and
Kimberly Manhard (the
“Executive” ). The Company and the
Executive are hereinafter collectively referred to as the
“Parties” , and individually referred to
as a “Party” .
A. The Company
desires assurance of the association and services of the Executive
in order to retain the Executive’s experience, skills,
abilities, background and knowledge, and is willing to engage the
Executive’s services on the terms and conditions set forth in
this Agreement.
B. The Executive
desires to be in the employ of the Company, and is willing to
accept such employment on the terms and conditions set forth in
this Agreement.
In consideration of the foregoing Recitals and
the mutual promises and covenants herein contained, and for other
good and valuable consideration, the Parties, intending to be
legally bound, agree as follows:
1.1 Title .
The Executive shall initially have the title of the Senior Vice
President of Regulatory Affairs, QA, and Operations of the Company
and shall serve in such other capacity or capacities as the Company
may from time to time prescribe. The Executive shall initially
report to the Company’s Chief Executive Officer (
“CEO” ).
1.2 Duties.
The Executive shall do and perform all services, acts or things
necessary or advisable to manage and conduct the business of the
Company and which are normally associated with the position of
Senior Vice President of Regulatory Affairs, QA, and Operations,
consistent with the bylaws of the Company and as required by the
CEO.
1.3 Policies and
Practices. The employment relationship between the Parties
shall be governed by the policies and practices established by the
Company and the Board. The Executive acknowledges that he has read
the Company’s Employee Handbook and other governing policies,
which will govern the terms and conditions of his employment with
the Company, along with this Agreement. In the event that the terms
of this Agreement differ from or are in conflict with the
Company’s policies or practices or the Company’s
Employee Handbook, this Agreement shall control.
1.4 Location .
Unless the Parties otherwise agree in writing, during the term of
this Agreement, the Executive shall perform the services the
Executive is required to perform pursuant to this Agreement at the
Company’s offices, located in San Diego, California, or at
any other place at which the Company maintains an office; provided,
however, that the Company may from time to time require the
Executive to travel temporarily to other locations in connection
with the Company’s business.
2.
Loyal and Conscientious Performance;
Noncompetition.
2.1 Loyalty .
During the Executive’s employment by the Company, the
Executive shall devote the Executive’s full business
energies, interest, abilities and productive time to the proper and
efficient performance of the Executive’s duties under this
Agreement.
2.2 Covenant not
to Compete . Except with the prior written consent of the
Company’s Board of Directors or the CEO, which shall not be
unreasonably withheld, the Executive will not, during the
Executive’s employment by the Company, engage in competition
with the Company and/or any of its Affiliates, either directly or
indirectly, in any manner or capacity, as adviser, principal,
agent, affiliate, promoter, partner, officer, director, employee,
stockholder, owner, co-owner, consultant, or member of any
association or otherwise, in any phase of the business of
developing, manufacturing and marketing of products or services
which are in the same field of use or which otherwise compete with
the products or services or proposed products or services of the
Company and/or any of its Affiliates. For purposes of this
Agreement, “Affiliate” means, with
respect to any specific entity, any other entity that, directly or
indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with such specified
entity.
2.3 Agreement not
to Participate in Company’s Competitors . During any
period during which the Executive is receiving any compensation or
consideration from the Company, the Executive agrees not to
acquire, assume or participate in, directly or indirectly, any
position, investment or interest known by the Executive to be
adverse or antagonistic to the Company, its business or prospects,
financial or otherwise or in any company, person or entity that is,
directly or indirectly, in competition with the business of the
Company or any of its Affiliates. Ownership by the Executive, as a
passive investment, of less than two percent (2%) of the
outstanding shares of capital stock of any corporation with one or
more classes of its capital stock listed on a national securities
exchange or publicly traded on the Nasdaq Stock Market or in the
over-the-counter market shall not constitute a breach of this
paragraph.
3. Compensation of the
Executive.
3.1 Base
Salary. The Company shall pay the Executive a base salary of
Two Hundred Fifty Thousand Dollars ($250,000) per year, less
payroll deductions and all required withholdings payable in regular
periodic payments in accordance with Company policy. Such base
salary shall be prorated for any partial year of employment on the
basis of a 365-day fiscal year.
3.2 Performance
Bonus. In addition to the Executive’s base salary, the
Executive shall be eligible for a performance bonus based upon the
Executive’s and the Company’s achievement of specified
objectives established by the CEO and/or Company’s Board of
Directors (the “Board” ) during the first
quarter of each year, as evaluated by the CEO and/or Board in its
or their discretion. The target bonus for full achievement of all
objectives shall be thirty percent (30%) of the Executive’s
Base Salary.
3.3 Signing
Bonus. Within thirty (30) days of the Executive’s
commencement of employment with the Company, the Executive shall be
paid a signing bonus of fifty thousand dollars ($50,000), less
standard deductions and withholdings.
3.4 Stock
Options. Upon the commencement of the Executive’s
employment and subject to approval of the Board and the terms of
the Company’s 2004 Stock Equity Incentive Plan, (the
“Plan” ), the Executive will be granted a
stock option under the Plan to purchase one hundred seventy five
thousand (175,000) shares of the Company’s Common Stock (the
“Option” ). To the maximum extent
possible, the Option shall be an Incentive Stock Option as such
term is defined in Section 422 of the Internal Revenue
Code
of 1986, as
amended. The Option will be governed by and granted pursuant to a
separate Stock Option Agreement and the Plan. The exercise price
per share of the Option will be equal to the fair market value of
the Common Stock established on the date of grant, subject to
approval by the Board of Directors. The Option will vest over four
(4) years for so long as the Executive continues to be
employed by the Company, as follows: twenty-five percent (25%)
shall vest on the first anniversary of the date of the grant of the
Option, and 1/48 th shall vest on the final calendar day of each
month thereafter.
3.5 Changes to
Compensation. The Executive’s compensation will be
reviewed on a regular basis by the Company and may be changed from
time to time as deemed appropriate.
3.6 Employment
Taxes . All of the Executive’s compensation shall be
subject to customary withholding taxes and any other employment
taxes as are commonly required to be collected or withheld by the
Company.
4.1 Termination By
the Company . The Executive’s employment by the Company
shall be at will. The Executive’s employment with the Company
may be terminated by the Company at any time and for any reason or
no reason, subject to the terms of the Company’s Senior
Executive Severance Benefit Plan as it may be amended from time to
time.
4.2 Termination by
Mutual Agreement of the Parties . The Executive’s
employment pursuant to this Agreement may be terminated at any time
upon a mutual agreement in writing of the Parties. Any such
termination of employment shall have the consequences specified in
such agreement.
4.3 Termination by
the Executive. The Executive’s employment by the Company
shall be at will. The Executive shall have the right to resign or
terminate the Executive’s employment at any time and for any
reason, or no reason. Subject to the provisions of the
Company’s Senior Executive Severance Benefit Plan as it may
be amended from time to time, in the event of a resignation or
termination by the Executive, the Company shall have no further
obligation to the Executive save for payment of earned
wages.
4.4 Change in
Control. The provisions of Article Two,
Section IVB(i) and (ii) of the Plan providing for
acceleration of outstanding option rights in the event of a
“Change in Control” (as defined in the
Appendix, Section C, of the Plan) and an
“Involuntary Termination” thereafter (as
defined in the Plan) are hereby incorporated into this Agreement
and shall apply in full.
5. Confidential And Proprietary
Information; Nonsolicitation .
5.1 As a condition of
employment the Executive agrees to execute and abide by the
Proprietary Information and Inventions Agreement attached hereto as
Exhibit A.
5.2 While employed by
the Company and for one (1) year thereafter, the Executive
agrees that in order to protect the Company’s Confidential
and Proprietary Information from unauthorized use, that the
Executive will not, either directly or through others, solicit or
attempt to solicit any employee, consultant or independent
contractor of the Company to terminate the Executive’s
relationship with the Company in order to become an employee,
consultant or independent contractor to or for any other person or
business entity; or the business of any customer, supplier, service
provider, vendor or distributor of the Company which, at the time
of termination or one (1) year immediately prior thereto, was
doing business with the Company or listed on Company’s
customer, supplier, service provider, vendor or distributor
list.
6. Assignment and Binding
Effect.
This Agreement shall be binding upon and inure
to the benefit of the Executive and the Executive’s heirs,
executors, personal representatives, assigns, administrators and
legal representatives. Because of the unique and personal nature of
the Executive’s duties under this Agreement, neither this
Agreement nor any rights or obligations under this Agreement shall
be assignable by the Executive. This Agreement shall be binding
upon and inure to the benefit of the Company and its successors,
assigns and legal representatives.
This Agreement is made in California. This
Agreement shall be construed and interpreted in accordance with the
internal laws of the State of California.
This Agreement, including Exhibit A,
contains the complete, final and exclusive agreement of the Parties
relating to the terms and conditions of the Executive’s
employment and the termination of Executive’s employment, and
supersedes all prior and contemporaneous oral and written
employment agreements or arrangements between the Parties. To the
extent this Agreement conflicts with the Proprietary Information
and Inventions Agreement attached as Exhibit A hereto, the
Proprietary Information and Inventions Agreement controls. To the
extent this Agreement conflicts with the terms of the Employee
Handbook, this Agreement controls.
This Agreement cannot be amended or modified
except by a written agreement signed by the Executive and the
Company.
No term, covenant or condition of this Agreement
or any breach thereof shall be deemed waived, except with the
written consent of the Party against whom the wavier is claimed,
and any waiver or any such term, covenant, condition or breach
shall not be deemed to be a waiver of any preceding or succeeding
breach of the same or any other term, covenant, condition or
breach.
The finding by a court of competent jurisdiction
of the unenforceability, invalidity or illegality of any provision
of this Agreement shall not render any other provision of this
Agreement unenforceable, invalid or illegal. Such court shall have
the authority to modify or replace the invalid or unenforceable
term or provision with a valid and enforceable term or provision
which most accurately represents the Parties ’
intention with respect to the invalid or unenforceable term or
provision.
12. Interpretation;
Construction.
The headings set forth in this Agreement are for
convenience of reference only and shall not be used in interpreting
this Agreement. This Agreement has been drafted by legal counsel
representing the Company, but the Executive has been encouraged to
consult with, and has consulted with, the Executive’s own
independent counsel and tax advisors with respect to the terms of
this Agreement. The Parties acknowledge
that each Party
and its counsel has reviewed and revised, or had an opportunity to
review and revise, this Agreement, and the normal rule of
construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the
interpretation of this Agreement.
13. Representations and
Warranties.
The Executive represents and warrants that the
Executive is not restricted or prohibited, contractually or
otherwise, from entering into and performing each of the terms and
covenants contained in this Agreement, and that
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