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Exhibit 99.6
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" .
Recitals
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.
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.
Employment.
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.
Termination.
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.
7. Choice of
Law.
This Agreement is made in California. This Agreement shall be
construed and interpreted in accordance with the internal laws of
the State of California.
8.
Integration.
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.
9.
Amendment.
This Agreement cannot be amended or modified except by a written
agreement signed by the Executive and the Company.
10.
Waiver.
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.
11.
Severability.
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 the Executive’s exe
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