**Exhibit 10.4**

**VERDIA, INC.**

 

**CHANGEOF CONTROL AGREEMENT**

 

This **CHANGEOFCONTROL AGREEMENT** (the “Agreement”), dated February 24, 2003, is made by and between **VERDIA, INC.**, a Delaware corporation (the “Company”), and**JOHN BEDBROOK**(the “Executive”). 

 

**WHEREAS**, the Company considers it essential to the best interests of its stockholders to foster the continuous employment of key management personnel; 

 

**WHEREAS**, the Board ofDirectors of the Company recognizes that the possibility of a Change of Control (as defined herein) exists and that such possibility, and the uncertainty and questions that it may raise among management, may result in the departure or distraction ofmanagement personnel to the detriment of the Company and its stockholders; and 

 

**WHEREAS**, the Board has determined that appropriate steps should be taken to reinforce and encourage the continued attention and dedication of members of theCompany’s management, including the Executive, to their assigned duties without distraction in the face of potentially disturbing circumstances arising from the possibility of a Change of Control. 

 

**NOW, THEREFORE,** inconsideration of the premises and the mutual covenants herein contained, the Company and the Executive agree as follows: 

 

1.    Introduction; Purposes. 

 

(a) The purpose of this Agreement is to provide the Executive with protection of certainbenefits in case of a termination of his employment with the Company in connection with a Change of Control of the Company. 

 

(b) The Company, by means of the Agreement, seeks to (i) secure and/or retain the services of the Executive and (ii)provide incentives for the Executive to exert maximum efforts for the success of the Company even in the face of a potential Change of Control of the Company. 

 

2.    Definitions. 

 

(a) “Accountants” has the meaning given thereto in Section 4. 

 

(b) “ADEA” has the meaning giventhereto in Section 5(c). 

 

(c)“Agreement” means this Change of Control Agreement. 

 

(d) “Board” means the Board of Directors of the Company. 

 

 

(e) “Cause” means the Executive’s: (i) willful and continued failure to substantially perform the Executive’s duties with the Company (other than as a result of physical or mental disability) after a writtendemand for substantial performance is deliver to the Executive by the Company, which demand specifically identifies the manner in which the Company believes that the Executive has not substantially performed the Executive’s duties and that hasnot been cured within fifteen (15) days following receipt by the Executive of the written demand; (ii) commission of a felony (other than a traffic-related offense) that in the written determination of the Company is likely to cause or has causedmaterial injury to the Company’s business; (iii) dishonesty with respect to a significant matter relating to the Company’s business; or (iv) material breach of any agreement by and between the Executive and the Company, or by and betweenthe Company and its parent, Maxygen, Inc., which material breach has not been cured within fifteen (15) days following receipt by the Executive of written notice from the Company and/or Maxygen, Inc. identifying such material breach. 

 

(f) “Change of Control” means: (i) adissolution or liquidation of the Company; (ii) a sale of all or substantially all the assets of the Company; (iii) a merger or consolidation in which the Company is not the surviving corporation and in which beneficial ownership of securities ofthe Company representing at least fifty percent (50%) of the combined voting power entitled to vote in the election of directors has changed; (iv) a reverse merger in which the Company is the surviving corporation but the shares of the common stockof the Company outstanding immediately before the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or otherwise, and in which beneficial ownership of securities of the Company representing atleast fifty percent (50%) of the combined voting power entitled to vote in the election of directors has changed; (v) an acquisition by any person or entity (including its affiliates) (excluding any employee benefit plan, or related trust, sponsoredor maintained by the Company or subsidiary of the Company or other entity controlled by the Company) of the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable successor rule) of securities of theCompany representing at least fifty percent (50%) of the combined voting power entitled to vote in the election of directors; or, (vi) in the event that the individuals who are members of the Incumbent Board cease for any reason to constitute atleast fifty percent (50%) of the Board. 

 

(g) “Code” means the Internal Revenue Code of 1986, as amended. 

 

(h) “Committee” means the Board or a committee appointed by the Board to administer this Agreement.

 

(i) “Company” meansVerdia, Inc., a Delaware corporation. 

 

(j) “Company-Paid Coverage” has the meaning given thereto in Section 3(a). 

 

(k) “Confidential Information, Secrecy and Invention Agreement” has the meaning given thereto in Section 5(b).

 

2 

 

(l) “Disability” means the Executive’s physical or mental disability that prevents the Executive from satisfactorily performing the normal duties and responsibilities of the Executive’s office in the good faithdetermination of the Committee for a period of more than one hundred twenty (120) consecutive days. 

 

(m) “Effective Date” means the date first above written. 

 

(n) “Employee Agreement and Release”has the meaning given thereto in Section 5(c). 

 

(o) “Exchange Act” means the Securities Exchange Act of 1934, as amended. 

 

(p) “Excise Tax” has the meaning given thereto in Section 4. 

 

(q) “Executive” means the personidentified in the introductory paragraph of this Agreement. 

 

(r) “Good Reason” means: (i) any material reduction of the Executive’s duties, authority or responsibilities relative to the Executive’s duties, authority, or responsibilities as ineffect immediately before such reduction, except if agreed to in writing by the Executive; (ii) a reduction by the Company in the base salary of the Executive, or of twenty-five percent (25%) or more in the Target Bonus opportunity of suchExecutive, as in effect immediately before such reduction, except if agreed to in writing by the Executive; (iii) the relocation of the Executive to a facility or a location more than thirty (30) miles from the Executive’s then present businesslocation, except if agreed to in writing by the Executive; (iv) a material breach by the Company of any provision of this Agreement or (v) any failure of the Company to obtain the assumption of this Agreement by any successor or assign of theCompany. 

 

(s) “IncumbentBoard” means the individuals who, as of the Effective Date, are members of the Board. If the election, or nomination for election by the Company’s stockholders, of any new director is approved by a vote of at least fifty percent (50%) ofthe Incumbent Board, such new director shall be considered as a member of the Incumbent Board. 

 

(t) “Target Bonus” means the Executive’s target bonus for the then current fiscal year, as set by the Boardor the appropriate committee thereof. 

 

3.    Severance Benefits in the Event of a Change of Control. 

 

(a) If within eighteen (18) months following the date of a Change of Control of the Company either (i) the Companyterminates the Executive’s employment other than for Cause, death or Disability or (ii) the Executive terminates his employment with the Company voluntarily with Good Reason, then in each case, subject to Section 4 and Section 5: (A) theExecutive shall be entitled to receive a lump sum payment equal to two times the Executive’s yearly base salary in effect on the date of termination (without 

 

3 

giving effect to any reduction in base salary subsequent to a Change of Control that constitutes Good Reason), (B) each of theExecutive’s outstanding Company stock options, all Company stock subject to repurchase, restricted stock awards and restricted stock purchases, and any Company options, stock subject to repurchase, awards or purchases held in the name of anestate planning vehicle for the benefit of the Executive or his immediate family, shall have their vesting and exercisability schedule accelerated in full (or, as applicable, the corresponding repurchase right shall lapse in full) as of the date oftermination; and (C) if on the date of termination the Executive is covered by any Company-paid health, disability, accident and/or life insurance plans or programs, the Company shall provide to the Executive benefits substantially similar to thosethat the Executive was receiving immediately prior to the date of termination (the “Company-Paid Coverage”). If such coverage included the Executive’s spouse and/or dependents immediately prior to the date of termination, such spouseand/or dependents shall also be covered at Company expense. Company-Paid Coverage shall continue until the earlier of (x) two (2) years from the date of termination, or (y) the date that the Executive and his or her spouse and/or dependents becomecovered under another employer’s health, disability, accident and/or life insurance plans or programs that provides the Executive and his or her spouse and/or dependents with comparable benefits and levels of coverage. 

 

(b) If within eighteen (18) months followingthe date of a Change of Control of the Company the Executive’s employment with the Company is terminated as a result of death or Disability, then in each case, subject to Section 4 and Section 5: (i) each of the Executive’s outstandingCompany stock options, all Company stock subject to repurchase, restricted stock awards and restricted stock purchases, and any Company options, stock subject to repurchase, awards or purchases held in the name of an estate planning vehicle for thebenefit of the Executive or his immediate family, shall have their vesting and exercisability schedule accelerated such that vesting (or, as applicable, the corresponding repurchase right lapsing) shall occur as if the vesting (or lapsing) hadoccurred on a monthly basis from the last date of vesting (or lapse) to the date of termination; and (ii) the Company will provide the Executive with health, disability, accident and/or life insurance benefits as described in Section 3(a)(iii).

 

(c) In no event shall theExecutive be obligated to seek other employment or take any other action to mitigate the amounts payable to the Executive under this Agreement. 

 

(d) The Executive’s employment shall be deemed to have been terminated following a Change of Control by the Companywithout Cause or by the Executive with Good Reason if the Executive’s employment is terminated prior to a Change of Control without Cause at the direction of a person who has entered into an agreement with the Company the consummation of whichwill constitute a Change of Control or if the Executive terminates his employment with Good Reason prior to a Change of Control if the circumstances or event that constitutes Good Reason occurs at the direction of such person. 

 

4 

 

4.    Parachute Payments; Excise Tax. 

 

In the event that the severance, acceleration of stock options and other benefits payable to the Executive as a result of a Change of Control of the Company (i) constitute “parachutepayments” within the meaning of Section 280G (as it may be amended or replaced) of the Code and (ii) but for this Section 4, would be subject to the excise tax imposed by Section 4999 (as it may be amended or replaced) of the Code (the“Excise Tax”), then the Executive’s benefits payable in connection therewith shall be either 

 

(a) delivered in full, or 

 

(b) delivered as to such lesser extent that would result in no portion of such benefits being subject to the Excise Tax,

 

whichever of the foregoing amounts, taking into account theapplicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable underthe Excise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 4 shall be made in writing in good faith by the outside accounting firm responsible for auditing the Company’sfinancial records (the “Accountants”). In the event of a reduction in benefits hereunder, the Executive shall be given the choice of which benefits to reduce. For purposes of making the calculations required by this Section 4, theAccountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code. 

 

The Company and the Executive shall furnish to the Accountants such information and documents as theAccountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4. 

 

5.    Limitations and Conditions onBenefits. 

 

The benefits and payments providedunder this Agreement shall be subject to the following terms and limitations: 

 

(a) Withholding Taxes. The Company shall withhold required federal, state and local income and employment taxes from any payments hereunder. 

 

(b) Confidential Information, Secrecy andInvention Agreement Prior to Receipt of Benefits. The Executive shall have executed and delivered to the Company a standard form of the Company’s confidential information, secrecy and invention agreement, a copy of the current form of whichis attached as Exhibit A (the “Confidential Information, Secrecy and Invention Agreement”), prior to the receipt or provision of any benefits (including the acceleration benefits) under this Agreement. Additionally, the Executive agreesthat all documents, records, apparatus, equipment and other physical property that is furnished to or obtained by the Executive in the course of his employment 

 

5 

with the Company (or Maxygen, Inc.) shall be and shall remain the sole property of the Company (or as applicable, Maxygen, Inc.). TheExecutive agrees not to make or retain copies, reproductions or summaries of any such property, except as otherwise necessary while acting in the normal course of business. In the event of any material breach by the Executive of the ConfidentialInformation, Secrecy and Invention Agreement that is not cured within thirty (30) days of notice of such breach to the Executive, all benefits payable under Section 4 of this Agreement shall immediately terminate. 

 

(c) Employee Agreement and Release Prior toReceipt of Benefits. If the Executive’s employment with the Company terminates involuntarily other than for Cause, death or Disability, or the Executive terminates his employment with the Company voluntarily with Good Reason, then prior to,and as a condition of the receipt of any benefits (including the acceleration benefits) under this Agreement on account of such termination, the Executive shall, as of the date of such termination, execute an employee agreement and release in theform attached as Exhibit B (the “Employee Agreement and Release”) prior to receipt of benefits. Such Employee Agreement and Release shall specifically relate to all the Executive’s rights and claims in existence at the time of suchexecution and shall confirm the Executive’s obligations under the Company’s standard form of Confidential Information, Secrecy and Invention Agreement. If and only if the Executive is covered by the federal Age Discrimination in EmploymentAct of 1967, as amended (“ADEA”) (currently all those 40 years of age or over on the date of termination), the Executive has twenty-one (21) days to consider whether to execute such Employee Agreement and Release and the Executive mayrevoke such Employee Agreement and Release within seven (7) days after execution of such Employee Agreement and Release. In the event the Executive is covered by ADEA and does not execute such Employee Agreement and Release within the twenty-one(21) days specified above, or if the Executive revokes such Employee Agreement and Release within the seven (7) day period specified above, no benefits (including the acceleration benefits) under Section 3 of this Agreement shall be payable or madeavailable to the Executive on account of a termination. 

 

6.    Termination. Prior to a Change of Control of the Company, this Agreement shall automatically terminate on the date the Executive ceases to be an executive officer of the Company, as evidenced byaction of the Board removing the Executive as an executive officer or otherwise; provided, however, that if the Executive ceases to be an executive officer prior to a Change of Control at the direction of a person who has entered into an agreementwith the Company the consummation of which will constitute a Change of Control, this Agreement shall not terminate due to the change in status of the Executive. 

 

7.    At-Will Employment. The Company and the Executive acknowledge that theExecutive’s employment is and shall continue to be at-will, as defined under applicable law. This Agreement shall not be construed as creating an express or implied contract of employment between the Executive and the Company. The Executiveshall not have any right to be retained in the employment of the Company. 

 

6 

 

8.    Notices. Any notice provided under this Agreement shall be in writing and shall be deemed to have been effectively given (i) upon receipt when delivered personally, (ii) one day after sending whensent by express mail service (such as Federal Express), or (iii) five (5) days after sending when sent by regular mail to the following address: 

 

In the case of the Company: 

 

Maxygen, Inc. 

515 Galveston Drive 

Redwood City, CA 94063 

Attn: General Counsel 

 

In the case of the Executive: 

 

John Bedbrook 

160 La Salle Avenue 

Piedmont, CA 94610 

 

or to such other address as the Company or the Executive hereafter designatesby written notice in accordance with this Section 8. 

 

9.    Litigation/Arbitration Expenses. Reasonable litigation and/or arbitration costs and expenses shall be paid by the Company, win or lose, in connection with any dispute between the Company (and itssuccessors) and the Executive concerning this Agreement; provided, however, that if the litigation or arbitration is found to have been commenced in bad faith by the Executive, the Executive shall bear all of his own costs and expenses in connectionwith such litigation or arbitration. 

 

10.    Successors and Assigns. This Agreement is intended to bind and inure to the benefit of and be enforceable by the Executive, and the Company, and any surviving entity resulting from a Change ofControl and upon any other person who is a successor by merger, acquisition, consolidation or otherwise to the business formerly carried on by the Company, and their respective successors, assigns, heirs, executors and administrators, without regardto whether or not such person actively assumes any rights or duties hereunder; provided, however, that the Executive may not assign any duties hereunder without the prior written consent of the Company. 

 

11.    Miscellaneous. 

 

(a) No provision of this Agreement may bemodified, waived or discharged unless such waiver, modification or discharge is agreed to in writing by each of the parties. 

 

(b) No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereofhave been made by either party that are not expressly set forth in this Agreement. 

 

7 

 

(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect. 

 

12.    Governing Law. ThisAgreement shall be governed by, and construed in accordance with, the laws of the State of California, regardless of the law that might be applied under applicable principles of conflicts of law. 

 

**VERDIA, INC.**

By:
 
/s/    Lawrence W. Briscoe
  
Lawrence W. Briscoe
  
Chief Financial Officer

**THE EXECUTIVE**

/s/    John Bedbrook

John Bedbrook

 

8