EXHIBIT 10.30
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is effective as of February
1, 2002, between VISIBLE GENETICS INC., a corporation duly incorporated under
the laws of the Province of Ontario and having its head office in the City of
Toronto, in the Province of Ontario hereinafter referred to as "VGI," VISIBLE
GENETICS UK, LTD., a corporation organized under the laws of the United Kingdom
and having its head office in Apollo Centre, Xxxxxxxxxx Xxxx, Xxxx Xxxxxxx,
Xxxxxx Xxxxxxx XX00 0XX hereinafter referred to as the "Employer," and XX.
XXXXXX XXXX, an individual residing in 00 Xxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxx,
Xxxxxxx XX0 1PU, hereinafter referred to as the "Executive".
WHEREAS the Executive has been employed by VGI or the Employer since May
22, 1996 pursuant to an employment agreement dated May 22, 1996 between VGI and
the Executive (the "Initial Employment Agreement");
AND WHEREAS VGI, the Employer and Executive desire to amend and restate the
Employment Agreement effective as of February 1, 2002.
The parties agree as follows:
1. POSITION DUTIES AND REMUNERATION
1.1 Executive shall serve as President of Employer. At the request of
VGI, the Executive shall also serve as the Executive Vice President of VGI.
1.2 Executive shall be paid a gross annual salary, payable in UK
currency of L142,000.
1.3 In addition to salary, for the performance of services hereunder,
the Executive shall be entitled to the following benefits paid by the Employer:
health and dental coverage, long term disability insurance and life insurance
benefits, and a lease of a motor vehicle or, in the alternative, a cash
allowance which shall be used for the lease and maintenance of a motor vehicle
and motor vehicle insurance (both collision and public liability), as agreed
upon between the Employer and Executive, subject to all the terms and conditions
now evidenced by this Agreement.
1.4 The Executive agrees to perform faithfully the duties inherent in
the position and all other lawful instructions and duties as the Employer may
from time to time reasonably require commensurate with his position.
1.5 The Executive agrees to use his best efforts to promote the
interests of the Employer, to devote his full time and attention to the business
of the Employer and to adhere to the instructions and directives of the
Employer.
1.6 During the term of his employment, the Executive agrees to refrain
from engaging in any activity which will in any manner, directly or indirectly,
compete with the trade or business of VGI or the Employer as defined herein.
1.7 During the term of his employment, the Executive agrees not to
possess or acquire, directly or indirectly, any interest in any firm,
partnership, association or corporation, the business operations of which will
in any manner, directly or indirectly, compete with the business of VGI or the
Employer other than as a stockholder holding no greater than one per cent (1%)
of a public company whose shares are listed for trading on a recognized stock
exchange or traded on the over-the-counter market,
1.8 In consideration of the salary received from the Employer, the
Executive acknowledges and agrees that every idea, invention or concept, whether
patentable or not, originated by himself or in collaboration with others during
or outside normal office hours and concerning directly or indirectly the
business of the Employer or VGI, is and shall remain the sole and exclusive
property of the Employer.
1.9 The Employer agrees in its sole discretion to review the salary
and benefits payable to Executive hereunder annually.
1.10 The Employer agrees to pay, on an annual basis, for the
Executive's membership at a fitness club.
2. EMPLOYMENT CONDITIONS
2.1 The Executive agrees to adhere to and abide by the Employer's
policies, as amended from time to time, regarding holidays, sick leave, hospital
insurance, and other fringe benefits.
3. NON-COMPETITION/NON-SOLICITATION DURING AND FOLLOWING TERMINATION OF
EMPLOYMENT
NON-COMPETITION
3.1 The Executive agrees that during the term of his employment and
following the termination of his employment for whatever reason he will not, at
any time, during the period of one (1) year from the date of such termination
(without the prior written consent of the Employer) either individually or in
partnership, or in conjunction with any person or persons, firm, association,
syndicate, company, corporation or any other entity whatsoever as principal,
agent, director, officer, employee, consultant, investor, or in any other manner
whatsoever, carry on or be engaged in or be concerned with or interested in, or
advise, lend money to, guarantee the debts or obligations of or permit his name
or any part thereof to be used or employed by any person or persons, firm,
association, syndicate, company or corporation, engaged in or concerned with any
interest in any business that competes directly or indirectly with the business
of VGI or the Employer:
(i) worldwide; or
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(ii) in North America; or
(iii) in the Dominion of Canada including all provinces and
territories.
For the purposes hereof the business of VGI and the Employer shall be
defined to mean molecular diagnostic systems, including software
instrumentation, and molecular methods, or DNA sequencing technology. This
includes, but is not limited to any high speed DNA sequencer or any DNA
sequencer that uses an ultra-thin gel cassette, or DNA analysis software that is
assay based. This excludes any service-based diagnostic business, or
not-for-profit research associated with clinical diagnostics that might use such
molecular diagnostic systems, but does include any business that supplies
software, instrumentation of supplies that compete with VGI's or the Employer's
products in development or being sold at the time of the Executive's termination
or voluntary leaving.
NON-SOLICITATION
3.2 The Executive agrees that during the term of his employment and
following the termination of his employment for whatever reason he will not, at
any time, during the period of two (2) years from the date of such termination
(without the prior written consent of the Employer) either individually or in
partnership, or in conjunction with any person or persons, firm, association,
syndicate, company, corporation or any other entity whatsoever as principal,
agent, director, officer, employee, consultant, or in any other manner
whatsoever solicit directly or indirectly the employees of VGI or the Employer
to leave the Employer and work for another employer.
4. CONFIDENTIAL INFORMATION
4.1 The Executive acknowledges that in the course of carrying out,
performing and fulfilling his responsibilities to the Employer, he will have
access to and be entrusted with detailed, confidential information, and trade
secrets concerning the business of VGI and the Employer and their respective
clients and the present and contemplated products, techniques and other services
evolved or used by VGI or the Employer, their related corporations and their
respective clients, and that the disclosure of such confidential information
would be highly detrimental to the best interests of VGI and the Employer, their
related corporations and their respective clients. Accordingly, the Executive
acknowledges and agrees that the right to maintain the confidentiality of such
confidential information, and trade secrets, and the fight to preserve their
goodwill, constitute proprietary rights which the VGI, the Employer and their
related corporations are entitled to protect. Accordingly, the Executive
covenants and agrees with VGI and the Employer that, save with the prior written
consent of the Employer, he will not, either during the term of his employment
by the Employer, or at any time thereafter for a period of twenty (20) years,
disclose any of such confidential information, and trade secrets to any person,
not in the employ of VGI, the Employer or their respective related corporations,
nor shall he use the same for any purpose other than for the purposes of the
Employer. The Executive shall not be responsible for the release of confidential
information that was released through no fault of his own or confidential
information that independently becomes part of the public domain.
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The Executive agrees that all restrictions contained in this clause are
reasonable and valid in the circumstances and all defenses to the strict
enforcement thereof by VGI and the Employer or their respective related
corporations are hereby waived by the Executive.
5. RIGHTS OF ENFORCEMENT
5.1 The Executive hereby agrees that all restrictions, including but
not limited to business scope, geographic area and period of time, in this
Agreement are reasonable and valid in view of the nature of the business of the
Employer.
5.2 The Executive further agrees that the remedy at law for any breach
by him of the confidentiality or non-competition provisions of this Agreement
will be inadequate. VGI, the Employer or any of their respective related
corporations, on any application to a court of competent jurisdiction, shall be
entitled to injunctive relief against the Executive to enforce the terms of
Articles 3 and 4 hereof without the necessity of proving actual damage to VGI,
the Employer or their respective related corporations.
6. TERMINATION OF EMPLOYMENT
6.1 (a) This Agreement and the employment of the Executive may be
terminated by the Employer for any reason upon prior written notice or payment
of salary and benefits in lieu of notice for the Required Notice Period to be
paid as a lump sum payment subject to all statutory deductions. For the purposes
hereof, the "Required Notice Period" shall mean a period of twelve (12) months
for the Executive employed by Employer during the first year of employment plus
one (1) additional month for each full year of employment with Employer
thereafter.
(b) This Agreement and the employment of the Executive may be
terminated by the Executive for any reason upon prior written notice to the
Employer of 180 days.
6.2 The Executive may be dismissed at any time by the Employer without
notice or payment in lieu of notice for just and sufficient cause.
6.3 The parties have negotiated the duration of the notice period set
out in Subsections 6.1 (a) and (b) and the period of notice forms part of the
consideration given by the Executive for his salary.
6.4 Unless Article 7 hereof is applicable, upon the termination of
this Agreement and on termination of the employment of the Executive, whether
upon notice or otherwise, the Executive shall have no claim against the Employer
for any further liability to make payments in connection with the termination of
the Executive's employment, other than those arising from this Article 6.
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7. CHANGE OF CONTROL AND RETENTION BENEFITS
7.1 DEFINITIONS.
For the purposes of this Article 7, the following terms shall have the
meaning set out below:
(a) "2001 COMPENSATION" shall mean the Executive's gross base
salary paid to him in calendar year 2001, plus the gross amount of any cash
bonuses paid to the Executive in calendar year 2001.
(b) "CAUSE" shall mean the Employer's right to terminate the
Executive's employment on the basis of (i) the Executive's willful and continued
failure to substantially perform his material duties of employment provided that
the Employer shall have first provided the Executive with written notice
specifying in reasonable detail the factors constituting such failure and such
failure shall not have been cured within thirty (30 ) days after such notice;
(ii) any commission of an act of fraud, misappropriation, or embezzlement with
respect to the business or property of the Employer which is intended to result
in substantial personal enrichment of the Executive or causes material harm to
the Employer, or (iii) the Executive's conviction of, or plea of guilty or NOLO
CONTENDERE to, a felony; PROVIDED, HOWEVER, the Executive shall not be deemed to
have been terminated for Cause unless and until there shall have been delivered
to the Executive a copy of a resolution duly adopted by the affirmative vote of
not less than three-quarters of the entire membership of the Employer's (or its
successor's) Board of Directors (the "Board") at a meeting of the Board called
and held for such purpose, finding that, in the good faith opinion of the Board,
the Executive was guilty of the alleged conduct and specifying the particulars
thereof in detail; PROVIDED, FURTHER, that the Executive must have received a
minimum 30-day notice of such Board meeting and the detailed allegations against
the Executive, and that the Executive has been provided the opportunity,
together with the Executive's counsel, to be heard before the Board in
opposition to the alleged conduct.
(c) "CHANGE IN CONTROL" shall mean the happening of any one of
the following events:
(i) Upon the acquisition by any person, entity or "group,"
within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934 (the "Exchange Act") (other than an acquisition by VGI, the
Employer, or any Subsidiary or any employee benefit plan of VGI, the Employer or
any Subsidiary) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of fifty percent (50%) or more of either the
then outstanding shares of common stock of the Employer or VGI, or the combined
voting power of either the Employer's or VGI's then outstanding voting
securities, entitled to vote generally in the election of directors;
(ii) If individuals who constitute the Board of Directors
of the Employer or VGI as of the date hereof (each an "Incumbent Board") cease
for any reason to constitute at least a majority of such Board of Directors,
provided that any person becoming a member of the Board of Directors of either
the Employer or VGI subsequent to the date hereof
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whose election, or nomination for election by the Employer's or VGI's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the respective Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office is in connection
with the actual or threatened election contest relating to the election of the
directors of the Employer or VGI, as such terms are used in Rule 141-11 of
Regulation 14A promulgated under the Exchange Act) shall be, for purposes of
this Agreement, considered as though such person were a member of such Incumbent
Board; or
(iii) Upon approval of the stockholders of the Employer or
VGI of (A) a reorganization, merger or consolidation, in each case, with respect
to which persons who were shareholders of the Employer or VGI immediately prior
to such reorganization, merger or consolidation do not, immediately thereafter,
own more than fifty (50%) of the combined voting power entitled to vote
generally in the election of directors of the reorganized, merged or
consolidated company, (B) a liquidation or dissolution of the Employer or VGI
(other than a liquidation or dissolution in connection with a bankruptcy or
insolvency or similar event of the Employer or VGI, or a liquidation or
dissolution in which shareholders of the Employer or VGI receive less than a
total of US $75 million in connection with such liquidation or dissolution), or
(C) the sale of all or substantially all of the assets of the Employer or VGI.
(d) "CHANGE OF CONTROL BENEFIT" shall have the meaning set forth
in Section 7.2 hereof.
(e) "RETENTION BENEFIT" shall have the meaning set forth in
Section 7.3 hereof.
(f) "RETENTION BENEFIT PAYMENT PERIOD" shall have the meaning set
forth in Section 7.3 hereof.
(g) "SUBSIDIARY" shall mean any person or entity of whom VGI or
the Employer, directly or indirectly, owns fifty percent (50%) or more of the
combined voting power entitled to vote generally in the election of directors.
(h) "VOLUNTARY TERMINATION" shall mean a voluntary termination of
employment with the Employer by the Executive for reasons other than death or
disability.
7.2 CHANGE OF CONTROL BENEFIT.
If the Executive is employed with the Employer on the date that a Change of
Control is deemed to be effective, the Executive shall be entitled to a cash
payment equal to the Executive's 2001 Compensation (the "Change of Control
Benefit"). The Employer shall pay the Executive the Change of Control Benefit in
a lump sum, less applicable withholdings, within five (5) business days
immediately following the Change of Control. The payment of the Change of
Control Benefit shall be in addition to the payment of all salary and any other
amounts otherwise payable to the Executive under this Agreement, option
agreement or other agreements with the Employer or VGI or otherwise in
connection with his employment by the Employer whether
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pursuant to employee benefit plans or policies of the Employer or any severance
or other benefit available to the Executive under applicable law.
7.3 RETENTION BENEFITS.
If the Executive is employed by the Employer or VGI or one of VGI's other
Subsidiaries following a Change of Control, the Executive shall be entitled to
accrue a cash benefit (the "Retention Benefit") provided the Executive remains
employed for one (1) or two (2) 90-day periods immediately following the Change
of Control (the "Retention Benefit Payment Period"). The accrued Retention
Benefit for each 90-day period shall be an amount equal to the Executive's 2001
Compensation, so that if the Executive remains employed for the Retention
Benefit Payment Period constituted by two 90-day periods, he would earn a total
Retention Benefit equal to two hundred percent (200%) of his 2001 Compensation.
The Retention Benefit shall be paid to the Executive in two (2) installments as
so earned: The first installment shall be paid ninety (90) days following the
date that a Change of Control is deemed to be effective, provided that the
Executive is so employed by the Employer, VGI or a Subsidiary on the ninetieth
(90th) day following a Change of Control, and, if applicable, a second and final
installment shall be paid at the end of the second 90-day period; provided, that
the Executive was so employed as of the final day of such second 90-day period.
If the Executive's employment with the Employer and VGI and Subsidiaries is
terminated following a Change of Control, but prior to the end of the second
90-day period, for any reason (including death or disability) other than a
termination for Cause by the Employer or a Voluntary Termination, the Employer
shall pay the Executive the full amount of the Retention Benefit that the
Executive would have been entitled to receive from the effective date of the
Change of Control through the end of the Retention Benefit Payment Period had he
remained employed through the end of the Retention Benefit Payment Period
constituted by two 90-day periods. The Employer shall pay such amount to the
Executive within five (5) business days following the termination of the
Executive's employment. The payment of the Retention Benefit shall be in
addition to the payment of all salary and any other amounts otherwise payable to
the Executive under this Agreement or any option agreement or other agreements
with the Employer or VGI or otherwise in connection with his employment by the
Employer, VGI or one of its Subsidiaries whether pursuant to employee benefit
plans or policies of the Employer, VGI or one of its Subsidiaries, or any
severance or other benefit available to the Executive under applicable law.
7.4 LIMIT ON CHANGE OF CONTROL AND RETENTION BENEFITS.
Notwithstanding any other provision of this Article 7 to the contrary, if
any Retention Benefit payment or payments, or any portion of the Change of
Control Benefit payment, shall be deemed to be a "parachute payment" as defined
in section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the
"Code"), the Employer shall not be obligated to pay any portion of a Retention
Benefit payment or payments, or any portion of the Change of Control Benefit
payment, to the extent that any such payment or payments shall be deemed an
"excess" parachute payment to the Executive as defined in section 280G(b)(1) of
the Code and not deductible by the Employer in accordance with section 280G(a)
of the Code. Any abatement of payment obligations pursuant to this Section 7.3
shall commence with the last Retention Benefit payment that is earned and
accrued by the Executive pursuant to Section 7.4 hereof, and, if
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necessary, shall continue with preceding Retention Benefit payment obligations
in the order of last accrued, first abated, with the Change of Control Benefit
payment being the last payment obligation to be abated, if necessary.
7.5 SUCCESSOR LIABILITY.
Any successor to the Employer or VGI (whether directly or indirectly and
whether by purchase, lease, merger, consolidation, or otherwise) or to all or
substantially all of the Employer's or VGI's business and/or assets shall assume
the Employer's or VGI's respective obligations under this Article 7 and agree
expressly to perform the Employer's or VGI's respective obligations under this
Article 7 in the same manner and to the same extent as the Employer or VGI would
be required to perform such obligations in the absence of a succession. For all
purposes under this Article 7, the term "Employer" shall include any successor
to the Employer's business and/or assets and the term "VGI" shall include any
successor to VGI's business and/or assets.
7.6 TERMINATION UNDER CERTAIN CIRCUMSTANCES.
(a) If the Executive's employment terminates for any reason prior
to a Change in Control, the Executive shall not be entitled to any payment of a
Change of Control Benefit or any Retention Benefits pursuant to this Article 7,
but shall be entitled to any payment to which the Executive otherwise would be
entitled under any other provision of this Agreement, under any options
agreement or other agreements with Employer or VGI to the extent otherwise
applicable, under the Employer's then existing employee benefits plans or
policies at the time of termination, and under any required severance benefits
pursuant to applicable law, if any.
(b) If, following a Change in Control, the Executive is
terminated by the Employer for Cause or the Executive has a Voluntary
Termination, the Executive shall not be entitled to any payment of Retention
Benefits under this Article 7 for any period following said termination, but
shall be entitled to any payment to which the Executive otherwise would be
entitled to under any other provisions of this Agreement, under any options
agreement or other agreements with the Employer or VGI, to the extent otherwise
applicable, under the Employer's then-existing employee benefit plans or
policies at the time of termination, and under any required severance benefit
pursuant to applicable law, if any.
7.7 TERMINATION OF ARTICLE 7
The Board of the Employer and VGI, in their sole discretion, shall have the
right to terminate the provisions of this Article 7 effective as of December 31
of any year of the term by delivery of written notice to the Executive by no
later than January 15 of the following year; PROVIDED, HOWEVER, that if a Change
of Control occurs prior to such December 31, or if the Employer or VGI has
entered into a binding agreement prior to such December 31 setting forth the
material terms of the transaction that will result in the Change of Control,
this clause shall have no force or effect.
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7.8 RESOLUTION OF DISPUTES UNDER ARTICLE 7.
(a) Any dispute or controversy arising out of, relating to, or in
connection with this Article 7, or the interpretation, validity, construction,
performance, breach, or termination of this Article 7, shall be settled by
binding arbitration to be held in New York County, New York and shall be
conducted in accordance with the Expedited Employment Arbitration Rules of the
American Arbitration Association, in effect at the time of the arbitration
("Rules"), supplemented, as necessary, by those principles which would be
applied by a court of law or equity. The arbitrator may grant injunctions or
other relief in such dispute or controversy. The decision of the arbitrator
shall be final, conclusive and binding on the parties to the arbitration.
Judgment may be entered on the arbitrator's decision in any court having
jurisdiction.
(b) The arbitrator(s) shall apply New York law to the merits of
any dispute or claim, without reference to conflicts of law rules. The
arbitration proceedings shall be governed by federal arbitration law and by the
Rules, without reference to state arbitration law.
(c) Notwithstanding anything herein to the contrary, the parties
may seek specific performance or injunctive relief with respect to the matters
set forth in this Article 7 in the United States District Court for the Southern
District of New York or a state court located in New York County, New York. Each
party (i) submits to the jurisdiction of any such court for the purpose of any
such suit, action, or other proceeding, (ii) agrees that all such claims in
respect of any such suit, action or proceeding may be heard and determined in
any such court, (iii) waives, to the fullest extent permitted by law, any
immunity it may have acquired, or hereafter may acquire, from jurisdiction of
any such court or from any legal process therein, and (iv) agrees not to
commence any such suit, action or proceeding other than in such court, and
waives, to the fullest extent permitted by applicable law, any claim that any
such suit, action or proceeding is brought in an inconvenient forum. Each party
hereby irrevocably designates CT Corporation System, 000 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 as agent upon whom process against it may be served for
purposes of this Article 7.
(d) EXECUTIVE HAS READ AND UNDERSTANDS THIS ARTICLE 7, WHICH
DISCUSSES ARBITRATION. EXECUTIVE UNDERSTANDS THAT SUBMITTING ANY CLAIMS ARISING
OUT OF, RELATING TO, OR IN CONNECTION WITH THIS ARTICLE 7, OR THE
INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION
THEREOF TO BINDING ARBITRATION, CONSTITUTES A WAIVER OF EXECUTIVE'S RIGHT TO A
JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO AND ARISING
FROM THIS ARTICLE 7.
7.9 NO DUTY TO MITIGATE
The Executive shall not be required to mitigate the amount of any payment
contemplated by this Article 7, nor shall any such payment be reduced by any
earnings that the Executive may receive from any other source.
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7.10 VGI PRIMARILY OBLIGATED
VGI shall cause the Employer to perform, all of the Employer's obligations under
this Article 7. If the Employer or VGI shall fail to perform, or shall otherwise
be in default of any obligations under this Article 7, the Executive shall have
the right to proceed against the Employer and/or VGI, or both of them, as the
primary obligor under this Article 7 in accordance with the provisions hereof.
7.11 MISCELLANEOUS
(a) The validity, interpretation, construction and performance of
this Article 7 shall be governed by the internal substantive laws, but not the
conflicts of law rules, of the State of New York.
(b) All payments made pursuant to this Article 7 shall be subject
to withholding of applicable income and employment taxes.
8. GRANT OF OPTIONS TO PURCHASE COMMON SHARES
(a) On May 22, 1996, the Executive received an irrevocable option
to immediately purchase ONE HUNDRED NINE THOUSAND SIX HUNDRED TWENTY, (109,620)
common shares of VGI ("Common Shares") at the price of THREE DOLLARS, FIFTY
CENTS (US$3.50) per Common Share. The Executive has the right to exercise the
option with respect to all or any part of the Common Shares at any time or times
prior to the close of business on May 22, 2006. The grant of option and the
shares issued upon the exercise (if any) of the share option shall be forfeited
at the rate of 25,000 Common Shares per six (6) month period if the Executive
does not remain in the employ of VGI or the Employer for whatever reason for
three (3) years from May 22, 1996. For example, if the Executive stayed with the
Employer for only one (1) year, options to purchase 100,000 Common Shares or the
exercise and purchase of such shares or any part thereof were to be forfeited,
being 25,000 Common Shares per six (6) months for year two and 25,000 Common
Shares per six (6) months for year three. If the forfeiture provisions became
operative, VGI would pay to the Executive for these options or any shares,
subject to the forfeiture, the amount paid for such options or shares exercised,
whichever the case may be. VGI retains the right to shorten the forfeiture
provisions in its sole discretion.
(b) All options granted shall immediately vest upon the
completion of the takeover or sale of VGI or the Employer whether by share
exchange, share purchase or purchase of all or substantially all of the VGI's or
the Employer's assets.
(c) Additional options may be granted to Executive by VGI from
time to time on a performance basis, at the sole discretion of VGI.
9. WAIVER
9.1 The failure of any party to enforce its rights under this
Agreement at any time for any period shall not be construed as a waiver of such
rights and a waiver shall only be
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construed as such if made in writing signed by a duly authorized representative
of the waiving party.
10. SEVERABILITY
10.1 (a) If any provision of this Agreement or application of any such
provision to any person or circumstances shall be invalid under the law of any
jurisdiction the remainder of this Agreement or the application of such
provision to persons or circumstances other than those as to which it is invalid
shall not be effected thereby.
(b) In the event a court of competent jurisdiction rules any
provision of this Agreement to be invalid, then such ruling shall have no effect
on the remaining provisions of this Agreement and they shall continue in full
force and effect.
11. ENTIRE AGREEMENT
11.1 This Agreement, together with Schedules "A" and "B", contains the
entire contract of Employment between the parties hereto and supercedes all
previous negotiations, understandings and agreements whether verbal or written
with respect to any matters herein referred to.
12. GOVERNING LAW AND SURVIVAL
12.1 Except as otherwise provided in Article 7, this Agreement shall be
governed by and construed in accordance with the laws of the Province of Ontario
and the laws of Canada applicable therein.
12.2 The provisions of Sections 3, 4, 5, 6 and 7 hereof shall survive
the termination of this Agreement for the periods of time specified or
contemplated therein.
13. MISCELLANEOUS
13.1 The Executive covenants and acknowledges with the Employer that by
entering into this Agreement he will not be in breach of any agreement with any
third party.
13.2 VGI, the Employer and Executive have entered into an
Indemnification Agreement attached hereto as Schedule "B". The provisions of the
Indemnification Agreement shall apply to the Executive in his capacity as an
officer, director, employee, agent or fiduciary of VGI, the Employer, or any
other corporation, partnership limited liability company, joint venture, trust,
employee benefit plan or other enterprise for which the Executive is or was
serving at the request of VGI or the Employer, and the Indemnification Agreement
(including the definition of "Corporate Status" therein) hereby is amended
accordingly.
13.3 Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered by either FedEx or other reputable overnight courier
service or by registered or certified U.S. mail, return receipt requested. In
the case of the Executive, mailed notices shall be addressed to him at
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the home address which he most recently communicated to the Employer in writing.
In the case of the Employer, mailed notices shall be addressed to its corporate
headquarters, and all notices shall be directed to the attention of its
President, with a copy to Visible Genetics Inc., 000 Xxx Xxxxxx, Xxxxxxx,
Xxxxxxx, X0X 0XX Xxxxxx, attention: General Counsel. All notices to VGI shall be
delivered to the foregoing address. Notices shall be deemed delivered and
received upon receipt or refusal of receipt.
THIS Agreement is binding upon and is for the benefit of the parties and
their respective successors.
IN WITNESS WHEREOF this Agreement is executed as of the day, month and year
first above written.
SIGNED, SEALED AND DELIVERED ) VISIBLE GENETICS INC.
in the presence of: )
)
) By:
) ----------------------------
) Name:
) Title:
)
)
) By:
) ----------------------------
) Name:
) Title:
)
)
) VISIBLE GENETICS UK, LTD
)
)
) By:
) ----------------------------
) Name:
) Title:
)
)
) By:
) ----------------------------
) Name:
) Title:
)
)
)
) ---------------------------
) XX. XXXXXX XXXX
----------------------------
Witness
12
EXHIBIT 10.30
SCHEDULE "A"
INTENTIONALLY LEFT BLANK
SCHEDULE "B"
INDEMNIFICATION AGREEMENT
WITH
XX. XXXXXX X. X. XXXX
THIS AGREEMENT, made and entered into as of _________________, ____
("Agreement"), by and between VISIBLE GENETICS INC., a corporation formed under
the laws of the Province of Ontario (the "Company"), and XX. XXXXXX X. X. XXXX
("Indemnitee").
RECITALS
A. The Company is aware that competent and experienced persons are
increasingly reluctant to serve as directors or officers of corporations unless
they are protected by comprehensive liability insurance and/or indemnification,
due to increased exposure to litigation costs and risks resulting from their
service to such corporations, and due to the fact that the exposure frequently
bears no reasonable relationship to the compensation of such directors and
officers;
B. Based upon their experience as business managers, the Board of
Directors of the Company (the "Board") has concluded that, to retain and attract
talented and experienced individuals to serve as officers and directors of the
Company, and to encourage such individuals to take the business risks necessary
for the success of the Company, it is necessary for the Company to contractually
indemnify officers and directors, and to assume for itself maximum liability for
expenses and damages in connection with claims against such officers and
directors in connection with their service to the Company;
C. Section 136 of the Business Corporations Act of the Province of
Ontario, under which the Company is organized ("Section 136"), empowers the
Company to indemnify by agreement its officers, directors, employees and agents,
and persons who serve, at the request of the Company, as directors, officers,
employees or agents of other corporations or enterprises; in addition, Section
136 expressly provides that the indemnification provided by Section 136 is not
exclusive; and
D. The Company desires and has requested the Indemnitee to serve or
continue to serve as a director or officer of the Company free from undue
concern of claims for damages arising out of or related to such services to the
Company.
NOW, THEREFORE, in consideration of the promises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
SECTION 1. SERVICES BY INDEMNITEE. Indemnitee agrees to continue to
serve as a director or officer of the Company, subject to any agreement which
may exist between the Company or any of its subsidiaries and Indemnitee.
Indemnitee may at any time and for any reason resign from such position (subject
to any other agreement or contractual obligation or any
obligation imposed by operation of law), in which event the Company shall have
no obligation under this Agreement to continue Indemnitee in any such position.
SECTION 2. INDEMNIFICATION --GENERAL. The Company shall indemnify
Indemnitee against Expenses (as hereinafter defined), judgments, penalties,
fines and amounts paid in settlement as provided in this Agreement and to the
fullest extent permitted by applicable law in effect on the date hereof and to
such greater extent as applicable law may thereafter from time to time permit.
The rights of Indemnitee provided under the preceding sentence shall include,
but shall not be limited to, the rights set forth in the other Sections of this
Agreement.
SECTION 3. PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT OF
THE COMPANY. Indemnitee shall be entitled to the rights of indemnification
provided in this Section 3 if, by reason of his Corporate Status (as hereinafter
defined), he is, or is threatened to be made, a party to any threatened,
pending, or completed Proceeding (as hereinafter defined), other than a
Proceeding by or in the right of the Company. Pursuant to this Section 3,
Indemnitee shall be indemnified against Expenses, judgments, penalties, fines
and amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such Proceeding or any claim, issue or matter therein,
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests 'of the Company, and, with respect to any
criminal Proceeding, had no reasonable cause to believe his conduct was
unlawful.
SECTION 4. PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. Indemnitee
shall be entitled to the rights of indemnification provided in this Section 4
if, by reason of his Corporate Status, he is, or is threatened to be made, a
party to any threatened, pending or completed Proceeding brought by or in the
right of the Company to procure a judgment in its favor. Pursuant to this
Section, Indemnitee shall be indemnified against Expenses actually and
reasonably incurred by him or on his behalf in connection with such Proceeding
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company. Notwithstanding the foregoing, no
indemnification against such Expenses shall be made in respect of any claim,
issue or matter in such Proceeding as to which Indemnitee shall have been
adjudged to be liable to the Company if applicable law prohibits such
indemnification; provided, however, that if applicable law so permits,
indemnification against Expenses shall nevertheless be made by the Company in
such event if and only to the extent that the Ontario Court (General Division),
or the Court in which such Proceeding shall have been brought or is pending,
shall determine.
SECTION 5. INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by
reason of his Corporate Status, a witness in any Proceeding, he shall be
indemnified against all expenses actually and reasonably incurred by him or on
his behalf in connection therewith.
SECTION 6. ADVANCEMENT OF EXPENSES. The Company shall advance all
reasonable Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding within twenty days after the receipt by the Company of a
statement or statements from Indemnitee requesting such advance or advances from
time to time, whether prior to or after final disposition of such Proceeding.
Such statement or statements shall reasonably evidence the
2
Expenses incurred by Indemnitee and shall include or be preceded or accompanied
by an undertaking by or on behalf of Indemnitee to repay any Expenses advanced
if it shall ultimately be determined that Indemnitee is not entitled to be
indemnified against such Expenses.
SECTION 7. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION.
(a) To obtain indemnification under this Agreement, Indemnitee
shall submit to the Company a written request, including therein or therewith
such documentation and information as is reasonably available to Indemnitee and
is reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Secretary of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board of Directors in
writing that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification
pursuant to the first sentence of Section 7(a) hereof, a determination, if
required by applicable law, with respect to Indemnitee's entitlement thereto
shall be made in the specific case: (i) if a Change in Control (as hereinafter
defined) shall have occurred, by Independent Counsel (as hereinafter defined)
(unless Indemnitee shall request that such determination be made by the Board of
Directors or the stockholders, in which case such determination shall be made by
the person or persons or in the manner provided for in clause (ii) or (iii) of
this Section 7(b)) in a written opinion to the Board of Directors, a copy of
which shall be delivered to Indemnitee; (ii) if a Change of Control shall not
have occurred, (A) by the Board of Directors by a majority vote of a quorum
consisting of Disinterested Directors (as hereinafter defined), or (B) if a
quorum of the Board of Directors consisting of Disinterested Directors is not
obtainable or, even if obtainable, such quorum of Disinterested Directors so
directs, by Independent Counsel in a written opinion to the Board of Directors,
a copy of which shall be delivered to Indemnitee, or (C) by the, stockholders of
the Company; or (iii) as provided in Section 8(b) of this Agreement; and, if it
is so determined that Indemnitee is entitled to indemnification, payment to
Indemnitee shall be made within ten (10) days after such determination.
Indemnitee shall cooperate with the person, persons or entity making such
determination with respect to Indemnitee's entitlement to indemnification,
including providing to such person, persons or entity upon reasonable advance
request any documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to Indemnitee and
reasonably necessary to such determination. Any costs or expenses (including
attorneys' fees and disbursements) incurred by Indemnitee in so cooperating with
the person, persons or entity making such determination shall be borne by the
Company (irrespective of the determination as to Indemnitee's entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
(c) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section 7(b)
hereof, Independent Counsel shall be selected as provided in this Section 7(c).
If a Change of Control shall not have occurred, Independent Counsel shall be
selected by the Board of Directors, and the Company shall give written notice to
Indemnitee advising him of the identity of Independent Counsel so selected. If a
Change of Control shall have occurred, Independent Counsel shall be selected by
Indemnitee (unless Indemnitee shall request that such selection be made by the
Board of Directors, in which
3
event the preceding sentence shall apply), and Indemnitee shall give written
notice to the Company advising it of the identity of Independent Counsel so
selected. In either event, Indemnitee or the Company, as the case may be, may,
within 7 days after such written notice of selection shall have been given,
deliver to the Company or to Indemnitee, as the case may be, a written objection
to such selection. Such objection may be asserted only on the ground that
Independent Counsel so selected does not meet the requirements of "Independent
Counsel," as defined in Section 16 of this Agreement, and the objection shall
set forth with particularity the factual basis of such assertion. If such
written objection is made, Independent Counsel so selected may not serve as
Independent Counsel unless and until a Court of competent jurisdiction has
determined that such objection is without merit. If, within 20 days after
submission by Indemnitee of a written request for indemnification pursuant to
Section 7(a) hereof, no Independent Counsel shall have been selected and not
objected to, either the Company or Indemnitee may petition the Ontario Court
(General Division) or other court of competent jurisdiction for resolution of
any objection which shall have been made by the Company or Indemnitee to the
other's selection of Independent Counsel and/or for the appointment as
Independent Counsel of a person selected by the Court or by such other person as
the Court shall designate, and the person with respect to whom an objection is
so resolved or the person so appointed shall act as Independent Counsel under
Section 7(b) hereof. The Company shall pay any and all reasonable fees and
expenses of Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to Section 7(b) hereof, and the Company shall
pay all reasonable fees and expenses incident to the procedures of this Section
7(c), regardless of the manner in which such Independent Counsel was selected or
appointed. Upon the due commencement of any judicial proceeding or arbitration
pursuant to Section 9(a)(iii) of this Agreement, Independent Counsel shall be
discharged and relieved of any further responsibility in such capacity (subject
to the applicable standards of professional conduct then prevailing).
SECTION 8. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) If a Change of Control shall have occurred, in making a
determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification under this Agreement if Indemnitee has
submitted a request for indemnification in accordance with Section 7(a) of this
Agreement, and the Company shall have the burden of proof to overcome that
presumption in connection with the making by any person, persons or entity of
any determination contrary to that presumption.
(b) If the person, persons or entity empowered or selected
under Section 8 of this Agreement to determine whether Indemnitee is entitled to
indemnification shall not have made a determination within 60 days after receipt
by the Company of the request therefor, the requisite determination of
entitlement to indemnification shall be deemed to have been made and Indemnitee
shall be entitled to such indemnification, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary to
make Indemnitee's statement not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification under
applicable law; provided, however, that such 60-day period may be extended for a
reasonable time, not to exceed an additional 30 days, if the person, persons or
entity making the determination with respect to entitlement to indemnification
in good
4
faith requires such additional time for the obtaining or evaluating of
documentation and/or information relating thereto) and provided, further, that
the foregoing provisions of this Section 8(b) shall not apply (i) if the
determination of entitlement to indemnification is to be made by the
stockholders pursuant to Section 7(b) of this Agreement and if (A) within 15
days after receipt by the Company of the request for such determination the
Board of Directors has resolved to submit such determination to the stockholders
for their consideration at an annual meeting thereof to be held within 75 days
after such receipt and such determination is made thereat, or (B) a special
meeting of stockholders is called within 15 days after such receipt for the
purpose of making such determination, such meeting is held within 60 days after
having been so called and such determination is made thereat, or (ii) if the
determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 7(b) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or
matter therein, by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not (except as otherwise expressly
provided in this Agreement) of itself adversely affect the right of Indemnitee
to indemnification or create a presumption that Indemnitee did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Company or, with respect to any criminal Proceeding,
that Indemnitee had reasonable cause to believe that his conduct was unlawful.
SECTION 9. REMEDIES OF INDEMNITEE.
(a) In the event that (i) a determination is made pursuant to
Section 7 of this Agreement that Indemnitee is not entitled to indemnification
under this Agreement, (ii) advancement of Expenses is not timely made pursuant
to Section 6 of this Agreement, (iii) the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section 7(b) of
this Agreement and such determination shall not have been made and delivered in
a written opinion within 90 days after receipt by the Company of the request for
indemnification, or (iv) payment of indemnification is not made pursuant to
Section 5 of this Agreement within ten (10) days after receipt by the Company of
a written request therefor, or (v) payment of indemnification is not made
within ten (10) days after a determination has been made that Indemnitee is
entitled to indemnification or such determination is deemed to have been made
pursuant to Sections 7 or 8 of this Agreement, Indemnitee shall be entitled to
an adjudication in an appropriate court of the Province of Ontario, or in any
other court of competent jurisdiction, of his entitlement to such
indemnification or advancement of Expenses. Alternatively, Indemnitee, at his
option, may seek an award in arbitration to be conducted by a single arbitrator
pursuant to the provisions of the Arbitrations Act (Ontario). Indemnitee shall
commence such proceeding seeking an adjudication or an award in arbitration
within 180 days following the date on which Indemnitee first has the right to
commence such proceeding pursuant to this Section 9(a). The Company shall not
oppose Indemnitee's right to seek adjudication or award in arbitration.
(b) In the event that a determination shall have been made
pursuant to Section 7 of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Section 9 shall be conducted in all respects
5
as a de novo trial, or arbitration, on the merits and Indemnitee shall not be
prejudiced by reason of that adverse determination. If a Change of Control shall
have occurred, in any judicial proceeding or arbitration commenced pursuant to
this Section 9 the Company shall have the burden of proving that Indemnitee in
not entitled to indemnification or advancement of Expenses, as the case may be.
(c) If a determination shall have been made or deemed to have
been made pursuant to Section 7 or 8 of this Agreement that Indemnitee is
entitled to indemnification, the Company shall be bound by such determination in
any judicial proceeding or arbitration commenced pursuant to this Section 9,
absent (i) a misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitee's statement not materially
misleading, in connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable law.
(d) The Company shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 9 that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Agreement.
(e) In the event that Indemnitee, pursuant to this Section 9,
seeks a judicial adjudication of or an award in arbitration to enforce his
rights under, or to recover damages for breach of, this Agreement, Indemnitee
shall be entitled to recover from the Company, and shall be indemnified by the
Company against, any and all expenses (of the types described in the definition
of Expenses in Section 16 of this Agreement) actually and reasonably incurred by
him in such judicial adjudication or arbitration, but only if he prevails
therein. If it shall be determined in such judicial adjudication or arbitration
that Indemnitee is entitled to receive part but not all of the indemnification
or advancement of Expenses sought, the expenses incurred by Indemnitee in
connection with such judicial adjudication or arbitration shall be appropriately
prorated.
SECTION 10. NON-EXCLUSIVITY: SURVIVAL OF RIGHTS; INSURANCE;
SUBROGATION.
(a) The rights of indemnification and to receive advancement of
Expenses as provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled under applicable
law, the Amended and Restated Articles of Incorporation, the Amended and
Restated By-Laws, any agreement, a vote of stockholders or a resolution of
directors, or otherwise. No amendment, alteration or termination of this
Agreement or any provision hereof shall be effective as to any Indemnitee with
respect to any action taken or omitted by such Indemnitee in his Corporate
Status prior to such amendment, alteration or termination.
(b) To the extent that the Company maintains an insurance
policy or policies providing liability insurance for directors, officers,
employees, agents or fiduciaries of the Company or of any other corporation,
partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise which such person serves at the request of the
6
Company, Indemnitee shall be covered by such policy or policies in accordance
with its or their terms to the maximum extent of the coverage available for any
such director, officer, employee or agent under such policy or policies.
(c) In the event of any payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents as
are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to
make any payment of amounts otherwise indemnifiable hereunder if and to the
extent that Indemnitee has otherwise actually received such payment under any
insurance policy, contract, agreement or otherwise.
SECTION 11. DURATION OF AGREEMENT. This Agreement shall continue until
and terminate upon the later of: (a) 10 years after the date that Indemnitee
shall have ceased to serve as director or officer, or (b) the final termination
of all pending Proceedings in respect of which Indemnitee is granted rights of
indemnification or advancement of Expenses hereunder and of any proceeding
commenced by Indemnitee pursuant to Section 9 of this Agreement relating
thereto. This Agreement shall be binding upon the Company and its successors and
assigns and shall inure to the benefit of Indemnitee and his heirs, executors
and administrators.
SECTION 12. SEVERABILITY. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of any
Section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and (b) to the fullest
extent possible, the provisions of this Agreement (including, without
limitation, each portion of any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid-id, illegal or
unenforceable.
SECTION 13. EXCEPTION TO RIGHT OF INDEMNIFICATION OR ADVANCEMENT OF
EXPENSES. Notwithstanding any other provision of this Agreement, Indemnitee
shall not be entitled to indemnification or advancement of Expenses under this
Agreement with respect to any Proceeding, or any claim therein, brought or made
by him against the Company.
SECTION 14. IDENTICAL COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which shall for all purposes be deemed to be
an original but all of which together shall constitute one and the same
Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Agreement.
7
SECTION 15. HEADINGS. The headings of the paragraphs of this Agreement
are inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction thereof.
SECTION 16. DEFINITIONS. For purposes of this Agreement:
(a) "Change in Control" means a change in control of the
Company occurring after the Effective Date of a nature that would be required to
be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in
response to any similar item on any similar schedule or form) promulgated under
the United State Securities Exchange Act of 1934 (the "Act"), whether or not the
Company is then subject to such reporting requirement; provided, however, that,
without limitation, such a Change in Control shall be deemed to have occurred if
after the Effective Date (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Act) is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Act), directly or indirectly, of securities of the Company
representing 25% or more of the combined voting power of the Company's then
outstanding securities without the prior approval of at least two-thirds of the
members of the Board of Directors in office immediately prior to such person
attaining such percentage interest; (ii) the Company is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy contest, as a
consequence of which members of the Board of Directors in office immediately
prior to such transaction or event constitute less than a majority of the Board
of Directors thereafter; or (iii) during any period of two consecutive years,
individuals who at the beginning of much period constituted the Board of
Directors including for this purpose any new director whose election or
nomination for election by the Company's stockholders was approved by a vote of
at least two-thirds of the directors then still in office who were directors at
the beginning of such period) cease for any reason to constitute at least a
majority of the Board of Directors.
(b) "Corporate Status" describes the status of a person who is
or was a director, officer, employee, agent or, fiduciary of the Company, or of
any other corporation, partnership, limited liability company, joint venture,
trust, employee benefit plan or other enterprise which such person is or was
serving at the request of the Company.
(c) "Disinterested Director" means a director of the Company
who is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(d) "Effective Date" means May 21, 1996.
(e) "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, or being or preparing to be a witness in
a Proceeding.
8
(f) "Independent Counsel" means a law firm, or a member of a
law firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to represent: (i)
the Company or Indemnitee in any matter material to either such party, or (ii)
any other party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall
not include any Person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine Indemnitee's rights
under this Agreement.
(g) "Proceeding" includes any action, suit, arbitration,
alternate dispute resolution mechanism, investigation, administrative hearing or
any other proceeding whether civil, criminal, administrative or investigative,
except one initiated by Indemnitee pursuant to Section 9 of this Agreement to
enforce his rights under this Agreement.
SECTION 17. MODIFICATION AND WAIVER. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
SECTION 18. NOTICE BY INDEMNITEE. Indemnitee agrees promptly to notify
the Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder.
SECTION 19. NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed, or (ii) mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:
(a) If to Indemnitee, to:
his address indicated on the signature page hereof
(b) If to the Company to:
Visible Genetics, Inc.
000 Xxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
Xxxxxx XXX 0X0
or such other address as may have been furnished to Indemnitee by the Company or
to the Company by Indemnitee, as the case may be.
9
SECTION 20. GOVERNING LAW. The parties agree that this Agreement shall
be governed by, and construed and enforced in accordance with, the laws of the
Province of Ontario.
SECTION 21. MISCELLANEOUS. Use of the masculine pronoun shall be deemed
to include usage of the feminine pronoun where appropriate.
10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
VISIBLE GENETICS INC.
By:
---------------------------------
XXXXXX XXXXXXXX
SECRETARY AND DIRECTOR
INDEMNITEE
XX. XXXXXX X.X. XXXX
By:
---------------------------------
Xx. Xxxxxx X.X. Xxxx
Executive Vice President and
Chief Business Officer
Address: c/o Visible Genetics Inc.
000 Xxx Xxxxxx, Xxxxx 0000
Xxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
11
