EMPLOYMENT AGREEMENT
THIS
AGREEMENT made as at the 1st day of January 2007.
BETWEEN:
having an
office at the City of Edmonton,
in the
Province of Alberta,
(hereinafter
called the "Employer"),
OF THE
FIRST PART,
- and
-
XXXXX
XXXXXXXX
of the
City of Edmonton,
in the
Province of Alberta,
(hereinafter
called the "Employee"),
OF THE
SECOND PART,
WHEREAS:
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A.
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The
Employee has agreed to terms of employment with the Employer in the
capacity and position of Vice President of Product Development;
and
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B.
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The
Employer and the Employee wish to confirm their relationship upon the
terms and conditions as provided in this
Agreement.
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NOW THEREFORE THIS AGREEMENT
WITNESSES that in consideration of the mutual covenants and agreements
referred to herein, and the sum of TEN DOLLARS ($10) now paid or to be paid on
behalf of the Employer to the Employee, the receipt and sufficiency of which
consideration is hereby acknowledged, the parties covenant and agree as
follows:
ARTICLE
1. INTERPRETATION
1.1 Number and
Gender
Words
importing the singular number only shall include the plural and vice versa and
words importing the masculine gender shall include the feminine gender and words
importing persons shall include firms and corporations and vice
versa.
1.2 Division
The
division of this Agreement into Articles and Sections forms no part of this
Agreement and shall be deemed to have been inserted and done for convenience
only.
1.3 Headings
The
headings of all the Articles and Sections hereof and the table of contents, if
any, are inserted for convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
1.4 Recitals
All
recitals to this Agreement shall be included in and form part of this
Agreement.
1.5 Continuance of
Agreement
The
provisions of this Agreement shall continue in effect until the final
performance of all the respective obligations set forth herein or until amended
or altered by agreement in writing.
1.6 Agreement
Supersedes
This
Agreement represents a composite of all previous agreements, if any, reached to
date and that hereafter, this Agreement and the Employee Confidentiality
Agreement, a copy of which is annexed hereto as Schedule “B”, are the only
agreements between the parties with respect to the matters contemplated by this
Agreement, and shall supersede and replace any discussion letter or form of
Agreement, oral or written, which may exist as of the date of execution and
delivery of this Agreement.
1.7 Applicable
Law
This
Agreement shall be governed by the laws of the Province of Alberta.
1.8 Schedules
The
following schedules are incorporated into and form part of this
Agreement:
Schedule
"A" -
Position Profile
Schedule
"B" -
Employee Confidentiality Agreement
Schedule
"B" to this Agreement is referenced in Article 6 and is in full force and effect
when fully executed.
1.9 Effective
Date
Notwithstanding
the date of execution of this Agreement by the Employer and the Employee, this
Agreement shall be deemed for all purposes to be effective as at and from the
1st day of January 2007 (the "Effective Date").
1.10 Severability
In the
event that any provision or part of this Agreement shall be deemed void or
invalid by a court of competent jurisdiction, the remaining provisions or parts
shall be and remain in full force and effect.
1.1 Modification of
Agreement
Any
modification to this Agreement must be in writing and signed by the parties or
it shall have no effect and shall be void.
ARTICLE
2. EMPLOYMENT
2.1 Employment
The
Employer hereby employs the Employee to be the Employer's Vice President of
Product Development for the purposes of undertaking the duties of and exercising
the powers of that office. The Employee represents and warrants to
the Employer that the Employee has the required skills and experience to perform
the duties and exercise the responsibilities required of the Employee as Vice
President of Product Development. In carrying out his duties and
responsibilities, the Employee shall comply with all lawful and reasonable
instructions as may be given by the President of the Employer and shall comply
with all government and other professional requirements, rules, by-laws and
regulations.
2.2 Employee's
Undertaking
2.2.1 The
Employee, in collaboration with the Employer's President and Board of Directors
shall be responsible for such reasonable duties consistent with the position of
Vice President of Product Development as may from time to time be required or
authorized by the President and/or the Board of Directors of the Employer,
without restricting the generality of the foregoing, shall include:
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2.2.1.1
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discharging
those duties and responsibilities set out in the Position Profile attached
as Schedule "A", which may be amended from time to time by the Employer,
so long as those amended duties and responsibilities are consistent with
the duties of a Vice President of Product Development;
and
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2.2.1.2
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using
his best efforts to promote the interests and goodwill of the
Employer.
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2.2.2 In
the performance of the responsibilities listed in Section 2.2, the Employee may
under direction of the President of the Corporation delegate or assign duties as
appropriate to staff and external experts/consultants as required provided that
the Employee shall maintain management responsibility over those to whom duties
have been delegated and/or assigned.
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2.3
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Time
Devotion
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The
Employee shall, during the term of this Agreement, devote his full business
time, attention and ability to the affairs of the Employer in furtherance of the
Employer's best interest as is necessary to fulfill his duties
hereunder. It is understood that the hours of work involved are going
to vary and be irregular and shall include reasonably sufficient hours required
to meet the objectives of employment herein described.
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2.4
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Serving the
Company
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The
Employee shall well and faithfully serve the Employer and use his best efforts
to promote the interests thereof. In carrying out his duties,
functions and responsibilities, the Employee shall comply with, adhere to,
execute and fulfill all of the Employer's written policies, procedures, rules
and regulations, amended in writing by the Employer from time to
time. It is understood and agreed to by the Employee that his
assignments, duties, responsibilities and reporting arrangements may be changed
by the Employer in its sole discretion without causing termination of this
Agreement.
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2.5
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Business
Conduct
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The
Employee agrees that in all matters affecting the conduct of the Employer's
business, the Employee shall maintain a standard of conduct which in all
respects meets a reasonable standard of business conduct in the industry in
which the Employer operates.
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2.6
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Employer
Powers
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Subject
always to this Agreement and all applicable laws, the Employer shall have the
power and authority to review all work performed by the Employee and to
determine standards of performance; provided always, that the Employer's
exercise of such power and authority shall be reasonably done in good faith and
be consistent with its prior practice.
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2.7
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Responsibility of
Employee
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The
Employee assumes no responsibility under this Agreement other than to render the
services called for hereunder in good faith.
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2.8
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Liability of the
Employee
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The
Employee will not be liable to the Employer or others except by reason of acts
constituting bad faith, willful misconduct, negligence or reckless disregard of
his duties.
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2.9
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Exercise of
Duties
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At all
times, the Employee shall act on a basis which is fair and reasonable to the
Employer and shall exercise his powers and discharge his duties under this
Agreement honestly, in good faith and in the best interests of the Employer, and
in connection therewith shall exercise that degree of care, diligence and skill
that a reasonably prudent person would exercise in comparable
circumstances.
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2.10
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Location
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The
Employee's place of employment shall be at the head office of the Employer
located at 0000 Xxxxx Xxxx, XX, Xxxxxxxx, Xxxxxxx or such other place as the
Board of Directors directs. Relocation: If the place of employment changes such
that relocation of the Employee is necessary, the Employer shall pay all
reasonable expenses the Employee incurs regarding relocation.
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2.11
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Records and
Materials
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Upon
expiry or termination of the Employee's employment with the Employer, the
Employee shall deliver to the Employer all proprietary information and all
Confidential Information referred to in Article 6, including but not restricted
to all records and materials with respect to the Employer which are in his
possession and/or under his control.
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2.12
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No
Interest
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Nothing
herein shall be construed to give the Employee any interest in the tangible or
intangible assets of the Employer.
ARTICLE
3. REMUNERATION
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3.1
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Compensation of the
Employee
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Throughout
the term of this Agreement, commencing January 1, 2007, the Employer shall pay
to the Employee a salary, set from time to time by the Board of Directors,
stated as an annualized amount but payable semi-monthly in arrears in equal
monthly installments for each year during the term of the Employee's employment
and commencing on the Effective Date. The Employee's salary at the
commencement of and throughout the term of this Agreement shall be no less than
ONE HUNDRED FORTY THOUSAND
($140,000.00) DOLLARS Canadian per annum. The Employee's compensation and
performance shall be reviewed by the Board of Directors annually at least one
month prior to each anniversary date of commencement. The Employee
shall have the right to provide information to the Board of Directors on all
factors relevant to the Board's decision on any increase in
compensation
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3.2
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Bonuses
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For each
year of the term of this Employment Agreement and any extension or renewal
thereof, the Employee is eligible to be considered for a bonus to be decided on
by the Board of Directors. The current Compensation Plan calls for a bonus of
20% for this level of employment. Considering that ViRexx is in Development
phase and currently does not have income inflow, Management reserves the right
whether or not to pay this bonus subject to the availability of
cash.
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3.3
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Benefits
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The
Employer shall provide the Employee with participation in any benefit programs
as they are made generally available by the Employer to its other employees
including life, disability, health and dental insurance, Alberta Health Care and
Parking.
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3.4
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Pension
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The
Employer agrees to make matching annual contributions to the Employee's RRSP up
to a maximum of 3% of the Employee's salary.
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3.5
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Stock
Options
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3.5.1
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The
Employee will be eligible to participate in the Employer's stock option
program or plan as may be determined and/or amended from time to time in
the sole discretion of Employer and as approved by the Board of Directors
subject to any applicable regulatory or necessary shareholder
approvals.
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3.5.2
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It
is hereby acknowledged that any option granted to the Employee shall be
within the sole discretion of the Board of Directors subject to any
applicable regulatory or necessary shareholder
approvals.
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3.5.3
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If
the Employee's employment is terminated or deemed terminated by the
Employer pursuant to Section 5.3
then all unvested options granted to the Employee shall vest immediately
upon termination and the Employee shall have ninety (90) days from the
date of termination to exercise his options unless such ninety (90) day
period is extended by the Board of
Directors.
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3.5.4
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If
the Employee is terminated or deemed terminated pursuant to Section 5.5,
all options not yet vested shall be vested immediately upon termination or
deemed terminated for Good Reason and the stock option exercise period
will be extended from ninety (90) days to twelve (12)
months.
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3.6
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Car Allowance and
Business Expenses
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The
Employee shall be paid a car mileage allowance for longer trips away from
Edmonton and his reasonable business expenses, including business-related mobile
phone charges, shall be reimbursed by the Employer.
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3.7
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Additional
Benefits
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The
Employer shall pay all professional association and development fees and all
course costs which are incurred from time to time by the Employee in maintaining
his professional designations and upgrading and/or continuing his education and
development to improve the performance of his duties.
ARTICLE
4. VACATION
The
Employee shall be entitled to a period of four weeks' paid vacation per calendar
year. The Employee will provide the Employer with reasonable written
notice of his intention to take any vacation days. The Employee shall
be allowed to accumulate one week's vacation per year from the previous year but
at no time shall the Employee be entitled to accumulate unused weeks such that
he has more than five (5) weeks of vacation in any one (1) year.
ARTICLE
5. TERM
AND TERMINATION
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5.1
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Term
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This
Agreement commenced on the Effective Date and shall continue indefinitely unless
terminated earlier.
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5.2
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Termination by the
Employer for Cause
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The Board
of Directors, by majority decision acting reasonably, shall have the right to
terminate the Employee's employment for cause, including, but without
restricting the generality of the foregoing, upon the occurrence of one or more
of the following default events:
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5.2.1
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the
Employee's failure or refusal to comply with policies established from
time to time by the Board of Directors, provided always that such policies
are documented in writing and communicated to the Employee and are
reasonable and consistent with the Employer's best
interests;
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5.2.2
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the
Employee's failure or refusal to comply with the directions of the Board
of Directors or the Board of Directors determine, in their sole
discretion, that the Employee's performance of his duties under this
Agreement is unsatisfactory;
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5.2.3
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the
Employee's fraud, dishonesty or other willful misconduct or the Employee's
negligence;
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5.2.4
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if
the Employee engages in any criminal activity or unethical conduct which,
in the sole discretion of the Employer, is judged to seriously impair the
Employee's ability to perform his duties hereunder, or would or could
impair the business reputation of the Employer, including, but not limited
to, where the Employee is convicted of any indictable criminal
offence;
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5.2.5
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any
actual or material breach of the provisions of this
Agreement;
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5.2.6
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the
Employee is adjudged bankrupt.
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5.3
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Termination by the
Employee and the Employer Without Cause or Change of Control of the
Employees
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5.3.1 This
Agreement may be terminated by the Employer or the Employee without cause in the
following manner in the specified circumstances:
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5.3.1.1
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by
the Employee on giving ninety (90) days notice in writing to the Employer,
the Employer may waive the notice in whole or in
part;
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5.3.1.2
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by
the Employer on giving one (1) years notice in writing to the Employee or
payment in lieu of notice inclusive of all benefits except for those
detailed in the paragraph below;
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5.3.2 None
of the payments in lieu of notice referred to in 5.3.1.1 and 5.3.1.2 above
include bonus which may be payable, the value of benefits otherwise received
over the same period and any accrued vacation pay, nor do these payments include
any reasonable out placement and relocation assistance from the Employer which
may be agreed upon as a full and final settlement to the Employee.
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5.4
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Termination Upon a
Change of Control by the Employee for Good Reason or by the Employer
Without Cause
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5.4.1 “Change of Control” for the
purposes of this Agreement means the occurrence of any one
or more of the following:
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5.4.1.1
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a
change of control of the Employer or of any material subsidiary of the
Employer;
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5.4.1.2
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the
closing of a merger, acquisition, sale of securities, amalgamation, plan
of arrangement, take-over bid, insider bid, issuer bid other than a normal
course issuer bid, reorganization, exchange of assets or securities, any
one of which results in a change of voting control of the issued and
outstanding securities of the Employer and a subsequent election of new
directors who gain control of the Board of Directors; sale of all or
substantially all of the assets of the business of the Employer, a proxy
contest resulting in appointment of new directors who take control of the
Board of Directors; or any other change which the Board of Directors
declares to be a Change of Control;
but
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5.4.1.3
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excludes
internal reorganizations, reverse takeovers (where the Employer remains
the dominant entity) and transfers among the group of entities controlled
by a substantial shareholder.
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5.4.2 “Good Reason” for the purposes
of this Agreement means a material adverse change to the Employee’s terms and
conditions of employment following a Change of Control including but not limited
to:
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5.4.2.1
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failure
by the Employer to maintain the Employee in at least the same or an
equivalent position which the Employee occupied before the Change in
Control of the Employer;
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5.4.2.2
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failure
by the Employer to provide the Employee with compensation benefits equal
to or greater than the Employee was receiving prior to the Change in
Control of the Employer;
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5.4.2.3
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relocation
of Employee’s place of work to a location more than fifty (50) miles from
it’s location immediately prior to the Change of Control;
or
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5.4.2.4
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if
there is any material change in the Employee’s reporting relationships,
any material reduction in the Employee’s duties, responsibilities or
authority or any other action that has the effect of a demotion of the
Employee: to the extent the Change of Control results in the Employer (or
a successor to the Employer by merger, consolidation or the like),
continuing in existence as a direct or indirect subsidiary of an acquirer,
then the Employee shall be considered to have been demoted unless given
the same or equivalent position, duties and authority in the ultimate
parent of the acquirer.
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5.4.3 Notwithstanding
any other provisions hereof, this Agreement may be terminated at any time within
the twelve (12) months following a Change of Control:
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5.4.3.1
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by
the Employee, for Good Reason, on giving sixty (60) days notice in writing
to the Employer and the Employer may waive the notice in whole or in part;
or
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5.4.3.2
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by
the Employer without cause and without
notice.
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5.4.4 Upon
termination of the Agreement within twelve months following a Change of Control
either by the Employee for Good Reason as provided for in 5.4.2. above or by the
Employer without cause as provided for in 5.4.1 above, the Employee is entitled
to the following severance:
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5.4.4.1
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twelve
(12) months salary inclusive of any bonus payable for the twelve (12)
month period;
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5.4.4.2
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continuation
for twelve (12) months of all Benefits except for those detailed in the
paragraph below;
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5.4.4.3
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immediate
vesting of all stock options granted to the Employee;
and
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5.4.4.4
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an
extension of the Employer's stock option exercise period from ninety (90)
days to twelve (12) months.
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5.4.5 The
severance includes the value of any bonus which may be payable but excludes the
value of benefits otherwise received, that is, parking; pension matching; car
allowance and business expenses; additional benefits of Section 3.7; any accrued
vacation pay; out placement and relocation assistance from the
Employer.
5.4.6 If
the termination does occur as described in 5.4.1 or 5.4.2, each of the salary,
bonus and benefits (“Benefits”) given to the Employee shall be equal to at least
a minimum of what they were for the year immediately prior to the Change of
Control.
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5.5
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Termination of the
Employee for Disability
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If the
Employee suffers from any mental or physical disability or illness which results
in the Employee being unable to substantially perform his duties for a
continuous ninety days or for periods aggregating one hundred and twenty days in
any period of three hundred and sixty five days, the Employer may terminate this
Agreement upon giving the Employee sixty days notice in writing and shall pay to
the Employee six months' salary, the value of benefits otherwise received over
the same period and any accrued vacation pay as full and final settlement to the
Employee.
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5.6
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Survival of
Agreement
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Notwithstanding
the termination of the Employee's employment or the termination of this
Agreement for any reason, Sections 2.2, 7.5 and Article 5 and Article 6 of this
Agreement shall not be deemed to have been terminated and shall continue in full
force and effect.
5.7 Subsidiaries
For the
purposes of this Agreement, employment by a corporation or other equity that is
controlled directly or indirectly by the Employer will be deemed to be
employment by the Employer. Thus, references in this Agreement to
“Employer” include such corporations, subsidiaries, affiliates or other entities
where appropriate in context.
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5.8
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Effect of
Termination
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Upon
termination of this Agreement, howsoever terminated, the Employee shall be
entitled to receive compensation for services provided under this Agreement
("Earned Compensation"),
up to and including the date of termination. However, termination of
this Agreement shall not accelerate the payment date of any monies accrued or
accruing to the Employee as a result of any Earned Compensation, or other
compensation, if any, nor shall termination vest in the Employee any right in
connection therewith unless otherwise stipulated herein.
In the
event of termination of this Agreement for any reason provided in Section 5.2, 5.3 or 5.4 all rights and obligations of the
Employer and the Employee shall cease to exist immediately, except that the
Employee's and Employer's obligations under Sections 2.12, 7.5 and Article 5 and Article 6 hereof shall
survive such termination.
ARTICLE
6. CONFIDENTIAL
INFORMATION AND SOLICITATION
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6.1
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Confidential
Information
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The
Employee shall not, either during the term of his Employment and for a period of
five years thereafter, disclose or cause to be disclosed, to any person, unless
required by law, any secrets or Confidential Information, as defined in Schedule
"B" hereto, concerning the business or affairs or financial position of the
Employer or any company with which the Employer is or may hereafter be
affiliated. This Agreement is governed by the confidentiality provisions as set
forth in Schedule "B". PROVIDED it is agreed by the Employer that the
Employee shall have the sole discretion to decide how to manage any Confidential
Information and Intellectual Property Rights as between the Employer and the
University of Alberta given that he is employed by both simultaneously as long
as he uses reasonable practices which are consistent with practices of similar
companies.
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6.2
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Non-Solicitation
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6.2.1
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In
this Section 6.2, in the context of any action taken by the Employee, the
words "directly or
indirectly" include any
action:
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6.2.1.1
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taken
by the Employee, for the Employee's own benefit, as the case may
be;
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6.2.1.2
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taken
by an "Associate"
or an "Affiliate"
(as each term is defined in the Securities Act
(Alberta)) of the Employee for the benefit of such Associate or
Affiliate and/or the Employee; or
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6.2.1.3
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otherwise
taken for the benefit of any person competing with the business of the
Employer, whether carried out directly by the Employer, or indirectly by
any Associate, any Affiliate, any joint venture partner or any agent (the
"Business"), by
the Employee, whether taken individually or in partnership or jointly or
in conjunction with any person as principal, agent, consultant, partner,
trustee, director, officer, employee or shareholder of that person (other
than a holding of shares listed on a Canadian or United States stock
exchange that does not exceed 5% of the outstanding shares so
listed).
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6.2.2
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At
any time during a period of one (1) year from the Employee ceasing to be
employed by the Employer for any reason whatsoever (the "Restricted Period"), the
Employee shall not, without the prior written consent of the Employer
(which consent may be withheld by the Employer in its absolute and
unfettered discretion), directly or indirectly, alone or in concert or in
any manner whatsoever solicit or endeavor to solicit, or induce or
endeavor to induce, any employee of the Business to leave his or her
employment with the Employer or any Affiliate of the
Employer.
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ARTICLE
7. GENERAL
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7.1
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Further
Acts
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Each of
the parties to this Agreement shall, at the request and expense of the other
party, execute and deliver any further documents and do all acts and things as
that party may reasonably require to carry out the true intent and meaning of
this Agreement.
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7.2
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Time
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Time is
of the essence of this Agreement.
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7.3
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Parties of
Interest
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This
Agreement enures to the benefit of and is binding upon the Employer and the
Employee and upon their administrators, legal representative, executor,
successors and permitted assigns as applicable.
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7.4
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Assignment
|
This
Agreement may not be assigned or transferred in any manner by the
Employee.
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7.5
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Employer's
Property
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The
Employee acknowledges that all items of any and every nature or kind created or
used by the Employee pursuant to the Employee's employment under this Agreement,
or furnished by the Employer to the Employee, and all equipment, automobiles,
credit cards, books, records, reports, files, manuals, literature, Confidential
Information or other materials shall remain and be considered the exclusive
property of the Employer at all times and shall be surrendered to the Employer,
in good condition, promptly on the cessation or termination of the Employee's
employment irrespective of the time, manner or cause of the
termination.
ARTICLE
8. NOTICE
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8.1
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Manner of
Delivery
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All
notices given under this Agreement shall be deemed to have been duly given only
if personally delivered, mailed by prepaid registered mail, sent by facsimile or
by electronic mail in portable document format ("PDF") addressed as
follows:
TO THE
EMPLOYER:
0000
Xxxxx Xxxx, XX
Xxxxxxxx,
Xxxxxxx X0X 0X0
TO THE
EMPLOYEE:
Xxxxx
Xxxxxxxx
00000
00xx
Xxxxxx
Xxxxxxxx,
XX X0X 0X0
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8.2
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When Notices Deemed
Delivered
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Any
notice personally delivered in the manner set out in Section 8.1 shall be deemed given when personally
delivered or upon receipt of confirmation of delivery of facsimile or electronic
mail and any notice mailed in the manner set out in Section 8.1 shall be deemed to have been received on
the fifth regular business day next following the date of posting.
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8.3
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Disruption of Mail
Service
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In the
event of disruption, or threatened disruption, of regular mail service, all
notices shall be deemed to have been duly given only if personally delivered,
sent by facsimile or electronic mail.
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8.4
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Change of
Address
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Any party
may change his address for notice by giving a notice to that effect pursuant to
this Article 8.
IN WITNESS WHEREOF this Agreement has
been made effective as on the day and year first written above.
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Per:
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||
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Per:
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/s/
Xxxx Xxxxxx
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|
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SIGNED,
SEALED AND DELIVERED in the presence of:
/s/
Xxxxx Xxxxx
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)
)
)
)
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/s/
Xxxxx Xxxxxxxx
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WITNESS
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XXXXX
XXXXXXXX
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SCHEDULE
"A"
POSITION
PROFILE
Job
Description/Duties:
Reporting
to the President and the Chief Operating Officer, the Vice President of Product
Development will be responsible for managing the product development department
of ViRexx Medical Corp including but not limited to the following
duties.
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·
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Manage
the Product Development Department
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|
·
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Develop
long and short-term goals and objectives for the Department that support
the corporate timelines and objectives, including the creation and
management of the Department budget
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·
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Liaise
with the Research and Development
Department
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|
·
|
Liaise
with CROs, CMOs for the Scale-up, Process Development ,Pre-Clinical
Toxicology, and Formulation
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|
·
|
Mentor
and provide leadership and direction to staff in the Department including
the evaluation of staff in annual
reviews
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|
·
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Negotiate
contracts and direct activities of contract research organizations and
contract manufacturing organizations as
needed
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·
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Serve
as a member of the Executive, the Intellectual Property Oversight team and
the Publication Committee
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|
·
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Negotiate
corporate contracts as necessary
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·
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Provide
support for Clinical/Regulatory and Business Development departments to
support product development and
out-licensing.
|
|
·
|
Prepare
and write departmental reports
|
|
·
|
Prepare
manuscripts for publication to support product and corporate
development.
|
|
·
|
Meet
with Oncology for product
development
|
|
·
|
Oversee
job sharing with oncology
|
|
·
|
Manage
the oncology pre-clinical animal testing
program
|
|
·
|
Manage
the Chimigen™ intellectual property
|
|
·
|
Manage
the interface between research and development and the patent attorney for
the Chimigen™ intellectual property
|
|
·
|
Over-see/review
all patent submissions; create patent strategy (in collaboration with IP
Oversight team); manage patent strategy with patent
attorney
|
|
·
|
Monitor
research, product and clinical development of competing companies,
technologies and products, and maintain a database of competitor
information.
|
SCHEDULE
"B"
EMPLOYEE CONFIDENTIALITY
AGREEMENT
THIS
AGREEMENT made as at the ____ day of January 2007 (hereinafter referred to as
the "Agreement").
BETWEEN:
a
corporation amalgamated pursuant to the
laws of
Canada
(hereinafter
referred to as "ViRexx")
OF
THE FIRST PART
- and -
XXXXX
XXXXXXXX
of the
City of Edmonton
in the
Province of Alberta
(hereinafter
referred to as the "Employee")
OF
THE SECOND PART
WHEREAS:
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A.
|
the
Employee is presently employed, or is about to be employed pursuant to an
Employment Agreement ("Employment Agreement")
dated concurrently herewith, by ViRexx in a position of confidence and
trust and under conditions where he has or may have access to technical,
confidential and secret information regarding existing or contemplated
business of ViRexx;
|
|
B.
|
the
Employee recognizes that as a part of the duties of his employment,
certain ideas and suggestions of interest to ViRexx, conceived or made by
the Employee while he is retained or employed by ViRexx shall be
immediately made available to and become the property of ViRexx without
any further consideration;
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C.
|
ViRexx
desires to receive from the Employee specific covenants relating to the
non-disclosure of confidential information and ownership of Intellectual
Property, and the employment contract with the Employee is conditional on
ViRexx receiving these covenants.
|
THEREFORE IN CONSIDERATION of
the premises set forth and the remuneration paid by ViRexx to the Employee, the
parties agree as follows:
1. Definition of Confidential
Information
1.1 For
purposes of this Agreement, the term "Confidential Information",
shall mean all information, whether or not reduced to writing and whether or not
patentable or protected by copyright, which the Employee receives, received
access to, conceived or developed, in whole or in part, directly or indirectly,
in connection with the Employee's relationship with ViRexx, and includes, but is
not limited to:
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1.
|
information
concerning bioinformatics, medinformatics and cheminformatics software,
databases and services, including but not limited to, source codes, object
codes, flowcharts and programs and other materials whatsoever (tangible or
intangible and machine readable or human
readable);
|
|
2.
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information
concerning products and services provided to the global community to
bridge the gap between biology in vitro (in the test
tube) and biology in
silico (in the computer);
|
|
3.
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information
concerning the handling and analysis of DNA and protein xxxxxxxx
xxxx;
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|
4.
|
information
concerning drug development and development processes, including but not
limited to, designing optimal drug molecules for treating
diseases;
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5.
|
information
concerning pre-clinical, analytical and formulation
services;
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6.
|
technology
developed for high throughput screening of new chemical entities or drug
levels;
|
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7.
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discoveries
relating to, and developments of, patented in-house
formulations;
|
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8.
|
information
concerning research, development and commercialization of vaccines and
antibodies for preventative or therapeutic use including, without
restriction, those based upon peptide-synthetic carrier protection vaccine
formulations for infectious
disease;
|
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9.
|
formulations,
including but not limited to, the development of new formulations for
existing drugs, assessments of current formulations and the development of
strategies for formulations of new chemical entities (NCE) and
biologicals;
|
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10.
|
information,
drugs, delivery systems, devices or models under a patent, or potential or
pending patent, whether or not such a patent is in fact obtained or
expires;
|
|
11.
|
test
results, clinical studies, clinical trial results, and all research
whatsoever;
|
|
12.
|
products
and devices developed, patents, discoveries, concepts, compilations and
ideas of any nature whatsoever including, without limitation, the nature
and results of research and development activities, the software,
molecular and analytical tools to facilitate research in the fields of
biology, medicine and pharmaceutical science, and processes, formulas,
inventions, technology, techniques, computer programs and models, designs,
drawings, and specifications;
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13.
|
production
processes, marketing techniques and arrangements, marketing materials,
promotions, demos and publications, mailing lists, purchasing information,
pricing policies, quoting procedures, financial information, customer and
prospect names and requirements, Employee, customer, supplier and
distributor data and other materials or information relating to ViRexx's
business and activities and the manner in which ViRexx does business,
including but not limited to the names of drug firms, biotechnology firms,
contract research organizations (CRO), generic drug manufacturers,
pharmaceutical companies, pre-clinical clients, principal investigators
and alliances with whom ViRexx has or may have a business relationship
with,
|
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14.
|
any
other materials or information related to, or that is or may be used in,
the business, trade or activities of ViRexx
which:
|
|
1.
|
are
not generally known to others engaged in similar business or
activities;
|
|
2.
|
has
an economic value from not being generally known;
and
|
|
3.
|
is
the subject of efforts that are reasonable in the circumstances to
maintain its secrecy; and
|
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15.
|
any
financial information or information relating to the day to day business
of ViRexx
|
1.2 For
the purposes of this Agreement, the term “Intellectual Property” shall
mean all copyrights, registered and unregistered trademarks, trade names, logos,
licenses, patent and patent applications, continuations, continuations in part,
trade secrets, computer software, know-how and all other intellectual property
which the Employee creates, invents or of which he becomes aware as a result of
his employment with ViRexx.
1.3 Failure
to xxxx any of the Confidential Information as confidential, proprietary or
protected shall not affect its status as part of the Confidential Information
under the terms of this Agreement.
1.4 For
purposes of this Agreement, the term "Confidential Information"
shall not include information which:
|
|
(i)
|
has
been in the possession of the Employee prior to the date of the
commencement of the Employee's employment with ViRexx including, without
limitation, information pertaining to the matters set out in Section 1.1,
if any;
|
|
(ii)
|
has
been publicly available prior to coming into the possession of
ViRexx;
|
|
(iii)
|
becomes
publicly available without a breach by the Employee of: i) this
Agreement; ii) any other agreement between the Employee and ViRexx; or
iii) any lawful duty owed by the Employee to
ViRexx;
|
|
(iv)
|
has
been supplied to the Employee by a third party who is under no obligation
to ViRexx.
|
The
information described in paragraphs 1.3(i) and (iv) above is hereinafter called
the "Employee
Information".
2. Treatment of
Information
2.1 The
Employee acknowledges that in his position, or in any other position the
Employee may hold, in and as a result of the Employee's relationship with
ViRexx, the Employee shall, or may be making use of, acquiring or adding to
Confidential Information about certain matters and things which are confidential
to ViRexx and which information is the exclusive property of
ViRexx.
2.2 As
a material inducement for ViRexx to retain the services of the Employee, the
Employee agrees that during his term as an Employee with ViRexx, and for a term
of five (5) years following the date of expiry or termination of the Employment
Agreement or expiry or termination of any extension or renewal thereof, the
Employee shall not, except with the prior written consent of ViRexx, which
consent may be arbitrarily withheld, or except if the Employee is acting in the
course of his duties on behalf and for the benefit of ViRexx in connection with
ViRexx's business practices and policies, directly or indirectly, disclose,
divulge, reveal, report, publish, transfer or use for any purpose, or cause to
be disclosed, divulged, revealed, reported, published, transferred or used for
any purpose, the Confidential Information which has been obtained, created,
learned or disclosed by, or to, the Employee.
2.3 Disclosure
of any Confidential Information of ViRexx by the Employee shall not be
prohibited if the disclosure is directly pursuant to a valid and existing order
of a governing court or other governmental body or agency within Canada;
provided, however that:
|
|
(i)
|
the
Employee shall first provide immediate written notice to ViRexx of any
possible or prospective order, or proceeding pursuant to which any order
may result; and
|
|
(ii)
|
ViRexx
shall have been afforded a reasonable opportunity to prevent or limit any
disclosure.
|
3. Ownership of ViRexx Intellectual
Property and Confidential Information
3.1 The
Employee agrees that all right, title and interest in any Confidential
Information and any Intellectual Property shall be and shall remain the
exclusive property of ViRexx.
3.2 The
Employee agrees immediately to disclose in writing to ViRexx all Confidential
Information and any Intellectual Property pertaining to the business of ViRexx
developed in whole or in part by the Employee during the term of the Employee's
relationship with ViRexx and does hereby assign to ViRexx, any right, title or
interest the Employee may have in the Confidential Information and Intellectual
Property. The Employee agrees to execute any instruments and to do
all other things reasonably requested by ViRexx, in order to vest more fully in
ViRexx, all ownership rights in the Confidential Information and Intellectual
Property.
3.3 All
Intellectual Property and all Confidential Information shall belong exclusively
to ViRexx and the Employee does hereby transfer any interest he may have in it
and agrees to turn it over to ViRexx including but not limited to all originals
and all copies of any materials, tapes, notes, data reference items, sketches,
drawings, memoranda, hardware, software, disks, records, inventions, technology,
all Intellectual Property and all Confidential Information, in, or that at any
time whatsoever were in, the Employee's possession, power or control, at the
request of ViRexx, or in the absence of a request, on the termination of the
Employee's relationship with ViRexx, howsoever the Employee's termination
occurs, including but not limited to, the Employee's retirement or
death.
4. Injunctive Relief
4.1 The
Employee understands and agrees that ViRexx shall suffer irreparable harm in the
event that the Employee breaches any of the Employee's obligations under this
Agreement and that monetary damages shall be inadequate to compensate ViRexx for
the breach. Accordingly the Employee agrees that, in the event of a
breach or threatened or potential breach by the Employee of any of the
provisions of this Agreement, ViRexx, in addition to and not in limitation of
any other rights, remedies or damages available to ViRexx at law or in equity,
shall be entitled to an interim injunction, interlocutory injunction, and
permanent injunction, in order to prevent or to restrain any such breach by the
Employee, or by any or all of the Employee's partners, co-venturers, ViRexx's
servants, agents, representatives and any and all persons directly or indirectly
acting for, on behalf of, or with the Employee.
5. Accounting for Profits and
Indemnification
5.1 The
Employee agrees that if the Employee shall violate any of the Employee's
covenants under this Agreement, ViRexx shall be entitled to an accounting and
repayment of all profits, compensation, royalties, commissions, remunerations or
benefits which the Employee directly or indirectly shall have realized or may
realize relating to, growing out of, or in connection with any violations of
this Agreement. This remedy shall be in addition to and not in
limitation of any injunctive relief at law or in equity or otherwise under this
Agreement.
5.2 The
Employee agrees to defend, hold harmless and indemnify ViRexx against and in
respect of:
|
|
(i)
|
any
and all losses and damages resulting from, relating or incident to, or
arising out of any misrepresentation or breach by the Employee of any
warranty or covenant made or contained in this
Agreement;
|
|
(ii)
|
any
and all actions, suits, proceedings, claims demands, judgments, costs, and
expenses (including all legal fees, on a solicitor and his own client
basis), incident to the foregoing.
|
6. Severability
6.1 In
the event that any provision or part of any provision of this Agreement shall be
deemed to be void or invalid by a court of competent jurisdiction, the remaining
provisions or parts shall be and remain in full force and effect. The
Employee agrees that the breach or alleged breach by ViRexx of:
|
|
(i)
|
any
covenant contained in another agreement (if any) between ViRexx and the
Employee or;
|
|
(ii)
|
any
obligation owed to the Employee by
ViRexx;
|
shall not
affect the validity or enforceability of the covenants and agreements of the
Employee set forth in this Agreement.
7. No Prior
Agreements
7.1 The
Employee represents to the best of the Employee's knowledge that the Employee's
performance of all the terms of this Agreement do not and shall not breach any
fiduciary or other duty or any covenant, agreement or understanding (including
any agreement relating to any proprietary information, knowledge or data
acquired by the Employee in confidence, trust or otherwise prior to the
Employee's employment by ViRexx) to which the Employee is a party or by the
terms of which the Employee may be bound. The Employee covenants and agrees that
the Employee shall not disclose to ViRexx, or induce ViRexx to use any
proprietary information, knowledge or data belonging to any previous employer or
others. The Employee further covenants and agrees not to enter into
any agreement or understanding, either written or oral, in conflict with the
provisions of this Agreement.
8. Employee's Status
8.1 Nothing
in this Agreement shall be construed as constituting a commitment, guarantee,
agreement or understanding of any kind or nature that ViRexx shall continue to
employ the Employee. No change of the Employee's duties as an
Employee of ViRexx shall result in, or be deemed to be, a modification of the
terms of this Agreement.
9. Successors
9.1 This
Agreement shall be binding on and shall enure to the benefit of ViRexx and the
Employee, and their respective heirs, personal and legal representatives,
successors and assigns. As used in this Agreement, the term "ViRexx" shall also include any
corporation or entity which is a parent, subsidiary, or affiliate of
ViRexx. The Employee consents to the enforcement of any and all
provisions of this Agreement by or for the benefit of ViRexx as to any other
corporation or entity regarding any of the Confidential
Information.
10. Governing Law
10.1 This
Agreement shall at all times and in all respects be governed by the laws of the
Province of Alberta and all parties hereto shall irrevocably attorn to the
courts of competent jurisdiction of the Province of Alberta.
11. Notices
11.1 Any
notice required or permitted to be given to the Employee shall be sufficiently
given if delivered to the Employee personally or if mailed by prepaid registered
mail, sent by facsimile or by electronic mail in portable document format
("PDF") to the
Employee's address last known to ViRexx.
11.2 Any
notice required or permitted to be given to ViRexx shall be sufficiently given
if delivered personally or if mailed by prepaid registered mail to:
0000 Xxxxx Xxxx, XX
Xxxxxxxx, Xxxxxxx
X0X 0X0
or at
such other address as the Employer may advise the Employee in
writing.
11.3 Any
notice personally delivered in the manner set out in this Section 11 shall be
deemed given when personally delivered or upon receipt of confirmation of
delivery of facsimile or electronic mail and any notice mailed in the manner set
out in Section 11 shall be deemed to have been received on the fifth regular
business day next following the date of posting.
11.4 Either
one of the parties may advise the other, in the manner aforesaid, of any change
of address for the giving of notices.
12. Entire Agreement
12.1
It is acknowledged that the parties are parties to an employment agreement to
which this agreement is attached as Schedule "B". This Agreement and
the employment agreement along with any future agreement respecting options or
warrants contain the entire agreements and understandings by and between ViRexx
and the Employee with respect to the subject matter, and no representations,
promises, agreements or understandings, written or oral, express or implied
shall be valid or binding unless the same is in writing and signed by the party
intended to be bound. No waiver of any provision of this Agreement
shall be valid unless it is in writing and signed by the party against whom the
waiver is sought to be enforced; moreover, no valid waiver of any provision of
this Agreement shall be deemed a waiver of any other provision of this Agreement
at the time or shall be deemed a valid waiver of the provision at any other
time.
13. Assignment
13.1 This
Agreement is assignable by ViRexx without the prior consent of the
Employee.
13.2 As
this Agreement is personal in nature with respect to the Employee, it is not
assignable by the Employee under any circumstance.
14. Gender
14.1 Whenever
the singular is used, it shall be deemed to extend to and include the
plural. Where one gender is used, it shall include all
genders.
{E5449846.DOC;1}
- -
15. Headings
15.1 The
headings and other captions in this Agreement are for convenience and reference
only and are not to be construed in any way as additions or limitations of the
covenants and agreements contained in this Agreement.
16. Effective Date
16.1 This
Agreement is effective as of the date and year first above mentioned and
indicated herein.
IN WITNESS WHEREOF, ViRexx and the
Employee have duly executed this Agreement, where applicable by their respective
corporate officers hereunto duly authorized.
|
Per:
|
||
|
Per:
|
/s/
Xxxx Xxxxxx
|
|
|
SIGNED,
SEALED AND DELIVERED in the presence of:
/s/
Xxxxx Xxxxx
|
)
)
)
)
|
/s/
Xxxxx Xxxxxxxx
|
|
WITNESS
|
XXXXX
XXXXXXXX
|
