EXHIBIT 4.28
XX. XXXXXX XXXXXX
President and CEO
Mississauga Location
Tel: (000) 000-0000 #000 Fax: (000) 000-0000
Cellular: (000) 000-0000
xxxxxxx@xxxxxx.xxx
March 26, 2004
PERSONAL & CONFIDENTIAL
Mr. John X.X. Xxxxxx
000 Xxxxxxx
Xxxxxx, Xxxxxx X0X 0X0
RE: EMPLOYMENT AGREEMENT
Dear Xxxx:
By this letter we hereby confirm that your employment agreement with Draxis
Health Inc. dated April 22, 2003 (the "Employment Agreement") is amended as
follows:
- By deleting the fourth paragraph of Section 16 and replacing it with the
following :
Furthermore, you specifically agree that you shall respect and comply with
by the DRAXIS's Disclosure Policy, as amended from time to time, copy
thereof provided herewith as Schedule "C" to form an integral part of this
Agreement, the DRAXIS's Code of Ethics as amended from time to time, copy
thereof provided herewith as Schedule "D" to form an integral part of this
Agreement, and all and any relevant rules and legislation, such as, without
limiting the generality of the foregoing, the rules on Xxxxxxx Xxxxxxx in
the TSX COMPANY MANUAL, the ONTARIO SECURITIES ACT, the CANADIAN BUSINESS
CORPORATIONS ACT and QUEBEC SECURITIES ACT. You acknowledge that your
senior position with DRAXIS will deem you an insider of DRAXIS and
therefore subject to applicable mandated insider regulatory and company
share trading policies and restrictions.
- By deleting Section 18(d) and replacing it with the following Section
18(d):
(d) TERMINATION PAYMENT FOLLOWING A CHANGE OF CONTROL
(1) In accordance with section 18(d) (2) below, if there is a Change of
Control (as hereinafter defined) you shall be entitled to the following:
A. the amounts of any unpaid Base Salary earned up to and including date
of termination;
B. any unpaid vacation pay earned up to and including date of
termination;
C. a lump sum amount, equal to: (A) two times your then current Base
Salary in effect immediately prior to the date of the Change of
Control;
D. any additional statutory obligations imposed by the ACT RESPECTING
LABOUR STANDARDS;
E. the right to exercise all stock options and other securities including
those not then otherwise exercisable as provided for below.
MARCH 26, 2004
PERSONAL & CONFIDENTIAL XXXX XXXXXX
PAGE 2
The payments referred to in paragraph 18(d), above, shall be guaranteed and
shall not be subject to set off or deduction as a result of your obtaining
alternate employment following termination or otherwise mitigating any damages
arising from termination. Further, notwithstanding paragraph 18(d) (1) (D)
above, the payment referred to in paragraph 18(d) (1) (C) above, is inclusive of
all statutory payments, including statutory termination and severance, which may
be owed to you following termination.
The amounts paid to you pursuant to this paragraph shall be subject to all
required deductions.
For the purposes of this Agreement, a Change of Control shall be deemed to
occur in the following circumstances.
In the event that at any date following the date of signature hereof:
(i) any change in the ownership as of the date hereof, direct or
indirect, of the outstanding shares of the Corporation as a result of
which an individual, partnership, association, trust, unincorporated
organization, ("Person") or group of Persons, hold shares and/or other
securities in excessive of the number which, directly or following
conversion or exercise thereof, will entitle the holders thereof to cast
20% or more of the votes attaching to all such shares and/or other
securities of the Corporation which may be cast to elect the directors
of the Corporation; or
(ii) the sale, transfer or any manner of disposition of 50% or more of
the assets of the Corporation to an arm's length Person;
and the Board of Directors of the Corporation (the "Board of Directors")
recommends acceptance of such offer to the Shareholders of the Corporation (the
"Shareholders") or, if the Board of Directors has made no recommendation, the
Shareholders have approved or accepted the proposed transaction, then any
option, including options not then otherwise exercisable held by the you, shall
become immediately exercisable upon the issuance of the recommendation of the
Board of Directors or the approval or acceptance of the Shareholders, as the
case may be.
For greater clarity, no provision in this employment agreement shall be
deemed to supersede any provision of the Stock Option Plan of DRAXIS, as amended
from time to time, with respect to the right to exercise options held by the
employee in certain circumstances.
(2) Except for the ability to exercise all stock options upon a Change of
Control as provided in paragraph 18(d)(1)(E), the payments and entitlements
outlined in paragraph 18(d) (1) shall become due and payable if, and only if:
A. there has been a Change of Control; and
B. within 12 months following any Change of Control:
(i) your employment is terminated without cause by DRAXIS or by any
successor employer to DRAXIS, as the case may be; or
(ii) by its conduct as described below, DRAXIS or any successor
employer to DRAXIS, as the case may be, constructively terminates
your employment by:
- relocating without just cause the position and/or
location of your principal
MARCH 26, 2004
PERSONAL & CONFIDENTIAL XXXX XXXXXX
PAGE 3
office more than 20 kilometers from the location of your
office on the date immediately prior to the Change of
Control, without your consent; or
- materially reducing without just cause your title,
reporting relationship, responsibilities or authority
without your consent; or
- reducing without just cause the salary paid to you by the
successor employer or terminating without just cause or
materially reducing without just cause the value of your
benefit programs, including, but not limited to, life
insurance benefits, accidental death and dismemberment
benefits, long term disability benefits, extended health
coverage and dental benefits, which are referred to in
Section 3 above;
C. and, you elect in writing to receive the payments outlined in
Section 18(d)(1)
- By deleting Section 18(h) and replacing it with the following section
18(h):
(h) NO FURTHER NOTICE OR COMPENSATION
Upon termination of your employment under this Agreement, you shall not be
entitled to any further grants of stock options nor shall you be entitled to any
further participation in any other incentive plan of the DRAXIS Group other than
as specifically set forth in this agreement. For all purposes, "termination of
your employment" and "termination date" shall be the final day of employment
with DRAXIS, and shall not be deemed to include any period during which you may
be entitled to statutory notice, statutory termination pay or any contractual or
common law notice period and in particular, shall not be deemed to include the
notice period identified in Sections 18(c) (1) or 18(d) (1) (C).
All of the other terms and conditions of your Employment Agreement remain
unchanged. We would ask that you confirm your acceptance of this modification by
signing the duplicate of this letter.
If you have any questions concerning this modification, please do not hesitate
to communicate with the undersigned.
Regards,
DRAXIS HEALTH INC.
/s/ Xxxxxx Xxxxxx
Per: Xx. Xxxxxx Xxxxxx
President and CEO
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I hereby confirm having read the above mentioned modification to my employment
agreement dated April 22, 2003 and hereby confirm my acceptance of said
modification.
Signed this ______ day of ___________, 2004 at ________________________.
/s/ Xxxx Xxxxxx
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