EXHIBIT 10.20
AGREEMENT
THIS AGREEMENT made as of the 15th day of February, 2003,
AMONG:
ASPREVA PHARMACEUTICALS CORPORATION, a corporation incorporated under
the laws of Canada, and having its address at 0000- 0000 Xxxxxxx Xx,
Xxxxxxxx, X.X. X0X 0X0
(the "CORPORATION")
AND:
XX. XXXXX XXXX, of 0000 Xxxxxxx Xxxx Xxxxxxxx X.X. X0X 0X0
(the "DIRECTOR")
WITNESSES THAT WHEREAS:
A. The Corporation is carrying on business as a pharmaceutical company
specializing in the development and commercialization of rare disease
therapeutics and orphan drugs as defined by the U.S. Orphan Drug Act (the
"BUSINESS");
B. The Director has been nominated to the board of directors of the Corporation,
and shall chair the Corporation's Clinical Development Committee (the
"COMMITTEE");
C. In consideration of and as a condition of the Corporation entering into this
Agreement with the Director, the Director has agreed to be a party to this
Agreement as hereinafter provided.
NOW THEREFORE in consideration of the premises and the covenants and agreements
of the parties hereto as hereinafter set forth, the parties hereto covenant and
agree as follows:
1. Services During the term of this Agreement, the Director agrees to perform
his duties and responsibilities as a director of the Corporation in the best
interests of the Corporation and, with respect to the chairmanship of the
Committee, shall perform the services (the "SERVICES") described in Schedule A
attached hereto. The Corporation and the Director agree that in providing the
Services, the Chair shall report from time to time, as necessary, to the
Chairman of the Corporation.
2. Limited Authority as Agent The Director agrees that he will not act as an
agent of the Corporation except with the express prior written authority of the
Corporation. Without limiting the generality of the foregoing, the Director
shall not commit or be entitled to commit the Corporation to any obligation
whatsoever nor shall he incur or be entitled to incur any debt or liability
whatsoever on behalf of the Corporation, without in each case the express prior
written authority of the Corporation.
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3. Term and Renewal The term of this Agreement (the "TERM") shall commence on
February 15th, 2003 and shall terminate on the date the Director ceases to be
the Chairman of the Committee. The Director agrees, concurrently with the
execution of this Agreement, to deliver to the Corporation his resignation as a
director of the Corporation, to be effective as of the date the Director ceases
to be the Chairman of the Committee.
4. No Damages for Termination The Director shall, as a result of any termination
of this Agreement or the expiration of the Term in accordance with Section 3
above, not be entitled to any notice, fees, payments or damages arising by
virtue of or in any way relating to the relationship to the Corporation, except
any applicable fees, bonuses, options and shares earned by the Director
hereunder that are unpaid or vested, as the case may be, at the effective date
of any termination, and expenses to which the Director is entitled to
reimbursement hereunder as at the effective date of any termination.
5. Fees Provided the Director renders the Services satisfactorily in accordance
with this Agreement, and provided the Director is not in default under this
Agreement, the Corporation agrees to pay to the Director an amount based on the
% full time equivalent ("FTE") provided to the Corporation. The calculation will
be based on an FTE fee of $150,000 per annum and will be adjusted annually at
the time of performance review by the Corporation's compensation committee. The
% FTE shall not exceed 20% unless otherwise agreed to in writing between the
Corporation and the Director.
The Director acknowledges and agrees that, except as provided
in this Agreement, the Director will not be entitled to any compensation,
remuneration or benefits from the Corporation in connection with any matter or
thing contemplated by or done pursuant to this Agreement.
The Director shall, at his own expense, pay all income taxes,
employment insurance, Canada Pension Plan and Workers Compensation
contributions, and all other taxes, charges and contributions levied as required
by all competent governmental authority in respect of the monies paid to the
Director under this Agreement.
6. Expenses The Director shall be reimbursed by the Corporation for all ordinary
and reasonable travelling and other out-of-pocket expenses legitimately incurred
in connection with the provision of the Services. The Director shall seek
pre-authorization from the Corporation for any expense in excess of $6,000. Any
expense outside such limitations shall be considered a business expense of the
Director, and will not be reimbursed to the Director except with the approval in
writing of the Chief Executive Officer. The Director shall be required to
furnish to the Corporation satisfactory statements and vouchers as and when
required as detailed in the policy statements of the Corporation as revised from
time to time regarding travel and promotion expenses as a condition precedent to
entitlement for reimbursement as aforesaid.
7. Bonuses The Director shall be eligible for bonuses based on the performance
of the Corporation and the Services provided by the Director hereunder. All
bonuses shall be at the sole discretion of the Board.
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8. Incentive Share Purchase Plan By his execution of this Agreement, Xxxxxxx
Xxxxxxxx, as Trustee (Xxxxxxx Xxxxxxxx, as Trustee, or any successor Trustee, is
herein referred to as the "TRUSTEE") of the 2002 Aspreva Incentive Stock
Purchase Plan Trust Agreement (the "TRUST AGREEMENT"), hereby acknowledges and
agrees that as soon as reasonably practicable following the execution of this
Agreement he will distribute to the Director under the Trust Agreement 500,000
Common shares of the Corporation (the "TRUST SHARES") and will cause to be
delivered to the Director a share certificate (the "TRUST SHARE CERTIFICATE")
registered in the name of the Director representing the Trust Shares.
The Director acknowledges and agrees that as a condition to
being entitled to receive the Trust Shares and the Trust Share Certificate, he
will sign and deliver to the Corporation an Agreement to Be Bound to the
Shareholders' Agreement dated for reference January 16, 2003 among the
Corporation and its shareholders (in a form acceptable to the Corporation).
The Director further acknowledges and agrees that as an
additional condition to being entitled to receive the Trust Shares and the Trust
Share Certificate, he will, if this Agreement is terminated in accordance with
its terms, immediately transfer to the Trustee, or as the Trustee may direct,
for no consideration, all right, title and interest in and to the following
Trust Shares, if any, and will cause a certificate representing such Trust
Shares to be issued to the Trustee, or as the Trustee may direct, unless there
has been a "CHANGE IN CONTROL" of the Corporation (as defined in the Change of
Control Agreement in the form attached hereto as Schedule B) during the Term:
TERMINATION DATE NUMBER OF TRUST SHARES TO BE TRANSFERRED
--------------------------- ----------------------------------------
Before March 15, 2003 500,000
Before April 15, 2003 486,111
Before May 15, 2003 472,222
Before June 15, 2003 458,333
Before July 15, 2003 444,444
Before August 15, 2003 430,556
Before September 15, 2003 416,667
Before October 15, 2003 402,778
Before November 15, 2003 388,889
Before December 15, 2003 375,000
Before January 15, 2004 361,111
Before February 15, 2004 347,222
Before March 15, 2004 333,333
Before April 15, 2004 319,444
Before May 15, 2004 305,556
Before June 15, 2004 291,667
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TERMINATION DATE NUMBER OF TRUST SHARES TO BE TRANSFERRED
------------------------- ----------------------------------------
Before July 15, 2004 277,778
Before August 15, 2004 263,889
Before September 15, 2004 250,000
Before October 15, 2004 236,111
Before November 15, 2004 222,222
Before December 15, 2004 208,333
Before January 15, 2005 194,444
Before February 15, 2005 180,556
Before March 15, 2005 166,667
Before April 15, 2005 152,778
Before May 15, 2005 138,889
Before June 15, 2005 125,000
Before July 15, 2005 111,111
Before August 15, 2005 97,222
Before September 15, 2005 83,333
Before October 15, 2005 69,444
Before November 15, 2005 55,556
Before December 15, 2005 41,667
Before January 15, 2006 27,778
Before February 15, 2006 13,889
On or after February 15, 2006 Nil
9. Disclosure of Conflicts of Interest During the Term, the Director shall
promptly, fully and frankly disclose to the Corporation in writing:
(a) the nature and extent of any interest the Director or any
Affiliate or Associate (as hereinafter defined) of either of
them has or may foreseeably have, directly or indirectly, in
any contract or transaction or proposed contract or
transaction of or with the Corporation or any subsidiary or
affiliate of the Corporation;
(b) every office the Director or any Affiliate or Associate of
either of them may hold or acquire, and every property the
Director or any Affiliate or Associate of either of them may
possess or acquire, whereby directly or indirectly a duty or
interest might be created in conflict with the interests of
the Corporation or the duties and obligations of the Director
under this Agreement; and
(c) the nature and extent of any conflict referred to in
subparagraph (b) above.
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In this Agreement, the expressions "AFFILIATE" and "ASSOCIATE" shall include all
those persons and entities that are included within the definitions or meanings
of "affiliate" and "associate" respectively as set forth in sections 1(l) and
1(2) of the Company Act (British Columbia) as amended from time to time, or any
successor legislation of similar force and effect.
10. Avoidance of Conflicts of Interest The Director acknowledges that it is the
policy of the Corporation that all interests and conflicts of the sort described
in Section 9 be avoided, and the Director agrees to comply with and to cause the
Director to comply with all policies or directives of the Corporation from time
to time regulating, restricting or prohibiting circumstances giving rise to
interests or conflicts of the sort described in Section 9 above. During the
Term, the Director shall not enter into any agreement, arrangement or
understanding with any other person or entity that would in any way conflict or
interfere with this Agreement or the duties and obligations of the Director
under this Agreement or that would otherwise prevent the Director from
performing the Services hereunder, and the Director hereby represents and
warrants that neither the Director nor any of his Affiliates or Associates has
entered into any such agreement, arrangement or understanding. Notwithstanding
the above, the parties acknowledge that the Director has certain commitments and
obligations to PRA International Inc., and such commitments and obligations will
be deemed not to be a conflict of interest for the purposes of this Agreement.
11. Confidentiality and Assignment of Inventions Concurrently with execution and
delivery of this Agreement and in consideration of the Director's relationship
with the Corporation, the Director and the Corporation will enter into a
"CONFIDENTIALITY AGREEMENT AND ASSIGNMENT OF INVENTIONS" in the form attached
hereto as SCHEDULE B.
12. Non-Competition and Non-Solicitation The Director undertakes and agrees with
the Corporation that during the Term, he will not, with the exception of meeting
his obligation's to PRA International, directly or indirectly:
(a) be retained as a Board member or as a senior advisor for a
company anywhere in the world whose primary focus is the
development and/or commercialization of rare disease
therapeutics and/or orphan drugs as defined by the U.S. Orphan
Drug Act, or whose business model relies on the in-licensing
of drugs from pharmaceutical companies; except with the
written consent of the Corporation; or
(b) assist any Person to employ, offer employment to or solicit
the employment of or otherwise entice away from the employment
of the Corporation, any individual who is employed by the
Corporation at the date of termination of this Agreement or
who was employed by the Corporation within the 6 month period
immediately preceding the date of this Agreement.
In this Agreement, "PERSON" shall mean any individual or other entity or group
of individuals or other entities possessed of juridical personality, including,
without limitation, a natural person, firm, association, syndicate, company,
corporation, cooperative, partnership, trust, unincorporated association,
affiliate or governmental body, and pronouns when they refer to a Person shall
have a similarly extended meaning.
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13. Provisions Reasonable It is acknowledged that:
(a) the Corporation has operated and competed and will operate and
compete in a global market, with respect to the Business of
the Corporation;
(b) competitors of the Corporation and the Business are located in
countries around the world;
(c) in order to protect the Corporation adequately, any enjoinder
of competition would have to apply world wide;
(d) during the Term, the Director has acquired and will acquire
knowledge of, and come into contact with and initiate and
established relationships with both existing and new clients,
customers, suppliers, principals, contacts and prospects of
the Corporation;
(e) in light of the foregoing, the provisions of Section 12 above
are reasonable and necessary for the proper protection of the
business, property and goodwill of the Corporation and the
Business.
14. Severability If any provision of this Agreement shall for any reason be held
to be excessively broad as to duration, scope, activity, subject matter or
otherwise, such provision shall be construed by limiting and reducing it so as
to be enforceable to the extent compatible with applicable law. If,
notwithstanding the foregoing, any provision of this Agreement is to be held to
be invalid or illegal, then such invalid, illegal provision shall be severable
and severed from the other provisions of this Agreement and the Agreement shall
remain to be construed as if such invalid, illegal provision had never been
contained herein.
15. Waiver Any waiver of any breach or default under this Agreement shall only
be effective if in writing signed by the party against whom the waiver is sought
to be enforced, and no waiver shall be implied by indulgence, delay or other
act, omission or conduct. Any waiver shall only apply to the specific matter
waived and only in the specific instance in which it is waived.
16. Governing Laws This Agreement shall be governed by and interpreted in
accordance with the laws of the Province of British Columbia and applicable laws
of Canada, and the parties hereto attorn to the exclusive jurisdiction of the
federal and provincial courts of such province.
17. Survival of Terms The representations, warranties, covenants, agreements,
obligations and liabilities of the Director under any and all of Sections 10, 11
and 12 of this Agreement shall survive any expiration or termination of this
Agreement or of the Term. Any expiration or termination of this Agreement or of
the Term shall be without prejudice to any rights and obligations of the parties
hereto arising or existing up to the effective date of such expiration or
termination, or any remedies of the parties with respect thereto.
18. Notices Any notice or other communication under this Agreement or in
connection herewith shall be in writing and shall be delivered or faxed to the
Director or the
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Corporation at the addresses or fax numbers set out below. If the address, fax
number or telephone numbers set out below shall change during the Term, the
party shall promptly provide the new address, fax number or telephone number to
the other parties:
If to the Corporation:
Aspreva Pharmaceuticals Corporation
c/o Farris, Vaughan, Xxxxx & Xxxxxx
2600 - 000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX, X0X 0X0
Attn: R. Xxxxxx XxxXxx-Xxxx
Facsimile: (000) 000-0000
If to the Director:
Xx. Xxxxx Xxxx
0000 Xxxxxxx Xxxx
Xxxxxxxx X.X. X0X 0X0
Any notice delivered or faxed shall be deemed to have been given and
received on the first business day following the date of delivery or
fax.
19. Interpretation If the sense or context of this Agreement so requires, the
singular shall be construed to include the plural and vice versa, and the neuter
shall be construed to include the feminine or masculine or body politic or body
corporate and vice versa. In this Agreement "herein", "hereby", "hereunder",
"hereof", "hereto" and words of similar import, refer to this Agreement as a
whole and not to any particular Section or part of this Agreement. The headings
and captions of Sections of this Agreement are inserted for convenience of
reference only and are not to be considered when interpreting this Agreement.
Any covenants or agreements made the Director shall be joint and several
covenants and agreements of such parties. All sums of money set forth in this
Agreement are expressed in Canadian dollars.
20. Independent Legal Advice The Director acknowledges that he has read and
understood this Agreement and all of its terms and conditions, and acknowledge
that they have each had an opportunity to obtain such legal and other advice
about it as deemed necessary.
21. Time Due to the time sensitive nature of the Corporation's business, time is
of the essence.
22. Enurement Subject to Section 21, this Agreement shall enure to the benefit
and be binding on the respective heirs, executors, administrators, successors
and assigns of the Corporation and the Director.
23. Entire Agreement This Agreement constitutes the entire agreement between the
Corporation and the Director with respect to the subject matters hereof, and
supersedes any previous communications, understandings and agreements between
the Corporation and the Director regarding the subject matters hereof, whether
written or oral. Except as otherwise
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provided in this Agreement, this Agreement may only be amended by further
agreement in writing signed by the parties hereto.
IN WITNESS WHEREOF the parties have executed this Agreement with effect as of
the day and year first above written.
ASPREVA PHARMACEUTICALS CORPORATION
Per: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Xxxxxxx X. Xxxxxxxx
Chairman
EXECUTED by XX. XXXXX XXXX in the )
presence of: )
)
X. Xxxxxxxxxx )
---------------------------------------------------
Name )
136A Superior )
---------------------------------------------------
Address ) /s/ XXXXX XXXX
--------------
Victoria BC ) XX. XXXXX XXXX
---------------------------------------------------
)
Director Clin Reg )
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Occupation )
)
The provisions of Section 10 are accepted and agreed as of the 15th day of
February, 2003
/s/ X. XXXXXXXXXX /s/ XXXXXXX XXXXXXXX
----------------------- -------------------------------------
Witness Signature SIGNATURE OF XXXXXXX XXXXXXXX,
TRUSTEE OF THE 2002 ASPREVA INCENTIVE
STOCK PURCHASE PLAN TRUST AGREEMENT
X. Xxxxxxxxxx
--------------------------
Witness Name
Director Clin Reg
--------------------------
Occupation
000X Xxxxxxxx Xxxxxxxx XX
--------------------------
Address
SCHEDULE A
COMMITTEE SERVICES
The Director shall devote sufficient working time and efforts to the clinical,
scientific and business affairs of the Corporation as are necessary and
consistent with the needs of the Corporation. The Services to be provided by the
Director in connection with the chairmanship of the Committee are as follows:
- Consults on all aspects of the Corporation's drug assessment
and clinical development, safety and monitoring programs;
- Consults on the recruitment of senior clinical and regulatory
staff;
- Participates in the development and execution of the
Corporation's overall strategic plan;
- Consults on the development and implementation of appropriate
policies and procedures governing the Corporation's clinical
development activities;
- Represents the Corporation in meetings with the pharmaceutical
industry and the scientific and business community including
attending conferences and meetings both within and outside of
Canada;
SCHEDULE B
CONFIDENTIALITY AGREEMENT AND
ASSIGNMENT OF INVENTIONS
ASPREVA PHARMACEUTICALS CORPORATION
February 15, 2003
PRIVATE AND CONFIDENTIAL
XX. XXXXX XXXX
0000 Xxxxxxx Xxxx
Xxxxxxxx X.X. X0X 0X0
This Confidentiality Agreement and Assignment is being entered into in
connection with your engagement by Aspreva Pharmaceuticals Corporation
("ASPREVA") to act as Director and Chair of the Clinical Development Committee
("CHAIR") pursuant to an agreement dated February 15, 2003 ( the "ENGAGEMENT
AGREEMENT"). You have been engaged because of, and Aspreva expects to benefit
from, your knowledge, experience and expertise in relation to rare disease
therapeutics and orphan drugs. The purpose of this letter is to confirm and
record the terms of this agreement (this "AGREEMENT") between you and Aspreva
concerning the terms on which you will (i) receive from and disclose to Aspreva
proprietary and confidential information; (ii) agree to keep the information
confidential, to protect it from disclosure and to use it only in accordance
with the terms of this Agreement; and (iii) assign to Aspreva all rights,
including any ownership interest which may arise in all inventions and
intellectual property developed by you in providing services to Aspreva. The
effective date ("EFFECTIVE DATE") of this Agreement is the date that you began
providing services to Aspreva, as indicated in the Engagement Agreement. Both
parties acknowledge that you will continue to be employed by PRA International
in the field of drug development and nothing in this Agreement is intended to
interfere with or affect your rights or obligations with respect to PRA
International.
In consideration of the execution of the Engagement Agreement by Aspreva and the
payment by Aspreva to you of the sum of CDN$1.00 and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, you
and Aspreva hereby agree as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
(a) "CONFIDENTIAL INFORMATION", subject to the exemptions set out in
Section 2.8, shall mean any information relating to Aspreva's
Business (as hereinafter defined), whether or not conceived,
originated, discovered, or developed in whole or in part by you,
that is not generally known to the public or to other persons who
are not bound by obligations of confidentiality and:
(i) from which Aspreva derives economic value, actual or
potential, from the information not being generally known; or
(ii) in respect of which Aspreva otherwise has a legitimate
interest in maintaining secrecy;
and which, without limiting the generality of the foregoing, shall
include;
(iii) all proprietary information licensed to, acquired, used or
developed by Aspreva in its research and development
activities including but not restricted to the development and
commercialization of drugs for rare diseases and conditions
and orphan drugs as defined by U.S. Orphan Drug Act, other
scientific strategies and concepts, designs, know-how,
information, material, formulas, processes, research data and
proprietary rights in the nature of copyrights, patents,
trademarks, licenses and industrial designs;
(iv) all information relating to Aspreva's Business, and to all
other aspects of Aspreva's structure, personnel, and
operations, including financial, clinical, regulatory,
marketing, advertising and commercial information and
strategies, customer lists, compilations, agreements and
contractual records and correspondence; programs, devices,
concepts, inventions, designs, methods, processes, data,
know-how, unique combinations of separate items that is not
generally known and items provided or disclosed to Aspreva by
third parties subject to restrictions on use or disclosure;
(v) all know-how relating to Aspreva's Business including, all
biological, chemical, pharmacological, toxicological,
pharmaceutical, physical and analytical, clinical, safety,
manufacturing and quality control data and information, and
all applications, registrations, licenses, authorizations,
approvals and correspondence submitted to regulatory
authorities;
(vi) all information relating to the businesses of competitors of
Aspreva including information relating to competitors'
research and development, intellectual property, operations,
financial, clinical, regulatory, marketing, advertising and
commercial strategies, that is not generally known;
(vii) all information provided by Aspreva's agents, Directors,
lawyers, contractors, licensors or licensees to Aspreva and
relating to Aspreva's Business; and
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(viii) all information relating to your compensation and fees,
except that you shall be entitled to disclose such
information to your bankers, advisors, agents, Directors and
other third parties who have a duty of confidence to you and
who have a need to know such information in order to provide
advice, products or services to you.
(b) "INVENTIONS" shall mean any and all discoveries, developments,
enhancements, improvements, concepts, formulas, processes, ideas,
writings, whether or not reduced to practice, industrial and other
designs, patents, patent applications, provisional patent
applications, continuations, continuations-in-part, substitutions,
divisionals, reissues, renewals, re-examinations, extensions,
supplementary protection certificates or the like, trade secrets or
utility models, copyrights and other forms of intellectual property
including all applications, registrations and related foreign
applications filed and registrations granted thereon but excludes
any Previous Technology and Residual Knowledge.
(c) "PREVIOUS TECHNOLOGY" shall mean technology developed or owned by
you prior to the Effective Date and/or arising from any work,
research or activity engaged in other than pursuant to the
Engagement Letter and includes without limitation all confidential
and proprietary information and Inventions developed, created,
reduced to practise or disclosed in the course of your engagement by
PRA International and Global Biomedical Capital Corp. (GBCC) and its
affiliated companies.
(d) "RESIDUAL KNOWLEDGE" shall mean ideas, concepts, know-how,
knowledge, methods, techniques, processes, skills, tools, approaches
and other residual values of a general nature not directly relating
to Aspreva's Business or from which Aspreva derives no direct
economic value from its use or disclosure, which you know, possess,
learn or develop your activities as Director and Chair.
(e) "WORK PRODUCT" shall mean any and all Inventions and possible
Inventions relating to Aspreva's Business resulting from any work
performed by you for Aspreva that you may invent or co-invent during
the term of the Engagement Agreement, except Previous Technology,
Residual Knowledge and those Inventions invented by you entirely on
your own time that do not relate to Aspreva's Business or do not
derive from any equipment, supplies, facilities, Confidential
Information or other information, gained, directly or indirectly, by
you from or through your involvement in any capacity with Aspreva.
(f) "ASPREVA'S BUSINESS" shall mean the businesses actually carried on
by Aspreva, directly or indirectly, whether under an agreement with
or in collaboration with, any other party including but not
exclusively, related to the development and commercialization of
drugs for rare diseases and conditions and orphan drugs as defined
by the U.S. Orphan Drug Act.
2. CONFIDENTIALITY
2.1 BASIC OBLIGATION OF CONFIDENTIALITY.
You hereby acknowledge and agree that in the course of your
involvement with Aspreva, Aspreva may disclose to you or you may otherwise have
access or be exposed to Confidential Information. Aspreva hereby agrees to
provide such access to you and you agree to receive and hold all Confidential
Information on the terms and conditions set out in this Agreement. Except as set
out in this Agreement, you will keep strictly confidential all Confidential
Information and all other information belonging to Aspreva that you acquire,
observe or are informed of, directly or indirectly, in connection with your
involvement, in any capacity, with Aspreva.
2.2 FIDUCIARY CAPACITY.
You will be and act toward Aspreva as a fiduciary in respect of the
Confidential Information.
2.3 NON-DISCLOSURE.
Except as required to do so in order to fulfill your obligations
pursuant to the Engagement Agreement and unless Aspreva first gives you written
permission to do so under Section 2.7 of this Agreement, you will not at any
time, either during or after your involvement in any capacity with Aspreva;
(a) use or copy Confidential Information or your recollections thereof;
(b) publish or disclose Confidential Information or your recollections
thereof to any person other than to employees of Aspreva who have a
need to know such Confidential Information for their work for
Aspreva;
(c) permit or cause any Confidential Information to be used, copied,
published, disclosed, translated or adapted except as otherwise
expressly permitted by this Agreement;
(d) permit or cause any Confidential Information to be stored off the
premises of Aspreva, including permitting or causing such
Information to be stored in electronic format on personal computers,
except in accordance with written procedures of Aspreva, as amended
from time to time in writing; or
(e) communicate the Confidential Information or your recollections
thereof to another employee of Aspreva in a public place or using
methods of communication that are capable of being intercepted (such
as unencrypted messages using the internet or cellular phones) or
overheard, without the written permission of Aspreva.
2.4 TAKING PRECAUTIONS.
You will take all reasonable precautions consistent with Aspreva's
existing policies necessary or prudent to prevent material in your possession or
control that contains or refers to Confidential Information from being
discovered, used or copied by third parties.
2.5 ASPREVA'S OWNERSHIP OF CONFIDENTIAL INFORMATION.
As between you and Aspreva, Aspreva shall own all right, title and
interest in and to the Confidential Information, whether or not created or
developed by you.
2.6 CONTROL OF CONFIDENTIAL INFORMATION AND RETURN OF INFORMATION.
All physical materials produced or prepared by you containing
Confidential Information, including, without limitation, biological material,
chemical entities, test results, notes of experiments, computer files,
photographs, x-ray film, designs, devices, formulas, memoranda, drawings, plans,
prototypes, samples, accounts, reports, financial statements, estimates and
materials prepared in the course of your obligations to or for the benefit of
Aspreva, shall belong to Aspreva, and you will promptly turn over to Aspreva's
possession every original and copy of any and all such items in your possession
or control upon request by Aspreva. You shall not permit or cause any physical
materials to be stored off the premises of Aspreva, unless in accordance with
written procedures of Aspreva, as amended from time to time in writing. You
shall not transfer any biological material to another person outside of Aspreva,
unless a material transfer agreement has been signed by both Aspreva and the
other party. You shall not accept any biological material from another person
outside of Aspreva, unless in accordance with written procedures of Aspreva, as
amended from time to time in writing.
2.7 PURPOSE OF USE.
You will use Confidential Information only for purposes of carrying
out your obligations under the Engagement Agreement or as otherwise authorized
or directed by Aspreva.
2.8 EXEMPTIONS.
Your obligation of confidentiality under this Agreement will not
apply to any of the following:
(a) Previous Technology;
(b) information related to the affairs or business of PRA International;
(c) information related to the affairs or business of Global Biomedical
Capital Corp. (GBCC) and its affiliated companies;
(d) Residual Knowledge;
(e) information that is already known to you, though not due to a prior
disclosure by Aspreva or by a person who obtained knowledge of the
information, directly or indirectly, from Aspreva;
(f) information disclosed to you by another person who is not obliged to
maintain the confidentiality of that information and who did not
obtain knowledge of the information, directly or indirectly, from
Aspreva;
(g) information that is developed by you independently of Confidential
Information received from Aspreva and such independent development
can be documented by you;
(h) other particular information or material which Aspreva expressly
exempts by written instrument signed by Aspreva;
(i) information or material that is in the public domain through no
fault of your own; and
(j) information or material that you are obligated by law to disclose,
to the extent of such obligation, provided that:
(i) in the event that you are required to disclose such
information or material, then, as soon as you become aware of
this obligation to disclose, you will provide Aspreva with
prompt written notice so that Aspreva may seek a protective
order or other appropriate remedy and/or waive compliance with
the provisions of this Agreement;
(ii) if Aspreva agrees that the disclosure is required by law, it
will give you written authorization to disclose the
information for the required purposes only;
(iii) if Aspreva does not agree that the disclosure is required by
law, this Agreement will continue to apply, except to the
extent that a Court of competent jurisdiction orders
otherwise; and
(iv) if a protective order or other remedy is not obtained or if
compliance with this Agreement is waived, you will furnish
only that portion of the Confidential Information that is
legally required and will exercise all reasonable efforts to
obtain confidential treatment of such Confidential
Information.
3. ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS
3.1 NOTICE OF INVENTION.
You agree to promptly and fully inform Aspreva of all your Work
Product, whether or not patentable, throughout the course of your involvement,
in any capacity, with Aspreva, whether or not developed before or after your
execution of this Agreement. On your
ceasing to be employed by Aspreva for any reason whatsoever, you will
immediately deliver up to Aspreva all of your Work Product. You further agree
that all of your Work Product shall at all times be the Confidential Information
of Aspreva.
3.2 ASSIGNMENT OF RIGHTS.
Subject only to those exceptions set out in Exhibit A hereto, you
will assign, and do hereby assign, to Aspreva or, at the option of Aspreva and
upon notice from Aspreva, to Aspreva's designee, your entire right, title and
interest in and to all of your Work Product during your involvement, in any
capacity, with Aspreva and all other rights and interests of a proprietary
nature in and associated with your Work Product, including all patents, patent
applications filed and other registrations granted thereon. To the extent that
you retain or acquire legal title to any such rights and interests, you hereby
declare and confirm that such legal title is and will be held by you only as
trustee and agent for Aspreva. You agree that Aspreva's rights hereunder shall
attach to all of your Work Product, notwithstanding that it may be perfected or
reduced to specific form after you have terminated your relationship with
Aspreva. You further agree that Aspreva's rights hereunder are worldwide rights
and are not limited to Canada, but shall extend to every country of the world.
3.3 MORAL RIGHTS.
Aspreva shall respect your right to be acknowledged as the author or
inventor of all Work Product. Otherwise, you irrevocably waive any and all moral
rights arising under the Copyright Act (Canada), as amended, or any successor
legislation of similar force and effect or similar legislation in other
applicable jurisdictions or at common law that you may have with respect to your
Work Product, and agree never to assert any moral rights which you may have in
your Work Product, including, without limitation, the right to the integrity of
such Work Product, the right to restrain or claim damages for any distortion,
mutilation or other modification or enhancement of the Work Product and the
right to restrain the use or reproduction of the Work Product in any context and
in connection with any product, service, cause or institution, and you further
confirm that Aspreva may use or alter any such Work Product as Aspreva sees fits
in its absolute discretion.
3.4 ASSISTANCE.
You hereby agree to reasonably assist Aspreva, at Aspreva's request
and expense, in:
(a) making patent applications for your Work Product, including
instructions to lawyers and/or patent agents as to the
characteristics of your Work Product in sufficient detail to enable
the preparation of a suitable patent specification, to execute all
formal documentation incidental to an application for letters patent
and to execute assignment documents in favour of Aspreva for such
applications;
(b) making applications for all other forms of intellectual property
registration relating to your Work Product;
(c) prosecuting and maintaining the patent applications and other
intellectual property relating to your Work Product; and
(d) registering, maintaining and enforcing the patents and other
intellectual property registrations relating to your Work Product.
3.5 ASSISTANCE WITH PROCEEDINGS.
You further agree to reasonably assist Aspreva, at Aspreva's request
and expense, in connection with any defence to an allegation that any element of
the Work Product infringes on another person's intellectual property rights,
claim of invalidity of another person's intellectual property rights, opposition
to, or intervention regarding, an application for letters patent, copyright or
trademark or other proceedings relating to intellectual property or applications
for registration thereof.
4. GENERAL
4.1 TERM AND DURATION OF OBLIGATION.
The term of this Agreement is from the Effective Date and terminates
on the date that you are no longer working at or for Aspreva. Except as
otherwise agreed in a written instrument signed by Aspreva, Article 2 shall
survive the termination of this Agreement, including your obligations of
confidentiality and to return Confidential Information, and shall endure, with
respect to each item of Confidential Information, for so long as those items
fall within the definition of Confidential Information. Sections 1.1, 3.2, 3.3,
3.4, 3.5, 4.1, 4.2, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12 and 4.13
shall also survive the termination of this Agreement.
4.2 BINDING NATURE OF AGREEMENT.
This Agreement is not assignable by either party without the prior
written consent of the other party, such consent to be unreasonably withheld.
You agree that this Agreement shall be binding upon your heirs and estate.
4.3 NON-COMPETITION.
While you are an employee of Aspreva, you will not provide services
to or enter into a contract of employment or service in any capacity for any
business, which is in any way competitive with Aspreva's Business without the
prior written consent of Aspreva.
4.4 NO CONFLICTING OBLIGATIONS.
You represent and warrant that you will not use or disclose to other
persons at Aspreva information that (i) constitutes a trade secret of persons
other than Aspreva during your employment at Aspreva, or (ii) which is
confidential information owned by another person. You represent and warrant that
you have no agreements with or obligations to others with respect to the matters
covered by this Agreement or concerning the Confidential Information that are in
conflict with anything in this Agreement.
4.5 EQUITABLE REMEDIES.
You acknowledge and agree that a breach by you of any of your
obligations under this Agreement would result in damages to Aspreva that could
not be adequately compensated by monetary award. Accordingly, in the event of
any such breach by you, in addition to all other remedies available to Aspreva
at law or in equity, Aspreva shall be entitled as a matter of right to apply to
a court of competent jurisdiction for such relief by way of restraining order,
injunction, decree or otherwise, as may be appropriate to ensure compliance with
the provisions of this Agreement, without having to prove damages to the court.
4.6 PUBLICITY.
You shall not, without the prior written consent of Aspreva, make or
give any public announcements, press releases or statements to the public or the
press regarding your Work Product or any Confidential Information.
4.7 SEVERABILITY.
If any covenant or provision of this Agreement or of a section of
this Agreement is determined by a court of competent jurisdiction to be void or
unenforceable in whole or in part, then such void or unenforceable covenant or
provision shall not affect or impair the enforceability or validity of the
balance of the section or any other covenant or provision.
4.8 TIME OF ESSENCE/NO WAIVER.
Time is of the essence hereof and no waiver, delay, indulgence, or
failure to act by Aspreva regarding any particular default or omission by you
shall affect or impair any of Aspreva's rights or remedies regarding that or any
subsequent default or omission that is not expressly waived in writing, and in
all events time shall continue to be of the essence without the necessity of
specific reinstatement.
4.9 FURTHER ASSURANCES.
The parties will execute and deliver to each other such further
instruments and assurances and do such further acts as may be required to give
effect to this Agreement.
4.10 NOTICES.
All notices and other communications that are required or permitted
by this Agreement must be in writing and shall be hand delivered or sent by
express delivery service or certified or registered mail, postage prepaid, or by
facsimile transmission (with written confirmation copy by registered first-class
mail) to the parties at the addresses indicated below.
IF TO ASPREVA:
Aspreva Pharmaceuticals Corporation
Farris, Vaughan, Wills Murphy
0000 - 000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Attn: R. Xxxxxx XxxXxx-Xxxx
Fax: (000) 000-0000
IF TO XXXXX XXXX:
0000 Xxxxxxx Xxxx
Xxxxxxxx X.X. X0X 0X0
Any such notice shall be deemed to have been received on the earlier of the date
actually received or the date five (5) days after the same was posted or sent.
Either party may change its address or its facsimile number by giving the other
party written notice, delivered in accordance with this Section 4.10.
4.11 AMENDMENT.
No amendment, modification, supplement or other purported alteration
of this Agreement shall be binding unless it is in writing and signed by you and
by Aspreva.
4.12 ENTIRE AGREEMENT.
This Agreement supersedes all previous dealings, understandings, and
expectations of the parties and constitutes the whole agreement with respect to
the matters contemplated hereby, and there are no representations, warranties,
conditions or collateral agreements between the parties with respect to such
transactions except as expressly set out herein.
4.13 GOVERNING LAW.
This Agreement shall be governed by and interpreted in accordance
with the laws of the Province of British Columbia and applicable laws of Canada
and the parties hereto attorn to the exclusive jurisdiction of the provincial
and federal courts of such province.
4.14 INDEPENDENT LEGAL ADVICE.
You hereby acknowledge that you have obtained or have had an
opportunity to obtain independent legal advice in connection with this
Agreement, and further acknowledge that you have read, understand, and agree to
be bound by all of the terms and conditions contained herein.
4.15 ACCEPTANCE
If the foregoing terms and conditions are acceptable to you, please
indicate your acceptance of and agreement to the terms and conditions of this
Agreement by signing below on this letter and on the enclosed copy of this
letter in the space provided and by returning the enclosed copy so executed to
us. Your execution and delivery to Aspreva of the enclosed copy of this letter
will create a binding agreement between us.
Thank you for your cooperation in this matter.
Yours truly,
ASPREVA PHARMACEUTICALS CORPORATION
By /s/ XXXXXXX XXXXXXXX
------------------------
Authorized Signatory
Accepted and agreed to as of the 15th day of February, 2003
/s/ X. XXXXXXXXXX /s/ XXXXX XXXX
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Witness Signature SIGNATURE OF XXXXX XXXX
X. Xxxxxxxxxx
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Witness Name
Director Clin Reg
-----------------------------------
Occupation
000 Xxxxxxxx Xxxxxxxx XX
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Address
