SCHEDULE B
SCHEDULE
B
ASPREVA
PHARMACEUTICALS CORPORATION
November
1,2005
Xxxxxxx
Xxxxx
00,
Xxxxxxxxxxx
Bassersdorf
CH 8303
Dear
Xxxxxxx:
Re:
Change in Control Agreement
Aspreva
Pharmaceuticals Corporation (the "Corporation")
considers
it essential to the best interests of its members to xxxxxx the continuous
employment of its senior executive officers. In this regard,
the Board of Directors of the Corporation (the "Board")
has
determined that it is in the best interests
of the Corporation and its members that appropriate steps should be taken to
reinforce and encourage management's continued attention, dedication and
availability to the Corporation in the event of
a
Potential Change in Control (as defined in Section 38), without being distracted
by the uncertainties which can arise from any possible changes in control of
the
Corporation.
In
order to induce you to agree to remain in the employ of the Corporation, such
agreement
evidenced by the employment agreement entered into as of the date of this
Agreement between
you and the Corporation (the "Employment
Agreement") and
in
consideration of your agreement
as set forth in Section 39 below, the Corporation agrees that you shall receive
and you agree to accept the severance and other benefits set forth in this
Agreement should your employment with the Corporation be terminated subsequent
to a Change in Control (as defined in Section 1) in full satisfaction
of
any
and all claims that now exist or then may exist for remuneration, fees, salary,
bonuses or severance
arising out of or in connection with your employment by the Corporation or
the
termination of your
employment:
Term
of Agreement.
This
Agreement shall be in effect for a term commencing on the Effective Date of
the
Employment Agreement (as therein defined) and ending on the date of termination
of the Employment Agreement.
38.
Definitions.
|
(a)
|
"Affiliate"
means a corporation that is an affiliate of the Corporation under
the
Securities
Act
(British
Columbia), as amended from time to
time.
|
(b)
"Change
in Control" of the Corporation shall be deemed to have occurred:
(i) if
a merger, amalgamation,
arrangement, consolidation, reorganization or transfer takes
place in which Equity Securities of the Corporation possessing more than 50%
of
the total combined voting power of the Corporation's outstanding Equity
Securities
are acquired by a person or persons different from the persons holding
those
Equity Securities immediately prior to such transaction, and the composition
of the Board following such transaction is such that the directors of the
Corporation prior to the transaction constitute less than 50% of the Board
membership
following the transaction, except that no Change in Control will be
-2-
deemed
to occur if such merger, amalgamation, arrangement, consolidation, reorganization
or transfer is with any subsidiary or subsidiaries of the Corporation;
(ii) if
any person, or any
combination of persons (different from those person(s) holding
Equity Securities prior to the date hereof) acting jointly or in concert by.
virtue
of an agreement, arrangement, commitment or understanding shall acquire
or
hold, directly or indirectly, 50% or more of the voting rights attached to
all
outstanding
Equity Securities; or
(iii) if
any person, or any
combination of persons (different from those person(s) holding
Equity Securities prior to the date hereof) acting jointly or in concert by
virtue
of an agreement, arrangement, commitment or understanding shall acquire
or
hold, directly or indirectly, the right to appoint a majority of the directors
of the Corporation; or
(iv) if
the Corporation
sells, transfers or otherwise disposes of all or substantially all of
its
assets, except that no Change of Control will be deemed to occur if such
sale
or
disposition is made to a subsidiary or subsidiaries of the
Corporation.
provided
however, that a Change in Control shall not be deemed to have occurred if such
Change
in Control results solely from the issuance of Equity Securities in connection
with a
bona
fide financing or series of financings by the Corporation.
|
(c)
|
"Base
Salary" shall mean the annual base salary, as referred to in Section
2
(Base Salary),
and as adjusted from time to time in accordance with Section 4 (Annual
Review), of the Employment
Agreement.
|
|
(d)
|
"Bonus"
shall mean the bonus referred to in Section 5 (Performance Bonus)
of the
Employment
Agreement.
|
|
(e)
|
"Cause"
shall have the meaning set out in Section 17 (Termination by the
Corporation for Cause) of the Employment
Agreement.
|
|
(f)
|
"Date
of Termination" shall mean, if your employment is terminated, the
date
specified in the Notice of
Termination.
|
|
(g)
|
"Equity
Security" in respect of a security of the Corporation, shall have
the
meaning ascribed
thereto in Part II of the Securities
Act (British
Columbia), as it existed on the date
of this Agreement, and also means any security carrying the right
to
convert such security
into, exchange such security for, or entitling the holder to subscribe
for, any equity
security, or into or for any such convertible or exchangeable security
or
security carrying
a subscription right.
|
(h)
"Good
Reason" shall mean the occurrence of one or more of the following events,
without your
express written consent, within 12 months of Change in Control:
(i) a
material change in your status,
position, authority or responsibilities that does not
represent a promotion from or represents an adverse change from your
status,
position, authority or responsibilities in effect immediately prior to the
Change
in Control;
(ii) a
material reduction by the
Corporation, in the aggregate, in your Base Salary, or incentive,
retirement, health benefits, bonus or other compensation plans provided
to you immediately prior to the Change in Control, unless an equitable
arrangement
has been made with respect to such benefits in connection with a Change
in Control;
-3-
(iii) a
failure by the
Corporation to continue in effect any other compensation plan in which
you participated immediately prior to the Change in Control (except for
reasons
of non-insurability), including but not limited to, incentive, retirement and
health benefits, unless an equitable arrangement has been made with respect
to
such benefits in connection with a Change in Control;
(iv) any
request by the
Corporation or any affiliate of the Corporation that you participate
in an unlawful act; or
(v)
any
purported
termination of your employment by the Corporation after a Change in
Control which is not effected pursuant to a Notice of Termination satisfying
the
requirements of clause (i) below and for the purposes of this Agreement, no
such
purported termination shall be effective.
(i) "Notice
of Termination" shall
mean a notice, in writing, communicated to the other party in accordance
with Section 42 below, which shall indicate the specific termination provision'
in
this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances
claimed to provide a basis for termination of your employment under the
provision
so indicated.
(j) "Potential
Change in
Control" of the Corporation shall be deemed to have occurred if:
(i)
the
Corporation enters into an agreement, the consummation of which would
result
in the occurrence of a Change in Control;
(ii)
any
person
(including the Corporation) publicly announces an intention to take or
to
consider taking actions which if consummated would constitute a Change in
Control;
or
(iii)
the
Board
adopts a resolution to the effect that, for the purposes of this. Agreement,
a Potential Change in Control of the Corporation has occurred.
39. Potential
Change in Control.
You
agree that, in the event of a Potential Change in Control of the Corporation
occurring after
the Effective Date, and until 12 months after a Change in Control, subject
to
your right to terminate your
employment by issuing and delivering a Notice of Termination for Good Reason,
you will continue to diligently
carry out your duties and obligations, on the terms set out in the Employment
Agreement.
40. Compensation
Upon Termination Following Change in Control.
Subject
to compliance by you with Section 39, upon your' employment terminating
pursuant
to a Notice of Termination within 12 months after a Change in Control, the
Corporation agrees that you shall receive and you agree to accept, the following
payments in full satisfaction of any and all claims you may have or then may
have against the Corporation, for remuneration, fees, salary, benefits, bonuses
or severance, arising out of or in connection with your employment by the
Corporation or the termination
of your employment:
|
(a)
|
If
your employment shall be terminated by the Corporation for Cause
or by you
other than for
Good Reason, the terms of the Employment Agreement shall govern and
the
Corporation
shall have no further obligations to you under this
Agreement.
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|
(b)
|
If
your employment by the Corporation shall be terminated by you for
Good
Reason or by the
Corporation other than for Cause, then you shall be entitled to the
payments and benefits
provided below:
|
(i) subject
to the
withholding of all applicable statutory deductions, the Corporation shall
pay you a lump sum equal to 12 months' Base Salary, as referred to
in
-4-
Section
2 (Base Salary) and as adjusted from time to time in accordance with
Section
4 (Annual Review) of the Employment Agreement, plus other sums owed for arrears
of salary, vacation pay and, if awarded, Bonus;
(ii) to
the extent
permitted by law and subject to the terms and conditions of any benefit
plans in effect from time to time, the Corporation shall maintain the
benefits
and payments set out in Section 6 (Benefits) of the Employment Agreement
during the 12 month period;
(iii) the
Corporation shall
arrange for you to be provided with such outplacement career
counselling services as are reasonable and appropriate, to assist you in
seeking
new executive level employment; and
(iv) all
incentive stock
options and trust shares granted to you by the Corporation under
any stock option and/or trust share agreement that is entered into between
you
and
the Corporation and is outstanding at the time of termination of your
employment,
which incentive stock options and or trust shares have not yet vested, shall
immediately vest upon the termination of your employment and shall
be fully exercisable by you in accordance with the terms of the agreement
or
agreements under which such options were granted.
You
shall not be required to mitigate the amount of any payment provided for in
this
Section 40 by seeking
other employment or otherwise, nor will any sums actually received be
deducted.
41. Binding
Agreement.
This
Agreement shall enure to the benefit of and be enforceable by your personal
or
legal representatives,
executors, administrators, successors, heirs, distributees, 'devisees and
legatees. If you die
while any amount would still be payable to you under this Agreement if you
had
continued to live, that amount
shall be paid in accordance with the terms of this Agreement to your devisee,
legatee or other designee
or, if there is no such designee, to your estate.
42. 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 mail) to the parties
at the addresses indicated below.
If
to
Aspreva:
Aspreva
Pharmaceuticals Corporation
Xxxxxx,
Xxxxxxx, Xxxxx & Xxxxxx
26th
Floor, 000 Xxxx Xxxxxxx Xxxxxx
Vancouver,
BC V7Y 1B3
Attn:
X. Xxxxxx XxxXxx-Xxxx
If
to Xxxxxxx Xxxxx:
00,
Xxxxxxxxxxx
Bassersdorf
CH 8303
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.
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5 -
43. Modification:
Amendments: Entire Agreement.
This
Agreement may
not be modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing and signed by you and such officer as may
be
specifically designated by the Board. No waiver by either party at any time
of
any breach by the other party of, or compliance with, any condition or provision
of this Agreement to be performed by such other party will be deemed a waiver
of
similar or dissimilar provisions or conditions at the same or at any prior
or
subsequent time. Except as set forth in your Employment Agreement, no agreements
or representations, oral or otherwise, express or implied, with respect to
the
subject matter hereof have been made by either party which are not expressly
set
forth in this Agreement.
44. 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.
45. Validity.
The
invalidity or
unenforceability of any provision of this Agreement shall not affect the
validity
or enforceability of any other provision of this Agreement, which shall remain
in full force and effect.
46. No
Employment or Service Contract
Nothing
in this Agreement shall
confer upon you any right to continue in the employment of the Corporation
for
any period of specific duration or interfere with or otherwise restrict in
any
way the rights of the Corporation or you, which rights are hereby expressly
reserved by each, to terminate your employment
at any time for any reason whatsoever, with or without cause.
If
the
foregoing sets forth our agreement on this matter, kindly sign and return to
the
Corporation
a copy of this letter.
Yours
truly,
ASPREVA
PHARMACEUTIVALS CORPORATION
By:/s/
Xxxx
Xxxx
Authorized
Signatory
Accepted
and agreed to by Xxxxxxx Xxxxx as of the 1st day of November
2005.
/s/
Xxxxxxx
Xxxxx
Xxxxxxx
Xxxxx
