EXECUTIVE EMPLOYMENT AGREEMENT ASPREVA PHARMACEUTICALS CORPORATION
-3-
ASPREVA
PHARMACEUTICALS CORPORATION
PRIVATE
AND CONFIDENTIAL
November
1, 2005
Xxxxxxx
Xxxxx
19,
Xxxxxxxxxxx
Xxxxxxxxxxx
XX 0000
Dear
Xxxxxxx:
Re:
Terms
of
Employment with ASPREVA PHARMACEUTICALS CORPORATION (the "Corporation")
This
Agreement confirms the terms and conditions of your employment by the
Corporation and will
constitute your employment agreement. Those terms and conditions are set out
below:
Position
and Duties.
You
will be employed by and will serve the Corporation as its Senior Vice President,
Search,
Discovery and Evaluation and a member of the corporation's executive management
team,
having the duties and functions customarily performed by, and have all
responsibilities customary
to, a Senior Vice President, Search, Discovery and Evaluation of a corporation
engaged
in a business similar to that of the Corporation, including those duties and
functions particularly described in Schedule A attached to this Agreement.
You
will report directly to the President
of the Corporation. Your duties and functions pertain to the Corporation and
any
of its subsidiaries
from time to time and may be varied or added to from time to time by the
President, at
his
discretion, exercised reasonably.
|
1.
|
Term.
The terms and conditions of this Agreement shall have effect as of
and
from 1st
March, 2006
(the "Effective
Date") and
your employment as Senior Vice President, Search, Discovery and
Evaluation of the Corporation shall continue for a period of 4 years,
renewable thereafter by mutual written agreement of the parties for
successive one year terms, or until earlier terminated as
provided in this Agreement.
|
|
2.
|
Base
Salary.
The Corporation shall pay you a base salary at the rate of $290,000
CDN
per year (the
"Base
Salary"), payable
semi-monthly, subject to the withholding of all applicable statutory
deductions
from such Base Salary and including any taxable benefits received
under
this Agreement
or in respect of your employment.
|
|
3.
|
Signing
Bonus.
One month after joining the Corporation, upon both parties executing
this
Agreement,
the Corporation shall pay to you a one-time signing bonus (the
"Signing
Bonus") of
$15,000 CDN, subject to the withholding of all applicable statutory
deductions in respect of such Signing
Bonus. You shall be required to promptly repay the Signing Bonus
to the
Corporation if you
terminate your employment pursuant to Section 15 (Termination by
Executive) within 2 years following the Effective Date. In addition,
the
Corporation shall have the right to set off the Signing Bonus
against any amounts owed by the Corporation to you on the effective
date
of termination of
your employment.
|
-4-
|
4.
|
Annual
Review.
The compensation committee (the "Compensation
Committee") established
by the Board of Directors (the "Board")
of
the Corporation for the purposes of this Agreement shall review your
Base
Salary annually. This review shall not result in a decrease of your
Base
Salary nor shall it necessarily result in an increase in your Base
Salary
and any increase shall be in the discretion
of the Board.
|
|
5.
|
Performance
Bonus.
The Corporation shall review the performance of your duties and functions
under
this Agreement annually and shall pay you a bonus of up to 30% of
your
Base Salary if the Board,
in its sole discretion, determines that certain short-term and long-term
business performance
objectives of the Corporation and objectives related to your personal
performance (together,
the "Objectives"),
respectively
weighted 40% and 60%, have been achieved. The Objectives
will be established from time to time by the Board or the Compensation
Committee after
consultation with you. Payment of the performance bonus set out in
this
Section 5 shall be made
to you within a reasonable time following the end of each fiscal
year and
shall be subject to the
withholding of all applicable statutory deductions by the
Corporation.
|
|
6.
|
Benefits.
The Corporation will arrange for you to be provided with health,
medical,
dental, accident
and life insurance and such other benefits as are reasonable and
appropriate for an executive
level benefits plan, as determined by the Board from time to time,
based
on the recommendations
of the Compensation Committee after consultation with you. These
benefits
will
be consistent with other Senior Vice Presidents and will be comparable
to
those set out below in
Exhibit B. You may be required to provide information and undergo
reasonable assessments of the
applicable insurer in order to determine your eligibility for benefits
coverage. You acknowledge
and agree that coverage under any benefit plan in effect from time
to time
is subject to
availability and other requirements of the applicable insurer and
the
Corporation makes no promise
about your eligibility for or entitlement to benefits and will have
no
liability or responsibility
in the event you are denied coverage. You further acknowledge and
agree
that the components
of the benefits package may be amended, modified or terminated from
time
to time by
the Corporation in its sole discretion, and this may include terminating
or changing carriers.
|
|
7.
|
Vacation.
During your employment with the Corporation under this Agreement,
you will
be entitled
to an annual paid vacation as determined by the Corporation from
time to
time, not less than
20 days per annum, plus up to three days company designated days
and
within policy guidelines
up to 3 days paid parental leave. The Corporation reserves the right,
acting reasonably,
to request that vacations be scheduled so as not to conflict with
critical
business operations.
|
|
8.
|
Relocation
and Reimbursement.
You acknowledge and agree that the Corporation's head office is
located in the metropolitan area of Victoria, British Columbia and
that
the principal place of your employment
is at such head office. You shall relocate your principal residence
from
Bassersdorf, Zurich, to a new location in the metropolitan area of
Victoria, British Columbia upon commencing employment
with the Corporation under this Agreement. In consideration of your
agreement to relocate
your principal residence, the Corporation shall reimburse you for
the cost
of one house- hunting
trip to Victoria for you and your spouse and shall provide to you
the
following amounts (the
"Relocation
Allowance") associated
with your move:
|
|
(a)
|
reasonable
moving expenses to a maximum of $35,000 CDN incurred by you to relocate
you and your spouse and family, plus personal possessions from
Bassersdorf, Zurich to your
new residence in the metropolitan area of Victoria, British Columbia,
subject to receipt
by the Corporation of the applicable invoice or invoices for such
expenses; to be used
over a period of no more than 2
years;
|
|
(b)
|
professional
fees for the first three years related to tax advice provided by
accountants of your
choice to a maximum of $3,000 CDN in year 1, $2,000 CDN in year 2
and
$1,000 CDN
in year 3 and;
|
-5-
Should
you resign your employment with the Corporation pursuant to Section 17 or be
terminated for
Cause pursuant to Section 19 in the first three (3) years of your employment
with the Corporation,
you agree to repay the Relocation Allowance to the Corporation in accordance
with the
following schedule:
|
Years
of Employment
|
Repayment
of Relocation Allowance
|
|
0-1
year
|
Full
repayment of Relocation Allowance
|
|
1
-2 years
|
Repayment
of 2/3 of Relocation Allowance
|
|
2-3
years
|
Repayment
of 1/3 of Relocation Allowance
|
|
after
3 years
|
Nil
|
|
9.
|
Reimbursement
for Expenses.
During your employment under this Agreement, the Corporation shall
reimburse you for reasonable travelling and other expenses actually
and
properly incurred by you in connection with the performance of your
duties
and functions, such reimbursement to be
made in accordance with, and subject to, the policies of the Corporation
from time to time. For all
such expenses you will be required to keep proper accounts and to
furnish
statements, vouchers,
invoices and/or other supporting documents to the
Corporation.
|
|
10.
|
Stock
Options.
You will receive 100,000 stock options at an exercise price and on
such
other terms
set forth in the Aspreva 2002 Incentive Stock Option Plan, subject
to
approval of the Board and
applicable securities regulatory authorities and to execution and
delivery
by you of a stock option
agreement in a form acceptable to the Corporation. The stock options
shall, vest and be exercisable
in the following way:
|
(a) No
options will vest for the first year (12 months) following the
grant;
|
(b)
|
options
will begin to vest at the rate of 1 /36th
of the grant, each month at the end of each month (for a period of
36
months).
|
|
(c)
|
All
options from this grant will be vested at the end of the 36 months,
following the initial 12
month waiting period.
|
The
options granted in this Section 10 will cease to vest:
|
(d)
|
on
the date you provide the Corporation with written notice of your
decision
to resign your employment pursuant to Section 15 (Termination by
Executive);
|
|
(e)
|
on
the date the Corporation provides you with written notice of its
decision
to terminate your
employment pursuant to Section 16 (Termination without
Cause);
|
|
(f)
|
on
the date the Corporation terminates your employment pursuant to Section
17
(Termination
for Cause); or
|
(g) otherwise
on the date this Agreement is terminated or deemed terminated.
For
greater certainty, neither the period of notice nor any payment in lieu thereof
will be considered
as extending the period of your employment with respect to the vesting or
exercise of the options granted in this Section 10.
-6-
In
accordance with Section 6.5 of the Aspreva 2002 Incentive Stock Option Plan,
should your employment with the Corporation end pursuant to Section 16 or 17
of
this agreement, you will have
three (3) months from the date your employment ended to exercise your vested
stock options,
failing which these options shall expire. Should your employment with the
Corporation end
pursuant to Section 18 of this agreement, your options shall expire on the
date
your employment
was terminated.
|
11.
|
Compliance
with Xxxxxxx Xxxxxxx Guidelines and Restrictions.
As a result of your position as Senior
Vice President, Search, Discovery and Evaluation, you are subject
to
xxxxxxx xxxxxxx regulations
and restrictions and are required to file insider reports disclosing
the
grant of any options as well as the purchase and sale of any shares
in the
capital of the Corporation. The Corporation
may from time to time publish trading guidelines and restrictions
for its
employees, officers
and directors as are considered by the Board, in its discretion,
prudent
and necessary for a
publicly listed company. It is a term of your employment as a senior
officer of the Corporation that
you comply with such guidelines and
restrictions.
|
|
12.
|
Directors'
& Officers' Liability Insurance.
The Corporation shall use commercially reasonable efforts to provide
you
with directors' and officers' liability insurance under the policies
for
such insurance
arranged by the Corporation from time to time upon such terms and
in such
amounts as
the Board may reasonably determine in its
discretion.
|
|
13.
|
No
Other Compensation or Benefits.
You expressly acknowledge and agree that unless otherwise
expressly agreed in writing by the Corporation subsequent to execution
of
this Agreement
by the parties hereto, you shall not be entitled by reason of your
employment by the Corporation
or by reason of any termination of such employment, to any remuneration,
compensation
or benefits other than as expressly set forth in this
Agreement.
|
14. Service
to Employer.
During your employment under this Agreement you will:
|
(a)
|
well
and faithfully serve the Corporation, at all times act in, and promote,
the best interests
of the Corporation, and devote substantially the whole of your working
time, attention
and energies to the business and affairs of the
Corporation;
|
|
(b)
|
comply
with all reasonable rules, regulations, policies and procedures of
the
Corporation; and
|
|
(c)
|
not,
without the prior approval of the Board, to carry on or engage in
any
other business or occupation or become a director, officer, employee
or
agent of or hold any position or office
with any other corporation, firm or person, except as a volunteer
for a
non-profit organization,
for personal investments or a personal holding company, which may
include
members of your family as
shareholders.
|
15. Termination
By Executive
(a) Subject
to Section 19
(Termination Following Change in Control), you may resign as Senior
Vice President, Search, Discovery and Evaluation at any time, but only by giving
the
Corporation at least 3 months' prior written notice of the effective date of
your resignation. On the giving of any such notice, the Corporation shall have
the right to elect,
in lieu of the notice period, to pay you a lump sum equal to 3 months' Base
Salary, as
referred to in Section 2 (Base Salary) and as adjusted from time to time in
accordance with Section 4 (Annual Review), plus other sums owed for arrears
of
salary, vacation pay and, if granted pursuant to Section 5 (Performance Bonus),
bonus.
-7-
(b) If
the Corporation
elects to pay you such lump sum in lieu of the 3 months' notice period,
the
Corporation shall, subject to the terms and conditions of any benefit plans
in
effect from time to time, maintain the benefits and payments set out in Section
6 (Benefits) of this
Agreement for 3 months after the date of your notice, but in all other respects,
your resignation
and the termination of your employment will be effective immediately upon
your
receipt of the lump sum.
16. Termination
by the Corporation Without Cause.
|
(a)
|
The
Corporation may terminate your employment as Senior Vice President,
Search, Discovery
and Evaluation at any time without Cause (as defined below) by giving
you
written
notice of such termination and in all respects, except as set out
below,
the termination
of your employment will be effective immediately upon your receipt
of such
notice.
If you are a director of the Corporation you will be deemed to have
resigned as a director,
effective upon your receipt of the notice of termination without
any
further action on
your part.
|
|
(b)
|
If
your employment is terminated by the Corporation pursuant to this
Section
16, the Corporation
shall pay to you as a lump sum the number of months of Base Salary,
as
referred
to in Section 2 (Base Salary) and as adjusted from time to time in
accordance with
Section 4 (Annual Review) set out in the table below depending upon
the
year of employment
in which you are terminated, plus such other sums owed for arrears
of
salary,
vacation pay and, if granted pursuant to Section 5 (Performance Bonus),
bonus:
|
|
Year
of Employment
|
Lump
Sum Payment of Base Salary (as adjusted)
|
|
1-2
|
6
months
|
|
after
2
|
12
months
|
|
(c)
|
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 this Agreement (the "Maintenance
Payments")
during
a period of 6 months following
termination.
|
|
(d)
|
The
payments of Base Salary and benefits set out in this Section 16 shall
be
in lieu of any
applicable notice period.
|
|
(e)
|
To
the extent permitted by law, these terms will remain in effect, until
or
unless any more favourable terms have or will be offered to you or
other
senior officers of the company, at which point those more favourable
terms
will be deemed to form part of this
agreement.
|
|
17.
|
Termination
by the Corporation for Cause.
Notwithstanding Section 15 (Termination by Executive),
Section 16 (Termination by the Corporation Without Cause), or Section
19
(Termination
Following Change of Control), the Corporation may terminate your
employment as Senior Vice President, Search, Discovery and Evaluation
for
Cause upon written notice of such termination
at any time without any notice or severance. In this Agreement,
"Cause"
shall
include, but
not be limited to, the following:
|
(a) the
commission of
theft, embezzlement, fraud, obtaining funds or property under false pretences
or similar acts of misconduct with respect to the property of the Corporation
or
its employees or the Corporation's customers or suppliers;
-8-
|
(b)
|
your
entering of a guilty plea or conviction for any crime involving fraud,
misrepresentation
or breach of trust, or for any serious criminal offence that impacts
adversely
on the Corporation; or
|
(c)
any
other matter constituting just cause at common law.
any
of
which shall entitle the Corporation to terminate your employment under this
Section 17. If you
are
a director of the Corporation you will be deemed to have resigned as a director,
effective upon
your receipt of the notice of termination without any further action on your
part.
|
18.
|
Termination
Following Change in Control.
Concurrently with execution and delivery of this Agreement,
you and the Corporation shall enter into a "Change of Control Agreement"
in the form attached
hereto as Schedule B setting out the compensation provisions to be
applicable in the event of the termination of your employment as
Senior
Vice President, Search, Discovery and Evaluation
of the Corporation in certain circumstances following a "Change in
Control" of the Corporation
(as defined in the Change of Control Agreement), and will remain
the same
as the treatment
of all other senior officers.
|
|
19.
|
No
Additional Compensation upon Termination.
It is agreed that neither you nor the Corporation shall,
as a result of the termination of your employment, be entitled to
any
notice, fee, salary, bonus,
severance or other payments, benefits or damages arising by virtue
of, or
in any way relating
to, your employment or any other relationship with the Corporation
(including termination of
such employment or relationship) in excess of what is specified or
provided for in Section 15 (Termination
by Executive), Section 16 (Termination by the Corporation Without
Cause),
Section 17
(Termination by the Corporation for Cause), or Section 19 (Termination
Following Chance in Control),
whichever is applicable. Payment of any amount whatsoever pursuant
to
Section 15 (Termination
by Executive), Section 16 (Termination by the Corporation Without
Cause),
Section 17
(Termination by the Corporation for Cause), or Section 19 (Termination
Following Change in Control)
shall be subject to the withholding of all applicable statutory deductions
by the Corporation.
|
|
20.
|
Confidentiality
and Assignment of Inventions.
Concurrently with execution and delivery of this Agreement
and in consideration of your employment by the Corporation, you and
the
Corporation will
enter into a "Confidentiality Agreement and Assignment of inventions"
in
the form attached hereto
as Schedule C.
|
|
21.
|
Disclosure
of Conflicts of Interest.
During your employment with the Corporation, you will promptly,
fully and frankly disclose to the Corporation in
writing:
|
|
(a)
|
the
nature and extent of any interest you or your Associates (as hereinafter
defined) have or
may 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 you may hold or acquire, and every property you or your Associates
may possess
or acquire, whereby directly or indirectly a duty or interest might
be
created in conflict
with the interests of the Corporation or your duties and obligations
under
this Agreement;
and
|
(c) the
nature and extent of any conflict referred to in subsection (b)
above.
In
this
Agreement the expression "Associate"
shall
include all those persons and entities that are included
within the definition or meaning of "associate" as set forth in Section 1(1)
of
the Company
Act (British
Columbia), as amended, or any successor legislation of similar force and effect,
and shall also include your spouse, children, parents, brothers and
sisters.
-9-
|
22.
|
Avoidance
of Conflicts of Interest.
You acknowledge that it is the policy of the Corporation that all
interests
and conflicts of the sort described in Section 21 (Disclosure of
Conflicts
of Interest) be avoided, and you agree to comply with all policies
and
directives of the Board from time to time regulating, restricting
or
prohibiting circumstances giving rise to interests or conflicts of
the
sort described in Section 21 (Disclosure of Conflicts of Interest).
During
your employment with the Corporation,
without Board approval, in its sole discretion, you 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 your duties or obligations
under this Agreement or that would otherwise
prevent you from performing your obligations hereunder, and you represent
and warrant
that you or your Associates have not entered into any such agreement,
arrangement or understanding,
provided however you will be permitted to accept teaching or academic
activities appointments
as long as such activities related to such appointments do not conflict
or
hinder the performance of your
duties.
|
23. Provisions
Reasonable.
It is
acknowledged and agreed that:
|
(a)
|
both
before and since the Effective Date the Corporation has operated
and
competed and
will operate and compete in a global market, with respect to the
business
of the Corporation
set out in Schedule D attached hereto (the "Business");
|
|
(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 course of your employment by the Corporation, both before and
after
the Effective
Date, on behalf of the Corporation, you have acquired and will acquire
knowledge
of, and you have come into contact with, initiated and established
relationships
with and will come into contact with, initiate and establish relationships
with, both existing and new clients, customers, suppliers, principals,
contacts and prospects of the
Corporation, and that in some circumstances you have been or may
well
become the senior or sole representative of the Corporation dealing
with
such persons; and
|
|
(e)
|
in
light of the foregoing, the provisions of Section 24 (Restrictive
Covenant) below are reasonable
and necessary for the proper protection of the business, property
and
goodwill
of the Corporation and the
Business.
|
|
24.
|
Restrictive
Covenant.
Subject to the exceptions set out in Schedule E attached hereto,
you agree
that
you will not, either alone or in partnership or in conjunction with
any
person, firm, company, corporation,
syndicate, association or any other entity or group, whether as principal,
agent, employee,
director, officer, shareholder, consultant or in any capacity or
manner
whatsoever, whether
directly or indirectly, for the Term of Employment and continuing
for a
period of 6 months from
the lawful termination of your employment, regardless of the reason
for
such termination:
|
(a) carry
on or be engaged in,
concerned with or interested in, or advise, invest in or give financial
assistance to, any business, enterprise or undertaking that:
(i)
is involved in
the Business or in the sale, distribution, development or supply of any
product or service that is competitive with the Business or any product or
service
of the Business; or
(ii)
competes with the
Corporation with respect to any aspect of the Business;
-10-
provided,
however, that the foregoing will not prohibit you from acquiring, solely as
an
investment
and through market purchases, securities of any such enterprise or undertaking
which are publicly traded, so long as you are not part of any control group
of
such entity and such securities, which if converted, do not constitute more
than
5% of the outstanding voting power of that entity;
|
(b)
|
solicit,
agree to be employed by, or agree to provide services to any person,
firm,
corporation
or other entity that was a client, customer, supplier, principal,
shareholder, investor,
collaborator, strategic partner, licensee, contact or prospect of
the
Corporation during
the time of your employment with the Corporation, whether before
or after
the Effective Date, for any business purpose that is competitive
with the
Business or any product
or service of the Business; or
|
|
(c)
|
divert,
entice or take away from the Corporation or attempt to do so or solicit
for the purpose
of doing so, any business of the Corporation, or any person, firm,
corporation or other
entity that was an employee, client, customer, supplier, principal,
shareholder, investor,
collaborator, strategic partner, licensee, contact or prospect of
the
Corporation during
the time of your employment with the Corporation, whether before
or after
the Effective
Date.
|
|
25.
|
Remedies.
You acknowledge and agree that any breach or threatened breach of
any of
the provisions
of Section 11 (Compliance with Xxxxxxx Xxxxxxx Guidelines and
Restrictions), Section 14
(Service to Employer), Section 20 (Confidentiality and Assignment
of
Inventions), Section 21 (Disclosure of Conflicts of Interest), Section
22
(Avoidance of Conflicts of Interest) or Section 24 (Restrictive
Covenant) could cause irreparable damage to the Corporation or its
partners, subsidiaries
or affiliates, that such harm could not be adequately compensated
by the
Corporation's
recovery of monetary damages, and that in the event of a breach or
threatened breach
thereof, the Corporation shall have the right to seek an injunction,
specific performance or other
equitable relief as well as any equitable accounting of all your
profits
or benefits arising out of
any such breach. It is further acknowledged and agreed that the remedies
of the Corporation specified in this Section 25 are in addition to
and not
in substitution for any rights or remedies of the Corporation at
law or in
equity and that all such rights and remedies are cumulative and not
alternative
and that the Corporation may have recourse to any one or more of
its
available rights or
remedies as it shall see fit.
|
|
26.
|
Binding
Effect.
This Agreement shall be binding upon and inure to the benefit of
the
Corporation and
its successors and assigns. Your rights and obligations contained
in this
Agreement are personal
and such rights, benefits and obligations shall not be voluntarily
or
involuntarily assigned,
alienated or transferred, whether by operation of law or otherwise,
without the prior written
consent of the Corporation. This Agreement shall otherwise be binding
upon
and inure to the
benefit of your personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees, legatees
and
permitted assigns.
|
|
27.
|
Agreement
Confidential.
Both parties shall keep the terms and conditions of this Agreement
confidential
except as may be required to enforce any provision of this Agreement
or as
may otherwise
be required by any law, regulation or other regulatory
requirement.
|
|
28.
|
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.
|
|
29.
|
Exercise
of Functions.
The rights of the Corporation as provided in this Agreement may be
exercised
on behalf of the Corporation only by the
Board.
|
-11-
|
30.
|
Entire
Agreement.
The terms and conditions of this Agreement are in addition to and
not in
substitution for the obligations, duties and responsibilities imposed
by
law on employers and employees
of corporations generally, and you and the Corporation agree to comply
with such obligations,
duties and responsibilities. Except as otherwise provided in this
Agreement, this Agreement
constitutes the entire agreement between the parties with respect
to the
subject matter
hereof, and may only be varied by further written agreement signed
by you
and the Corporation.
This Agreement supersedes any previous communications, understandings
and
agreements
between you and the Corporation regarding your employment. It is
acknowledged and
agreed that this Agreement is mutually beneficial and is entered
into for
fresh and valuable consideration
with the intent that it shall constitute a legally binding
agreement.
|
|
31.
|
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.
|
|
32.
|
Surviving
Obligations.
Your obligations and covenants under Section 20 (Confidentiality
and
Assignment
of Inventions), Section 24 (Restrictive Covenant) and Section 25
(Remedies) shall survive
the termination of this Agreement.
|
|
33.
|
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.
|
|
34.
|
Notice.
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
Farris,
Vaughan, Xxxxx & Xxxxxx
26th
Floor, 000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
XX.X0X0X0
Attn:
R. Xxxxxx XxxXxx-Xxxx
If
to Name:
Xxxxxxx
Xxxxx
19,
Xxxxxxxxxxx
Xxxxxxxxxxx
XX Xxxxxx 0000
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.
|
35.
|
Severabilitv.
If any provision of this Agreement or any part thereof shall for
any
reason be held to be
invalid or unenforceable in any respect, then such invalid or
unenforceable provision or part shall
be severable and severed from this Agreement and the other provisions
of
this Agreement shall remain in effect and be construed as if such
invalid
or unenforceable provision or part had never
been contained herein.
|
|
36.
|
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 any other act or conduct or by any indulgence, delay or
omission. Any waiver shall only apply to the specific matter waived
and
only in the specific instance in which it is
waived.
|
-
12-
37. Counterparts'.
This
Agreement may be executed in any number of counterparts, each of which so
executed
shall be deemed to be an original, and such counterparts will together
constitute but one
Agreement.
If
you
accept and agree to the foregoing, please confirm your acceptance and agreement
by signing the enclosed duplicate copy of this letter where indicated below
and
by returning it to us. You are urged to consider
fully all the above terms and conditions and to obtain independent legal advice
Or any other advice
you feel is necessary before you execute this agreement.
Yours
truly,
ASPREVA
PHARMACEUTICALS
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
SCHEDULE
C
CONFIDENTIALITY
AGREEMENT AND
ASSIGNMENT
OF INVENTIONS
ASPREVA
PHARMACEUTICALS CORPORATION
PRIVATE
AND CONFIDENTIAL
November
1,2005
Xxxxxxx
Xxxxx
19,
Chxxxxxxxxx
Xxxxxxxxxxx
XX 0000
Dear
Xxxxxxx:
The
purpose of this letter is to confirm and record the terms of the agreement
(the
"Agreement")
between
you
and
Aspreva Pharmaceuticals Corporation ("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 or disclosed by you over the course of
your
work during your employment with Aspreva. The effective date ("Effective
Date") of
this
Agreement is the date that you start or started working at Aspreva, as indicated
in the employment agreement between you and Aspreva
dated as of 1st
March,
2006.
In
consideration of the offer of employment 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 is hereby acknowledged,
you and Aspreva hereby agree as follows:
INTERPRETATION
1.2 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;
-2-
(iii) all
proprietary
information licensed to, acquired, used or developed by Aspreva in its
search 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 the 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, consultants, lawyers, contractors, licensors
or licensees to Aspreva and relating to Aspreva's Business; and
(viii) all
information
relating to your compensation and benefits, including your salary, vacation,
stock options, rights to continuing education, perquisites, severance
notice,
rights on termination and all other compensation and benefits, except that
you
shall be entitled to disclose such information to your bankers, advisors,
agents,
consultants 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.
|
|
(c)
|
"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 your involvement in any capacity with Aspreva,
except
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.
|
-3-
(d) "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, 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.
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 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
responsibilities to or for the benefit
of Aspreva, shall belong to Aspreva, and you will promptly turn over to
Aspreva's possession
-4-
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 authorised or directed
by Aspreva.
2.8 Exemptions.
Your
obligation of confidentiality under this Agreement will not apply to any
of
the
following:
|
(a)
|
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;
|
|
(b)
|
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;
|
|
(c)
|
information
that is developed by you independently of Confidential Information
received from
Aspreva and such independent development can be documented by
you;
|
(d)
other
particular information or
material which Aspreva expressly exempts by written instrument
signed by Aspreva;
(e) information
or material that is in the public domain through no fault of your own;
and
|
(f)
|
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.
-5-
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. Without
limiting the foregoing, 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 be associated
with the 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
Goodwill.
You
hereby agree that all goodwill you have established or may establish with .
clients,
customers, suppliers, principals, shareholders, investors, collaborators,
strategic partners, licensees,
contacts or prospects of Aspreva relating to the business or affairs of Aspreva
(or of its partners,
subsidiaries or affiliates), both before and after the Effective Date, shall,
as
between you and Aspreva, be and remain the property of Aspreva exclusively,
for
Aspreva to use, alter, vary, adapt and exploit
as Aspreva shall determine in its discretion.
3.5
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
|
-6-
(d) registering,
maintaining
and enforcing the patents and other intellectual property registrations
relating to your Work Product.
3.6 Assistance
with Proceedings. You
further agree to reasonably assist Aspreva, at Aspreva's
request and expense, in connection with any defence to an allegation of
infringement of 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 1.2, 3.2, 3.3, 3.4, 3.5, 3.6, 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 you. 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.
-
7-
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
mail) to the parties at the addresses indicated below.
If
to Aspreva:
Aspreva
Pharmaceuticals Corporation
Farris,
Vaughan, Xxxxx & Xxxxxx
26th
Floor, 700 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
XX X0X0X0
Attn:
R. Xxxxxx XxxXxx-Xxxx
If
to Xxxxxxx Xxxxx:
Xxxxxxx
Xxxxx
19,
Chlupfgasse
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.
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.
-
8-
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/
Xxxx
Xxxx
Xxxx
Xxxx
Accepted
and agreed as of the 1st day of November 2005.
| /s/ Xxxxxxx Xxxxx | ||
|
Witness
Signature
|
Signature
of Xxxxxxx Xxxxx
|
__________________________________________________________________________________
Witness
Name
__________________________________________________________________________________
Occupation__________________________________________________________________________________
AddressSCHEDULE
D
BUSINESS
OF THE COMPANY
The
business of the Corporation shall mean the business actually carried on by
the
Corporation, directly or
indirectly, whether under an agreement with or in collaboration with any other
party including, but not limited to the development and commercialization of
drugs for rare diseases and conditions and orphan drugs
as defined by the U.S. Orphan
Drug Act.
SCHEDULE
E
EXCEPTION
TO RESTRICTIVE COVENANT
None
EXHIBIT
A
EXCLUSION
FROM WORK PRODUCT
None
