EMPLOYMENT AGREEMENT
This
Agreement made effective the 1st day of November, 2007.
BETWEEN:
a body
corporate duly arranged pursuant
to the
laws of the Province of Alberta
(hereinafter
referred to as “ViRexx”),
- and
-
Xxxxx
Xxxxxxxx
of the
City of Edmonton, in the Province of Alberta
(hereinafter
referred to as “Xxxxxxxx”)
WHEREAS ViRexx carries on the
business of a biopharmaceutical company focused on developing and
commercializing therapeutic products for the treatment of chronic hepatitis B,
hepatitis C and selected solid tumors (hereinafter called the
“Business”);
AND WHEREAS ViRexx and Xxxxxxxx
(hereinafter sometimes referred
to as the “Parties” or singularly as a “Party”) acknowledge mutual benefit in
entering into this employment agreement (hereinafter called the
“Agreement”).
NOW THEREFORE in consideration
of the mutual covenants and promises herein contained, the parties hereto agree
as follows:
ARTICLE
1 – SCOPE OF EMPLOYMENT
· ViRexx
hereby employs and appoints Xxxxxxxx to the position of Acting Chief Financial
Officer which employment and position is based in ViRexx’s Edmonton, Alberta
office. Xxxxxxxx hereby accepts such employment.
· Xxxxxxxx
shall serve ViRexx and shall perform on behalf of ViRexx such reasonable duties
consistent with the position of Acting Chief Financial Officer as may from time
to time be required or authorized by ViRexx, without restricting the generality
of the foregoing, shall include:
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·
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discharging
those duties and responsibilities set out in the Employee Services &
Obligations attached as Schedule “A”, which may be amended from time to
time by ViRexx, so long as those amended duties and responsibilities are
consistent with the duties of an Acting Chief Financial Officer;
and
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·
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using
his best efforts to promote the interests and goodwill of
ViRexx.
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· Xxxxxxxx
shall report to the Chief Executive Officer and Chief Operating Officer of
ViRexx. Xxxxxxxx shall report fully on all matters arising from his duties and
responsibilities as Acting Chief Financial Officer and advise, to the best of
his ability, and in
accordance with reasonable business standards, on business matters that may
arise from time to time during the term of this Agreement.
· During
the term of this Agreement, Xxxxxxxx shall not provide any services to any other
biopharmaceutical business, industry or other enterprise that is directly
engaged in an activity that is similar to the Business, or enter into any
contracts requiring the use of his associations with persons relating to the
Business, his abilities or any other matter whatsoever relating to his knowledge
and reputation, insofar as it relates to any activity or undertaking of
whatsoever nature or kind similar to the Business, without the express written
consent of ViRexx first had and obtained.
ARTICLE
2 – EFFECTIVE DATE AND TERM OF
EMPLOYMENT
· This
Agreement shall be effective on the date both parties sign the Agreement and
duties of employment shall commence on or about November 1, 2007 [?] (the
“Effective Date”), and the employment of Xxxxxxxx shall continue unless
terminated in accordance with the provisions of Article
10 hereof.
ARTICLE
3 – EXCLUSIVE SERVICE
· During
the term of his employment with ViRexx, Xxxxxxxx shall well and faithfully serve
ViRexx and devote the whole of his time and attention during business hours to
the Business of ViRexx, and shall not, without the consent in writing of
ViRexx:
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·
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directly
or indirectly engage in any other business or occupation, or become a
director, owner, employee or agent of any other company, firm, joint
venture, individual or other entity whatsoever, which is involved, related
to or interested in any business similar to or in competition, directly or
indirectly, with the Business in the Territory (as defined in Section 11.1 herein);
or
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·
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directly
or indirectly engage in or become concerned in or interested in any other
business of any kind which may interfere with, restrict or conflict with
his duties hereunder.
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ARTICLE
4 – POLICY, PRACTICE AND
PROCEDURE
· Xxxxxxxx
shall comply with and carry out all reasonable directions given to him, as
Acting Chief Financial Officer, by the Chief Executive Officer and Chief
Operating Officer and work closely and co-ordinate the performance of his duties
and responsibilities with the Chief Executive Officer and Chief Operating
Officer. Xxxxxxxx will carry out his duties and responsibilities to
ViRexx faithfully and diligently, and will cause the business activities of
ViRexx that are committed to his direction or control to be conducted
reasonably, and in accordance with the policies and procedures of ViRexx
applicable from time to time, including those policies and procedures set out by
ViRexx’s Board of Directors.
ARTICLE
5 – COMPENSATION
· The base
salary payable to Xxxxxxxx for his service hereunder shall be one hundred and
ten thousand ($110,000.00) dollars per annum, exclusive of benefits and other
compensation (the "Base Compensation"), and shall be paid in semi-monthly
payments of 1/24 of the per annum amount throughout the term hereof, or in such
other manner as may be mutually agreed upon by Xxxxxxxx and ViRexx, less any
deductions or withholdings as required by law.
· Xxxxxxxx’x
Base Compensation may be adjusted annually as part of the annual compensation
review processes undertaken by ViRexx for all employees. ViRexx may
or may not increase Xxxxxxxx’x Base Compensation after this review process and
any increase in his Base Compensation shall be at the sole and arbitrary
discretion of ViRexx. Any increase in Xxxxxxxx’x Base Compensation
shall reflect the same financial influences considered by ViRexx for all of its
employees.
ARTICLE
6 – STOCK OPTION
· Subject
to approval of the Board of Directors, ViRexx will grant to Xxxxxxxx an option
to purchase one hundred thousand (100,000) common shares of ViRexx at an option
exercise price per share equal to the closing price of ViRexx’s common shares on
the Toronto Stock Exchange on the day immediately preceding the date that this
Agreement becomes effective (the “Stock Option”), subject to the provisions of
ViRexx’s stock option agreement and all applicable regulations and
laws. The one hundred thousand (100,000) Options shall vest as
follows:
November 1,
2007 40,000
May 14,
2008 30,000
November 14,
2008 30,000
The
Options shall be governed in accordance with ViRexx’s Stock Option Plan and the
exercise price shall be set in accordance with that Plan.
ARTICLE
7 – ADDITIONAL BENEFITS
After
three (3) month’s employment with ViRexx, Xxxxxxxx shall be entitled to
participate fully in any benefit plans provided by ViRexx for its employees,
including ViRexx’s Registered Retirement Savings Plan whereby ViRexx’s
contribution will match Xxxxxxxx’x contribution up to a maximum of three percent
(3%) of Xxxxxxxx’x salary, together with any medical benefit plans and any other
employee benefit plans ViRexx may implement (collectively referred to as the
“Plans”).
· Xxxxxxxx
shall be entitled to four (4) weeks of paid vacation per calendar year to be
taken at such times as may be agreed upon between Xxxxxxxx and the Chief
Executive Officer and/or Chief Operating Officer, taking into account the
project activity and staffing requirements of ViRexx and the need for the timely
performance of Xxxxxxxx’x responsibilities. In the event that
Xxxxxxxx decides not to take all the vacation to which he is entitled in any
fiscal year, Xxxxxxxx shall be entitled to carry forward this vacation
entitlement, with prior written approval of the Chief Executive Officer and/or
Chief Operating Officer, provided that the maximum accrued entitlement shall not
exceed one (1) week of vacation entitlement.
ARTICLE
8 – REIMBURSEMENT OF EXPENSES
· Xxxxxxxx
shall be reimbursed for all reasonable expenses incurred by him in the course of
carrying out his duties as Acting Chief Financial Officer.
ARTICLE
9 – CONFIDENTIALITY OBLIGATIONS
· Xxxxxxxx
shall not, either during the term of his employment with ViRexx or anytime
thereafter, disclose or cause to be disclosed, to any person or entity
whatsoever, unless required by law, any secrets or Confidential Information (as
defined in the Employee Confidentiality Agreement attached as Schedule “B” hereto),
concerning the business affairs or financial performance or position of ViRexx,
or any entity with which ViRexx is, or may hereafter, become
affiliated. The parties herein agree that concurrent with their
execution of this Agreement, they shall enter into and execute the Employee
Confidentiality Agreement in the form attached as Schedule “B” hereto.
ARTICLE
10 – TERMINATION OF EMPLOYMENT
· ViRexx
may, at its option, terminate Xxxxxxxx’x employment pursuant to this Agreement
in its sole discretion for any reason, without cause, upon providing Xxxxxxxx
with reasonable notice pursuant to the Employment Standards Code,
Alberta. If ViRexx terminates Xxxxxxxx’x employment without just
cause and provides him with the above described notice or pay in lieu of notice,
Xxxxxxxx agrees that he will have no further claims against
ViRexx. All benefits and allowances set out in Article 5,
Article 6 and Article 7 above shall cease as of Xxxxxxxx’x last day of
work, subject to any conversion rights available to Xxxxxxxx under ViRexx’s
group benefit plan. If notice is given to Xxxxxxxx by ViRexx and such
notice contemplates that Xxxxxxxx will remain at ViRexx to perform his duties
until the notice period ends, Xxxxxxxx shall be given reasonable time to conduct
a new job search and engage in interviews with prospective
employers.
· In the
event Xxxxxxxx is unable to fulfill his regular duties and responsibilities as
Acting Chief Financial Officer for an aggregate of one hundred and eighty (180)
days during any twelve (12) month period (“Permanent Disability”), ViRexx shall
have the right to terminate this Agreement upon providing Xxxxxxxx with sixty
(60) days notice in writing and the payment of six (6) months salary, the value
of benefits that would otherwise be received during the same period and any
accrued vacation pay as full and final settlement of ViRexx’s obligations to
Xxxxxxxx pursuant to this Agreement.
· ViRexx
shall have the right in its absolute discretion to terminate Xxxxxxxx’x
employment for cause forthwith, without notice or payment in lieu of
notice. For the purpose of this Agreement, “cause” shall include, in
ViRexx’s sole discretion acting reasonably, but not limited to:
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(a)
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any
material breach of the provisions of this Agreement or the Employment
Agreement by Xxxxxxxx;
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(b)
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any
intentional negligent disclosure of any Information by
Xxxxxxxx;
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(c)
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conduct
on Xxxxxxxx’x part that is materially detrimental to the business or the
financial position of ViRexx;
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(d)
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personal
conduct on Xxxxxxxx’x part which is of such a serious and substantial
nature that it would injure the reputation of ViRexx if Xxxxxxxx is
retained as an employee or;
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(e)
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any
and all omissions, commissions or other conduct which would constitute
cause at law, in addition to the specified
causes.
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· The
parties herein agree that Xxxxxxxx may resign from his employment with ViRexx at
any time following the Effective Date of this Agreement on the following
terms:
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·
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Xxxxxxxx
shall provide to ViRexx thirty (30) days prior written notice of his
resignation, or such shorter period as the parties may mutually agree (the
“Working Notice Resignation Period”), or such notice as ViRexx in its sole
and absolute discretion may waive in full or in part, and should ViRexx
terminate this Agreement prior to the expiration of the Working Notice
Resignation Period, ViRexx shall be under no further obligation to
Xxxxxxxx for any reason;
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·
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during
the Working Notice Resignation Period, Xxxxxxxx shall continue to use his
best efforts to discharge his duties and responsibilities as Acting Chief
Financial Officer in compliance with this
Agreement;
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·
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Xxxxxxxx’x
employment shall terminate on the last day of the Working Notice
Resignation Period unless terminated early by ViRexx in accordance with
paragraph 10.4(a);
and
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ARTICLE
11 – NON-COMPETITION AND
NON-SOLICITATION
· Xxxxxxxx
understands that he occupies a position of high fiduciary trust and confidence
within ViRexx and has acquired skills, experience and knowledge relating to
ViRexx, the Business and the customers, clients, suppliers, sub-contractors,
competitors and services of ViRexx. It is the express intent and
agreement of Xxxxxxxx that such knowledge and experience shall be used solely
and exclusively in the furtherance, or for the benefit, of the operations of
ViRexx. Xxxxxxxx agrees that in the event of his retirement or other
termination of his employment pursuant to the terms of this Agreement, Xxxxxxxx
shall not, directly or indirectly, for a period of twelve (12) months following
his retirement or other termination of his employment with ViRexx, solicit,
provide service or be employed by any direct competitor of ViRexx or act in any
capacity to produce products that involve antigen complexation, cryptic antigen
presentation and/or anti-idiotype antibody induction or embolization therapy,
except with the written consent of ViRexx.
· Xxxxxxxx
further agrees and acknowledges that he shall not, for a period of twelve (12)
months following his retirement or other termination of his employment with
ViRexx, directly or indirectly, either as employer, consultant, agent,
principal, partner, co-venturer, shareholder, proprietor, investor, financier,
employee, director or in any other individual or representative capacity
whatsoever:
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solicit,
provide service for or be employed by any customer or joint venture
partner of ViRexx except with the written consent of ViRexx;
or
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solicit,
induce, encourage or facilitate any employees, consultants, suppliers or
sub-contractors of ViRexx or any of their respective affiliates to leave
the employment of, or the consulting, supply or sub-contractor
relationship with, ViRexx or any of their respective
affiliates.
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· Xxxxxxxx
acknowledges and agrees that the covenants contained in this Agreement are
reasonably required to protect the interests of ViRexx and their affiliates, and
do not materially impact, or affect, Xxxxxxxx’x ability to obtain other
employment. Xxxxxxxx hereby irrevocably waives (and irrevocably agrees not to
raise) as a defence any issue of reasonableness in any proceeding to enforce
Article 11 of this Agreement, the intent of the parties hereto to provide for
the legitimate and reasonable protection of ViRexx by providing, without
limitation, for the broadest scope, the longest duration and the broadest
territory allowable by law.
· The
parties further agree that in the event that any portion of the covenant
contained in this Article, or its application to any circumstance, shall be held
to be invalid or unenforceable to any extent, the remainder of the covenant or
its application to any circumstances, other than that to which it has been held
to be invalid or unenforceable, shall not be affected thereby and shall be valid
and enforceable to the fullest extent permitted by law, it being the intent of
this provision that if any of the foregoing covenant is found to be unreasonable
to any extent by a Court of competent jurisdiction adjudicating upon the
validity of this covenant, whether as to the scope of the restriction, the area
of restriction or the duration of the restriction, then such restriction shall
be reduced to that which is in fact declared reasonable by such Court, or a
subsequent Court of competent jurisdiction requested to make such a
declaration.
· Notwithstanding
the above Sections of Article 11, Xxxxxxxx shall be able to own up to five
(5%) percent of the issued and outstanding shares of any public corporation that
is in a business that is similar to the Business or is in competition, directly
or indirectly, with the Business. Xxxxxxxx, as of the Effective Date,
shall advise ViRexx as to which of these public corporation he owns greater than
five (5%) per cent of the issued and outstanding shares and shall within a
reasonable period of time hereafter sell down such holdings to five (5%) per
cent or less.
ARTICLE
12 – RETURN OF MATERIALS
· Xxxxxxxx
acknowledges that all items of any and every nature or kind created or used by
him pursuant to the employment under this Agreement, or furnished by ViRexx to
Xxxxxxxx, and all equipment, credit cards, books, records, reports, files,
manuals, literature, confidential information or other materials shall remain
and be considered the exclusive property of ViRexx at all times and shall be
surrendered to ViRexx, in good condition, promptly on the cessation or
termination of the Employee's employment irrespective of the time, manner or
cause of the termination
ARTICLE
13 – LEGAL ADVICE
· Xxxxxxxx
hereby acknowledges, represents and warrants to ViRexx that he has had the time
to review, and has reviewed, this Agreement and that he has been encouraged by
ViRexx to seek independent legal advice prior to the execution and delivery of
this Agreement, and in the event that he did not avail himself of that
opportunity, he did so voluntarily, without any undue pressure, and agrees that
his failure to obtain independent legal advice shall not be used by him as a
defense to the enforcement of his obligations under this Agreement.
ARTICLE
14 – NOTICES
· Any
notice required to be given hereunder by any party shall be deemed to have been
well and sufficiently given if:
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personally
delivered to the party to whom it is intended, or if such party is a
corporation, to an officer of that corporation;
or
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mailed
by pre-paid registered mail, transmitted by facsimile, or delivered, to
the address or facsimile number of the party to whom it is intended as
follows:
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if
to ViRexx, then:
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0000
Xxxxx Xxxx
Xxxxxxxx,
Xxxxxxx X0X 0X0
Attention: Chief
Executive Officer
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·
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If
to Xxxxxxxx, then:
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0000
Xxxxxx Xxxx
Xxxxxxxx,
XX X0X 0X0
ARTICLE
15 – ASSIGNMENT
· This
Agreement and the rights and obligations of Xxxxxxxx hereunder shall not be
assignable by Xxxxxxxx to any other person, firm, or corporation without the
express written consent of ViRexx first had and obtained, which consent may be
unreasonably and arbitrarily withheld. This Agreement may, at the
discretion of ViRexx be fully assigned to any purchaser of the Business, and
Xxxxxxxx acknowledges and agrees that any such assignment does not operate as a
fundamental amendment to this Agreement.
ARTICLE
16 – GOVERNING LAW AND SUBMISSION TO
JURISDICTION
· This
Agreement shall be governed by and construed in accordance with the laws of the
Province of Alberta, and the parties hereby submit to the jurisdiction of the
Courts in the Province of Alberta.
ARTICLE
17 - UNENFORCEABLE TERMS
· If any
term, covenant or condition of this Agreement or the application thereof to any
Party or circumstance shall be invalid or unenforceable to any extent, the
remainder of this Agreement or application of such term, covenant or condition,
to a Party or circumstance, other than those to which it is held invalid or
unenforceable, shall not be affected thereby and each remaining term, covenant
or condition of this Agreement shall be valid and shall be enforceable to the
fullest extent permitted by law.
ARTICLE
18 – ENTIRE AGREEMENT
· This
Agreement constitutes the entire agreement between the Parties hereto relating
to the subject matter hereof and supercedes all prior and contemporaneous
agreements, understandings, negotiations and discussions, whether verbal or
written, of the Parties, and there are no warranties, representations or other
agreements between the Parties in connection with the subject matter hereof
except as specifically set forth herein.
ARTICLE
19 – NO WAIVER
· No
consent or waiver, express or implied, by either Party to or of any breach of
default by the other Party in the performance by the other Party of his or its
obligations hereunder shall be deemed or construed to be a consent or waiver to
or of any other breach or default in the performance of the obligations
hereunder by such Party hereunder. Failure on the part of either
Party to complain of any act or failure to act of the other Party, or to declare
the other Party in default, regardless of how long such failure continues, shall
not constitute a waiver by such Party of his or its rights
hereunder.
ARTICLE
20 – HEADINGS
· The
headings in this Agreement have been inserted for reference and as a matter of
convenience only, and in no way define, limit or enlarge the scope or meaning of
this Agreement or any provision herein.
ARTICLE
21 – SINGULAR, PLURAL AND
GENDER
· Whenever
the singular, plural, masculine or feminine is used throughout this Agreement,
the same shall be construed as meaning the plural, singular, masculine,
feminine, neuter, body politic or body corporate, where the fact or context so
requires.
ARTICLE
22 – ENUREMENT
· This
Agreement shall enure to the benefit of and be binding on the Parties hereto and
their respective heirs, executors, administrators and other legal
representatives, successors and permitted assigns.
ARTICLE
23 – MODIFICATION OF AGREEMENT
22.1 Any
modification to this Agreement must be in writing and signed by the Parties
herein or it shall have no effect and shall be void.
IN WITNESS WHEREOF, the Parties hereto
have executed this Agreement, effective as of the day and year first above
written.
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Per:
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/s/
Xxxxxxx Xxxxxxx
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SIGNED,
SEALED AND DELIVERED in the presence of:
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)
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)
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||
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)
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/s/Xxxxxxx
Xxxxxxx
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)
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/s/Xxxxx
Xxxxxxxx
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WITNESS
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)
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XXXXX
XXXXXXXX
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SCHEDULE
“A”
EMPLOYEE SERVICES &
OBLIGATIONS
DRAFT JOB
SPECIFICATIONS FOR VIREXX MEDICAL CORP. (“ViRexx’)
Position: Acting
Chief Financial Officer
Reports
to: Chief
Executive Officer and Chief Operating Officer
Responsibilities:
As a
member of the Executive team of ViRexx, the Acting Chief Financial Officer
will:
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(a)
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carry
out all financial planning and budgeting
processes;
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(b)
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carry
out and be responsible for all financial matters of ViRexx including
financial reporting to the Board of Directors, implementing proper audit
and financial governance procedures and working with outside
auditors;
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(c)
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assist
in development and implementation of communication and public relations
strategies;
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(d)
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provide
advice on identification, development and implementation of new products,
new business development strategies and
opportunities;
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(e)
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supervision
and direction of designated employees as directed by the Chief Executive
Officer and/or Chief Operating Officer in hiring, supervising, and
training of such staff and administration of such personnel, including the
development of personnel policies and procedures and salary administration
as directed by the Chief Executive
Officer;
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(f)
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dismiss
personnel under the direction of the Chief Executive
Officer;
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(g)
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provide
advice and input to the Chief Executive Officer, Chief Operating Officer
and the Board of Directors as required and help to ensure that ViRexx's
policies, procedures and programs related to its business are compatible
with all aspects of effective
operations;
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(h)
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such
other functions as may be necessarily related to the foregoing and such
additional duties and functions as ViRexx and the Chief Executive Officer
and/or Chief Operating Officer shall, from time to time, agree upon;
and
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(i)
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under
direction of the Chief Executive Officer and/or Chief Financial Officer
delegate or assign duties as appropriate to staff and external
experts/consultants as required provided that ViRexx shall maintain
management responsibility over those to whom duties have been delegated
and/or assigned.
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SCHEDULE
“B”
THIS
AGREEMENT made effective as of the 1st day of November, 2007.
BETWEEN:
a corporation arranged pursuant to
the
laws of Alberta,
(hereinafter referred to as
"ViRexx"),
OF THE FIRST PART
- and
-
XXXXX XXXXXXXX
of the City of Edmonton
in the Province of
Alberta
(hereinafter referred to as the
"Employee"),
OF THE SECOND PART
EMPLOYEE CONFIDENTIALITY
AGREEMENT
(hereinafter
referred to as the "Agreement")
WHEREAS
the Employee is presently employed, or is about to be employed pursuant to an
Employment Agreement (“Employment Agreement”) dated concurrently herewith, by
ViRexx in a position of confidence and trust and under conditions where he has
or may have access to technical, confidential and secret information regarding
existing or contemplated business of ViRexx;
AND
WHEREAS the Employee recognizes that as a part of the duties of his employment,
certain ideas and suggestions of interest to ViRexx, conceived or made by the
Employee while he is retained or employed by ViRexx shall be immediately made
available to and become the property of ViRexx without any further
consideration;
AND
WHEREAS ViRexx desires to receive from the Employee specific covenants relating
to the non-disclosure of confidential information and ownership of Intellectual
Property, and the employment contract with the Employee is conditional on ViRexx
receiving these covenants.
IN
CONSIDERATION of the premises set forth and the remuneration paid by ViRexx to
the Employee, the parties agree as follows:
1. Definition of Confidential
Information and Intellectual Property
1.1 For
purposes of this Agreement, the term "Confidential Information", shall mean all
information, whether or not reduced to writing and whether or not patentable or
protected by copyright, which the Employee receives, received access to,
conceived or developed, in whole or in part, directly or indirectly, in
connection with the Employee's relationship with ViRexx, and includes, but is
not limited to:
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(i)
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information
concerning bioinformatics, medinformatics and cheminformatics software,
databases and services, including but not limited to, source codes, object
codes, flowcharts and programs and other materials whatsoever (tangible or
intangible and machine readable or human
readable);
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(ii)
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information
concerning products and services provided to the global community to
bridge the gap between biology in vitro (in the test
tube) and biology in
silico (in the computer);
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(iii) information
concerning the handling and analysis of DNA and protein xxxxxxxx
xxxx;
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(iv)
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information
concerning drug development and development processes, including but not
limited to, designing optimal drug molecules for treating
diseases;
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(v)
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information
concerning pre-clinical, analytical and formulation
services;
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(vi)
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technology
developed for high throughput screening of new chemical entities or drug
levels;
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(vii)
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discoveries
relating to, and developments of, patented in-house
formulations;
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(viii)
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information
concerning research, development and commercialization of vaccines and
antibodies for preventative or therapeutic use including, without
restriction, those based upon peptide-synthetic carrier protection vaccine
formulations for infectious
disease;
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(ix)
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formulations,
including but not limited to, the development of new formulations for
existing drugs, assessments of current formulations and the development of
strategies for formulations of new drug chemical entities
(NCE);
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(x)
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information,
drugs, delivery systems, devices or models under a patent, or potential or
pending patent, whether or not such a patent is in fact obtained or
expires;
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(xi)
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test
results, clinical studies, clinical trial results, and all research
whatsoever;
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(xii)
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products
and devices developed, patents, discoveries, concepts, compilations and
ideas of any nature whatsoever including, without limitation, the nature
and results of research and development activities, the software,
molecular and analytical tools to facilitate research in the fields of
biology, medicine and pharmaceutical science, and processes, formulas,
inventions, technology, techniques, computer programs and models, designs,
drawings, and specifications;
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(xiii)
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production
processes, marketing techniques and arrangements, marketing materials,
promotions, demos and publications, mailing lists, purchasing information,
pricing policies, quoting procedures, financial information, customer and
prospect names and requirements, Employee, customer, supplier and
distributor data and other materials or information relating to ViRexx's
business and activities and the manner in which ViRexx does business,
including but not limited to the names of drug firms, biotechnology firms,
contact research organizations (CRO), generic drug manufacturers,
pharmaceutical companies, pre-clinical clients, principal investigators
and alliances with whom ViRexx has or may have a business relationship
with,
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(xiv)
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any
other materials or information related to, or that is or may be used in,
the business, trade or activities of ViRexx
which:
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(a)
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are
not generally known to others engaged in similar business or
activities;
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(b)
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has
an economic value from not being generally known;
and
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(c)
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is
the subject of efforts that are reasonable in the circumstances to
maintain its secrecy; and
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(xiiv)
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any
financial information or information relating to the day to day business
of ViRexx
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1.2 Failure
to xxxx any of the Confidential Information as confidential, proprietary or
protected shall not affect its status as part of the Confidential Information
under the terms of this Agreement.
1.3 For
purposes of this Agreement, the term "Confidential Information" shall not
include information which:
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(i)
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has
been in the possession of the Employee prior to the date of the
commencement of the Employee's employment with ViRexx including, without
limitation, information pertaining to the matters set out in Section 1.1,
if any;
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(ii)
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has
been publicly available prior to coming into the possession of ViRexx;
and
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(iii)
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becomes
publicly available without a breach by the Employee of: i) this
Agreement; ii) any other agreement between the Employee and ViRexx; or
iii) any lawful duty owed by the Employee to
ViRexx.
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The
information described in paragraph 1.3(i) above is hereinafter called the
"Employee Information".
1.4 For
purposes of this Agreement, the term “Intellectual Property”, shall mean all
copyrights, registered and unregistered trademarks, trade names, logos,
licenses, patent and patent applications, trade secrets, computer software,
know-how and all other intellectual property owned by, licensed to or used by
ViRexx.
2. Treatment of
Information
2.1 The
Employee acknowledges that in his position, or in any other position the
Employee may hold, in and as a result of the Employee's relationship with
ViRexx, the Employee shall, or may be making use of, acquiring or adding to
Confidential Information about certain matters and things which are confidential
to ViRexx and which information is the exclusive property of
ViRexx.
2.2 As
a material inducement for ViRexx to retain the services of the Employee, the
Employee agrees that during his term as an Employee with ViRexx, and for a term
of five (5) years following the date of expiry or termination of the Employment
Agreement or expiry or termination of any extension or renewal thereof, the
Employee shall not, except with the prior written consent of ViRexx, which
consent may be arbitrarily withheld, or except if the Employee is acting in the
course of his duties on behalf and for the benefit of ViRexx in connection with
ViRexx's business practices and policies, directly or indirectly, disclose,
divulge, reveal, report, publish, transfer or use for any purpose, or cause to
be disclosed, divulged, revealed, reported, published, transferred or used for
any purpose, the Confidential Information which has been obtained, created,
learned or disclosed by, or to, the Employee.
2.3 Disclosure
of any Confidential Information of ViRexx by the Employee shall not be
prohibited if the disclosure is directly pursuant to a valid and existing order
of a governing court or other governmental body or agency within Canada;
provided, however that:
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(i)
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the
Employee shall first provide immediate written notice to ViRexx of any
possible or prospective order, or proceeding pursuant to which any order
may result; and
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(ii)
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ViRexx
shall have been afforded a reasonable opportunity to prevent or limit any
disclosure.
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3. Ownership of ViRexx Intellectual
Property and Confidential Information
3.1 The
Employee agrees that all right, title and interest in any Confidential
Information and any Intellectual Property pertaining to the business of ViRexx
shall be and shall remain the exclusive property of ViRexx.
3.2 The
Employee agrees immediately to disclose in writing to ViRexx all Confidential
Information and any Intellectual Property pertaining to the business of ViRexx
developed in whole or in part by the Employee during the term of the Employee's
relationship with ViRexx and does hereby assign to ViRexx, any right, title or
interest the Employee may have in the Confidential Information or the
Intellectual Property. The Employee agrees to execute any instruments
and to do all other things reasonably requested by ViRexx, in order to vest more
fully in ViRexx, all ownership rights in those items transferred by the Employee
to ViRexx.
3.3 All
notes, data, tapes, reference items, sketches, drawings, memoranda, computer
information, memory, and all disks, records, inventions, technology and all
intellectual property and other materials in any way relating to any of the
Confidential Information or to the business of ViRexx shall belong exclusively
to ViRexx and the Employee does hereby transfer any interest he may have in it
and agrees to turn it over to ViRexx including but not limited to all originals
and all copies of the materials in, or that at any time whatsoever were in, the
Employee's possession, power or control, at the request of ViRexx, or in the
absence of a request, on the termination of the Employee's relationship with
ViRexx, howsoever the Employee's termination occurs, including but not limited
to, the Employee's retirement or death.
4. Injunctive Relief
4.1 The
Employee understands and agrees that ViRexx shall suffer irreparable harm in the
event that the Employee breaches any of the Employee's obligations under this
Agreement and that monetary damages shall be inadequate to compensate ViRexx for
the breach. Accordingly the Employee agrees that, in the event of a
breach or threatened or potential breach by the Employee of any of the
provisions of this Agreement, ViRexx, in addition to and not in limitation of
any other rights, remedies or damages available to ViRexx at law or in equity,
shall be entitled to an interim injunction, interlocutory injunction, and
permanent injunction, in order to prevent or to restrain any such breach by the
Employee, or by any or all of the Employee's partners, co-venturers, ViRexx's
servants, agents, representatives and any and all persons directly or indirectly
acting for, on behalf of, or with the Employee.
5. Accounting for Profits and
Indemnification
5.1 The
Employee agrees that if the Employee shall violate any of the Employee's
covenants under this Agreement, ViRexx shall be entitled to an accounting and
repayment of all profits, compensation, royalties, commissions, remunerations or
benefits which the Employee directly or indirectly shall have realized or may
realize relating to, growing out of, or in connection with any violations of
this Agreement. This remedy shall be in addition to and not in
limitation of any injunctive relief at law or in equity or otherwise under this
Agreement.
5.2 The
Employee agrees to defend, hold harmless and indemnify ViRexx against and in
respect of:
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(i)
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any
and all losses and damages resulting from, relating or incident to, or
arising out of any misrepresentation or breach by the Employee of any
warranty or covenant made or contained in this
Agreement;
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(ii)
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any
and all actions, suits, proceedings, claims demands, judgments, costs, and
expenses (including all legal fees, on a solicitor and his own client
basis), incident to the foregoing.
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6. Severability
6.1 In
the event that any provision or part of any provision of this Agreement shall be
deemed to be void or invalid by a court of competent jurisdiction, the remaining
provisions or parts shall be and remain in full force and effect. The
Employee agrees that the breach or alleged breach by ViRexx of:
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(i)
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any
covenant contained in another agreement (if any) between ViRexx and the
Employee or;
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(ii)
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any
obligation owed to the Employee by
ViRexx;
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shall not
affect the validity or enforceability of the covenants and agreements of the
Employee set forth in this Agreement.
7. No Prior
Agreements
7.1 The
Employee represents to the best of the Employee's knowledge that the Employee's
performance of all the terms of this Agreement do not and shall not breach any
fiduciary or other duty or any covenant, agreement or understanding (including
any agreement relating to any proprietary information, knowledge or data
acquired by the Employee in confidence, trust or otherwise prior to the
Employee's employment by ViRexx) to which the Employee is a party or by the
terms of which the Employee may be bound. The Employee covenants and agrees that
the Employee shall not disclose to ViRexx, or induce ViRexx to use any
proprietary information, knowledge or data belonging to any previous employer or
others. The Employee further covenants and agrees not to enter into
any agreement or understanding, either written or oral, in conflict with the
provisions of this Agreement.
8. Employee's Status
8.1 Nothing
in this Agreement shall be construed as constituting a commitment, guarantee,
agreement or understanding of any kind or nature that ViRexx shall continue to
employ the Employee. No change of the Employee's duties as an
Employee of ViRexx shall result in, or be deemed to be, a modification of the
terms of this Agreement.
9. Successors
9.1 This
Agreement shall be binding on and shall enure to the benefit of ViRexx and the
Employee, and their respective heirs, personal and legal representatives,
successors and assigns. As used in this Agreement, the term "ViRexx"
shall also include any corporation or entity which is a parent, subsidiary, or
affiliate of ViRexx. The Employee consents to the enforcement of any
and all provisions of this Agreement by or for the benefit of ViRexx as to any
other corporation or entity regarding any of the Confidential
Information.
10. Governing Law
10.1 This
Agreement shall at all times and in all respects be governed by the laws of the
Province of Alberta and all parties hereto shall irrevocably attorn to the
courts of competent jurisdiction of the Province of Alberta.
11. Notices
11.1 Any
notice required or permitted to be given to the Employee shall be sufficiently
given if delivered to the Employee personally or if mailed by registered mail to
the Employee's address last known to ViRexx.
11.2 Any
notice required or permitted to be given to ViRexx shall be sufficiently given
if delivered personally or faxed or if mailed by registered mail
to:
0000 Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx
X0X
0X0 Fax:
(000) 000-0000
or at
such other address as the Employer may advise the Employee in
writing.
11.3 Any
notice given by mail shall be deemed to have been given forty eight (48) hours
after the time it is posted. Any notice given by personal delivery or
fax shall be deemed to have been given on the day of personal delivery or
faxing.
11.4 Either
one of the parties may advise the other, in the manner aforesaid, of any change
of address for the giving of notices.
12. Entire Agreement
12.1
It is acknowledged that the parties are parties to an employment agreement and
that this Agreement and the employment agreement along with any future agreement
respecting options or warrants contain the entire agreements and understandings
by and between ViRexx and the Employee with respect to the subject matter, and
no representations, promises, agreements or understandings, written or oral,
express or implied shall be valid or binding unless the same is in writing and
signed by the party intended to be bound. No waiver of any provision
of this Agreement shall be valid unless it is in writing and signed by the party
against whom the waiver is sought to be enforced; moreover, no valid waiver of
any provision of this Agreement shall be deemed a waiver of any other provision
of this Agreement at the time or shall be deemed a valid waiver of the provision
at any other time.
13. Assignment
13.1 This
Agreement is assignable by ViRexx without the prior consent of the
Employee.
13.2 As
this Agreement is personal in nature with respect to the Employee, it is not
assignable by the Employee under any circumstance.
14. Gender
14.1 Whenever
the singular is used, it shall be deemed to extend to and include the
plural. Where one gender is used, it shall include all
genders.
15. Headings
15.1 The
headings and other captions in this Agreement are for convenience and reference
only and are not to be construed in any way as additions or limitations of the
covenants and agreements contained in this Agreement.
.
16. Effective Date
16.1 This
Agreement is effective as of the date and year first above mentioned and
indicated herein.
IN
WITNESS WHEREOF, ViRexx and the Employee have duly executed this Agreement,
where applicable by their respective corporate officers hereunto duly
authorized.
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Per:
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Per:
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SIGNED,
SEALED AND DELIVERED
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)
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in
the presence of:
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)
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)
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)
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XXXXX
XXXXXXXX
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)
)
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WITNESS
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)
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