SCHEDULE B ASPREVA PHARMACEUTICALS CORPORATION
Exhibti
10.33
SCHEDULE
B
ASPREVA
PHARMACEUTICALS CORPORATION
As
of January 6th, 2007
Xx
Xxxxx
Xxxx
0000
Xxxxx xxxxx Xxxx
Furlong,
Pennsylvania, 18925, USA
Dear
Oz:
Re:
Change in Control Agreement
Aspreva
Pharmaceuticals Corporation (the “Corporation”)
considers it essential to the best interests of its members to xxxxxx the
continuous employment of its senior executive officers. In this regard, the
Board of Directors of the Corporation (the “Board”)
has determined that it is in the best interests of the Corporation and its
members that appropriate steps should be taken to reinforce and encourage
management’s continued attention, dedication and availability to the Corporation
in the event of a Potential Change in Control (as defined in Section 3), without
being distracted by the uncertainties which can arise from any possible changes
in control of the Corporation.
In
order to induce you to agree to remain in the employ of the Corporation, such
agreement evidenced by the employment agreement entered into as of the date
of
this Agreement between you and the Corporation (the “Employment
Agreement”)
and in consideration of your agreement as set forth in Section 3 below, the
Corporation agrees that you shall receive and you agree to accept the severance
and other benefits set forth in this Agreement should your employment with
the
Corporation be terminated subsequent to a Change in Control (as defined in
Section 2 ) in full satisfaction of any and all claims that now exist or then
may exist for remuneration, fees, salary, bonuses or severance arising out
of or
in connection with your employment by the Corporation or the termination of
your
employment:
The
following numbering is done with the Alt NG (general) numbering macro. The
numbered paragraphs use List styles. The shortcut keys are Alt G1, Alt G2 etc.
1.
Term of Agreement.
This
Agreement shall be in effect for a term commencing on the Effective Date of
the
Employment Agreement (as therein defined) and ending on the date of termination
of the Employment Agreement.
2.
Definitions.
“Affiliate”
means a corporation that is an affiliate of the Corporation under the
Securities
Act
(British Columbia), as amended from time to time.
“Change
in Control” of the Corporation shall be deemed to have occurred:
if
a merger, amalgamation, arrangement, consolidation, reorganization or transfer
takes place in which Equity Securities of the Corporation possessing more than
50% of the total combined voting power of the Corporation’s outstanding Equity
Securities are acquired by a person or persons different from the persons
holding those Equity Securities
immediately
prior to such transaction, and the composition of the Board following such
transaction is such that the directors of the Corporation prior to the
transaction constitute less than 50% of the Board membership following the
transaction, except that no Change in Control will be deemed to occur if such
merger, amalgamation, arrangement, consolidation, reorganization or transfer
is
with any subsidiary or subsidiaries of the Corporation;
if
any person, or any combination of persons (different from those person(s)
holding Equity Securities prior to the date hereof) acting jointly or in concert
by virtue of an agreement, arrangement, commitment or understanding shall
acquire or hold, directly or indirectly, 50% or more of the voting rights
attached to all outstanding Equity Securities; or
if
any person, or any combination of persons (different from those person(s)
holding Equity Securities prior to the date hereof) acting jointly or in concert
by virtue of an agreement, arrangement, commitment or understanding shall
acquire or hold, directly or indirectly, the right to appoint a majority of
the
directors of the Corporation; or
if
the Corporation sells, transfers or otherwise disposes of all or substantially
all of its assets, except that no Change of Control will be deemed to occur
if
such sale or disposition is made to a subsidiary or subsidiaries of the
Corporation.
provided
however, that a Change in Control shall not be deemed to have occurred if such
Change in Control results solely from the issuance of Equity Securities in
connection with a bona fide financing or series of financings by the
Corporation.
“Base
Salary” shall
mean the annual base salary, as referred to in Section 3 (Base Salary), and
as
adjusted from time to time in accordance with Section 4 (Annual Review), of
the
Employment Agreement.
“Bonus”
shall
mean
the bonus referred to in Section 5 (Performance Bonus) of the Employment
Agreement.
“Cause”
shall
have
the meaning set out in Section 15 (Termination by the Corporation for Cause)
of
the Employment Agreement.
“Date
of
Termination” shall mean, if your employment is terminated, the date specified in
the Notice of Termination.
“Equity
Security” in
respect of a security of the Corporation, shall have the meaning ascribed
thereto in Part II of the Securities
Act
(British Columbia), as it existed on the date of this Agreement, and also means
any security carrying the right to convert such security into, exchange such
security for, or entitling the holder to subscribe for, any equity security,
or
into or for any such convertible or exchangeable security or security carrying
a
subscription right.
“Good
Reason” shall
mean the occurrence of one or more of the following events, without your express
written consent, within 12 months of Change in Control:
a
material change in your status, position, authority or responsibilities that
does not represent a promotion from or represents an adverse change from your
status, position, authority or responsibilities in effect immediately prior
to
the Change in Control;
a
material reduction by the Corporation, in the aggregate, in your Base Salary,
or
incentive, retirement, health benefits, bonus or other compensation plans
provided to you immediately prior to the Change in Control, unless an equitable
arrangement has been made with respect to such benefits in connection with
a
Change in Control;
a
failure by the Corporation to continue in effect any other compensation plan
in
which you participated immediately prior to the Change in Control (except for
reasons of non-insurability), including but not limited to, incentive,
retirement and health benefits, unless an equitable arrangement has been made
with respect to such benefits in connection with a Change in Control;
any
request by the Corporation or any affiliate of the Corporation that you
participate in an unlawful act; or
any
purported termination of your employment by the Corporation after a Change
in
Control which is not effected pursuant to a Notice of Termination satisfying
the
requirements of clause (i) below and for the purposes of this Agreement, no
such purported termination shall be effective.
“Notice
of
Termination” shall mean a notice, in writing, communicated to the other party in
accordance with Section (6) below, which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of your
employment under the provision so indicated.
“Potential
Change in
Control” of the Corporation shall be deemed to have occurred if:
the
Corporation enters into an agreement, the consummation of which would result
in
the occurrence of a Change in Control;
any
person (including the Corporation) publicly announces an intention to take
or to
consider taking actions which if consummated would constitute a Change in
Control; or
the
Board adopts a resolution to the effect that, for the purposes of this
Agreement, a Potential Change in Control of the Corporation has
occurred.
3.
Potential Change in Control.
You
agree that, in the event of a Potential Change in Control of the Corporation
occurring after the Effective Date, and until 12 months after a Change in
Control, subject to your right to terminate your employment by issuing and
delivering a Notice of Termination for Good Reason, you will continue to
diligently carry out your duties and obligations, on the terms set out in the
Employment Agreement.
4.
Compensation Upon Termination Following Change in
Control.
Subject
to compliance by you with Section3, upon your employment terminating pursuant
to
a Notice of Termination within 12 months after a Change in Control, the
Corporation agrees that you shall receive and you agree to accept, the following
payments in full satisfaction of any and all claims you may have or then may
have against the Corporation, for remuneration, fees, salary, benefits, bonuses
or severance, arising out of or in connection with your employment by the
Corporation or the termination of your employment:
If
your
employment shall be terminated by the Corporation for Cause or by you other
than
for Good Reason, the terms of the Employment Agreement shall govern and the
Corporation shall have no further obligations to you under this
Agreement.
If
your
employment by the Corporation shall be terminated by you for Good Reason or
by
the Corporation other than for Cause, then you shall be entitled to the payments
and benefits provided below:
subject
to the withholding of all applicable statutory deductions, the Corporation
shall
pay you a lump sum equal to 12 months’ Base Salary, as referred to in Section 3
(Base Salary) and as adjusted from time to time in accordance with Section
4
(Annual Review) of the Employment Agreement, plus other sums owed for arrears
of
salary, vacation pay and, if awarded, Bonus;
to
the extent permitted by law and subject to the terms and conditions of any
benefit plans in effect from time to time, the Corporation shall maintain the
benefits and payments set out in Section 6 (Benefits) of the Employment
Agreement during the 12 month period;
the
Corporation shall arrange for you to be provided with such outplacement career
counselling services as are reasonable and appropriate, to assist you in seeking
new executive level employment; and
all
incentive stock options and trust shares granted to you by the Corporation
under
any stock option and/or trust share agreement that is entered into between
you
and the Corporation and is outstanding at the time of termination of your
employment, which incentive stock options and or trust shares have not yet
vested, shall immediately vest upon the termination of your employment and
shall
be fully exercisable by you in accordance with the terms of the agreement or
agreements under which such options were granted.
You
shall not be required to mitigate the amount of any payment provided for in
this
Section 4 by seeking other employment or otherwise, nor will any sums actually
received be deducted.
5.
Binding Agreement.
This
Agreement shall enure to the benefit of and be enforceable by your personal
or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If you die while any amount would still
be
payable to you under this Agreement if you had continued to live, that amount
shall be paid in accordance with the terms of this Agreement to your devisee,
legatee or other designee or, if there is no such designee, to your
estate.
6.
Notices.
All
notices and other communications that are required or permitted by this
Agreement must be in writing and shall be hand delivered or sent by express
delivery service or certified or registered mail, postage prepaid, or by
facsimile transmission (with written confirmation copy by registered mail)
to
the parties at the addresses indicated below.
If
to Aspreva:
Aspreva
Pharmaceuticals Corporation
Xxxxxx,
Xxxxxxx, Xxxxx & Xxxxxx
26th
Floor, 000 Xxxx Xxxxxxx Xxxxxx
Vancouver,
BC V7Y 1B3
Attn: X.
Xxxxxx XxxXxx-Xxxx
If to Xx Xxxxx Xxxx:
Xx Xxxxx Xxxx
0000 Xxxxx xxxxx Xxxx
Furlong, Pennsylvania, 18925, USA
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.
7.
Modification: Amendments: Entire Agreement.
This
Agreement may not be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by you and such
officer as may be specifically designated by the Board. No waiver by either
party at any time of any breach by the other party of, or compliance with,
any
condition or provision of this Agreement to be performed by such other party
will be deemed a waiver of similar or dissimilar provisions or conditions at
the
same or at any prior or subsequent time. Except as set forth in your Employment
Agreement, no agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement.
8.
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.
9.
Validity.
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
10.
No Employment or Service Contract
Nothing
in this Agreement shall confer upon you any right to continue in the employment
of the Corporation for any period of specific duration or interfere with or
otherwise restrict in any way the rights of the Corporation or you, which rights
are hereby expressly reserved by each, to terminate your employment at any
time
for any reason whatsoever, with or without cause.
If
the foregoing sets forth our agreement on this matter, kindly sign and return
to
the Corporation a copy of this letter.
Yours
truly,
ASPREVA
PHARMACEUTICALS
CORPORATION
By: /s/
Xxxxxxx Xxxxxxxx_______________________
Xxxxxxx
Xxxxxxxx
Accepted
and agreed to by Xx Xxxxx Xxxx as of the 6rd day of January, 2007
/s/
Usman Azam____________________________
Xx
Xxxxx Xxxx
SCHEDULE
C
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
D
EXCEPTION
TO RESTRICTIVE COVENANT
None
EXHIBIT
A
EXCLUSION
FROM WORK PRODUCT
None
