THIS AGREEMENT made effective as of made as at the 1st day of February, 2005. E-118
| THIS AGREEMENT made effective as of made as at the 1st day of February, 2005. |
E-118
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BETWEEN:
a
corporation arranged pursuant to the
laws
of
Alberta,
(hereinafter
referred to as "ViRexx"),
OF
THE
FIRST PART
-
and
-
MACARAIG
CANTON
of
the
City of Markham
in
the
Province of Ontario
(hereinafter
referred to as the "Employee"),
OF
THE
SECOND PART
(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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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".
2
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.
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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.
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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.
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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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(signed)
“Xxxxxxx Xxxxxxx”
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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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(signed)
“Macaraig Canton”
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)
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MACARAIG
CANTON
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(signed)
“Xxxxxxx Xxxxxxx”
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)
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WITNESS
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)
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