CERTAIN CONFIDENTIAL INFORMATION (MARKED BY BRACKETS AS “[***]”) HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) THE REGISTRANT CUSTOMARILY AND ACTUALLY TREATS THE INFORMATION AS PRIVATE OR CONFIDENTIAL.
Exhibit 4.12
CERTAIN CONFIDENTIAL INFORMATION (MARKED BY BRACKETS AS “[***]”) HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) THE REGISTRANT CUSTOMARILY AND ACTUALLY TREATS THE INFORMATION AS PRIVATE OR CONFIDENTIAL.
THIS EMPLOYMENT AGREEMENT (the “Agreement”) dated for reference the 1St day of January, 2013 (the “Effective Date”), and amended the 1st day of March 2015 (the “Amendment #1 Date”), and further amended the 1st day of October 2016 (the “Amendment #2 Date”).
BETWEEN:
MEDICENNA THERAPEUTICS INC., a company duly incorporated pursuant to the laws of British Columbia and having its registered and records office located at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, X.X., X0X 0X0
(“MTI”)
MEDICENNA BIOPHARMA INC., a company duly incorporated pursuant to the laws of Delaware and having its office at 0000 Xxxxxxxx Xxxx, Xxxxx X, Xxxxxxx, XX 00000
(“MBI”)
(MTI and MBI are collectively referred to as the “Company”)
AND:
ROSEMINA MERCHANT, Businesswoman, of [***]
(the “Executive”)
WHEREAS:
A. The Company wishes to employ the Executive on a full-time basis and the Executive wishes to be so employed;
B. The Company has a wholly-owned subsidiary, Medicenna Biopharma Inc. (`MBI’), a company duly incorporated pursuant to the laws of Delaware and domiciled in the State of Texas, having an office in Houston, Texas;
C. The Company conducts certain of its research and development activities through MBI and as a consequence the Executive will be required to spend a certain amount of time in Texas overseeing MBI’s activities;
D. The Company has appointed the Executive Chief Development Officer and Executive VP of CMC and Regulatory Affairs of MTI and has also agreed to be appointed as the Chief Development Officer and Executive VP of CMC and Regulatory Affairs of MBI, a wholly owned subsidiary of MTI; and
E. The parties have agreed that the Executive’s employment shall be on the terms and conditions hereof;
THEREFORE in consideration of the recitals, the following covenants and the payment of one dollar made by each party to the other, the receipt and sufficiency of which are acknowledged by each party, the parties agree on the following terms:
ARTICLE 1 ENGAGEMENT
|
1.1 |
Employment |
The Company hereby employs the Executive as and the Executive accepts such employment as follows:
Medicenna Therapeutics Inc. —Chief Development Officer and Executive VP of CMC and Regulatory Affairs
Medicenna Biopharma Inc. — Chief Development Officer and Executive VP of CMC and Regulatory Affairs
ARTICLE 2 DUTIES
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2.1 |
Performance of Duties |
The Executive shall act as the Chief Development Officer and Executive VP of CMC and Regulatory Affairs of the Company, and the Executive shall perform such services and duties as are normally provided by a Chief Development Officer and Executive VP of CMC and Regulatory Affairs of a company in a business and of a size similar to the Company’s. The Executive shall, in exercising her powers and performing her functions, act honestly and in good faith and in the best interests of the Company, shall exercise the care, diligence and skill of a reasonably prudent person, shall devote such business time to the business and affairs of the Company as may be required to discharge her duties, and perform faithfully and efficiently such responsibilities.
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2.2 |
Other Boards or Committees |
The Executive’s performance of reasonable personal, civic or charitable activities or the Executive’s service on any boards or committees of any private or public companies shall not be deemed to interfere with the performance of the Executive’s services and responsibilities to the Company pursuant to this Agreement, so long as the business of the private or public company is not involved in the research, development or commercialization of therapeutics that are in direct or indirect conflict with the Company’s own therapeutic programs or initiatives.
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2.3 |
Principal Place of Work |
The Executive shall perform her duties primarily at the Company’s principal executive offices which are currently located at 000 Xxxxxxxxx Xxxx., Xxxxxxx, XX X0X 0X0 or at such other location as shall be approved by the Board, provided that such location is within the Xxxxxxx Xxxxxxx Area (“Principal Place of Work”). It is also acknowledged that the Executive will also be required to attend MBI’s offices at 0000 Xxxxxxxx Xxxx., Xxxxx X, Xxxxxxx, XX 00000, or at such other location as shall be approved by the Board, provided that such other location is within the State of Texas. It is acknowledged that the Executive may work from her home office from time to time. The Company will provide the Executive with all office related tools necessary to perform her duties.
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2.4 |
Reporting |
The Executive shall report directly to the President and CEO with a dotted line to the Board or Board’s Nominee.
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2.5 |
Change of Control |
In the event of a Change of Control, the Company shall continue to engage the Executive in the same capacity and with the same authority, responsibilities and status as she had as of the date immediately prior to the Change of Control.
For the purposes of this Agreement, a “Change of Control” shall be deemed to have occurred when:
|
(a) |
a person, other than the current control person of the Company, if any, either alone or acting jointly or in concert with any person, beneficially owns or exercises control or direction over 50 per cent (50%) or more of the outstanding voting securities of the Company; or |
|
(b) |
a majority of the directors elected at any annual or special general meeting of shareholders of the Company are not individuals nominated by the Company’s then-incumbent Board; |
“person” includes an individual, corporation, partnership, party, trust, fund, association and any other organized group of persons and the personal or other legal representative of a person to whom the context can apply according to law.
ARTICLE 3 REMUNERATION AND BENEFITS
|
3.1 |
Annual Compensation |
In consideration for the services rendered by the Executive during the Term and all Renewal Terms, if any, the Company shall pay the Executive as follows:
|
(a) |
An annual salary in an amount to be agreed to by the parties from time to time and provided that the initial salary shall be the amount of CAD $275,000.00 per annum, (the “Annual Base Salary”) payable in equal monthly installments on the last business day of each calendar month or on such payment schedule as may be mutually agreed by the parties. The Annual Base Salary for the fiscal year ending March 31, 2017 will be made effective with a retroactive date of April 1, 2016; |
|
(b) |
The Company shall provide the Executive with executive benefits comparable to those provided by the Company from time to time to other senior executives of the Company, including but not limited to executive level health insurance and benefits pursuant to subsection 3.5; |
|
(c) |
The Company may grant the Executive, stock options in such amounts and exercisable at such prices as determined by the Board of Directors of the Company, and on the terms defined in the Company’s Stock Option Plan from time to time; |
and the Company shall make such deductions at source of Income Taxes, Employment Insurance, Workers’ Compensation, Canadian Pension Plan and other contributions as required by provincial and federal regulations.
|
3.2 |
Annual Review |
The Annual Base Salary shall be reviewed within 60 days of the end of each fiscal year of the Company by the Compensation Committee of the Board (the “Committee”), in consultation with the Executive, and shall be increased for that fiscal year by such amount as is determined by the Board or the Committee, provided that in no event shall:
|
(a) |
the Annual Base Salary be less than the Annual Base Salary payable in the previous fiscal year; and |
|
(b) |
the increase, in percentage terms, be less than 3% of the Annual Base Salary. |
|
3.3 |
Annual Bonus |
The Company will, within 60 days of the end of each fiscal year, pay to the Executive an annual discretionary bonus, of up to 20 percent of the Annual Base Salary, based on the Company’s achievement of milestones agreed to by the Board of the Company and the Executive at the beginning of that fiscal year. Within 30 days of the beginning of each fiscal year, the Committee and the Executive shall agree to milestones of the Company and the percentage bonus that will be awarded to the Executive based upon her achievement of the milestones. The bonus payments can also be made using restricted stock or options in lieu of cash.
|
3.4 |
Reimbursement of Expenses |
The Executive shall be reimbursed for all reasonable, out-of-pocket expenses incurred by the Executive in or about the execution of this Agreement, provided that the Executive provides the Company with copies of all underlying invoices, including travel, telephone costs, and expenses with respect to each calendar month. Additionally, the Company will compensate the Executive for all reasonable expenses incurred when travelling on Company business including:
|
(a) |
executive or equivalent class travel when travel time exceeds three hours; and |
|
(b) |
a per diem travelling expense of CAD$100 per day for travel within Canada or US$80 per day for international and US travel. |
|
3.5 |
Health Insurance and Benefits |
The Company shall provide the Executive with executive level accident, medical, dental and hospital insurance coverage in accordance with the policies and procedures of the Company in effect and, to the extent permissible by law, the Company shall extend medical and dental insurance coverage to the Executive’s spouse. In addition, the Executive will also be a beneficiary of the Company’s Healthcare Spending Account.
|
3.6 |
Directors and Officers Liability Insurance |
Throughout the term of this Agreement, the Company shall use reasonably commercial efforts to provide the Executive with director’s and officer’s liability insurance appropriate to the stage of development of the Company and the nature of her responsibilities under this Agreement. In addition, the Company will indemnify the Executive for her duties as an officer of the Company, the details of which will be outlined in an Indemnity Agreement as approved by the Board of Directors.
|
3.7 |
Vacation |
The Executive shall be entitled to six weeks (“Vacation Weeks”) paid vacation (“Vacation Pay”) for each fiscal year of the Company. In addition to the Vacation Weeks each fiscal year, the Executive shall be entitled statutory holidays and the number of paid holidays provided for under the current policies and procedures of the Company. The Executive may take in a fiscal year any of the paid Vacation Weeks earned but not taken in previous fiscal years, even if this would result in the Executive taking more than six weeks paid vacation in the fiscal year provided that any vacation time taken by the Executive shall not exceed more than four weeks at a time. At the end of each fiscal year the Executive may opt to receive payment equal to any portion of the unused portion of Vacation Pay carrying forward. Any remaining balance owing for vacation time shall be paid out to the Executive at the time of her termination, without regard for the reason for the termination.
|
3.8 |
Leave of Absence |
The Executive will also be entitled to take one week of unpaid leave of absence during each fiscal year of the Company, for each two completed years of the Executive’s employment with the Company, to a maximum of three weeks of unpaid leave of absence per fiscal year.
|
3.9 |
Benefits not Cumulative |
The Executive acknowledges and agrees that the remuneration and benefits set out in this Article 3 are cumulative in nature and can be supplied or paid by either MTI or MBI as determined by the Board of Directors from time to time.
ARTICLE 4 NON- SOLICITATION AND NON- COMPETITION
|
4.1 |
Non- Solicitation |
During the term of this Agreement and for 12 months following the termination or expiration of this Agreement, the Executive shall not:
|
(a) |
solicit the business, scientific, professional or other employment or consulting services of any person who is employed or engaged by the Company or any of its affiliates or who was so employed or engaged during any part of the 12 months immediately preceding the date of the Executive’s termination, excepting persons who normally provide services on a consulting basis to a number of clients or customers, such as accounting, legal, research and engineering firms, provided that this clause shall not prevent the Executive from hiring any person who voluntarily and without solicitation of any kind by or on behalf of the Executive seeks employment from the Executive; |
|
(b) |
advise any person or entity not to do business with the Company or any of its affiliates or otherwise take any action which may reasonably result in the relations between the Company or any of its affiliates and any of its employees, consultants or customers or potential employees, consultants or customers being impaired; or |
|
(c) |
assist any person to do anything set out in clause (a) or (b) above. |
Notwithstanding the above, it is agreed that the Executive’s spouse is excluded from this provision.
|
4.2 |
Non-Competition |
The Executive shall not, without the prior written consent of the Company during the term of this Agreement and, in respect of clauses (b) through (e) below, during the 12-month period immediately following the termination of this Agreement (the “Restricted Period”), within any part of the world (the “Prohibited Area”):
|
(a) |
undertake to perform on behalf of any other entity any service that would conflict with the performance of the Services under this Agreement; |
|
(b) |
directly or indirectly become hired by, engaged in, or financially interested in ten percent or more of, any entity that carries on the development or commercialization of XX-0, XX-0 and IL-13 cytokines, their mutants and fusions for the treatment of human diseases or other such business as the Company is involved during the term of the Executive’s employment (collectively the “Prohibited Businesses”), provided that if prior to the completion of the Restricted Period the Company ceases to hold any license or option to license intellectual property rights relating to any of the Prohibited Businesses, then “Prohibited Businesses” shall exclude the intellectual property in which the Company no longer holds an interest; |
|
(c) |
divert or attempt to divert any business of, partners or any collaborators of, the Company or of any of its subsidiaries, to any other Prohibited Business, by direct or indirect inducement or otherwise; |
|
(d) |
directly or indirectly impair or seek to impair the reputation of the Company, nor any relationships that the Company has with its employees, partners, collaborators, suppliers, agents or other parties with which the Company does business or has contractual relations; or |
|
(e) |
directly or indirectly, in any way, solicit, hire or engage the services of any director, officer, employee or consultant of the Company, or persuade or attempt to persuade any such individual to terminate her or her relationship with the Company. |
|
4.3 |
Confidentiality and Inventions Agreement (“CIA”) |
The parties have entered into a Confidentiality and Inventions Agreement dated January 1, 2013 (the “CIA”). The Executive acknowledges and agrees that her obligations under the CIA are fundamental terms of her employment with the Company and that any breach of the CIA by either party shall be deemed to be a breach of this Agreement by such party.
ARTICLE 5 TERMINATION
|
5.1 |
The Executive’s Right to Terminate |
The Executive may terminate her obligations under this Agreement:
|
(a) |
at any time upon providing at least three months’ notice in writing to the Company; or |
|
(b) |
upon a material breach or default of any term of this Agreement by the Company if such material breach or default has not been remedied within 60 days after written notice of the material breach or default has been delivered by the Executive to the Company; or |
|
(c) |
in the event of the Board changing the Executive’s responsibilities or authority in a fundamental respect in breach of section 1.1 above, at any time within 180 days of the Executive being given notice of the proposed fundamental change in responsibilities or authority; or |
|
(d) |
in the event of the Board changing the Executive’s Principal Place of Work in breach of section 2.3 above, and such change is not accepted by the Executive, at any time within 180 days of the Executive being given notice of the proposed change of Principal Place of Work; or |
|
(e) |
at any time within 1 year of the date on which there is a Change of Control. |
|
5.2 |
Company’s Right to Terminate |
The Company may terminate the Executive’s employment under this Agreement at any time upon the occurrence of any of the following events:
|
(a) |
the Executive acting unlawfully, dishonestly or otherwise in bad faith with respect to the business of the Company to the extent that it has a material and adverse effect on the Company; |
|
(b) |
the conviction of the Executive of an indictable offence; |
|
(c) |
an event of a substance abuse by the Executive, which the Company, acting reasonably and responsibly, determines to be incompatible with the Executive’s continued employment by the Company; |
|
(d) |
an event of sexual harassment or similar reprehensible conduct, which the Company, acting reasonably and responsibly, determines to be incompatible with the Executive’s continued employment by the Company |
|
(e) |
a material breach or default of any term of this Agreement by the Executive if such material breach or default has not been remedied within 60 days after written notice of the material breach or default has been delivered by the Company to the Executive; |
|
(f) |
the Executive dying or becoming permanently disabled or disabled for a period exceeding 180 consecutive days or 180 days calculated on a cumulative basis over any two year period during the term of this Agreement; or |
|
(g) |
immediately upon provision of written notice to the Executive. |
|
5.3 |
Severance Payment |
In the event of the termination of the Executive’s employment by the Executive pursuant to subsection 5.1(b), 5.1(c), 5.1(d) and 5.1(e) of this Agreement, or by the Company pursuant to subsection 5.2(g) or otherwise in breach of this Agreement, then:
|
(a) |
the Company shall pay to the Executive within ten (10) days of such termination, |
|
(i) |
One times Annual Base Salary; |
|
(ii) |
the amount of any annual bonus eligible but not yet paid as of the date of termination of the Executive’s employment; |
|
(iii) |
all expenses incurred by the Executive up to the effective date of termination pursuant to section 3.4 and not previously reimbursed; and |
|
(b) |
the Company shall continue to provide the Executive with the coverage set out in section 3.5 for one year from the date of termination, or until the Executive is covered by a successor employer benefits plan, whichever is earlier. |
|
5.4 |
Compensation Otherwise Due to the Executive on Termination |
In the event of the termination of the Executive’s employment under any other provision of this Agreement, the Company shall pay the following amounts to the Executive within ten days of the termination:
|
(a) |
if terminated pursuant to subsections 5.1(a), 5.2(a), 5.2(b), 5.2(c), 5.2 (d) or 5.2(e) of this Agreement, the Company shall pay to the Executive the full amount of compensation accrued pursuant to section 3.1 of this Agreement as of the date of termination; and |
|
(b) |
if terminated pursuant to subsection 5.2(f) of this Agreement, the Company shall pay to the Executive: |
|
(i) |
the amount of compensation accrued pursuant to section 3.1 of this Agreement as of the date of termination; |
|
(ii) |
the amount of annual salary provided for under section 3.1 of this Agreement immediately prior to the termination; and |
|
(iii) |
an amount equal to the annual bonus most recently paid to the Executive pursuant to section 3.3 of this Agreement multiplied by the fraction of which the number of days between the fiscal year end of the Company related to the annual bonus and the date of termination is the numerator, and 365 is the denominator. |
|
5.5 |
Remedies |
The right of the Company to terminate the Executive’s employment under subsection 5.2(a), 5.2(b), 5.2(c), 5.2(d) or 5.2(e) hereof and the right of the Executive to terminate her employment under subsection 5.1(b) hereof are in addition to and not in derogation of any other remedies which may be available to the Company or the Executive at law or in equity.
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5.6 |
Delivery of Records |
Upon the termination of the employment of the Executive by the Company, the Executive will deliver to the Company all books, records, lists, brochures and other property or intellectual property rights belonging to the Company or developed in connection with the business of the Company, and will execute such transfer documentation as is necessary to transfer such property or intellectual property rights to the Company.
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5.7 |
Accelerated Vesting of Options on Termination Without Cause |
If the Executive’s employment is terminated under subsection 5.1(b), 5.1 (c), 5.1(d), 5.1(e), 5.2(f) or 5.2(g) hereof, then all stock options granted by the Company to the Executive that have not vested prior to such termination shall be deemed to have vested immediately prior to such termination.
ARTICLE 6 GENERAL
|
6.1 |
Personal Nature |
The obligations and rights of the Executive under this Agreement are personal in nature, based upon the singular skill, qualifications and experience of the Executive.
|
6.2 |
Right to Use Executive’s Name and Likeness |
During the term of this Agreement, the Executive hereby grants to the Company the right to use the Executive’s name, likeness and/or biography in connection with the services performed by the Executive under this Agreement and in connection with the advertising or exploitation of any project with respect to which the Executive performs services for the Company.
|
6.3 |
Legal Advice |
The Executive hereby represents, warrants and acknowledges to the Company that she has had the opportunity to seek and was not prevented nor discouraged by the Company from seeking independent legal advice prior to the execution and delivery of this Agreement and that, in the event that she did not avail herself of that opportunity prior to signing this Agreement, she did so voluntarily without any undue pressure by the Company or otherwise, and agree that her failure to obtain independent legal advice shall not be used by her as a defense to the enforcement of her obligations under this Agreement.
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6.4 |
Waiver |
No consent or waiver, express or implied, by any party to this Agreement of any breach or default by any other party in the performance of its obligations under this Agreement or of any of the terms, covenants or conditions of this Agreement shall be deemed or construed to be a consent or waiver of any subsequent or continuing breach or default in such party’s performance or in the terms, covenants and conditions of this Agreement. The failure of any party to this Agreement to assert any claim in a timely fashion for any of its rights or remedies under this Agreement shall not be construed as a waiver of any such claim and shall not serve to modify, alter or restrict any such party’s right to assert such claim at any time thereafter.
|
6.5 |
Notices |
Any notice relating to this Agreement or required or permitted to be given in accordance with this Agreement shall be in writing and shall be delivered personally or by reputable overnight courier prepaid to the address of the parties set out on the first page of this Agreement. Any notice shall be deemed to have been received when delivered, and if delivered on a Saturday, Sunday or a holiday, then such notice shall be deemed to have been received on the next day that is not a Saturday, Sunday or a holiday.
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6.6 |
Change of Address |
Each party to this Agreement may change its address for the purpose of section 6.5 by giving written notice of such change in the manner provided for in such section.
|
6.7 |
Applicable Law |
This Agreement shall be governed by and construed in accordance with the laws of the province of Ontario and the federal laws of Canada applicable therein, which shall be deemed to be the proper law hereof. The parties hereto hereby submit to the non-exclusive jurisdiction of the courts of Ontario. All obligations of the parties under this Agreement are subject to receipt of all necessary approvals of the applicable securities regulatory authorities.
|
6.8 |
Severability |
If any provision of this Agreement for any reason be declared invalid, such declaration shall not affect the validity of any remaining portion of the Agreement, which remaining portion shall remain in full force and effect as if this Agreement had been executed with the invalid portion thereof eliminated, and it is hereby declared the intention of the parties that they would have executed the remaining portions of this Agreement without including therein any such part, parts or portion which may, for any reason, be hereafter declared invalid.
|
6.9 |
Entire Agreement |
This Agreement constitutes the entire agreement between the parties hereto and there are no representations or warranties, express or implied, statutory or otherwise other than set forth in this Agreement and there are no agreements collateral hereto other than as are expressly set forth or referred to herein. This Agreement supersedes and replaces all previous employment agreements between the parties and amendments thereto. This Agreement cannot be amended or supplemented except by a written agreement executed by all parties hereto.
|
6.10 |
Arbitration |
In the event of any dispute arising with respect to any matter relating to this Agreement, the matter in dispute shall be referred to a single arbitrator under the Commercial Arbitration Act (Ontario).
|
6.11 |
Non-Assignability |
This Agreement shall not be assigned by any party to this Agreement without the prior written consent of the other parties to this Agreement.
|
6.12 |
Burden and Benefit |
This Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns.
|
6.13 |
Time |
Time is of the essence of this Agreement.
|
6.14 |
Survival |
ARTICLE 4 and 5 shall survive termination of this Agreement and the employment of the Executive hereunder.
|
6.15 |
Counterparts and Electronic Transmission |
This Agreement may be executed in counterparts and electronic transmission, and such counterparts together shall constitute one and the same instrument.
IN WITNESS WHEREOF the parties have duly executed this Agreement as of the date set out on the first page.
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MEDICENNA THERAPEUTICS INC. |
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| Per: | |||
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/s/ Xxxxx Xxxxxxxx |
/s/ Rosemina Merchant | ||
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Authority Signatory |
ROSEMINA MERCHANT |
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