Exhibit # 3.h.
EMPLOYMENT AGREEMENT
This Agreement is effective as of the 1st day of February 2001.
B E T W E E N:
VASOGEN INC. a corporation incorporated
under the laws of Canada;
(hereinafter called the "Corporation")
OF THE FIRST PART
- and -
XXXXXXX XXX
(hereinafter called the "Employee")
OF THE SECOND PART
WHEREAS the Corporation has asked the Employee to provide services to the
Corporation as its Vice-President, Technology on the terms and conditions
hereinafter, set forth;
NOW THEREFORE in consideration of the mutual covenants herein contained and
other good and valuable consideration (the receipt and sufficiency of which is
hereby acknowledged by each of the parties hereto), the parties hereby agree as
follows:
PART 1 - EMPLOYMENT SERVICES
1) Engagement and Acceptance of Duties
a) During the term of the Employee's retainer hereunder, the Employee shall
be retained by the Corporation to provide those services to the
Corporation as are described in Schedule "A" attached hereto. The
Employee hereby acknowledges that during the term of this agreement and
in respect of the services to be provided hereunder, he is subject to the
direction of Xxxxx Xxxxxx, the Corporation's Chief Executive Officer or
such other individual as the Corporation may designate from time to time.
The Employee hereby acknowledges that it is a condition of employment
that he has a valid passport to allow uninhibited movement to the United
States or Europe. Additionally, it is a requirement of employment that
the Employee have all requisite approvals from Citizenship and
Immigration Canada to be able to lawfully work in
Canada.
b) The Employee shall well and faithfully serve the Corporation and fulfil
the duties conferred upon the Employee honestly, diligently, in good
faith and in the best interest of the Corporation. The Employee will
devote such time and attention to the affairs and business of the
Corporation as is reasonably required to perform his obligations
hereunder. The Employee agrees to comply with all applicable laws in the
fulfilment of his obligations pursuant to this agreement.
2) Remuneration
For his services, hereunder the Employee shall be paid remuneration at the
rate of $150,000 per annum (the "Salary"), which Salary shall be reviewed
annually and which may be adjusted upward at the discretion of the
Corporation based on the Employee's performance and responsibilities and the
performance of the Corporation. The Employee will also receive a car
allowance of $600 per month (the "Allowance"). Such Salary and Allowance will
be payable bi-weekly in arrears.
3) Benefits
During the period of employment of the Employee hereunder the Employee shall
be reimbursed for all reasonable travelling and other expenses incurred by
the Employee in connection with the performance of his duties hereunder upon
provision of appropriate receipts or other vouchers.
The Employee shall be entitled to four (4) weeks' vacation per year. The
Employee will be entitled to one week of unpaid leave annually on dates to be
mutually agreed upon between the Employee and the Corporation
The Employee shall be entitled to participate in any group health and welfare
plans adopted by the Corporation for its employees during the term of this
Agreement.
Subject to approval by the Board of Directors of the Corporation and the
applicable regulatory authorities, the Employee will be granted 50,000
options with a term of five (5) years and an exercise price of $9.20, such
options to vest as to 25,000 options on the first anniversary of this
Agreement and the final 25,000 options on the second anniversary of this
Agreement.
The Employee will participate in the Corporation's short-term incentive plan,
which currently provides for a bonus of up to 40% of salary and a grant of
options, subject to board and regulatory approval, based on completion of
corporate and individual objectives.
If, the Employee is unable to maintain all requisite approvals from
Citizenship and Immigration Canada to continue to work in Canada after an
initial term of employment with the Corporation, then any granted options
will immediately vest and their term will be extended for 180 days beyond the
termination of employment.
The Corporation will reimburse the Employee for the following expenses in
connection with his relocation from the United Kingdom:
o Furniture removal, shipping and storage (if necessary until suitable
accommodation is found)
o Temporary rental of reasonable accommodations for up to 3 months or
until permanent housing is found, whichever is sooner.
o The use of a reasonable rental car for 4 months or until a permanent
car can be arranged, whichever is sooner.
o Cost of airfare for family for one return trip to Ontario prior to
actually moving in order to look for housing and schools, such
airfare to be limited to economy class.
o Cost of airfare for family for one one-way trip to Ontario in
connection with moving, such airfare to be limited to economy class.
o Settling-in allowance equal to the value of one month's gross salary
4) Termination
The Corporation may terminate the employment of the Employee at any time:
a) for just cause in which case the Employee is not entitled to any advance
notice of termination or any compensation in lieu of notice;
b) without just cause, in which case the Corporation will provide the
Employee with the greater of i) the notice of termination or compensation
in lieu of notice that is provided by the Employment Standards Act of
Ontario as amended from time to time or ii) six months' salary; and.
c) it is specifically understood and agreed that upon fulfilment of the
obligations set out in paragraph 4(b), the Corporation has no further
obligation to the Employee for notice, payment in lieu of notice or
damages whether at common law, equity or otherwise.
If the Employee is terminated pursuant to clause 4 b) above, then i) all
options granted to the Employee as of the date of termination will
immediately vest and their term will extend for 180 days beyond the date of
the termination of employment, and ii) the Employee will be reimbursed for
furniture removal, shipping and storage (if necessary until suitable
accommodation is found) and the cost of airfare for his immediate family for
a one-way trip to the United Kingdom, such airfare to be limited to economy
class.
The Employee may terminate his employment at any time by providing the
Employer with at least four (4) weeks' notice. .
PART II - CONFIDENTIALITY, INTELLLECTUAL PROPERTY,
NON SOLICITATION AND NON-COMPETITION
1) Definitions Applicable to this Part II
a) "Confidential Information" shall mean all information, including, but not
limited to trade secrets, disclosed to the Employee or known by the
Employee as a consequence of or through his being retained by the
Corporation, concerning the Corporation's products, processes or services
and including, but not limited to: computer programs; unpatented
inventions, discoveries or improvements; marketing, manufacturing, or
organizational research and development, or business plans; sales
forecasts; personnel information, including the identity of other
Employees of the Corporation, their responsibilities, competence,
abilities, and compensation; pricing and financial information; current
and prospective customer lists and information on customers or their
Employees; information concerning planned or pending acquisitions or
divestitures; and information concerning purchases or major equipment or
property; and which:
i. has not been made generally available to the public by the
Corporation;
ii. is useful or of value to the Corporation's current or anticipated
business, research or development activities or those of any customer
or supplier of the Corporation; or
iii. has been identified as confidential by the Corporation, either
orally or in writing.
Confidential Information shall not include information which:
i. is in or hereafter enters the public domain through no fault of the
Employee;
ii. is obtained by the Employee from a third party having the legal right
to use and disclose the same; or
iii. is in the possession of the Employee prior to receipt from the
Corporation.
b) An "unauthorized person or corporation or other entity" means any
individual or entity who or which has not executed an appropriate
confidentiality or secrecy agreement with the Corporation.
c) "Intellectual Property" shall mean all discoveries, inventions,
improvements, formulas, ideas, devices, writings or other intellectual
property including but not limited to the notes, records, reports,
sketches, plans, memoranda and other tangible information relating to
such Intellectual Property, whether or not subject to protection under
any applicable laws including, without limitation, patent or copyright
laws, which relate directly to the business of the Corporation, or which
was conceived or created using the Corporation's materials or facilities,
whether during or after working hours.
d) "Research and Development" shall mean the scientific and engineering
activities related to the investigation, analysis, development or
production of the Corporation's existing products, processes or services.
2) Employee's Obligations Not to Use or Disclose Confidential Information
a) The Employee acknowledges that the Corporation has heretofore carried on
and will hereafter carry on the business of, among other things,
research, development and commercialization with respect to the
Corporation's technology, and that in the course of carrying out,
performing and fulfilling his responsibilities to the Corporation
hereunder he will have access to and will be entrusted with Confidential
Information, the disclosure of any of which Confidential Information to
competitors of the Corporation or to the general public may be
detrimental to the best interests of the Corporation. The Employee
acknowledges and agrees that the right to maintain the confidentiality of
such Confidential Information, and
the right to preserve the goodwill of the Corporation, constitute
proprietary rights, which the Corporation is entitled to protect.
b) The Employee shall maintain in confidence at all times and shall not
divulge to any unauthorized person or corporation or other entity, or use
in any manner, or knowingly allow another to use, without the
Corporation's prior written consent, either during the term of his
employment hereunder or thereafter, the Corporation's Confidential
Information. The Employee agrees, therefore, that the Corporation is
entitled to protection from any unauthorized disclosure or use, or
threatened disclosure or use of any Confidential Information, including
protection by injunctive relief, in addition to other remedies available
under the law.
c) The Employee further acknowledges that the Corporation operates and
competes internationally, and that the Corporation will be harmed by
unauthorized disclosure or use of its Confidential Information regardless
of where such disclosure or use occurs, and that therefore this
Confidential Information is not limited geographically in any way.
3) Corporation's Property
All notes, reports, sketches, plans, unpublished memoranda or other documents
created, developed, generated or held by the Employee during the term of this
Agreement, concerning or related to the Corporation's business, and whether
containing or relating to Confidential Information or not, are the property
of the Corporation and will be promptly delivered to the Corporation upon
termination or expiry of this Agreement for any reason whatsoever.
4) Corporation's Right to Inventions and Discoveries
a) All Intellectual Property developed during the term of this Agreement
shall be the sole and exclusive property of the Corporation without
further compensation. Any Intellectual Property based upon the
Corporation's Confidential Information and developed at any time either
during or after the termination of this agreement shall be the property
of the Corporation. The Employee's development of Intellectual Property
occurring within one year after the termination of this Agreement and
related to the Corporation's business, products or research shall be
presumed to be the property of the Corporation. The Employee agrees to
promptly notify and fully disclose to the Corporation all such
Intellectual Property. The Employee shall take such steps as are deemed
reasonably necessary to maintain complete and current records thereof.
b) The Employee shall assign to the Corporation or its designates, the
Employee's entire right, title and interest in said Intellectual
Property. The Employee shall, at the Corporation's request and expense,
execute all documents necessary to enable the Corporation to make
applications for domestic or foreign patents, and assist in securing,
defending or enforcing any such title and right thereto, and assist in
any other claims or litigation concerning the Corporation, its
subsidiaries or affiliates.
5) Non-Competition
The Employee covenants and agrees with the Corporation that he will not,
while performing his services hereunder, or at any time for a period of two
(2) years thereafter (the "Restricted Period"), in any manner whether
directly or indirectly, carry on or be engaged in or interested in, or advise
any person or persons, firm or corporation engaged or in the business of
researching, developing or selling:
a) an ex vivo blood treatment, device, product or technology including,
without limitation, a treatment, device, product or technology which
exposes blood to one or more stress factors or stimuli, including one or
more of oxygen, ozone, heat, and ultra-violet light; or
b) any treatment, device, product or technology which utilizes any mechanism
of action utilized by the Corporation's treatments, devices, products or
technology and described in information provided to the Employee by the
Corporation or contained in the Corporation's patents or patent
applications;
which is competitive with the medical research and technology business engaged
in by the Corporation during the Restricted Period.
6) Inconsistent Obligations
The Employee agrees that, during the term of this Agreement, the Employee
will not accept or assume any obligation that may be inconsistent with any
obligation in this Agreement or with his employment by the Corporation
without the written consent of the Corporation.
7) Severability
If any covenant or provision of this Part II is determined to be invalid,
void or unenforceable in whole or in part, it shall not be deemed to affect
or impair the validity of any other covenant or provision contained therein
or otherwise in this Agreement, and each and every of the covenants or
provisions contained in this Part II are hereby declared to be separate and
distinct covenants and severable from each of the others for the purposes of
this Agreement. The Employee hereby agrees that all covenants and provisions
contained in this Part II are reasonable, valid and necessary both as to area
and duration for the protection of the Corporation's proprietary interests
and that he has had an opportunity to review this Agreement with counsel of
his choice.
PART III - GENERAL
1) Survival
The provisions of Part II and Part III hereof and any confidentiality
agreement executed by the Employee shall survive the termination of the
employment of the Employee with the Corporation under this Agreement.
2) Entire Agreement
This Agreement constitutes the entire Agreement between the parties hereto
relative to the retainer of the Employee and supersedes all prior agreements
and understandings whether written or oral relative to the employment of the
Employee. Except as otherwise specifically set forth in this Agreement,
neither party hereto makes any representation or warranty express or implied
statutory or otherwise to either other party hereto. This Agreement may not
be amended or modified except by written instrument executed by all the
parties hereto.
3) Governing Law
This Agreement shall be deemed to have been made in and shall be construed in
accordance with the laws of the Province of Ontario and, for the purposes of
all legal proceedings, this Agreement shall be deemed to have been performed
in such province. Each of the Employee and the Corporation hereby irrevocably
attorns to the exclusive jurisdiction of the courts of the Province of
Ontario and the courts of such province shall have the sole and exclusive
jurisdiction to entertain any action arising under this Agreement.
4) Assignment
This Agreement shall not be assignable by either party hereto except with the
prior written consent of the other party hereto.
5) Further Assurances
Each of the parties hereto hereby covenants and agrees to promptly do all
such acts and execute all such further agreements, assurances and other
documents as the other party hereto may from time to time reasonably request
in writing be done and/or executed in order to better evidence and/or perfect
the respective matters and things herein provided for and/or the respective
obligations created or intended to be created hereby.
6) Enurement
The provisions hereof, where the context permits, shall enure to the benefit
of and be binding upon the Employee and his executors, administrators and
legal personal representatives and the Corporation and its successors and
assigns.
7) No Liability for Directors or Others
The Employee acknowledges and agrees that each and every of the obligations,
agreements, liabilities and covenants in this agreement which are not the
Employee's are solely those of the Corporation, and the directors, officers,
employees and shareholders of the Corporation shall not have, and are hereby
released from, any responsibility or liability of any nature whatsoever in
respect of such obligations, agreements, liabilities or covenants.
8) Independent Legal Advice
The Employee acknowledges that he has read and understands the foregoing and
that the Corporation has advised him that the foregoing substantially alters
and supersedes his common
law rights. The Employee acknowledges that the Corporation has advised him to
seek independent legal advice prior to executing this Agreement.
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto as of
the date first above written.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
---------------------------- )-------------------------------------
Witness ) Xxxxxxx Xxx
VASOGEN INC.
By:
-----------------------------------------
Duly Authorized Officer or Director,
on behalf of the Corporation and not in
his personal capacity c/s
SCHEDULE A
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Position Description
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Title: Vice President, Technology
Reporting to: President and CEO
Class: Full Time, Permanent
Overview
Reporting to the President and CEO, the Vice President, Technology is
responsible for managing and leading all aspects of product design, development,
manufacturing and service to support corporate goals.
Responsibilities
o Develops and achieves the Company's corporate goals as a member of the
senior management team.
o Sets strategic direction for medical device technology and products in
conjunction with CEO and other members of senior management.
o Works with medical science personnel to develop and refine technology
roadmap
o Performs needs analysis leading to specification of new products.
o Executes new product development for medical device products.
o Plans, budgets and manages costs for Product Development, Manufacturing and
Service operations.
o Plans the development, acquisition and/or sourcing of relevant technology.
Develops, acquires or sources medical device technologies on time, within
cost targets, with quality to meet product development requirements and
achieve corporate objectives. Optimizes efficiency and effectiveness by
balancing contracting, licensing, sourcing and internal development.
o Carries out project planning and management.
o Ensures the correct systems, skills and capabilities are in place to
achieve the plans.
o Develops, retains and attracts a high performance team. Maintains and grows
needed technical skills through effective hiring and personnel development.
Provides leadership, organization, setting of expectations and delegation
of responsibility to promote a high level of performance and continuous
development of personnel. Defines responsibilities, objectives and action
plans and coaches and encourages staff to achieve excellent performance
through innovation, continuous improvement and taking initiative. Performs
evaluations, salary reviews, and recommends promotion for directly
reporting staff. Motivates and encourages teamwork. Identifies and develops
team leaders.
o Supports quality system to facilitate regulatory review and approval o
Conducts pre-clinical and clinical field testing of new devices.
o Develops or sources manufacturing processes including testing, quality
control and process control considerations. o Establishes and ramps up
manufacturing.
o Protects proprietary technology and product information through patents,
copyright registration, non-disclosure agreements and other appropriate
vehicles.
o Develops and maintains design infrastructures and design control systems,
and improves the
process for new product introduction.
o Provides liaison with research partners in industry, government and
universities.
o Maintains keen awareness of technology trends relevant to the Company's
products and business.
o Works closely with all areas of the Company to execute the Product
Development plans and achieve the corporate objectives. Builds strong
teamwork across the technology group, and with other areas of the Company.
o Maintains appropriate communication throughout the Department and Company
with respect to corporate strategies, plans, objectives and performance.
