THIS AGREEMENT made as at the 15th day of May, 2003. E-53
| THIS AGREEMENT made as at the 15th day of May, 2003. |
E-53
|
BETWEEN:
VIREXX
RESEARCH INC.
having
an
office at the City of Edmonton,
in
the
Province of Alberta,
(hereinafter
called the “Employer”),
OF
THE
FIRST PART,
-
and
-
XX.
XXXXXXX XXXXXXX
of
the
City of Edmonton, in the Province of Alberta
(hereinafter
called the “Employee”),
OF
THE
SECOND PART,
WHEREAS:
A. The
Employee has agreed to terms of employment with the Employer in the capacity
and
position of President and Chief Executive Officer;
B. The
Employer and the Employee wish to confirm their relationship upon the terms
and
conditions as provided in this Agreement.
WITNESSETH
THEREFORE THAT in consideration of the mutual covenants and agreements contained
in this Agreement, the Employer and the Employee covenant and agree as
follows:
ARTICLE
1 - INTERPRETATION
|
1.1
|
Number
and Gender
|
Words
importing the singular number only shall include the plural and vice versa
and
words importing the masculine gender shall include the feminine gender and
words
importing persons shall include firms and corporations and vice
versa.
|
1.2
|
Division
|
The
division of this Agreement into Articles and Sections forms no part of this
Agreement and shall be deemed to have been inserted and done for convenience
only.
|
1.3
|
Headings
|
The
headings of all the Articles and Sections hereof and the table of contents,
if
any, are inserted for convenience of reference only and shall not affect
the
construction or interpretation of this Agreement.
|
1.4
|
Recitals
|
All
recitals to this Agreement shall be included in and form part of this
Agreement.
|
1.5
|
Continuance
of Agreement
|
The
provisions of this Agreement shall continue in effect until the final
performance of all the respective obligations set forth herein or until amended
or altered by agreement in writing.
|
1.6
|
Agreement
Supersedes
|
The
parties acknowledge and agree that this Agreement represents a composite
of all
previous agreements, if any, reached to date and that hereafter, this Agreement
is the only agreement between the parties with respect to the matters
contemplated by this Agreement, and shall supersede and replace any discussion
letter or form of Agreement, oral or written, which may exist as of the date
of
execution and delivery of this Agreement.
|
1.7
|
Applicable
Law
|
This
Agreement shall be governed by the laws of the Province of Alberta.
|
1.8
|
Schedules
|
Schedule
“A” to this Agreement is referenced in Article 7 and is in full force and effect
when fully executed.
|
1.9
|
Effective
Date
|
Notwithstanding
the date of execution of this Agreement by the Employer and the Employee,
this
Agreement shall be deemed for all purposes to be effective as at and from
the
15th day of May, 2003 (the “Effective Date”).
2
|
1.10
|
Severability
|
In
the
event that any provision or part of this Agreement shall be deemed void or
invalid by a court of competent jurisdiction, the remaining provisions or
parts
shall be and remain In full force and effect.
|
1.11
|
Modification
of Agreement
|
Any
modification to this Agreement must be in writing and signed by the parties
or
it shall have no effect and shall be void.
ARTICLE
2 - EMPLOYMENT
|
2.1
|
Employment
|
The
Employer hereby employs the Employee to be the Employer’s President and Chief
Executive Officer for the purposes of undertaking the duties of and exercising
the powers of that office. The Employee represents and warrants to the Employer
that the Employee has the required skills and experience to perform the duties
and exercise the responsibilities required of the Employee as President and
Chief Executive Officer. In carrying out his duties and responsibilities,
the
Employee shall comply with all lawful and reasonable instructions as may
be
given by the Board of Directors of the Employer and shall comply with all
government and other professional requirements, rules, by-laws and
regulations.
|
2.2
|
Employee’s
Undertaking
|
The
Employee, in collaboration with the Employer’s Board of Directors, shall be
responsible for the overall supervision, management and operations of the
Employer and the Employee’s duties will also include the following:
|
(a)
|
supervision
and implementation of a plan to commercialize the Employer’s technology,
including but not restricted to the commencement, continuation
and
completion of clinical trials;
|
|
(b)
|
supervision
and implementation of sales and marketing strategies for existing
and new
products;
|
|
(c)
|
supervision
of development and implementation of communication and public relations
strategies;
|
|
(d)
|
identification,
development and implementation of new products, new business development
strategies and opportunities;
|
|
(e)
|
supervision
of all planning and budgeting processes and
planning;
|
3
|
(f)
|
supervision
and direction of the Chief Financial Officer and Vice President
and other
designated employees in hiring, supervising, and training of all
staff and
administration of all personnel, including the development of personnel
policies and procedures and salary
administration;
|
|
(g)
|
dismissing
personnel as required;
|
|
(h)
|
supervision
and direction of production processes and all production labs and
facilities;
|
|
(i)
|
direction
and supervision of all financial matters of the Employer including
financial reporting to the Board of
Directors;
|
|
(j)
|
providing
advice and input to the Board of Directors of the Employer and
ensuring
that the Employer’s policies, procedures and programs related to its
business are compatible with all aspects of effective
operations;
|
|
(k)
|
such
other functions as may be necessarily related to the foregoing
and such
additional duties and functions as the Employer and the Employee
shall,
from time to time, agree upon; and
|
2.3 In
the
performance of the responsibilities listed in Article 2.2, the Employee shall
delegate or assign duties as appropriate to staff and external
experts/consultants as required provided that the Employee shall maintain
management responsibility over those to whom duties have been delegated and/or
assigned.
|
2.4
|
Time
Devotion
|
The
Employee shall, during the term of this Agreement, devote such of his full
business time, attention and ability to the affairs of the Employer in
furtherance of the Employer’s best interest as is necessary to fulfill his
duties hereunder. It is understood that the hours of work involved are going
to
vary and be irregular and shall include reasonably sufficient hours required
to
meet the objectives of employment herein described. It is further recognized
and
agreed by the Employer that the Employee is also serving as and will continue
to
serve as President and Chief Executive Officer of AltaRex Corp. (“AltaRex”) and
that the Employee will use his reasonable efforts to divide his time
appropriately between the Employer and AltaRex.
|
2.5
|
Serving
the Company
|
The
Employee shall well and faithfully serve the Employer and use his best efforts
to promote the interests thereof. In carrying out his duties, functions and
responsibilities, the Employee shall comply with, adhere to, execute and
fulfil
all Employer’s policies, procedures, rules and regulations, written as are
amended in writing by the Employer from time to time. It is understood and
agreed to by the Employee that his assignments, duties, responsibilities
and
reporting arrangements may be changed by the Employer in its sole discretion
without causing termination of this Agreement.
4
|
2.6
|
Business
Conduct
|
The
Employee agrees that in all matters affecting the conduct of the Employer’s
business, the Employee shall maintain a standard of conduct which in all
respects meets a reasonable standard of business conduct.
|
2.7
|
Employer
Powers
|
Subject
always to this Agreement and all applicable laws, the Employer shall have
the
power and authority to review all work performed by the Employee and to
determine standards of performance; provided always, that the Employer’s
exercise of such power and authority shall be reasonably done in good faith
and
be consistent with its prior practice.
|
2.8
|
Responsibility
of Employee
|
The
Employee assumes no responsibility under this Agreement other than to render
the
services called for hereunder in good faith.
|
2.9
|
Liability
of the Employee
|
The
Employee will not be liable to the Employer or others except by reason of
acts
constituting bad faith, wilful misconduct, negligence or reckless disregard
of
his duties.
|
2.10
|
Exercise
of Duties
|
At
all
times, the Employee shall act on a basis which is fair and reasonable to
the
Employer and shall exercise his powers and discharge his duties under this
Agreement honestly, in good faith and in the best interests of the Employer,
and
in connection therewith shall exercise that degree of care, diligence and
skill
that a reasonably prudent person would exercise in comparable
circumstances.
|
2.11
|
Location
|
The
Employee’s place of employment shall be at the head office of the Employer
located at 0000 Xxxxxxxxx/Xxxxxxxx Xxxx., Xxxxxxxxxx xx Xxxxxxx, Xxxxxxxx,
Xxxxxxx or such other place as the Board of Directors directs.
|
2.12
|
Records
and Materials
|
Upon
termination of the Employee’s employment with the Employer, the Employee shall
deliver to the Employer all proprietary information referred to in Article
7,
including but not restricted to all records and materials with respect to
the
Employer which are in his possession and/or under his control.
5
|
2.13
|
No
Interest
|
Nothing
herein shall be construed to give the Employee any interest in the tangible
or
intangible assets of the Employer.
ARTICLE
3 - REMUNERATION
|
3.1
|
Compensation
of the Employee
|
Throughout
the term of this Agreement, commencing May 15, 2003, the Employer shall pay
to
the Employee a salary, set from time to time by the Board of Directors, stated
as an annualized amount but payable monthly in arrears in equal monthly
instalments for each year of the three year term of the Employee’s employment
and commencing on the Effective Date. The Employee’s salary at the commencement
of and throughout the term of this Agreement shall be no less than ONE HUNDRED
SIXTY EIGHT THOUSAND ($168,000.00) DOLLARS Canadian per annum. The Employee’s
compensation and performance shall be reviewed by the Board of Directors
annually at least one month prior to each anniversary date of commencement.
The
Employee shall have the right to provide information to the Board of Directors
on all factors relevant to the Board’s decision on any increase in compensation.
From May 15, 2003 to September 30, 2003 the Employee’s salary shall be paid as
follows: $14,000 per month is deferred and accrued, to be paid when the Employer
obtains financing of a minimum of $1,000,000. The parties agree that 60%
of the
Employee’s accumulated salary to September 30, 2003 may be paid, at the
Employee’s discretion, by converting it to common shares of the Employer at
$0.80 per share and if this occurs the Employer shall forward the remaining
40%
of the Employee’s salary to Canada Customs and Revenue Agency as withholding
tax.. If the conversion does not take place the accrued salary shall be paid
to
the Employee From October 1, 2003 through the remaining months of the term
the
Employee’s salary shall be $14,000 per month. If the Employee’s continued
employment with AltaRex Corp. ceases then the Employee’s salary hereunder shall
increase by the amount of salary AltaRex Corp. was paying the Employee at
the
time of termination of the Employee’s employment with AltaRex Corp and not to
exceed an aggregate salary of $250,000 per annum.
|
3.2
|
Bonuses
|
For
each
year of the term of this Employment Agreement and any extension or renewal
thereof following the completion of the financing referred to in section
3.1
above, the Employee is eligible to be considered for a bonus to be decided
on by
the Board of Directors based on performance criteria pre-agreed with the
Employee at the beginning of each year of the term of this
Agreement.
6
|
3.3
|
Benefits
|
The
Employer shall provide the Employee with participation in any benefit programs
as they are made generally available by the Employer to its other employees
including Blue Cross insurance for life, disability, health and dental, Alberta
Health Care and Parking.
|
3.4
|
Stock
Options
|
The
Employer hereby grants to the Employee an option to purchase 400,000 common
shares at a price of $0.80 per share. The option for 200,000 shares shall
vest
on the fourth month from the date hereof and a portion of the option for
200,000
shares shall vest on the anniversary of the date hereof. These options shall
be
included as being in full force and effect within any formal option plan
adopted
by the Employer.
The
Employee shall continue to participate as a senior executive in any stock
option
plan adopted by the Employer or any amendment thereof which is adopted by
the
Board of Directors and shareholders of the Employer, recognizing that any
option
given shall be a decision by the Board.
|
3.5
|
Car
Allowance and Business
Expenses
|
The
Employee shall be paid a car mileage allowance for longer trips away from
Edmonton and his reasonable business expenses shall be reimbursed by the
Employer.
ARTICLE
4 - AUTHORITY
The
Employee shall have, subject always to the specific instructions and directions
of the Board of Directors of the Employer full power and authority to supervise,
manage and direct the operations of the Employer including engaging, employing
and dismissing managers and other employees and agents of the
Employer.
ARTICLE
5 - VACATION
The
Employee shall be entitled to a period of eight weeks paid vacation per calendar
year. The Employee will provide the Employer with reasonable written notice
of
his intention to take any vacation days. PROVIDED THAT this vacation time
is
concurrent not in addition to the eight weeks vacation that the Employee
is
entitled to under his Employment Agreement with AltaRex. Should the Employee’s
employment with AltaRex cease then the said four weeks entitlement shall
be
solely in relation to the Employee’s employment with the Employer. The Employee
shall be allowed to accumulate one week’s vacation per year and carry it over to
subsequent years to be used prior to the end of the term hereof which is
May 14,
2007.
7
ARTICLE
6 - TERM AND TERMINATION
|
6.1
|
Term
|
This
Agreement commenced on the Effective Date and shall continue until May 14,
2006
at which time the Agreement shall expire unless terminated earlier or unless
a
renewal or extension is negotiated on a mutually satisfactory basis between
the
Employer and the Employee. In the event that this Agreement is not reviewed
or
extended for another term of at least three years from May 14, 2006 the Employer
shall be entitled to payment of six months salary.
|
6.2
|
Termination
by the Employer for
Cause
|
The
Board
of Directors, by majority decision acting reasonably, shall have the right
to
terminate the Employee’s employment if the Employee has not cured any default
event within 60 days of receiving written notice to do so from the Board
of
Directors, for cause, including, but without restricting the generality of
the
foregoing, upon the occurrence of one or more of the following default
events:
|
(a)
|
the
Employee’s failure or refusal to comply with policies established from
time to time by the Board of Directors, provided always that such
policies
are documented in writing and communicated to the Employee and
are
reasonable and consistent with the Employer’s best
interests;
|
|
(b)
|
the
Employee’s failure or refusal to comply with the directions of the Board
of Directors or the Board of Directors determine, in their sole
discretion, that the Employee’s performance of his duties under this
Agreement is unsatisfactory;
|
|
(c)
|
the
Employee’s fraud, dishonesty or other wilful misconduct or the Employee’s
negligence;
|
|
(d)
|
if
the Employee engages in any criminal activity or unethical conduct
which,
in the sole discretion of the Employer, is judged to seriously
impair the
Employee’s ability to perform his duties hereunder, or would or could
impair the business reputation of the Employer, including, but
not limited
to, where the Employee is convicted of any indictable criminal
offence;
|
|
(e)
|
any
actual or material breach of the provisions of this
Agreement;
|
|
(f)
|
the
Employee is adjudged bankrupt.
|
8
|
6.3
|
Termination
by the Employee and the Employer Without Cause or Change of Control
of the
Employees
|
This
Agreement may be terminated without cause in the following manner in the
specified circumstances:
|
(a)
|
by
the Employee on giving sixty days’ notice in writing to the Employer; the
Employer may waive the notice in whole or in
part;
|
|
(b)
|
by
the Employer on giving sixty days’ notice in writing to the Employee and
if the Employee is terminated without cause by the Employer at
any time
during the term hereof the Employer shall give the Employee 60
days notice
in writing and shall pay to the Employee 6 months salary, excluding
bonus,
and the value of benefits otherwise received over the same period
and any
accrued vacation pay and, in addition, reasonable out placement
and
relocation assistance from the Employer as a full and final settlement
to
the Employee.
|
In
the
event that a change of control of the Employer occurs and the Employee is
terminated within a year of the change of control the provisions of section
6.3(a) and (b) apply.
In
either
a dismissal without cause or a dismissal on change of control as referred
above
all options currently outstanding to the Employee shall vest immediately
and the
exercise period shall be extended for all options which remain unexercised
to
the date which is one year from date of termination.
|
6.4
|
Termination
of the Employee for
Disability
|
If
the
Employee suffers from any mental or physical disability or illness which
results
in the Employee being unable to substantially perform his duties for a
continuous ninety days or for periods aggregating one hundred and twenty
days in
any period of three hundred and sixty five days, the Employer may terminate
this
Agreement upon giving the Employee sixty days notice in writing and shall
pay to
the Employee six months’ salary, the value of benefits otherwise received over
the same period and any accrued vacation pay as full and final settlement
to the
Employee.
|
6.5
|
Consulting
Agreement
|
Notwithstanding
any other provision hereof, if the Employee’s employment with the Employer is
terminated or expires, for any reason except for termination with cause prior
to
the termination or expiration of this Agreement the Employer will enter into
a
consulting contract with the Employee pursuant to which the Employee will
provide consulting services to the Employer for remuneration of one half
of what
is being paid as salary to the Employee by the Employer pursuant to this
Agreement at the time of its termination or expiry.
9
|
6.6
|
Survival
of Agreement
|
Notwithstanding
the termination of the Employee’s employment or the termination of this
Agreement for any reason, Sections 2.12, 8.5 and Articles 6 and 7 of this
Agreement shall not be deemed to have been terminated and shall continue
in full
force and effect.
|
6.7
|
Effect
of Termination
|
Upon
termination of this Agreement, howsoever terminated, the Employee shall be
entitled to receive compensation for services provided under this Agreement
(“Earned Compensation”), up to and including the date of termination. However,
termination of this Agreement shall not accelerate the payment date of any
monies accrued or accruing to the Employee as a result of any Earned
Compensation, or other compensation, if any, nor shall termination vest in
the
Employee any right in connection therewith.
In
the
event of termination of this Agreement for any reason provided in Section
6.2 or
6.3, all rights and obligations of the Employer and the Employee shall cease
to
exist immediately, except that the Employee’s and Employer’s obligations under
Sections 2.11, 8.5 and Articles 6 and hereof shall survive such
termination.
ARTICLE
7 - CONFIDENTIAL INFORMATION
7.1 The
Employee shall not, either during the term of his Employment and for a period
of
five years thereafter, disclose or cause to be disclosed, to any person,
unless
required by law, any secrets or Confidential Information, as defined in Schedule
“A” hereto, concerning the business or affairs or financial position of the
Employer or any company with which the Employer is or may hereafter be
affiliated. This Agreement is governed by the confidentiality provisions
as set
forth in Schedule “A”. PROVIDED it is agreed by the Employer that the Employee
shall have the sole discretion to decide how to manage any Confidential
Information and Intellectual Property Rights as between the Employer and
AltaRex
given that he is employed by both simultaneously as long as he uses reasonable
practices which are consistent with practices of similar companies.
ARTICLE
8 - GENERAL
|
8.1
|
Further
Acts
|
Each
of
the parties to this Agreement shall, at the request and expense of the other
party, execute and deliver any further documents and do all acts and things
as
that party may reasonably require to carry out the true intent and meaning
of
this Agreement.
|
8.2
|
Time
|
Time
is
of the essence of this Agreement.
10
|
8.3
|
Parties
of Interest
|
This
Agreement enures to the benefit of and is binding upon the Employer and the
Employee and upon their administrators, legal representative, executor,
successors and permitted assigns as applicable.
|
8.4
|
Assignment
|
This
Agreement may not be assigned or transferred in any manner by the
Employee.
|
8.5
|
Employer’s
Property
|
The
Employee acknowledges that all items of any and every nature or kind created
or
used by the Employee pursuant to the Employee’s employment under this Agreement,
or furnished by the Employer to the Employee, and all equipment, automobiles,
credit cards, books, records, reports, files, manuals, literature, confidential
information or other materials shall remain and be considered the exclusive
property of the Employer at all times and shall be surrendered to the Employer,
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
9 - NOTICE
|
9.1
|
Manner
of Delivery
|
All
notices given under this Agreement shall be deemed to have been duly given
only
if personally delivered, or mailed by prepaid registered mail addressed as
follows:
TO
THE
EMPLOYER:
ViRexx
Research Inc.
0000
Xxxxxxxxx/Xxxxxxxx Xxxx.
Xxxxxxxxxx
xx Xxxxxxx
Xxxxxxxx,
Xxxxxxx X0X 0X0
TO
THE
EMPLOYEE:
Xx.
Xxxxxxx Xxxxxxx
00
Xxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxx XX 0X0
Phone/Telecopier
Number: (000)
00
0-0000
(000)
000-0000
|
9.2
|
When
Notices Deemed
Delivered
|
Any
notice personally delivered or telecopied in the manner set out in Section
9.1
shall be deemed given when personally delivered or telecopied, and any notice
mailed in the manner set out in Section 9.1 shall be deemed to have been
received on the Fifth (5th) regular business day next following the date
of
posting.
11
|
9.3
|
Disruption
of Mail Service
|
In
the
event of disruption, or threatened disruption, of regular mail service, all
notices shall be deemed to have been duly given only if personally delivered
or
telecopied.
|
9.4
|
Change
of Address
|
Any
party
may change his address for notice by giving a notice to that effect pursuant
to
this Article 9.
IN
WITNESS WHEREOF this Agreement has been made effective as on the day and
year
first written above.
|
|
|||
|
VIREXX
RESEARCH INC.
|
|||
|
|
Per: (signed)
“Xxx Xxxxxx”
|
||
|
Per:
|
|||
|
SIGNED,
SEALED AND DELIVERED
in
the presence of:
(signed)
“Xxxxx Xxxxxxx”
Witness
|
)
)
)
)
)
|
(signed)
“Xxxxxxx Xxxxxxx”
XX.
XXXXXXX XXXXXXX
|
|
12
|
CANADA
|
)
|
I,
______________________________,
|
|
PROVINCE
OF ALBERTA
|
)
|
of
the City of Edmonton,
|
|
TO
WIT
|
)
|
in
the Province of Alberta,
|
|
)
|
MAKE
OATH AND SAY:
|
1. THAT
I
was personally present and did see Xx. Xxxxxxx Xxxxxxx, named in the annexed
instrument, who is personally known to me to be the person named therein,
duly
sign and execute the same for the purpose named therein.
2. THAT
the
same was executed at the City of Edmonton, in the Province of Alberta, and
that
I am the subscribing witness thereto.
3. THAT
I
know the said Xx. Xxxxxxx Xxxxxxx and he is in my belief of the full age
of
eighteen years.
| SWORN BEFORE ME at the City of |
)
|
|
| Edmonton, in the Province of Alberta, this |
)
|
|
| ____ day of __________, 2003. |
)
|
|
|
)
|
||
|
)
|
||
| ________________________________ |
)
|
________________________________
|
| A COMMISSIONER FOR OATHS IN |
)
|
|
| AND FOR THE PROVINCE OF |
)
|
|
| ALBERTA. |
)
|
DATED
the
_____ day of __________, 2003.
VIREXX
RESEARCH INC.,
and
XX.
XXXXXXX XXXXXXX
XXXXXX
XxXXXX llp
Barristers
& Solicitors
0000,
Xxxxxxxx Xxxxx
00000
-
000 Xxxxxx
Xxxxxxxx,
Xxxxxxx
X0X
0X0
Attention:
X.X.
Xxxxxxx
Telephone:
(000)
000-0000
Facsimile:
(000) 000-0000
File
No.:
59815-20
