ViRexx Medical Corp.
MEMORANDUM
OF AMENDING AGREEMENT made effective as of the 15th
day of
December, 2006 (hereinafter “Effective Date”)
BETWEEN:
a
body
corporate duly arranged pursuant to the laws of the Province of Alberta
(hereinafter
the “Company")
OF
THE
FIRST PART
-
and
-
Macaraig
Canton
of
the
City of Edmonton, in the Province of Alberta,
(hereinafter
the "Employee")
OF
THE
SECOND PART
WHEREAS
the Company and the Employee have entered into an Employment Agreement dated
February 1, 2005 (the “Employment Agreement”);
WHEREAS,
the Company, as a publicly held corporation, recognizes that the possibility
of
a change in control may exist, and that such change in control may result in
the
departure of the Employee;
NOW
THEREFORE, in consideration of the premises, and of the mutual terms and
conditions and covenants to be observed and performed by each of the parties
hereto, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by each of the parties, the parties hereto
hereby agree as follows:
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1.
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DEFINITIONS
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1.1 “Change
in Control” means
the
occurrence of any one or more of the following:
| (a) |
a
change in control of the Company or any material subsidiary of the
Company;
|
| (b) |
the
closing of a merger, acquisition,
sale of securities, amalgamation,
plan of arrangement, take-over bid, insider bid, issuer bid other than
a
normal course issuer bid, reorganization, exchange of assets or
securities, any one of which results in a change of voting control
of the
issued and outstanding securities of the Company and a subsequent election
of new directors who gain control of the Board of Directors; sale of
all
or substantially all of the assets of the business of the Company,
a proxy
contest resulting in appointment of new directors who are in control
of
the Board of Directors;
or
any other change which the Board of Directors declares to be a Change
in
Control; but
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|
(c)
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excludes
internal reorganizations, reverse takeovers (where the Company remains
the
dominant entity) and transfers among the group of entities controlled
by a
substantial shareholder.
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1.2 “Good
Reason” means
for the
reason of a material
adverse change to the Employee’s terms and conditions of employment following
a Change in Control including
but not limited to:
| (a) |
failure
by the Company to maintain the Employee in at least the same or an
equivalent position which the Employee occupied before the Change in
Control;
|
| (b) |
failure
by the Company to provide the Employee with compensation benefits the
Employee was receiving prior to the Change in
Control;
|
| (c) |
relocation
of Employee’s place of work to a location more than fifty (50) miles from
it’s location immediately prior to the Change of Control;
or
|
| (d) |
any
material change in the Employee’s reporting relationships, any material
reduction in the Employee’s duties, responsibilities or authority or any
other action that has the effect of a demotion of the Employee: to
the
extent the Change of Control results in the Company (or a successor
to the
Company by merger, consolidation or the like), continuing in existence
as
a direct or indirect subsidiary of an acquirer, the Employee shall
be
considered to have been demoted unless given the same or equivalent
position, duties and authority in the ultimate parent of the acquirer
are
maintained.
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2.
SEVERANCE
BENEFITS AND ENTITLEMENT
2.1 The
Employee may resign for Good Reason at any time up to twelve (12) months
following a Change of Control.
2.2 Effective
immediately following the Employee’s termination as a result of a Change of
Control or resignation for Good Reason, as applicable, the Employee is entitled
to:
| (a) |
salary
plus any target bonus for 18 months;
|
| (b) |
continuation
of benefits for 18 months;
|
| (c) |
immediate
vesting of all stock options granted to the Employee;
and
|
| (d) |
an
extension of the Company’s Stock Option Plan exercise period from three
(3) months to twelve (12) months.
|
The
salary, bonus and benefits referred to in 2(a) and 2(b) above are equal to
those
in
effect
for the year immediately prior to the resignation, termination or the Change
of
Control; or the salary, bonus and benefits in effect at the time of the
resignation, termination or the Change of Control, whichever is greater, as
applicable.
3. SUCCESSORS
This
Amending Agreement will enure to and be binding upon the Company’s successors
and assigns. The Company will require any successor to all or substantially
all
of the business and assets of the Company by sale, merger or consolidation
(where the Company is not the surviving corporation), lease or otherwise and
any
assignee thereof, by agreement, in form and substance satisfactory to the
Employee, to expressly assume this Amending Agreement. This Amending Agreement
is not otherwise assignable by the Company or by the Employee.
4.
SUBSIDIARIES
For
purposes of this Amending Agreement, employment by a corporation or other entity
that is controlled directly or indirectly by the Company will be deemed to
be
employment by the Company. Thus, references in this Amending Agreement to
“Company” include such corporations, subsidiaries, affiliates or other entities
where appropriate in the context.
5. EMPLOYMENT
AGREEMENT
The
Employment Agreement of the Employee shall remain in full force and effect
except to the extent it is amended or added to by this Amending
Agreement.
6. JURISDICTION
This
Amending Agreement shall be governed by and interpreted in accordance with
the
laws of the Province of Alberta.
IN
WITNESS WHEREOF the Company and the Employee have duly executed this
Agreement.
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| Per: | /s/ | |
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|
||
| Title | ||
| SIGNED, SEALED AND DELIVERED | ) | |
| in the presence of: | ) | |
| ) | ||
| ) | ||
| ) | ||
| Witness | ) | MACARAIG CANTON |
1. THAT
I
was personally present and did see Macaraig Canton 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 Macaraig Canton and
he is
in my belief of the full age of eighteen years.
