EXHIBIT 10.27
THIS EMPLOYMENT AGREEMENT is made July 7, 1999
AMONG:
VISIBLE GENETICS CORPORATION, a corporation duly incorporated under
the laws of the State of Delaware and having its principal office in
the City of Pittsburgh, in the State of Pennsylvania,
(the "Employer")
-and-
VISIBLE GENETICS INC., a corporation duly incorporated under the
laws of the Province of Ontario and having its head office in the
City of Toronto, in the Province of Ontario,
("VGI"),
-and-
XXXXXXX XXXX, an individual residing in the City of San Francisco,
in the State of California,
(the "Executive")
RECITALS:
A. The Employer is a wholly owned subsidiary of VGI.
B. The Executive has been employed by the Employer effective April 1,
1999.
C. The Executive was appointed as President and Chief Executive Officer
of VGI effective July 7, 1999.
D. VGI and the Employer are parties to a Secondment Agreement, under
which the Executive may be seconded to VGI from time to time.
- 2 -
E. The Employer and Executive wish to set out the terms and conditions
of employment.
THEREFORE, the parties agree as follows:
ARTICLE 1
POSITION, DUTIES AND REMUNERATION
1.1 Employment
Subject to the provisions of Section 5 hereof, the Employer agrees to continue
to employ the Executive and the Executive agrees to remain in the employ of the
Employer and to act as President and Chief Executive Officer ("CEO") of VGI. The
Executive will be paid a gross salary of U.S. two hundred and twelve thousand
dollars (U.S. $212,000.00) paid in equal monthly installments.
1.2 DUTIES
The Executive agrees to perform faithfully the duties of President and CEO and
all other lawful instructions and duties as the Employer or VGI may from time to
time reasonably require commensurate with his position.
1.3 FULL TIME AND ATTENTION
The Executive agrees to use his best efforts to promote the interests of the
Employer and VGI; to devote his full time and attention to the business of the
Employer and VGI and to adhere to the instructions and directives of the
Employer and VGI.
1.4 EMPLOYMENT CONDITIONS
The Executive agrees to adhere to and abide by the Employer's policies, as
amended from time to time, regarding holidays, sick leave, hospital insurance,
and other fringe benefits. The Executive shall be bound by and shall faithfully
observe and abide by all of the rules and
- 3 -
obligations of the Employer from time to time in force which are brought to his
notice, or of which he should reasonably be aware of.
1.5 ANNUAL REVIEW
The Employer agrees in its sole discretion to review the salary and benefits
payable to Executive hereunder annually.
1.6 BENEFITS
In addition to salary, for the performance of his services hereunder, the
Executive shall be entitled to participate in all of the Employer's benefit
plans generally available to its Executives, including group, life, medical,
dental, hospital, long-term disability, accidental death and dismemberment
insurance benefits plans. In the event the Employer adopts any new benefit
plans, pensions or perquisites, the Executive shall have the right to
participate on a basis equivalent to other Executives of the Employer. All plans
are governed by their terms.
1.7 REIMBURSEMENT FOR EXPENSES
Provided that the Executive submits receipts satisfactory to either the Chair of
the Board of Directors of the Employer (the "Board") or the Chair of the
Compensation Committee of the Board, the Employer shall reimburse the Executive
forthwith for all proper and reasonable out-of-pocket expenses actually incurred
by the Executive in the performance of his duties, including all
business-related travel expenses.
1.8 APARTMENT ACCOMMODATION
The Employer shall make available to the Executive apartment accommodation for
the occasions in which the Executive must travel for business-related reasons to
Toronto.
- 4 -
1.9 TAX MATTERS
(a) The Employer will provide the Executive with up to Canadian ten
thousand dollars (Cdn. $10,000.00) in order that the Executive may
obtain income tax advice.
(b) The Employer will reimburse the Executive with reasonable expenses
each year for income tax return preparation.
(c) To receive all or part of the amounts set out in 1.9(a) or (b), the
Executive must present receipts satisfactory to the Employer
describing the nature of the services provided and the fees charged
in respect of such services.
1.10 VACATION
The Executive shall be entitled to five (5) weeks' vacation with pay each
calendar year. The scheduling of any vacation time must be approved by the
Employer. Vacation time will not be accumulated from year to year. Rather,
unused entitlement will be forfeited; provided, however, that the Employer will
provide any vacation pay entitlements pursuant to applicable employment
standards legislation.
ARTICLE 2
CONFIDENTIAL INFORMATION, NON-COMPETITION/NON-SOLICITATION DURING AND
FOLLOWING TERMINATION OF EMPLOYMENT
2.1 DEFINITIONS
In this Article 2 , the following terms shall have the meaning set out below:
(a) "Confidential Information" - shall include:
(i) Trade Secret Information;
(ii) all other proprietary and confidential information concerning
the business and affairs of the Employer, including,
management methods, operating techniques and procedures,
financial and sales information, supplier and client data, and
information disclosed in confidence to the Employer by a third
party; and
(iii) all Inventions,
but Confidential Information shall not include information
which the Executive can demonstrate:
- 5 -
(i) was in the public domain or becomes so through no fault of the
Executive; or
(ii) was disclosed to the Executive by a third party not under an
obligation to the Employer to maintain the confidence of such
information.
(b) "Inventions" - shall mean any improvement, modification or
enhancement of any Trade Secret Information together with any other
Trade Secret Information which the Executive may make, develop,
devise, author or otherwise be involved with, alone or jointly with
others, which is, regardless of whether or not the Employer's
resources or assets are used, conceived or made wholly or partly by
reason of opportunities afforded by the Employer, or with knowledge
gained through employment by the Employer (whether perfected or
reduced to specific form either prior to the date of this Agreement
or during or subsequent to his employment with the Employer) or
which:
(i) the Executive makes, develops, devises, authors or is
otherwise involved with during the term of his employment with
the Employer, on or off the Employer's premises, during or
after normal business hours;
(ii) utilizes any Trade Secret Information of the Employer; or
(iii) does not utilize any Trade Secret Information of the Employer
but is made, developed, devised or authored to a substantial
extent during the time which should properly be devoted by the
Executive to the affairs and the business of the Employer.
(c) "TradeSecret Information" - shall mean all information relating to
the business of the Employer including, but not limited to, all
software systems, and design documents, formulae, processes,
research techniques and results and instructions in oral form or any
media including electronic, chart, graphic or written form.
"Employer" shall mean VGI and its affiliates, collectively.
2.2 CONFIDENTIALITY
The Executive acknowledges that he is employed in a position of trust and has
fiduciary obligations to the Employer and VGI. The Executive covenants that
during his employment by the Employer and after the termination of such
employment, the Executive shall not, for any reason, directly or indirectly:
(a) apply or use any part of the Confidential Information including the
Inventions except for the benefit of the Employer;
- 6 -
(b) divulge or disclose to any person, firm or corporation any part of
the Confidential Information including the Inventions, except with
the prior written consent of the Employer, and the Executive shall
only make such disclosure to:
(i) directors, officers, Executives and consultants of the
Employer on a "need-to-know" basis only as the Executive may
be authorized from time to time by the proper officers of the
Employer; or
(ii) as required to do so as a matter of law, pursuant to any
subpoena or order issued by a court of competent jurisdiction
or any competent governmental authority, provided the
Executive shall promptly notify the Employer of any such order
or requirement, consult with the Employer on the advisability
of resisting such order and co-operate with the Employer in
attempting to obtain an order protecting the confidence of any
information to be disclosed;
(c) publish information relating to the Inventions except with the prior
written consent of the Employer; or
(d) copy or remove from the Employer's premises any part of the
Confidential Information including the Inventions, in electronic or
physical form, except documents which:
(i) are not Trade Secret Information; and
(ii) in the ordinary course of business, the Executive would
reasonably be expected to perform work on at home or in the
course of business travel.
Upon request or upon termination of his employment by the Employer, the
Executive shall surrender to the Employer all originals and copies of any media
of any and all Confidential Information including Inventions which may be in his
possession, and the Executive acknowledges and agrees that upon termination of
his employment, the Executive has an obligation to make such surrender with or
without the express demand of the Employer.
2.3 NON-COMPETITION
During the term of this Agreement and for a period of twelve (12) months
thereafter, the Executive shall not, either individually or in partnership or
jointly or in conjunction with any person as principal, agent, Executive,
shareholder (other than a holder of shares listed on the Canadian or United
States stock exchange where such holdings do no exceed two percent (2%)
- 7 -
of the outstanding shares so listed), anywhere within Canada or the United
States of America, the United Kingdom or Europe:
(a) solicit any clients or potential clients of the Employer for any
business that competes directly or indirectly with the business of
the Employer, except on behalf of the Employer; or
(b) in any manner whatsoever carry on or be engaged in, or be concerned
with or interested in, or advise, lend money to, guarantee the debts
or obligations of, or permit his name or any party thereof to be
used or employed by any person engaged in or concerned with or
interested anywhere in any business that competes directly or
indirectly with the business of the Employer.
For the purposes hereof the business of the Employer shall be defined to mean
molecular diagnostic systems, including software instrumentation, and molecular
methods, or DNA sequencing technology. This includes, but is not limited to any
high speed DNA sequencer or any DNA sequencer that uses an ultra-thin gel
cassette, or DNA analysis software that is assay based. This excludes any
service-based diagnostic business, or not-for-profit research associated with
clinical diagnostics that might use such molecular diagnostic systems, but does
include any business that supplies software, instrumentation of supplies that
compete with the Employer's products in development or being sold at the time of
the Executive's termination or voluntary leaving.
2.4 INVENTIONS
The Executive shall promptly disclose to the Employer all Inventions as the
Executive becomes aware of them. The Executive acknowledges and agrees that as
between the Employer and Executive, all trade secrets, copyright, patents or
other intellectual property rights which may subsist in the said Inventions
shall be and shall remain the sole and exclusive property of the Employer, and
the Employer shall be free to adopt the Inventions. The Executive hereby waives
in favour of the Employer his moral rights in all such Inventions. Both during
the following his employment, the Executive will execute any documents that the
Employer may present to him
- 8 -
including applications to register intellectual property rights and assignment
documents, and shall do all such other things as the Employer may require of the
Executive from time to time to afford full and complete protection to the
above-stated property rights of the Employer in and to the Inventions, all at
the sole expense of the Employer.
The Executive shall not at any time contest directly or indirectly the
ownership, validity or enforceability of intellectual property rights subsisting
in such Inventions.
2.5 CORPORATE OPPORTUNITIES
Any business opportunities related to the business of the Employer which become
known to the Executive during his employment hereunder must be fully disclosed
and made available to the Employer by the Executive, and the Executive agrees
not to take or attempt to take any benefit of such opportunity except on behalf
of the Employer unless the Employer declines in writing to pursue such
opportunity.
2.6 RIGHTS OF ENFORCEMENT
The Executive hereby agrees that all restrictions, including but not limited to
business scope, geographic area and period of time, in this Agreement are
reasonable and valid in view of the nature of the business of the Employer.
The Executive further agrees that the remedy at law for any breach by him of the
confidentiality or non-competition provisions of this Agreement will be
inadequate. The Employer or any related corporation, on any application to a
court of competent jurisdiction, shall be entitled to injunctive relief against
the Executive to enforce the terms of Article 2 of this Agreement without the
necessity of proving actual damage to the Employer or its related corporations.
- 9 -
ARTICLE 3
TERMINATION OF EMPLOYMENT
3.1 DEATH
The Executive's employment shall terminate automatically in the event of the
death of the Executive and the Executive's estate shall not be entitled to
receive any further compensation under this Agreement other than any amounts
that may have accrued to the date of the Executive's death. Notwithstanding the
foregoing, shares subject to the First and Second Options or portions thereof
shall continue to be released from escrow pursuant to the Escrow Agreement for
twelve (12) calendar months following the date of the Executive's death and the
Executive's estate will also be entitled to receive one months' salary
multiplied by the number of months in the Severance Period set out in Subsection
3.4.
3.2 DISABILITY
The Executive's employment shall terminate upon the last day of any period of
six (6) months during which the Executive has been continuously disabled from
performing his employment duties. The Executive shall not be entitled to receive
any further compensation under this Agreement other than any amounts that may
have accrued to the date of the Executive's termination of employment under this
Section 3.2. Notwithstanding the foregoing, shares subject to the First and
Second Options or portions thereof shall continue to be released from escrow
pursuant to the Escrow Agreement for twelve (12) calendar months following the
date of the Executive's termination of employment under this Section 3.2, and
the Executive will also be entitled to receive one months' salary multiplied by
the number of months in the Severance Period set out in Subsection 3.4.
- 10 -
3.3 CAUSE
Notwithstanding any other provisions of this Agreement, the Employer or VGI may
terminate this Agreement at any time, without notice, for Cause. The term
"Cause" as used herein shall mean any material breach of fiduciary obligation or
gross insubordination.
3.4 TERMINATION FOR ANY REASON
Notwithstanding any other provision in this Agreement, the Employer may
terminate the Executive's employment at any time for any reason by providing the
Executive with one (1) months' salary multiplied by the number of months in the
Severance Period. The "Severance Period", as used in this Agreement, means:
(a) if Executive is terminated by Employer prior to April 1, 2000,
twelve (12) months; or
(b) if the Executive is terminated after April 1, 2000, twelve (12)
months' notice, plus one (1) additional month for each full year of
employment with Employer after April 1, 2000 but shall not exceed a
total of eighteen (18) months.
The Executive agrees that such pay in lieu of notice will fully satisfy the
Employer's obligations at common law and no further payments will be owing to
him by the Employer or VGI. The parties have negotiated the duration of the
Severance Period and it forms part of the consideration given by the Executive
for his salary.
3.5 STATUTORY COMPLIANCE
Any payment under Section 3.4 is subject to deductions required by law and
includes any entitlement the Executive may have to notice of termination,
termination pay or severance under the EMPLOYMENT STANDARDS ACT (Ontario) or any
similar legislation. The Executive shall have no claim against the Employer or
VGI for any further liability to make payments in connection with the
termination of the Executive's employment, other than those arising from Section
3.4 of this Agreement.
- 11 -
3.6 RESIGNATION
The employment of the Executive may be terminated by the Executive for any
reason upon prior written notice to the Employer of one hundred and eighty (180)
days.
3.7 RETURN OF EMPLOYER PROPERTY
Upon termination of employment for whatever reason, the Executive will promptly
return to the Employer, in good condition, all items of any and every nature or
kind used by him in the course of his employment, or otherwise furnished to him
by the Employer or VGI, including without limitation all equipment, credit
cards, computers, cellular phones, fax machines, books, records, reports, files,
manuals, literature, software, confidential information or other materials
belonging to the Employer or an affiliated company.
3.8 BENEFIT TERMINATION
Upon termination of employment, all benefits provided under this Agreement shall
cease as permitted by applicable employment standards legislation, provided that
if the Executive's employment is terminated by the Employer under Section 3.4,
benefits provided under this Agreement shall continue for the duration of the
Severance Period.
ARTICLE 4
GRANT OF OPTIONS TO PURCHASE COMMON SHARES OF VGI
4.1 THE FIRST OPTION
The Executive was granted an option (the "First Option") by VGI on April 1, 1999
to purchase fifty thousand (50,000) common shares of VGI at an exercise price of
U.S. nine dollars, ten cents (US $9.10) per share. Subject to Article 5 and the
provisions of the attached Escrow Agreement, the Executive has the right to
exercise the First Option with respect to all or any part of the shares subject
to the First Option at any time or times prior to the close of business on March
31, 2009. In accordance with the provisions of the Escrow Agreement, one
thousand three hundred
- 12 -
and eighty eight (1,388) shares shall be released from escrow on the first day
of every calendar month between May 1, 1999 and March 1, 2002 and the remaining
one thousand four hundred and twenty (1,420) shares shall be released from
escrow on April 1, 2002.
4.2 THE SECOND OPTION
The Executive was granted an additional option (the "Second Option") by VGI on
July 7, 1999, to purchase four hundred thousand (400,000) common shares of VGI
at an exercise price of U.S. eleven dollars (US $11.00) per common share.
Subject to the provisions of Article 5 and the attached Escrow Agreement, the
Executive has the right to exercise the Second Option with respect to all or any
part of the shares subject to the Second Option at any time or times prior to
the close of business on July 6, 2009. In accordance with the provisions of the
Escrow Agreement, one hundred thousand (100,000) shares shall be released from
escrow on July 7, 2000, eight thousand three hundred and thirty three (8,333)
shares shall be released from escrow on each of August 7, 2000 and the seventh
day of every calendar month thereafter until June 7, 2003, and eight thousand
three hundred and forty five (8,345) shares shall be released from escrow on
July 7, 2003.
4.3 THE ESCROW AGREEMENT
Subject to Article 5, the First Option and the Second Option (collectively, the
"Options") and all shares issued upon the exercise of the Options shall be held
subject to the escrow agreement attached hereto as Schedule "A" (the "Escrow
Agreement").
ARTICLE 5
EFFECT OF TERMINATION OF EMPLOYMENT ON THE FIRST OPTION AND THE SECOND
OPTION
5.1 TERMINATION
(a) The First Option.
- 13 -
(i) Subject to Section 5.3:
(A) if the Executive resigns employment with the Employer
prior to April 1, 2002, or is terminated for Cause in
accordance with Section 3.3, the Executive shall be
entitled only to receive those shares issued or issuable
upon exercise of the First Option that have been
released from escrow pursuant to the Escrow Agreement on
or before the date of termination.
(B) if the Executive is terminated without Cause prior to
April 1, 2000, the Executive shall be entitled to
receive those shares issued or issuable upon exercise of
the First Option that have been released from escrow
pursuant to the Escrow Agreement on or before the date
of termination, plus those shares that would have been
released from escrow pursuant to the Escrow Agreement
had the Executive continued to be employed beyond the
date of termination for the number of months in the
Severance Period plus an additional six (6) months (and
those shares that would have been released from escrow
pursuant to the Escrow Agreement during such period
shall be deemed to have been released from escrow
pursuant to the Escrow Agreement in such circumstances
for all purposes of this Agreement and the Escrow
Agreement);
(C) if the Executive is terminated without Cause after April
1, 2000, the Executive shall be entitled to receive
those shares issued or issuable upon exercise of the
First Option that have been released from escrow
pursuant to the Escrow Agreement on or before the date
of termination, plus those shares that would have been
released from escrow pursuant to the Escrow Agreement
had the Executive continued to be employed beyond the
date of termination for the number of months in the
Severance Period (and those shares that would have been
released from escrow pursuant to the Escrow Agreement
during such period shall be deemed to have been released
from escrow pursuant to the Escrow Agreement in such
circumstances for all purposes of this Agreement and the
Escrow Agreement);
(D) to the extent of the portion of the First Option that
has not been exercised for the full number of shares
which may be released from escrow pursuant to the Escrow
Agreement to the Executive in accordance with the
provisions of this Subsection 5.1(a), that portion of
the First Option will remain exercisable and the
remaining portion of the First Option will be cancelled;
and
(E) If the Executive's employment is terminated, VGI shall
have the right to purchase for cancellation for a price
equivalent to the exercise price paid by the Executive
any shares issued pursuant to the exercise of the First
Option which have not been released from
- 14 -
escrow pursuant to the Escrow Agreement (taking into
account the terms of this Section).
(b) The Second Option.
(i) Subject to Section 5.3:
(A) if the Executive resigns employment with the Employer or
is terminated for Cause in accordance with Section 3.3
prior to July 7, 2000, the Executive shall have no right
to purchase any shares pursuant to the Second Option and
the Second Option will expire on the date of such
resignation or termination;
(B) if the Executive resigns employment with the Employer,
or is terminated for Cause in accordance with Section
3.3 on or after July 7, 2000 and prior to July 7, 2003,
the Executive shall be entitled to receive those shares
issued or issuable upon exercise of the Second Option
that have been released from escrow pursuant to the
Escrow Agreement on or before the date of termination;
and
(C) if the Executive is terminated by the Employer without
Cause prior to July 7, 2003, he shall be entitled to
receive those shares issued or issuable upon exercise of
the Second Option that have been released from escrow
pursuant to the Escrow Agreement on or before the date
of termination plus those shares that would have been
released from escrow pursuant to the Escrow Agreement
had the Executive continued to be employed beyond the
date of termination for the number of months in the
Severance Period (and those shares that would have been
released from escrow pursuant to the Escrow Agreement
during such period shall be deemed to have been released
from escrow pursuant to the Escrow Agreement in such
circumstances for all purposes of this Agreement and the
Escrow Agreement);
(D) to the extent of the portion of the Second Option that
has not been exercised for the full number of shares
which may be released from escrow pursuant to the Escrow
Agreement to the Executive in accordance with the
provisions of this Subsection 5.1(b), that portion of
the Second Option will remain exercisable and the
remaining portion of the Second Option will be
cancelled; and
(E) If the Executive's employment is terminated, VGI shall
have the right to purchase for cancellation for a price
equivalent to the exercise price paid by the Executive
any shares issued pursuant to the exercise of the Second
Option which have not been released from escrow pursuant
to the Escrow Agreement (taking into account the terms
of this Section).
- 15 -
5.2 ADDITIONAL OPTIONS
Additional options may be granted to Executive by Employer from time to time on
a performance basis, at the sole discretion of Employer.
5.3 ACCELERATED RELEASE FROM ESCROW
The Escrow Agreement provides for an immediate release from escrow upon a Change
of Control in certain circumstances. For purposes of this Agreement and the
Escrow Agreement, a "Change of Control" shall mean:
(a) any transaction or series of related transactions (including a
merger or consolidation) by a person or persons acting in concert or
combination as a result of which the holders of voting capital stock
of VGI immediately prior to such transaction(s) own less than fifty
percent (50%) of the outstanding voting capital stock of VGI
immediately subsequent to such transaction(s); or
(b) an agreement for the sale or disposition of all or substantially all
of the assets of VGI to an arm's length third party that is not an
affiliate of VGI;
provided that no Change of Control shall be deemed to have occurred for
purposes of this Agreement or the Escrow Agreement by virtue of any
transaction which results in the Executive or an entity in which the
Executive has a one-quarter of one percent (.25%) or greater equity
interest, either singly, or acting as a joint actor with a group of
entities or persons, becoming the beneficial owner, directly or indirectly
of twenty-five percent (25%) or more of the combined voting power of VGI's
voting securities.
5.4 STATUS OF AND PAYMENT FOR OPTIONS
The Options are issued pursuant to VGI's Employee Share Option Plan, as amended.
The Options are intended to qualify as "incentive stock options" under Section
422 of the Internal Revenue Code of 1986, as amended, to the extent that they
quality as such thereunder. Subject to applicable law, stock purchased upon
exercise of any of the Options may be paid for, and any withholding obligation
on the part of the Executive in connection with the exercise of any of the
Options may be satisfied, at the Executive's election:
(a) in cash or by cheque made payable to the order of VGI in the amount
of such exercise price or withholding obligation, as the case may
be;
- 16 -
(b) through the delivery of shares of stock of VGI having a fair market
value on the date of exercise equal to the amount of such exercise
price or withholding obligation, as the case may be;
(c) by delivery of an unconditional and irrevocable undertaking by a
broker to deliver promptly to VGI sufficient funds to pay the
exercise price or such withholding obligation, as the case may be;
(d) by the surrender for cancellation of options to purchase such
number of shares of stock of VGI as is equal to
(i) the amount of such exercise price or withholding obligation,
as the case may be, divided by
(ii) the fair market value on the date of exercise of one share
of stock inus the exercise price of one share of stock
under the option so ancelled; or
(e) by any combination of the above permissible forms of payment,
provided, however, that the Executive may not use shares issued or issuable upon
exercise of the Options in payment of the exercise price or satisfaction of the
withholding obligation, as the case may be, unless and until such shares have
been or are capable of being released from escrow pursuant to the Escrow
Agreement at the time of exercise or satisfaction. Whether or not they were ever
issued, the number of shares previously subject to the Escrow Agreement that
have, pursuant to this Section 5.4, been used as payment for the exercise price
or satisfaction of the withholding obligation, as the case may be, shall not
thereafter be available for release from escrow.
ARTICLE 6
CONTRACT PROVISIONS
6.1 HEADINGS
The headings of the Sections herein are inserted for convenience of reference
only and shall not affect the meaning or constructions hereof.
- 17 -
6.2 WITHHOLDING
All payments under this Agreement shall be subject to withholding of such
amounts, if any, relating to tax or other payroll deductions as the Employer may
reasonably determine and should withhold pursuant to any applicable law or
regulation.
6.3 COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to
be an original but all of which together shall constitute one and the same
instrument.
6.4 WAIVER
The failure of any party to enforce its rights under this Agreement at any time
for any period shall not be construed as a waiver of such rights and a waiver
shall only be construed as such if made in writing signed by a duly authorized
representative of the waiving party.
6.5 SEVERABILITY
If any provision of this Agreement or application of any such provision to any
person or circumstances shall be invalid under the law of any jurisdiction the
remainder of this Agreement or the application of such provision to persons or
circumstances other than those as to which it is invalid shall not be effected
thereby.
In the event a court of competent jurisdiction rules any provision of this
Agreement to be invalid, then such ruling shall have no effect on the remaining
provisions of this Agreement and they shall continue in full force and effect.
6.6 ENTIRE AGREEMENT
This Agreement, together with Schedules "A" and "B", contains the entire
contract of Employment between the parties hereto and supersedes and replaces
all previous negotiations,
- 18 -
understandings and agreements whether verbal or written with respect to any
matters herein referred to, including the agreement between the parties
effective April 1, 1999.
6.7 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
the Province of Ontario and the laws of Canada applicable therein. Each of the
parties hereby irrevocably attorns to the jurisdiction of the courts of the
Province of Ontario with respect to any matters arising out of this Agreement.
6.8 SURVIVAL
The provisions of Articles 2, 3, 4, and 5 hereof shall survive the termination
of this Agreement for the periods of time specified or contemplated therein.
6.9 DIRECTORS AND OFFICERS
If the Executive is a director or officer at the relevant time, the Executive
agrees that after termination of his employment with the Employer for any
reason, he will tender his resignation from any position he may hold as an
officer or director of the Employer or any of its affiliated or associated
companies.
6.10 TAX EQUALIZATION
The Employer agrees to pay a cost of living supplement, such supplement to
include an equalization payment to be made by the Employer in the event that the
net after tax income in respect of the Executive's employment pursuant to the
Secondment Agreement is less than the net after tax income which would have
resulted had the all the Executive's salary and any sums paid by way of bonus
been taxed only in the jurisdiction in which they would otherwise have been
taxed, but for the Executive's secondment pursuant to the Secondment Agreement.
Such
- 19 -
equalization payment shall be in an amount such that, after tax, it will equal
the shortfall in net after tax income.
ARTICLE 7
MISCELLANEOUS
7.1 NO BREACH OF THIRD PARTY AGREEMENT
The Executive covenants and acknowledges with the Employer that by entering into
this Agreement he will not be in breach of any agreement with any third party.
7.2 INDEMNIFICATION AGREEMENT
The Employer and Executive agree to enter into an Indemnification Agreement
attached hereto as Schedule "B".
7.3 ARBITRATION
Any dispute, controversy, claim or difference between the parties hereto arising
out of Article 3 including questions of fact, procedures, practices or standards
relevant to Article 3 of this Agreement which cannot be resolved or settled by
the parties, shall be settled and determined by arbitration. The provisions of
this Section shall be deemed to constitute a "submission" within the meaning of
the ARBITRATIONS ACT (Ontario) (the "Act") and the provisions of the Act, except
to the extent that a contrary intention is expressed herein, shall apply to any
arbitration hereunder. Either party may at any time give written notice to the
other of its desire to submit such dispute to arbitration stating with
reasonable particularity the subject matter of such dispute. Within five (5)
business days after receipt of such notice, the parties shall appoint a single
arbitrator with appropriate experience to determine such dispute. If the parties
fail to appoint an arbitrator either party may apply to a Judge of the Superior
Court of Ontario to appoint an arbitrator to determine such dispute. The
arbitrator so appointed shall forthwith proceed to arbitrate the dispute. The
award of the arbitrator shall be delivered to the parties within sixty (60) days
of his appointment.
- 20 -
The costs of the arbitration shall be paid as determined by the arbitrator.
Notwithstanding anything to the contrary contained in the Act, the award of the
arbitrator shall be final and binding upon the parties and all persons claiming
through or under them. An award of the arbitrator shall be in substitution for
and precludes either party or any person claiming through or under a party to
bring any suit, action or other proceeding in any court of law or equity against
either party or any person claiming through or under a party or against the
arbitrator in respect of any matter for which arbitration is herein provided.
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction and thereupon execution or other legal process may issue
thereon. The parties hereto and all persons claiming through or under them
hereby attorn to the jurisdiction of the arbitrator and to the jurisdiction of
any court in which the judgment may be entered. Arbitration may not be waived
except upon delivery by the parties of a written notice to that effect.
THIS Agreement is binding upon and is for the benefit of the parties and
their respective successors.
IN WITNESS OF WHICH the Parties have duly executed this Agreement.
VISIBLE GENETICS INC.
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
- 21 -
VISIBLE GENETICS CORPORATION
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
SIGNED, SEALED & DELIVERED
In the presence of:
------------------------------------- -----------------------------------
Witness Xxxxxxx Xxxx
SCHEDULE A
THIS ESCROW AGREEMENT is made July 7, 1999
AMONG:
XXXXXXX, SPRING, XXXXXXXX & KICHLER, Barristers
and Solicitors,
(the "Escrow Agent"),
-and-
VISIBLE GENETICS INC., a corporation duly
incorporated under the laws of the Province of
Ontario and having its head office in the City of
Toronto, in the Province of Ontario,
("VGI"),
- and -
VISIBLE GENETICS CORPORATION, a corporation duly incorporated under
the laws of the State of Delaware, and having its principal office
in the City of Pittsburgh, in the State of Pennsylvania,
(the "Employer")
-and-
XXXXXXX XXXX, an individual residing in the City
of San Francisco, in the State of California,
(the "Employee").
RECITALS:
A. The Employee has been granted an option (the "First Option") to purchase
Fifty Thousand (50,000) common shares in the capital of VGI effective
April 1, 1999.
B. The Employee has been granted an additional option (the "Second Option",
collectively, with the First Option, the "Options") to purchase Four
Hundred Thousand (400,000) common shares in the capital of VGI effective
July 7, 1999.
C. As a condition to acquiring the Shares (as defined below) the Employee is
required to enter into this Escrow Agreement on the terms and conditions
hereinafter set forth.
D. Each of the Employer and VGI agree to employ its best efforts to
ensure that the terms and conditions of this agreement are complied
with.
- 2 -
E. The Escrow Agent has agreed to undertake and perform its duties
according to the terms and conditions of this agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
aforesaid agreements, the mutual covenants and conditions herein contained and
other good and valuable consideration, the Employee covenants and agrees with
the Employer and VGI and the Employer and VGI and the Escrow Agent covenant and
agree with each other and with the Employee as follows:
1. In this Agreement:
"Shares" shall mean up to Fifty Thousand (50,000) common
shares of VGI issuable to the Employee upon the due exercise of the First
Option at U.S. nine dollars and ten cents (U.S. $9.10) per common share
and up to Four Hundred Thousand (400,000) common shares of VGI issuable to
the Employee upon the due exercise of the Second Option at U.S. eleven
dollars (U.S. $11.00) per common share.
2. Subject to the Employment Agreement effective July 7, 1999 (the
"Employment Agreement") between the Employer and the Employee, the Options and,
upon any exercise of the Options, the Shares issuable pursuant to such exercise,
shall be deposited in escrow with the Escrow Agent.
3. Subject to the Employment Agreement, Shares and Options to
purchase Shares will be released from escrow as follows:
(a) of the Fifty Thousand (50,000) Shares to be issued to the Employee
pursuant to the First Option, subject to subsection 3(d) of this
Agreement, one thousand three hundred and eighty eight (1,388)
Shares shall be released by the Escrow Agent, from the escrow hereby
created on the first day of every calendar month between May 1, 1999
and March 1, 2002, and the remaining one thousand four hundred and
twenty (1,420) Shares shall be released by the Escrow Agent from the
escrow hereby created on April 1, 2002;
(b) of the Four Hundred Thousand (400,000) Shares to be issued to the
Employee pursuant to the Second Option, subject to subsection 3(d)
of this Agreement, one hundred thousand (100,000) Shares shall be
released by the Escrow Agent, from the escrow hereby created, on
July 7, 2000, and eight thousand three hundred and thirty three
(8,333) Shares shall be released by the Escrow Agent, from the
escrow hereby created, on each of August 7, 2000 and the seventh day
of every calendar month thereafter until June 7, 2003, and eight
thousand three hundred and forty five (8,345) Shares shall be
released by the Escrow Agent, from the escrow hereby created, on
July 7, 2003;
(c) if, pursuant to the provisions of Section 5.1 of the Employment
Agreement, VGI purchases from the Employee Shares that have not yet
been released from escrow, VGI will pay to the Employee for such
Shares the amount paid by the Employee for such Shares; and
- 3 -
(d) upon the occurrence of a "Change of Control" (as defined in the
Employment Agreement):
(i) during the Employee's active employment by the Employer; or
(ii) within ninety (90) days of the date of termination of the
Employee's employment with the Employer for a reason other
than Cause (as defined in the Employment Agreement),
all Shares will be released from escrow immediately (and a Change of
Control described in (ii) shall be deemed to have occurred as of,
and the release of Shares from escrow shall be effective as of the
date of such termination of the Employee's employment with the
Employer).
4. (a) Until such time as any Shares are released from the escrow hereby
created, the parties hereto agree that the unreleased Shares and the
beneficial ownership or any interest in them shall not, subject to
this Agreement and the Employment Agreement, be able to be sold,
assigned, hypothecated, alienated, transferred, pledged, or
otherwise in any manner dealt with.
(b) The term "Shares" as used herein shall include any shares or other
securities or capital property which shall result from either:
(i) a consolidation, change, classification, reclassification or
subdivision, as the case may be, of any of the Shares; or
(ii) every organization, liquidation, dissolution, winding up,
amalgamation, merger, arrangement, continuation or
continuance, as the case may be, of VGI,
and in any such event, all such shares or other securities or
capital property and all certificates or other instruments or
documents representing any such shares or other securities or
capital property received in substitution for or in respect of the
Shares shall be immediately delivered to the Escrow Agent to be held
as part of the Shares on the terms and conditions herein set out.
5. Until such time as the Shares are released from the escrow hereby
created, the Employee hereby directs the Escrow Agent to retain the unreleased
Shares, and not to do or cause anything to be done to release the same from
escrow or to allow any transfer, hypothecation, or alienation thereof except in
accordance with the provisions hereof. The Escrow Agent hereby accepts the
responsibilities hereby placed on it and agrees to perform the same in
accordance with the terms hereof.
6. The Employee shall be entitled to all rights (including voting
rights and the right to receive any dividends which may be declared) attached to
the Shares except any of those rights which may be expressly abrogated by this
Agreement.
7. The Employer and VGI hereby acknowledge the terms and conditions
of this Agreement and agree to take all reasonable steps to facilitate its
performance.
- 4 -
8. The release from escrow of any of the Shares pursuant to the
terms of this Agreement shall terminate this Agreement only in respect to those
Shares so released.
9. Subject as herein provided, the Employee hereby irrevocably
appoints the Escrow Agent its attorney for the purpose of cancelling, selling,
assigning, or transferring any portion of the Shares upon receipt of any
consent, order or direction of VGI and for the purpose of executing any
necessary documents relating to such cancellation, selling, assignment or
transfer, and with authority to substitute one or more persons with like full
power. Such power is hereby declared by the Employee to be an irrevocable power
coupled with an interest and duty and shall survive any legal or mental
incapacity of the Employee.
10. Notice of any consent, order or direction of the Employer
affecting the Shares shall be given by the Escrow Agent to all persons or
parties affected thereby at their last known registered address.
11. The parties hereto agree that in consideration of the premises
and of the Escrow Agent agreeing to act in such capacity, the Employee and the
Employer and VGI do hereby jointly and severally covenant and agree from time to
time and at all times hereafter to well and truly save, defend and keep harmless
and fully indemnify the Escrow Agent, its successors, and assigns, from and
against all loss, costs, charges, suits, demands, claims, damages and expenses
which the Escrow Agent, its successor or assigns, may at any time or times
hereafter bear, sustain, suffer or be put into for or by reason or on account of
its acting as Escrow Agent or anything in any manner relating thereto or by
reason of the Escrow Agent's compliance in good faith with the terms hereof.
12. It is further agreed by and between the parties hereto, and
without restricting the generality of the foregoing indemnity, that in case
proceedings should hereafter be taken in any Court respecting the Shares, the
Escrow Agent shall not be obliged to defend any such action or submit its rights
to the Court until it shall have been indemnified by other good and sufficient
security in addition to other indemnity hereinbefore given against its costs of
such proceedings.
13. Wherever the singular or masculine are used throughout this
agreement, the same shall be construed as being the plural or feminine or neuter
where the context so requires.
14. This Agreement shall enure to the benefit of and be binding upon
the parties hereto, their and each of their heirs, executors, administrators,
successors, and permitted assigns.
- 5 -
IN WITNESS OF WHICH the Parties have duly executed this Agreement.
XXXXXXX, SPRING, XXXXXXXX & KICHLER
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
VISIBLE GENETICS INC.
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
VISIBLE GENETICS CORPORATION
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
SIGNED, SEALED & DELIVERED
In the presence of:
------------------------------------- -----------------------------------
Witness Xxxxxxx Xxxx
SCHEDULE B
THIS INDEMNIFICATION AGREEMENT is made [DATE]
WITH
XXXXXXX XXXX
THIS AGREEMENT, made and entered into as of April lst, 1999 ("Agreement") by and
between VISIBLE GENETICS INC., a corporation formed under the laws of the
Province of Ontario (the "Company") and XXXXXXX XXXX ("Indemnitee").
RECITALS:
A. The Company is aware that competent and experienced persons are
increasingly reluctant to serve as directors or officers of
corporations unless they are protected by comprehensive liability
insurance and/or indemnification due to increased exposure to
litigation costs and risks resulting from their service to such
corporations and due to the fact that the exposure frequently bears
no reasonable relationship to the compensation of such directors and
officers;
B. Based upon their experience as business managers, the Board of
Directors of the Company (the "Board") has concluded that, to retain
and attract talented and experienced individuals to serve as
officers and directors of the Company, and to encourage such
individuals to take the business risks necessary for the success of
the Company, it is necessary for the Company to contractually
indemnify officers and director, and to assume for itself liability
for expenses and damages in connection with claims against such
officers and directors in connection with their service to the
Company;
C. Section 136 of the BUSINESS CORPORATIONS ACT of the Province of
Ontario under which the Company is organized ("Section 136")
empowers the Company to indemnify by agreement its officers,
directors, employees and agents, and persons who serve at the
request' of the Company, as directors, officers, employees or agents
of other corporations or enterprises; in addition, Section 136
expressly provides that the indemnification provided by Section 136
is not exclusive; and
D. The Company desires and has requested the Indemnitee to serve or continue
to serve as a director or officer of the Company free from undue concern
of claims for damages arising out of or related to such services to the
Company.
THEREFORE, the parties agree as follows:
ARTICLE 1
SERVICES BY INDEMNITEE
Indemnitee agrees to continue to serve as a director or officer of the Company,
subject to any agreement which may exist between the Company or any of its
subsidiaries and Indemnitee. Indemnitee may at any time and for any reason
resign from such position (subject to any other agreement or contractual
obligation or any obligation imposed by operation of law) 1?? in which
- 2 -
event the Company shall have no obligation under this Agreement to continue
Indemnitee in any such position.
ARTICLE 2
INDEMNIFICATION - GENERAL
The Company shall indemnify Indemnitee against Expenses (as hereinafter
defined), judgments, penalties, fines and amounts paid in settlement as provided
in this Agreement and to the fullest extent permitted by applicable law in
effect on the date hereof and to such greater extent as applicable law may
thereafter from time to time permit. The rights of Indemnitee provided under the
preceding sentence shall include, but shall not be limited to, the rights set
forth in the other Sections of this Agreement.
ARTICLE 3
PROCEEDINGS OTHER THAN PROCEEDINGS BY OR
IN THE RIGHT OF THE COMPANY
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 3 if, by reason of his Corporate Status (as hereinafter defined), he is,
or is threatened to be made, a party to any threatened, pending, or completed
Proceeding (as hereinafter defined), other than a Proceeding by or in the right
of the Company. Pursuant to this Section 3 Indemnitee shall be indemnified
against Expenses, judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by him or on his behalf in connection with such
Proceeding or any claim issue or matter therein, if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal Proceeding, had no reasonable
cause to believe his conduct was unlawful.
ARTICLE 4
PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 4 if, by reason of his Corporate Status, he is, or is threatened to be
made, a party to any threatened, pending or completed Proceeding brought by or
in the right of the Company to procure a judgment in its favour. Pursuant to
this Section, Indemnitee shall be indemnified against Expenses actually and
reasonably incurred by him or on his behalf in connection with such Proceeding
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company. Notwithstanding the foregoing, no
indemnification against such Expenses shall be made in respect of any claim,
issue or matter in such Proceeding as to which Indemnitee shall have been
adjudged to be liable to the Company if applicable law prohibits such
indemnification; provided, however, that if applicable law so permits,
indemnification against Expenses shall nevertheless be made by the Company in
such event if and only to the extent that the Ontario Court (General Division)
1?? or the Court in which such proceeding shall have been brought or is pending,
shall determine.
- 3 -
ARTICLE 5
INDEMNIFICATION FOR EXPENSES OF A WITNESS
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of his Corporate Status a witness in any Proceeding, he
shall be indemnified against all expenses actually and reasonably incurred by
him or on his behalf in connection therewith.
ARTICLE 6
ADVANCEMENT OF EXPENSES
The Company shall advance all reasonable Expenses incurred by or on behalf of
Indemnitee in connection with any Proceeding within twenty days after the
receipt by the Company of a statement or statements from Indemnitee requesting
such advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall reasonably
evidence the Expenses incurred by Indemnitee and shall include or be preceded or
accompanied by an undertaking by or on behalf of Indemnitee to repay any
Expenses advanced if it shall ultimately be determined that Indemnitee is not
entitled to be indemnified against such Expenses.
ARTICLE 7
PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION
To obtain indemnification under this Agreement, Indemnitee shall submit to the
Company a written request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and is reasonably necessary
to determine whether and to what extent Indemnitee is entitled to
indemnification. The Secretary of the Company shall, promptly upon receipt of
such a request for indemnification, advise the Board of Directors in writing
that Indemnitee has requested indemnification.
Upon written request by Indemnitee for indemnification pursuant to the first
sentence of Section 7(a) hereof, a determination, if required by applicable law,
with respect to Indemnitee's entitlement thereto shall be made in the specific
case: (i) if a Change in Control (as hereinafter defined) shall have occurred,
by Independent Counsel (as hereinafter defined) (unless Indemnitee shall request
that such determination be made by the Board of Directors or the stockholders,
in which case such determination shall be made by the person or persons or in
the manner provided for in clause (ii) or (iii) of this Section 7)) in a written
opinion to the Board of Directors, a copy of which shall be delivered to
Indemnitee; (ii) if a Change of Control shall not have occurred, (A) by the
Board of Directors by a majority vote of a quorum consisting of Disinterested
Directors (as hereinafter defined), or (B) if a quorum of the Board of Directors
consisting of Disinterested Directors is not obtainable or, even if obtainable,
such quorum of Disinterested Directors so directs, by Independent Counsel in a
written opinion to the Board of Directors, a copy of which shall be delivered to
Indemnitee, or (C) by the stockholders of the Company; or (iii) as provided in
Section 8(b) of this Agreement; and, if it is so determined that Indemnitee is
entitled to indemnification, payment to Indemnitee shall be made within ten (10)
days after *' determination. Indemnitee shall cooperate with the person, persons
or entity making such determination with respect to Indemnitee's entitlement to
indemnification, including providing to such person, persons or entity upon
reasonable advance request any documentation or Information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such determination. Any
costs
- 4 -
or expenses (including attorneys' fees and disbursements) incurred by Indemnitee
in so cooperating with the person, persons or entity making such determination
shall be borne by the Company (irrespective of the determination as to
Indemnitee's entitlement to indemnification) and the Company hereby indemnifies
and agrees to hold Indemnitee harmless therefrom.
In the event the determination of entitlement to indemnification is to be made
by Independent Counsel pursuant to Section 7) hereof, Independent Counsel shall
be selected as provided in this Section 7(c). If a Change of Control shall not
have occurred, Independent Counsel shall be selected by the Board of Directors,
and the Company shall give written notice to Indemnitee advising him of the
identity of Independent Counsel so selected. If a Change of Control shall have
occurred, Independent Counsel shall be selected by Indemnitee (unless Indemnitee
shall request that such selection be made by the Board of Directors, in which
event the preceding sentence shall apply), and Indemnitee shall give written
notice to the Company advising it of the identity of Independent Counsel so
selected. In either event, Indemnitee or the Company, as the case may be, may,
within seven (7) days after such written notice of selection shall have been
given, deliver to the Company or to Indemnitee, as the case may be, a written
objection to such selection. Such objection may be asserted only on the ground
that Independent Counsel so selected does not meet the requirements of
"Independent Counsel", as defined in Section 16 of this Agreement, and the
objection shall set forth with particularity the factual basis of such
assertion. If such written objection is made, Independent Counsel so selected
may not serve as Independent Counsel unless and until a Court of competent
jurisdiction has determined that such objection is without merit. If, within
twenty (20) days after submission by Indemnitee of a written request for
indemnification pursuant to Section 7(a) hereof, no Independent Counsel shall
have been selected and not objected to, either the Company or Indemnitee may
petition the Ontario Court (General Division) or other court of competent
jurisdiction for resolution of any objection which shall have been made by the
Company or Indemnitee to the other's selection of Independent Counsel and/or for
the appointment as Independent Counsel of a person selected by the Court or by
such other person as the Court shall designate, and the person with respect to
whom an objection is so resolved 6r the person so appointed shall act as
Independent Counsel under Section 7) hereof. The Company shall pay any and all
reasonable fees and expenses of Independent Counsel incurred by such Independent
Counsel in connection with acting pursuant to Section 7) hereof, and the Company
shall pay all reasonable fees and expenses incident to the procedures of this
Section 7(c), regardless of the manner in which such Independent Counsel was
selected or appointed. Upon the due commencement of any judicial proceeding or
arbitration pursuant to Section 9(a)(iii) of this Agreement, Independent Counsel
shall be discharged and relieved of any further responsibility in such capacity
(subject to the applicable standards of professional conduct then prevailing).
ARTICLE 8
PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS
If a Change of Control shall have occurred, in making a determination with
respect to entitlement to indemnification hereunder, the person or persons or
entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request
for indemnification in accordance with Section 7(a) of this Agreement, and
the Company shall have the burden of proof to overcome that presumption in
connection with the making by any person, persons or entity of any
determination contrary to that presumption.
- 5 -
If the person, persons or entity empowered or selected under Section 8 of this
Agreement to determine whether Indemnitee is entitled to indemnification shall
not have made a determination within 60 days after receipt by the Company of the
request therefor, the requisite determination of entitlement to indemnification
shall be deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent (i) a misstatement by Indemnitee of a material fact, or
an omission of a material fact necessary to make Indemnitee's statement not
materially misleading, in connection with the request for indemnification, or
(ii) a prohibition of such indemnification, under applicable law; provided,
however, that such sixty (60)-day period may be extended for a reasonable time,
not to exceed an additional thirty (30) days, if the person, persons or entity
making the determination with respect to entitlement to indemnification in good
faith requires such additional time for the obtaining or evaluating of
documentation and/or information relating thereto) and provided further, that
the foregoing provisions of this Section 8) shall not apply (i) if the
determination of entitlement to indemnification is to be made by the
stockholders pursuant to Section 7) of this Agreement and if (A) within fifteen
(15) days after receipt by the Company of the request for such determination the
Board of Directors has resolved to submit such determination to the stockholders
for their consideration at an annual meeting thereof to be held within
seventy-five (75) days after such receipt and such determination is made there
at, or (B) a special meeting of stockholders is called within fifteen (15) days
after such receipt for the purpose of making such determination, such meeting is
held within sixty (60) days after having been so-called and such determination
is made there at, or (ii) if the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to Section 7) of this Agreement.
The termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not (except as otherwise expressly provided in this
Agreement) of itself adversely affect the right of Indemnitee to indemnification
or create a presumption that Indemnitee did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any criminal proceeding, that
Indemnitee had reasonable cause to believe that his conduct was unlawful.
ARTICLE 9
REMEDIES OF INDEMNITEE
In the event that (i) a determination is made pursuant to Section 7 of this
Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 6
of this Agreement, (iii) the determination of entitlement to indemnification is
to be made by Independent Counsel pursuant to Section 7) of this Agreement and
such determination shall not have been made and delivered in a written opinion
within 90 days after receipt by the Company of the request for indemnification,
or (iv) payment of indemnification is not made pursuant to Section 5 of this
Agreement within ten (10) days after receipt by the Company of a written request
therefore, or (v) payment of indemnification is not made within ten (10) days
after a determination has been made that Indemnitee is entitled to
indemnification or such determination is deemed to have been made pursuant to
Sections 7 or B of this Agreement, Indemnitee shall be entitled to an
adjudication in an appropriate court of the Province of Ontario, or in any other
court of competent jurisdiction, of his entitlement to such indemnification or
Advancement of Expenses. Alternatively, Indemnitee, at his option, may seek an
award in arbitration to be conducted by a single arbitrator
- 6 -
pursuant to the provisions of the Arbitrations Act (Ontario). Indemnitee shall
commence such proceeding seeking an adjudication or an award in arbitration
within one hundred and eighty (180) days following the date on which Indemnitee
first has the right to commence such proceeding pursuant to this Section 9(a).
The Company shall not oppose Indemnitee's right to seek adjudication or award in
arbitration.
In the event that a determination shall have been made pursuant to Section 7 of
this Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this Section 9 shall be
conducted in all respects as a de novo trial, or arbitration, on the merits and
Indemnitee shall not be prejudiced by reason of that adverse determination. If a
Change of Control shall have occurred, in any judicial proceeding or arbitration
commenced pursuant to this Section 9 the Company shall have the burden of
proving that Indemnitee in not entitled to indemnification or advancement of
Expenses, as the case may be.
If a determination shall have been made or deemed to have been made pursuant to
Section 7 or 8 of this Agreement that Indemnitee is entitled to indemnification,
the Company shall be bound by such determination in any judicial proceeding or
arbitration commenced pursuant to this Section 9, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary to
make Indemnitee's statement not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification under
applicable law.
The Company shall be precluded from asserting in any judicial proceeding or
arbitration commenced pursuant to this Section 9 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court or before any such arbitrator that the Company is
bound by all the provisions of this Agreement.
In the event that Indemnitee, pursuant to this Section 91 seeks a judicial
adjudication of or an award in arbitration to enforce his rights under, or to
recover damages for breach of, this Agreement, Indemnitee shall be entitled to
recover from the Company, and shall be indemnified by the Company against, any
and all expenses (of the types described in the definition of Expenses in
Section 16 of this Agreement) actually and reasonably incurred by him in such
judicial adjudication or arbitration, but only if he prevails therein. If it
shall be determined in such judicial adjudication or arbitration that Indemnitee
is entitled to receive part but not all of the indemnification or advancement of
Expenses sought, the expenses incurred by Indemnitee in connection with such
judicial adjudication or arbitration shall be appropriately prorated.
ARTICLE 10
NON-EXCLUSIVITY: SURVIVAL OF RIGHTS: INSURANCE: SUBROGATION
The rights of indemnification and to receive advancement of Expenses as provided
by this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may at any time be entitled under applicable law, the Amended and
Restated Articles of Incorporation, the Amended and Restated By-laws, any
agreement, a vote of stockholders or a resolution of directors, or otherwise. No
amendment, alteration or termination of this Agreement or any provision hereof
shall be effective as to any Indemnitee with respect to any action taken or
omitted by such Indemnitee in his Corporate Status prior to such amendment,
alteration or termination.
- 7 -
To the extent that the Company maintains an insurance policy or policies
providing liability insurance for directors, officers, employees, agents or
fiduciaries of the Company or of any other corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or other
enterprise which such person serves at the request of the Company, Indemnitee
shall be covered by such policy or policies in accordance with its or their
terms to the maximum extent of the coverage available for any such director,;
officer, employee or agent under such policy or policies.
In the event of any payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of
Indemnitee, who shall execute all papers required and take all action necessary
to secure such rights, including execution of such documents as are necessary to
enable the Company to bring suit to enforce such rights.
The Company shall not be liable under this Agreement to make any payment of
amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee
has otherwise actually received such payment under any insurance policy,
contract, agreement or otherwise.
ARTICLE 11
DURATION OF AGREEMENT
This Agreement shall continue until and terminate upon the later of: (a) ten
(10) years after the date that Indemnitee shall have ceased to serve as director
or officer, or (b) the final termination of all pending Proceedings in respect
of which Indemnitee is granted rights of indemnification or advancement of
Expenses hereunder and of any proceeding commenced by Indemnitee pursuant to
Section 9 of this Agreement relating thereto. This Agreement shall be binding
upon the Company and its successors and assigns and shall inure to the benefit
of Indemnitee and his heirs, executors and administrators.
ARTICLE 12
SEVERABILITY
If any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (a)the validity, legality
and enforceability of the remaining provisions of this Agreement (including,
without limitation, each portion of any Section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby; and ) to the fullest extent possible, the provisions of this Agreement
(including without limitation, each portion of any Section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable that
is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
ARTICLE 13
EXCEPTION TO RIGHT OF INDEMNIFICATION OR
ADVANCEMENT OF EXPENSES
Notwithstanding any other provision of this Agreement, Indemnitee shall not be
entitled to indemnification or advancement of Expenses under this Agreement with
respect to any Proceeding or any claim therein brought or made by him against
the Company.
- 8 -
ARTICLE 14
IDENTICAL COUNTERPARTS
This Agreement may be executed in one or more counterparts each of which shall
for all purposes be deemed to be an original but all of which together shall
constitute one and the same Agreement. Only one such counterpart signed by the
party against whom enforceability is sought needs to be produced to evidence the
existence of this Agreement.
ARTICLE 15
HEADINGS
The headings of the paragraphs of this Agreement are inserted for convenience
only and shall not be deemed to constitute part of this Agreement or to affect
the construction thereof.
ARTICLE 16
DEFINITIONS
For purposes of this Agreement:
"CHANGE IN CONTROL" means a change in control of the Company occurring
after the Effective Date of a nature that would be required to be reported
in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response
to any similar item on any similar schedule or form) promulgated under the
UNITED STATE SECURITIES EXCHANGE ACT of 1934 (the "Act") whether or not
the Company is then subject to such reporting requirement; provided,
however, that, without limitation, such a Change in Control shall be
deemed to have occurred if after the Effective Date (i) any "person" (as
such term is used in Section 33(d) and 14(d) of the Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Act) directly or
indirectly, of securities of the Company representing 25% or more of the
combined voting power of the Company's then outstanding securities without
the prior approval of at least two-thirds of the members of the Board of
Directors in office immediately prior to such person attaining such
percentage interest; (ii) the Company is a party to a merger,
consolidation, sale of assets or other reorganization or a proxy contest,
as a consequence of which members of the Board of Directors in office
immediately prior to such transaction or eye constitute less than a
majority of the Board of Director thereafter; or (iii) during any period
of two consecutive years, individuals who at `he beginning of much period
constituted the Board of Directors including for this purpose any new
director whose election or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of such
period) cease for any reason to constitute at least a majority of the
Board of Directors.
"CORPORATE STATUS" describes the status of a person who is or was a
director, officer, employee, agent or, fiduciary of the Company, or of any
other corporation, partnership, limited liability company, joint venture,
trust, employee benefit plan or other enterprise which such person is or
was serving at the request of the Company.
"DISINTERESTED DIRECTOR" means a director of the Company who is not and
was not a party to the Proceeding in respect; of which indemnification is
sought by Indemnitee.
- 9 -
"EFFECTIVE DATE" means April 1, l999.
"EXPENSES" shall include all reasonable attorney:' fees, retainers, court
costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing, and binding costs, telephone charges,
postage, delivery service fees, and all other disbursements or expenses of
the types customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, or being or preparing to
be a witness in a Proceeding.
"INDEPENDENT COUNSEL" means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently is, nor in
the past five years has been retained to represent: (i) the Company or
Indemnitee in any matter material to either such party, or (ii) any other
party to the proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, `he term `Independent Counsel'
shall not include any Person who, under the applicable standards of
professional conduct then prevailing would have a conflict of interest in
representing either the Company or Indemnitee in an action to determine
Indemnitee's rights under this Agreement.
"PROCEEDING" includes any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding whether civil, criminal, administrative or investigative,
except one initiated by Indemnitee pursuant to Section 9 of this Agreement
to enforce his rights under this Agreement.
ARTICLE 17
MODIFICATION AND WAIVER
No supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by both of the parties hereto. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
ARTICLE 18
NOTICE BY INDEMNITEE
Indemnitee agrees promptly to notify the Company in writing upon being served
with any summons, citation, subpoena, complaint, indictment, information or
other document relating to any Proceeding or matter which may be subject to
indemnification or advancement of Expenses covered hereunder.
ARTICLE 19
NOTICES
All notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if (i) delivered by hand and
receipted for by the party to whom said notice or other communication shall have
been directed, or (ii) mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so mailed:
- 10 -
(a) If to Indemnitee, to:
his address indicated on the signature page hereof
(b) If to the Company to:
Visible Genetics Inc.
000 Xxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
Xxxxxx MSG 1
or such other address as may have been furnished to Indemnitee by the Company or
to the Company by Indemnitee, as the case may be.
ARTICLE 20
GOVERNING LAW
The parties agree that this Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the Province of Ontario.
ARTICLE 21
MISCELLANEOUS
Use of the masculine pronoun shall be deemed to include usage of the feminine
pronoun where appropriate.
IN WITNESS OF WHICH the Parties have duly executed this Agreement.
VISIBLE GENETICS INC.
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
SIGNED, SEALED & DELIVERED
In the presence of:
------------------------------------- -----------------------------------
Witness Xxxxxxx Xxxx
