THIS AGREEMENT made as of the 11th day of January, 2006 SETTLEMENT AGREEMENT & RELEASE
THIS
AGREEMENT made as of the 11th day of January, 2006
SETTLEMENT
AGREEMENT & RELEASE
BETWEEN:
ASPREVA
PHARMACEUTICAL CORPORATION
1201-4464
Xxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxx Xxxxxxxx
(Hereinafter
called the "Company")
AND:
XXXXXX
XXXXXX
Xxxxxxxx,
BC
(hereinafter
called "Xx. Xxxxxx")
BACKGROUND
FACTS
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A.
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Pursuant
to his employment agreement, dated December 7, 2004, (the “Employment
Agreement”) Xx. Xxxxxx commenced employment with the Company on 20th
January, 2005, as Senior Vice President, Global Life Cycle
Management.
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B.
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Xx.
Xxxxxx relocated to Victoria from Pennsylvania. Pursuant to the
Employment
Agreement, the Company provided him with a relocation allowance.
The
Company will provide further reimbursement to Xx. Xxxxxx to assist
him to
relocate back to the United States.
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C.
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The
Company has advised Xx. Xxxxxx that his employment will be terminated
for
business reasons, without cause, effective 12th
July, 2006. Until that time, Xx. Xxxxxx will be on a leave of absence
and
the terms and conditions that govern his employment during that
time and
the subsequent termination of his employment are exhaustively set
out in
this agreement.
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D.
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The
Company and Xx. Xxxxxx wish to enter into this Settlement Agreement
to
settle conclusively all issues and disputes arising out of Xx.
Xxxxxx’x
employment with the Company and the termination of Xx. Xxxxxx’x employment
by the Company.
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THIS
AGREEMENT WITNESSES THAT in consideration of the promises and the mutual
covenants herein contained, the parties do hereby agree with each other as
follows:
Leave
of Absence and Termination of Employment
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1.
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Xx.
Xxxxxx will be on a leave of absence from the Company from January
11,
2006 until July 12, 2006, (the “Leave of Absence”). During this time, Xx.
Xxxxxx will remain an employee of the Company but will not be required
to
report to work or to provide any other service to the
Company.
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2.
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Xx.
Xxxxxx’x employment with the Company will end on July 12,
2006.
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3.
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Xx.
Xxxxxx agrees that the terms and conditions of this Agreement meet
all
obligations that the Company has to Xx. Xxxxxx during the Leave of
Absence
and arising out of the termination of Xx. Xxxxxx’x employment (whether
these obligations arise out of the Employment Agreement or otherwise),
and
that Xx. Xxxxxx is not entitled to any compensation from the Company
that
is not provided for in this
Agreement.
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4.
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The
Company will not inform Citizenship and Immigration Canada, Service
Canada
(previously "Human Resources & Skills Development Canada"), including
Regional Shared Services, Employer Services, the Canada Border Services
Agency or the Department of Foreign Affairs, including any Canadian
Consulate General, Canadian Embassy or Canadian High Commission of
the
cessation of Xx. Xxxxxx’x employment, unless required to do so by law in
which case Aspreva will notify Xx. Xxxxxx as soon as
practical.
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Payment
by the Company to Xx. Xxxxxx
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0.
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The
Company will provide Xx. Xxxxxx with the following compensation,
on or
before February 24, 2006:
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a.
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Pursuant
to Article 18 of the Employment Agreement, a lump sum payment in
the
amount equivalent to six (6) months of base salary, less all applicable
statutory deductions. The total gross amount of six months base salary
is
$165,000.00.
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b.
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A
lump sum payment in the amount equivalent to 11 days’ wages of outstanding
vacation pay to which Xx. Xxxxxx is entitled, less applicable statutory
deductions. The gross total amount of 11 days’ wages is
$13,961.53.
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c.
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A
lump-sum payment in the gross amount of $39,600.00 in lieu of any
bonus
payment.
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d.
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A
lump-sum payment of $25,000.00 to cover expenses incurred by Xx.
Xxxxxx in
the relocation of his family and household to the United
States.
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e.
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Reimbursement
for any outstanding business-related expenses upon receipt of an
approved
expense reimbursement form.
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6.
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Xx.
Xxxxxx understands that the Company will withhold income tax and
other
statutory deductions from the gross settlement amount, and Xx. Xxxxxx
hereby indemnifies and holds the Company harmless in respect of any
further assessment made against the Company for additional income
tax or
other statutory deductions that should have been made from the gross
settlement amount.
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Benefits
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7.
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The
Company will continue Xx. Xxxxxx’x enrolment in MSP, until the
31st
July, 2006 and his extended health, and dental plans until 12th
July, 2006, after which time Xx. Xxxxxx will no longer be enrolled
in
these plans. If Xx. Xxxxxx wishes to pursue the possibility of obtaining
personal MSP, extended health, and/or dental coverage, it is his
obligation to do so. Xx. Xxxxxx acknowledges that the Company has
no
obligation to him relating to MSP, extended health, and/or dental
coverage
after these dates.
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8.
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The
parties understand that Xx. Xxxxxx’x eligibility for short term and long
term disability insurance will end effective January 11, 2006, the
date
that Xx. Xxxxxx began the Leave of Absence. Accordingly, the parties
understand that Xx. Xxxxxx will no longer eligible for short term
or long
term disability insurance coverage. Xx. Xxxxxx acknowledges that
the
Company will have no obligation to him whatsoever relating to short
term
or long term disability insurance, including the fact that he will
no
longer be eligible for short term or long term disability
benefits.
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9.
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Xx.
Xxxxxx may have the right to convert his group life-insurance policy
to
his own personal policy. If Xx. Xxxxxx wishes to pursue this option,
he
acknowledges that it is entirely his obligation to pursue that matter
with
the insurer and arrange for this conversion himself. Xx. Xxxxxx
understands that there may be strict time deadlines with which he
must
comply if he wishes to pursue this conversion. Xx. Xxxxxx acknowledges
that the Company has no obligation to him whatsoever relating to
life
insurance.
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Career
Counseling
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10.
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The
Company will arrange for Xx. Xxxxxx, mutually acceptable outplacement
services up to a maximum cost of $5,000.
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Stock
Options
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11.
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Notwithstanding
Article 12 of the Employment Agreement, the Company will allow Xx.
Xxxxxx’x Stock Options to continue to vest throughout the period of his
leave of absence. For greater clarity, Xx. Xxxxxx’x options will continue
to vest (at the rate of 7,133 per month for 6 months) in the ordinary
course as though he were an active employee until 12th
July, 2006, after which time no further options will vest.
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12.
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The
Company will allow Xx. Xxxxxx to continue to exercise his options
with the
assistance of Xxxxxxx Xxxxx under the existing “10B-5 Plan” and in the
same manner as when he was an active employee, until July 12, 2006.
The
existing Plan will be reinstated by the Company on or before February
10,
2006.
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Xx.
Xxxxxx’x Ongoing Obligations Under the Employment Agreement and Confidentiality
Agreement and Assignment of Inventions
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13.
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Xx.
Xxxxxx agrees that he will honour and continues to be bound by Sections
22
(Confidentiality and Assignment of Inventions), 25 (Provisions
Reasonable), 26 (Restrictive Covenant), 27 (Remedies), 34 (Surviving
Obligations), and Schedule C (Confidentiality Agreement and Assignment
of
Inventions), of the Employment Agreement. With respect to Section
2.6 of
the Confidentiality Agreement and Assignment of Inventions, Xx. Xxxxxx
represents that he has returned to the Company, without making any
copies,
all items referred to in Section 2.6 and any other property belonging
to
the Company which he had in his possession. Xx. Xxxxxx further covenants
that if any other Company property comes into his possession, he
will
immediately return it to the Company without making any
copies.
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Confidentiality
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14.
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Xx.
Xxxxxx will keep this Settlement Agreement, and all of its terms,
strictly
confidential. Xx. Xxxxxx is only permitted to disclose the terms
of this
Settlement Agreement to his spouse and his legal and financial advisors,
or as otherwise required by law or ordered by a Court of competent
jurisdiction. If Xx. Xxxxxx breaches this confidentiality clause,
he
hereby acknowledges that the Company will suffer irreparable harm
by
virtue of the breach and he hereby consents to the Company seeking
injunctive relief to enforce this
clause.
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Release
Provisions and Related Covenants of Xx. Xxxxxx
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00.
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Xx.
Xxxxxx does hereby remise, release and forever discharge the Company
(which is defined throughout this Settlement Agreement to include
the
Company’s past and present officers, directors, servants, employees,
agents, shareholders, related or associated companies and entities,
and
their predecessors, heirs, executors, administrators, successors
and
assigns, as the case may be) of and from all liability, damages,
costs,
and expenses of any nature or kind arising out of or in connection
with
all events that have occurred between the Company and him up to and
including today’s date and
all events related to his employment with the Company and
all events related to the termination of his employment by the Company,
and without limiting the generality of the foregoing, Xx. Xxxxxx
remises,
releases, and forever discharges the Company of and from all liability,
damages, costs, and expenses of any nature or kind arising out of
or in
connection with any and all actions, claims, or complaints that he
ever
had, now has, or may in the future have against the Company for the
following: breach of contract; wrongful dismissal or constructive
dismissal; tort; moving or relocation expenses; misrepresentation;
negligent misrepresentation; bad faith discharge; any claim for damages
or
losses related to breach of the Human
Rights Code;
breach of the Employment
Standards Act;
breach of any other statute; loss of his position; loss of his status;
loss of future job opportunity for him; damage to his reputation;
loss of
opportunity to enhance his reputation; loss of bonus; loss of his
benefits; and/or loss of any stock options that would have vested
in the
future.
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16.
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Xx.
Xxxxxx hereby covenants that he will not from this date forward commence,
pursue, or maintain any proceedings against the Company relating
to any of
the actions, claims, or complaints described in paragraph 13 above.
Without limiting the generality of the foregoing, Xx. Xxxxxx hereby
covenants that he will not commence, pursue, or maintain an action
in
court against the Company, a complaint under the Human
Rights Code
against the Company, or a complaint under the Employment
Standards Act
against the Company that is in any way connected or related to his
employment with the Company, or the termination of his employment
by the
Company.
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17.
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If,
contrary to this Settlement Agreement, Xx. Xxxxxx does commence,
pursue,
or maintain any proceedings against the Company, he hereby irrevocably
consents to the Company relying on this provision in the Settlement
Agreement to obtain a stay or dismissal of such proceedings. Xx.
Xxxxxx
hereby irrevocably consents to such proceedings being stayed or
dismissed.
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18.
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Xx.
Xxxxxx acknowledges that he understands that the Company is providing
him
with the consideration described earlier in return for his covenants
and
commitments in this Settlement Agreement, and also to gain the certainty
that it will never have to defend itself against him in any of the
actions, claims, or complaints that are described in Paragraphs 15
and 16
above.
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General
Provisions
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19.
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If
any part or provision of this Settlement Agreement or its application
to
any circumstance is restricted, prohibited or unenforceable, such
part or
provision will be ineffective only to the extent of such restriction,
prohibition or unenforceability, and the remainder of the Settlement
Agreement will remain in full force and
effect.
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20.
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This
Settlement Agreement settles all disputes between Xx. Xxxxxx and
the
Company arising out of his employment with the Company and the termination
of his employment by the Company, including any complaint under the
Human
Rights Code or
the
Employment Standards Act.
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Settlement
Agreement between Aspreva Pharmaceutical Corporation and Xxxxxx Xxxxxx
Page
5
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21.
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The
law governing this Settlement Agreement is that of British Columbia,
and
the parties will resolve any disputes they have under this Settlement
Agreement in the courts of British
Columbia.
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22.
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The
parties will execute this Settlement Agreement in
counterparts.
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Settlement
Agreement between Aspreva Pharmaceutical Corporation and Xxxxxx Xxxxxx
Page 6
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23.
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Xx.
Xxxxxx has obtained independent legal advice about this Settlement
Agreement prior to signing it.
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IN
WITNESS WHEREOF the parties have entered into this Agreement effective the
date
first written above.
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Duly
executed on behalf of ASPREVA PHARMACEUTICAL CORPORATION
/s/
Xxxxxx Xxxxxxxx
Signature
of Witness
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/s/
Xxxxx X. Xxxxxxx
Authorized
Signatory
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/s/
Xxxxxx Xxxx
Signature
of Witness
Name Address Occupation |
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/s/
Xxxxxx Xxxxxx
XXXXXX XXXXXX |
Settlement
Agreement between Aspreva Pharmaceutical Corporation and Xxxxxx Xxxxxx
Page 7
