EMPLOYMENT AGREEMENT
EXHIBIT
4.3
MEMORANDUM
OF AGREEMENT
made at
Xxxxxxx, Xxxxxxx, as of July 30, 2002 (the “Effective Date”).
BETWEEN:
Tm
Bioscience Corporation,
a
corporation incorporated under the laws of the Province of Ontario,
(hereinafter
referred to as the “Corporation”)
AND:
Xxxx
Xxxxx,
residing in the Province of Ontario
(hereinafter
referred to as the “Executive”)
WHEREAS
the
Corporation presently employs the Executive as its Vice-President, Investor
Relations and Vice-President, Regulatory Affairs;
AND
WHEREAS
the
Corporation wishes to continue to employ the Executive in such capacity and
the
Executive wishes to continue such employment;
AND
WHEREAS
the
parties wish to set forth, in writing, the terms and conditions relating to
the
Executive’s employment relationship with the Corporation;
NOW,
THEREFORE,
for the
reasons set forth above, and in consideration of the mutual promises and
agreements hereinafter set forth and other good and valuable consideration
(the
receipt and sufficiency of which is hereby acknowledged), the Corporation and
the Executive agree as follows:
ARTICLE
1
INTERPRETATION
Section
1.1 Definitions
For
the
purpose of this Agreement, unless the context otherwise requires, the following
words or expressions shall have the following meanings:
“affiliate”
has
the
meaning given to that term in the Business
Corporations Act
(Ontario) as now in effect.
“associate”
has
the
meaning given to that term in the Business
Corporations Act
(Ontario) as now in effect.
“Board”
shall
mean the Board of Directors of the Corporation.
“Business”
shall
mean (i) the business of designing, manufacturing and marketing DNA
microarrays for applications in human healthcare consisting of screening and
diagnostics; (ii) any business hereafter conducted by the Corporation up to
the termination of the Executive’s employment; or (iii) any business that
the Corporation is in the process of developing (as reflected in a written
business or strategic plan of the Corporation) at the time of the termination
of
the Executive’s employment.
“Business
Day”
shall
mean any day of the year, other than a Saturday, Sunday or any statutory holiday
in Xxxxxxx, Xxxxxxx.
“Cause”
shall
mean:
| (a) |
the
failure or wilful refusal of the Executive to perform his duties
and
responsibilities hereunder as required under Section 2.2 of this
Agreement that is not cured by the Executive within ten (10) days
of
written notification thereof to Executive by the
Corporation;
|
| (b) |
any
fraudulent activity on the part of the Executive affecting the
Corporation;
|
| (c) |
the
conviction of the Executive for any crime concerning the property
of the
Corporation or the Executive’s personal honesty or
morality;
|
| (d) |
any
wilful and intentional act on the part of the Executive having the
effect
of materially injuring the reputation, business or business relationships
of the Corporation; or
|
| (e) |
any
other act or omission of the Executive which would in law permit
an
employer to, without notice or payment in lieu of notice, terminate
the
employment of an employee.
|
“Change
of Control”
shall
mean:
| (a) |
any
change in the holding of the shares in the capital of the Corporation
as a
result of which an Entity or Entities associated or affiliated with
any
such Entity within the meaning of the Business
Corporations Act
(Ontario), other than the Executive and his associates, becomes the
owner,
legal or beneficial, directly or indirectly, of fifty percent
(50%) or more of the shares in the capital of the Corporation or
exercises
control or direction over fifty percent (50%) or more of the shares
in the
capital of the Corporation, other than any such change in the holding
of
the shares in the capital of the Corporation caused, directly or
indirectly, by or as a result of more than one Entity or a group
of
Entities acting jointly or in concert (whether by means of a shareholder,
voting or similar agreement or otherwise), together with any other
Entities associated or affiliated with any such Entity in the group
of
Entities within the meaning of the Business
Corporations Act
(Ontario);
|
| (b) |
a
sale, lease or other disposition of all or substantially all of the
property or assets of the Corporation (other than to an affiliate
which
assumes all of the obligations of the Corporation to the Executive
including the assumption of this Agreement);
|
| (c) |
a
reorganization, amalgamation or merger (or plan of arrangement in
connection with any of the foregoing), other than solely involving
the
Corporation and one or more of its affiliates, with respect to which
substantially all of the persons who were the beneficial owners of
the
shares in the capital of the Corporation immediately prior to such
reorganization, amalgamation, merger or plan or arrangement do not,
following any such event, beneficially own, directly or indirectly,
more
than fifty percent (50%) of the aggregate voting power of all outstanding
equity shares of the Corporation;
or
|
| (d) |
a
change in the composition of the Board which occurs at a single meeting
of
the shareholders of the Corporation or upon the execution of a
shareholder’s resolution, such that individuals who are members of the
Board immediately prior to such meeting or resolution cease to constitute
a majority of the Board, without the Board, as constituted immediately
prior to such meeting or resolution, having approved of such
change.
|
2
“Change
of Control Notice Period”
shall
mean the period from the date on which the Executive was advised of the
termination
of his
employment equal to the Notice Period plus three (3) months to a maximum of
twenty-one (21) months.
“Confidential Information”
shall
mean all information owned, possessed or controlled by the Corporation
including, without limitation, all information related to developments,
inventions, concepts, design specifications, creations, treatments, computer
programs, methods, products, formula, formulations, hardwares or firmwares,
drawings, reports, memoranda, specimens, financial, scientific, technical,
manufacturing, process know how and marketing information and all names of
or
lists of clients and suppliers howsoever received by the Executive from, through
or relating to the Corporation and in whatever form (whether oral, written,
machine readable or otherwise), which pertains to the Corporation; provided,
however, that the phrase “Confidential Information” shall not include
information which:
| (a) |
was
in the public domain prior to the date of receipt by the
Executive;
|
| (b) |
is
properly within the legitimate possession of the Executive prior
to its
disclosure hereunder, and without any obligation of confidence attaching
thereto;
|
| (c) |
becomes
part of the public domain by publication or otherwise, not due to
any
unauthorized act or omission of the Executive;
|
| (d) |
after
disclosure, is lawfully received by the Executive from another Entity
who
is lawfully in possession of such Confidential Information and such
other
Entity was not restricted from disclosing the said information to
the
Executive;
|
| (e) |
is
approved, in writing, by the President for disclosure prior to its
actual
disclosure; or
|
| (f) |
the
Executive is required by law to disclose, provided that, unless prohibited
by law, the Executive first notifies the Corporation at the first
reasonable opportunity that he is required to disclose such Confidential
Information.
|
“Developments”
shall
mean any
idea,
invention, concept, design specification, creation, development, treatment,
computer program, method, process, apparatus, product, formula, formulation,
hardware or firmware, any drawing, report, memoranda, specimen, article,
literary work in connection with the Business, model, or letter and includes,
without limitation, derivative work, draft versions and parts thereof, disks,
tapes, files, listings, screen displays, enhancements and developments thereto,
user manuals, marketing materials, demonstration reels, technical manuals,
flow
charts, log books and all supportive documentation relating to the foregoing,
that:
| (a) |
result
or derive from the Executive’s employment or from the Executive’s
knowledge or use of Confidential
Information;
|
| (b) |
are
made, developed or conceived by the Executive, either solely or jointly
with others, during his employment, whether or not they were, are
or will
be made, developed or conceived during working
hours;
|
| (c) |
result
from or derive from the use or application of the resources of the
Corporation; or
|
| (d) |
relate
to the Business of the Corporation.
|
“Disability”
shall
mean the Executive’s inability to substantially fulfil his duties on behalf of
the Corporation for a continuous period of six (6) months or more or the
Executive’s inability to substantially fulfil his duties on behalf of the
Corporation
for an
aggregate period of six (6) months or more during any consecutive twelve (12)
month period. If there is any disagreement between the Corporation and the
Executive as to the Executive’s Disability or as to the date any such Disability
began or ended, the same shall be determined by a physician mutually acceptable
to the Corporation and the Executive. The determination by such physician shall
be conclusive evidence of any such Disability and of the date any such
Disability began or ended.
3
“Entity”
shall
mean any individual or other entity possessed of juridical personality,
including, without limitation, a corporation, company, co-operative,
partnership, trust, unincorporated association, affiliate or governmental body;
and pronouns when they refer to an Entity shall have a similarly extended
meaning.
“Existing
Customer”
shall
mean any Entity who, in the twelve (12) months preceding the date of termination
of the Executive’s employment hereunder for any reason, has (i) purchased
or licensed from the Corporation (with the Executive’s knowledge) any product
produced or service supplied, sold, licensed, or distributed by the Corporation,
or (ii) supplied to the Corporation (with the Executive’s knowledge) any
product to be produced, sold, licensed or distributed by the
Corporation.
“Good
Reason”
shall
mean:
| (a) |
any
change or series of changes in the responsibilities, status or reporting
relationship of the Executive with the Corporation such that immediately
after such change or series of changes the responsibilities or status
or
reporting relationship of the Executive are not at least substantially
equivalent to those assigned to the Executive immediately prior to
such
change or series of changes, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which
is
remedied by the Corporation promptly after receipt of notice thereof
given
by the Executive;
|
| (b) |
any
requirement by the Corporation that the Executive’s principal office be
relocated to a location which is more than 100 kilometres from his
then
current location, provided, that the Executive has not acquiesced
or
agreed to any relocation that is more than 100 kilometres from his
then
current location;
|
| (c) |
a
reduction by the Corporation in the Executive’s Base Salary, except as
part of a general reduction in the annual base salary of all or
substantially all of the senior executives of the Corporation which
affects the Executive in substantially the same manner as the other
senior
executives who are also affected by such general reduction;
|
| (d) |
the
taking of any action by the Corporation which would materially adversely
affect the Executive’s participation in or materially reduce the
Executive’s incentive compensation, pension, stock option, life insurance,
health, accident, disability benefits or other benefits in plans
in which
the Executive is participating, except in any such cases as part
of the
general reduction in benefits of all or substantially all of the
senior
executives of the Corporation which affects the Executive in substantially
the same manner as the other senior executives who are also affected
by
such reduction; or
|
| (e) |
any
material breach or non-observance by the Corporation of any material
provision of this Agreement, provided the Executive that has remained
uncured following a period of thirty (30) days following written
notice by
the Executive to the Corporation.
|
“Intellectual
Property Rights”
means
all worldwide intellectual and industrial property rights in connection with
the
Developments including, without limitation:
| (a) |
patents,
inventions, discoveries and
improvements;
|
| (b) |
ideas,
whether patentable or not;
|
| (c) |
copyrights;
|
| (d) |
trademarks;
|
| (e) |
trade
secrets; and
|
| (f) |
industrial
and artistic designs;
|
4
including
the right to apply for registration or protection of any of the foregoing,
and
includes proprietary, possessor and ownership rights and interests of all kinds
whatsoever.
“Notice
Period”
shall
mean the period from the date on which the Executive was advised of the
termination of his employment equal to seven (7) months plus one month per
completed year of service from the Effective Date to a maximum of eighteen
(18) months.
“Period”
means
the period commencing on the Effective Date and ending (i) twelve (12)
months following the date of termination of the Executive’s employment with the
Corporation for any reason other than a termination without Cause pursuant
to
Section 4.1(e), a termination for Good Reason pursuant to
Section 4.1(f) or a termination upon a Change of Control pursuant to
Section 4.3 of this Agreement; or (ii) at the expiry of the Notice
Period, if the Executive’s employment is terminated without Cause pursuant to
Section 4.1(e) or for Good Reason pursuant to Section 4.1(f) of this
Agreement; or (iii) at the expiry of the Change of Control Notice Period,
if the Executive’s employment is terminated upon a Change of Control pursuant to
Section 4.3 of this Agreement.
“Permitted Uses”
shall
mean the use of Confidential Information by the Executive in the performance
of
his duties prescribed in Section 2.2.
“President”
shall
mean the President and Chief Executive Officer of the Corporation.
“Prospective Customer”
shall
mean (i) any Entity solicited by the Executive on behalf of the Corporation
for any purpose relating to the Business at any time during the one (1) year
period immediately preceding the date of termination of the Executive’s
employment hereunder for any reason; and (ii) any Entity solicited by the
Corporation with the Executive’s knowledge for any purpose relating to the
Business at any time during the one (1) year period immediately preceding the
date of termination of the Executive’s employment hereunder for any
reason.
“Territory”
shall
mean Canada and the United States of America.
ARTICLE
2
SCOPE
OF EMPLOYMENT
Section
2.1 Term
The
Corporation hereby agrees to continue to employ the Executive, and the Executive
hereby accepts such continued employment in the position of Vice-President,
Investor Relations and Vice-President, Regulatory Affairs of the Corporation,
for an indefinite term until terminated in accordance with the terms and
conditions set forth in this Agreement.
Section
2.2 Duties
During
the term of this Agreement, the Executive shall:
| (a) |
perform
those duties and responsibilities necessary or incidental to the
functions
of Vice-President, Investor Relations and Vice-President, Regulatory
Affairs of the Corporation and any other duties as may be assigned
to him
from time to time by the Board;
|
| (b) |
faithfully
serve the Corporation and/or its affiliates and/or its associates,
devote
to the business and affairs of the Corporation the whole of his working
time, attention and ability, and ensure that he is not at any time
engaged
in conduct which would significantly interfere with the performance
of his
duties under this Agreement or which would constitute a conflict
with the
interests of the Corporation. The Executive shall use his best efforts
to
promote the interests of the Corporation and to improve and extend
the
business thereof;
|
| (c) |
(i) comply
with all applicable laws, rules and regulations, and all requirements
of
all applicable regulatory, self-regulatory and administrative bodies;
(ii) comply with the Corporation’s rules, procedures, policies,
requirements and directions; and (iii) not engage in any other
business or employment without the written consent of the Corporation
except as otherwise specifically provided
herein.
|
5
Section
2.3 Reporting
During
the term of this Agreement, the Executive shall report to the President unless
otherwise notified in writing by the Board. The Executive shall report on all
matters relating to work and conditions of service in a manner and at the
frequency as may be prescribed by the President from time to time.
ARTICLE
3
REMUNERATION
OF THE EXECUTIVE
Section
3.1 Remuneration
and Benefits
As
compensation for the performance by the Executive of his duties
hereunder:
| (a) |
the
Corporation shall pay to the Executive a base salary at the rate
of
$126,000 per annum (the “Base Salary”) or such higher rate as may be
determined from time to time by the President. Such Base Salary shall
be
paid in accordance with the Corporation’s standard payroll practices in
effect from time to time;
|
| (b) |
the
Executive shall be entitled to participate in all health and welfare
benefit plans for employees of the Corporation in effect from time
to
time;
|
| (c) |
the
Executive shall be eligible to participate in the Corporation’s pension
plan(s) for senior management in effect from time to
time;
|
| (d) |
in
respect of each full fiscal year, the Executive shall be eligible
to
participate in a performance based bonus plan for senior management
in
effect from time to time. Such participation shall not guarantee
any
entitlement under such bonus plan;
|
| (e) |
the
Corporation shall pay to the Executive a transportation allowance
in the
amount of $0.37 per kilometre (less statutory
deductions);
|
| (f) |
the
Executive shall be entitled to continue to participate in the
Corporation’s Incentive Share Option Plan in effect from time to time;
and
|
| (g) |
the
Corporation shall, upon presentation of itemized receipts, reimburse
the
Executive for all travel and other business expenses directly and
reasonably incurred by the Executive in the performance of his
duties.
|
Section
3.2 Vacation
During
each year of this Agreement, the Executive shall be entitled to a paid vacation
of four (4) weeks, to be taken at such time(s) mutually agreeable between the
Executive and the Corporation. It is the responsibility of the Executive to
ensure that his vacation is taken within the year in which it was accrued as
there shall be no carry over of any unused vacation entitlement to a subsequent
year.
ARTICLE
4
TERMINATION
Section
4.1 Termination
This
Agreement may be terminated, at any time, for the following
reasons:
| (a) |
by
the Corporation, for Cause;
|
| (b) |
in
the event of the death of the
Executive;
|
6
| (c) |
by
the Corporation, in the event of a material violation of this Agreement
(other than one constituting Cause) by the Executive where such violation
has not been cured within two (2) weeks of written notice thereof
by the
Corporation to the Executive;
|
| (d) |
in
the event of the Disability of the Executive;
|
| (e) |
by
the Corporation, without Cause and other than for the reasons in
subsections 4.1(b), (c) and
(d);
|
| (f) |
by
the Executive within thirty (30) days of the occurrence of any event
constituting Good Reason; and
|
| (g) |
by
the Executive, upon the expiration of three (3) months written notice
to
the Corporation.
|
Section
4.2 Payment
Upon Termination
In
the
event the Executive’s employment is terminated pursuant to Section 41., the
Executive shall only be entitled to the following compensation and benefits
upon
termination:
| (a) |
Should
this Agreement be terminated pursuant to Subsection 4.1(a), (c) or
(g), the Executive shall only be entitled to payment of the Executive’s
Base Salary earned up to the date of termination plus an amount equal
to
the sum of: (i) the value of the pro-rated vacation leave with pay
for that portion of the calendar year in which the employment of
the
Executive hereunder is terminated that the Executive was actively
employed, to the extent such vacation entitlement has not been used
by the
Executive at the time of termination; and (ii) any accrued but unpaid
business expenses at the date of termination required to be reimbursed
under Section 3.1(g) of this
Agreement.
|
| (b) |
Should
this Agreement be terminated pursuant to Subsection 4.1(b) or (d),
the
Executive shall only be entitled to: (i) payment of the Executive’s
Base Salary earned up to the date of termination; (ii) a bonus for
that portion of the year in which the Executive was actively employed.
The
amount of the bonus shall be calculated as follows: the product of
(s) the average bonus paid to the Executive in the three (3) years
prior to the year in which his employment is terminated divided by
twelve
(12), and (t) the number of months the Executive was actively
employed in the year in which his employment is terminated; (iii) the
value of the pro-rated vacation leave with pay for that portion of
the
calendar year in which the employment of the Executive hereunder
is
terminated that the Executive was actively employed, to the extent
such
vacation entitlement has not been used by the Executive at the time
of
termination; and (iv) any accrued but unpaid business expenses at the
date of termination required to be reimbursed under Section 3.1(g) of
this Agreement.
|
| (c) |
Should
this Agreement be terminated pursuant to Subsections 4.1(e) or
4.1(f), the Corporation shall:
|
| (i) |
pay
to the Executive (w) any accrued but unpaid Base Salary for services
rendered to the date of termination, (x) a bonus for that portion of
the year in which the Executive was actively employed (excluding
the
Notice Period). The amount of the bonus shall be calculated as follows:
the product of (s) the average bonus paid to the Executive in the
three (3) years prior to the year in which his employment is terminated
divided by twelve (12), and (t) the number of months the Executive
was actively employed (excluding the Notice Period) in the year in
which
his employment is terminated, (y) any accrued but unpaid expenses at
the date of termination required to be reimbursed under
Section 3.1(g) of this Agreement, and (z) the value of the
pro-rated vacation leave with pay for that portion of the calendar
year in
which the employment of the Executive hereunder is terminated that
the
Executive was actively employed, to the extent such vacation entitlement
has not been used by the Executive at the time of
termination;
|
7
| (ii) |
pay
to the Executive, his Base Salary (less statutory deductions and
withholdings) for the Notice Period. Payment shall be made by way
of
salary continuance paid on the Corporation’s regular pay day, and in
accordance with its payroll practices at the date of termination;
and
|
|
(iii)
|
continue
the Executive’s health and welfare benefits plans (excluding Short Term
Disability (Sick Leave) and Long Term Disability benefits which disability
benefits shall cease on the Executive’s last day of active employment) in
which the Executive was participating at the date of termination,
until
the earlier of (x) the end of the Notice Period; or (y) the date
the Executive becomes covered under a benefit plan, program or arrangement
by a subsequent employer. The Corporation’s obligation pursuant to this
provision is conditional on the Executive continuing to pay his share
of
the premiums. In the event that the Executive’s continued participation in
any such health and welfare benefits plans of the Corporation is
prohibited by the terms of such plans, the Corporation shall arrange
to
provide the Executive with an amount equal to the premiums the Corporation
would have incurred (excluding premiums for Short Term Disability
(Sick
Leave) and Long Term Disability benefits) had the Executive continued
to
participate in such plans for the period ending on the earlier of
(xx) the end of the Notice Period; or (yy) the date the
Executive becomes covered under a benefit plan, program or arrangement
by
a subsequent employer.
|
Section
4.3 Termination
Upon a Change of Control
In
lieu
of and not in addition to the termination payments and benefits provided for
in
Section 4.2(c) herein, if within six (6) months following a Change of
Control, the Executive’s employment with the Corporation is terminated for any
reason whatsoever other than as a result of a termination pursuant to
Subsection 4.1(a), (b), (c), (d) or (g), the Corporation
shall:
| (a) |
pay
to the Executive (w) any accrued but unpaid Base Salary for services
rendered to the date of termination, (x) a bonus for that portion of
the year in which the Executive was actively employed (excluding
the
Change of Control Notice Period). The amount of the bonus shall be
calculated as follows: the product of (s) the average bonus paid to
the Executive in the three (3) years prior to the year in which his
employment is terminated divided by twelve (12), and (t) the number
of months the Executive was actively employed (excluding the Change
of
Control Notice Period) in the year in which his employment is terminated,
(y) any accrued but unpaid expenses at the date of termination
required to be reimbursed under Section 3.1(g) of this Agreement, and
(z) the value of the pro-rated vacation leave with pay for that
portion of the calendar year in which the employment of the Executive
hereunder is terminated that the Executive was actively employed,
to the
extent such vacation entitlement has not been used by the Executive
at the
time of termination; and
|
| (b) |
pay
to the Executive those amounts and provide the benefits referenced
in
Subsections 4.2(c)(ii) and (iii) above, calculated as if the Notice
Period was the Change of Control Notice
Period.
|
Section
4.4 Duties
Upon Termination
Following
the termination of the Executive’s employment for any reason whatsoever, the
Executive hereby agrees to resign from any offices, positions and directorships
which he may have or may have held in the Corporation or in any of its
affiliates or associates.
Section
4.5 Release
Each
of
the Corporation and the Executive confirms that the provisions of Sections
4.2(c) and 4.3 are reasonable and that the length of the notice of termination
or the total amount payable, if any, as outlined therein has been agreed between
them, or in the alternative is a reasonable pre-estimate of the damages which
will be suffered by the Executive in the event of a termination without Cause,
a
resignation for Good Reason or a termination upon a Change of Control and shall
not be construed as a penalty.
8
Section
4.6 Suspension
or Termination of Benefits and Compensation
In
the
event that the Corporation, in its sole discretion, determines that, without
the
express written consent of the Corporation, the Executive has breached any
provisions of Sections 5, 6, 7, 8, 10 and 11, the Corporation shall have
the right to suspend or terminate any or all remaining payments and/or benefits,
if any, referenced in Sections 4.2(c) and 4.3 of this Agreement. Such
suspension or termination of payments and/or benefits shall be in addition
to
and shall not limit any and all other rights and remedies as set out in
Section 9.1 of this Agreement that the Corporation may have against the
Executive.
ARTICLE
5
CONFIDENTIAL
INFORMATION
Section
5.1 Confidential
Information
(1) During
the term of this Agreement and following the termination thereof, the Executive
shall not use, divulge, diffuse, sell, transfer, give, circulate, or otherwise
distribute to any Entity whatsoever or whomsoever, or otherwise make public,
any
Confidential Information.
(2) Notwithstanding
any provision of this Agreement to the contrary, the Executive shall have the
right to use Confidential Information in relation to Permitted Uses, in which
event, the Executive shall, at all times, take all reasonable measures in order
to prevent the disclosure or non-authorized use of such Confidential
Information.
(3) Except
when authorized in accordance with Permitted Uses, under no circumstances shall
the Executive reproduce any Confidential Information without the prior written
consent of the Corporation. All reproductions of Confidential Information shall
be governed by this Agreement and shall be treated as Confidential Information
hereunder.
(4) Any
document or work composed, assembled or produced by the Executive and containing
Confidential Information (including, without limitation, all notes, extracts,
text or references from which any Confidential Information can be implicitly
or
otherwise revealed or understood) shall be deemed to be Confidential Information
within the meaning of this Agreement and shall be treated as such. The Executive
shall not publish or release or allow the publication or release of any material
containing Confidential Information without the prior written consent of the
Corporation.
Section
5.2 Corporation
Property
Confidential
Information (including any reproduction thereof) shall remain the sole property
of the Corporation and shall be returned to the Corporation immediately upon
request to this effect or immediately after the termination of the Executive’s
employment for any reason.
ARTICLE
6
OBLIGATION
OF NON-COMPETITION
Section
6.1 Non-Competition
(1) The
Executive shall not (without the prior written consent of the Corporation),
during the Period, on his own behalf or on behalf of any Entity, whether
directly or indirectly, in any capacity whatsoever, alone, through or in
connection with any Entity, carry on or be engaged in or have any financial
or
other interest in or be otherwise commercially involved in any endeavour,
activity or business in all or part of the Territory which is competitive,
in
any way with the Business.
(2) The
Executive shall, however, not be in default under this Section 6 by virtue
of the Executive holding, strictly for portfolio purposes and as a passive
investor, no more than one percent (1%) of the issued and outstanding shares
of
or any other interest in, any body corporate which is listed on any recognized
stock exchange, the business of which body corporate is in competition, in
whole
or in part, with the Business.
9
ARTICLE
7
OBLIGATION
OF NON-SOLICITATION
Section
7.1 Non-Solicitation
The
Executive shall not (without the prior written consent of the President), during
the Period, on his own behalf or on behalf of any other Entity, whether directly
or indirectly, in any capacity whatsoever, alone, through or in connection
with
any Entity:
| (a) |
canvass
or solicit the business of (or procure or assist the canvassing or
soliciting of the business of) any Existing Customer or Prospective
Customer for any purpose which is competitive with the Business;
or
|
| (b) |
accept
(or procure or assist the acceptance of) any business from any Existing
Customer or Prospective Customer which business is competitive with
the
Business; or
|
| (c) |
supply
(or procure or assist the supply of) any goods or services to any
Existing
Customer or Prospective Customer for any purpose which is competitive
with
the Business; or
|
| (d) |
cause,
directly or indirectly, any industrial or intellectual property of
the
Corporation, including without limitation, any trade-marks, copyrights,
licences or know-how, to be used or employed by any Entity other
than the
Corporation; or
|
| (e) |
employ,
engage, offer employment or engagement to or solicit the employment
or
engagement of or otherwise entice away from the employment or engagement
of the Corporation, any individual who is employed or engaged by
the
Corporation whether or not such individual would commit any breach
of
his/her contract or terms of employment or engagement by leaving
the
employ or the engagement of the Corporation;
or
|
| (f) |
procure
or assist any Entity to employ, engage, offer employment or engagement
or
solicit the employment or engagement of any individual who is employed
or
engaged by the Corporation or otherwise entice away from the employment
or
engagement of the Corporation any such
individual.
|
ARTICLE
8
NON-DISPARAGEMENT
Section
8.1 Non-Disparagement
The
Executive covenants and agrees that he shall not engage in any pattern of
conduct that involves the making or publishing of written or oral statements
or
remarks (including, without limitation, the repetition or distribution of
derogatory rumours, allegations, negative reports or comments) which are
disparaging, deleterious or damaging to the integrity, reputation or goodwill
of
the Corporation or its management.
ARTICLE
9
RECOGNITION
Section
9.1 Recognition
(1) The
Executive hereby expressly recognizes that Sections 5, 6, 7, 8, 10 and 11
are of the essence of this Agreement and that the Corporation would not have
entered into this Agreement without the inclusion of the said
Articles.
10
(2) The
Executive hereby further recognizes and expressly acknowledges that the
Corporation would be subject to irreparable harm should any of the provisions
of
Sections 5, 6, 7, 8, 10 and 11 be infringed, or should any of the
Executive’s obligations thereunder be breached by the Executive, and that
damages alone will be an inadequate remedy for any breach or violation thereof
and that the Corporation, in addition to all other remedies, shall be entitled
as a matter of right to equitable relief, including temporary or permanent
injunction to restrain such breach.
(3) The
Executive hereby recognizes and expressly acknowledges that Sections 5, 6,
7, 8, 10 and 11 grant to the Corporation only such reasonable protection as
is
admittedly necessary to preserve the legitimate interests of the Corporation,
and the Executive acknowledges and agrees, in this respect, that the
descriptions of the Business and Territory are reasonable.
Section
9.2 Survival
It
is
expressly agreed by the parties hereto that the provisions of Sections 5,
6, 7, 8, 9, 10 and 11 shall survive the termination of this Agreement and the
termination of the Executive’s employment, for any reason. Any provision of this
Agreement which is invalid, illegal or unenforceable in any jurisdiction shall,
as to that jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability, without affecting, in any way, the remaining
provisions thereof in such jurisdiction or rendering that or any other provision
of this Agreement invalid, illegal or unenforceable in any other
jurisdiction.
ARTICLE
10
INVENTIONS
Section
10.1 Invention
Assignment
|
(a)
|
All
rights, titles and interests in or to the Developments shall vest
and are
owned exclusively by the Corporation immediately on its creation
and
regardless of the stage of its completion. The Executive irrevocably
grants, transfers and assigns to the Corporation all of his right,
title
and interest, if any, in any and all Developments, including rights
to
translation and reproductions in all forms or formats and all Intellectual
Property Rights thereto, if any, and he agrees that the Corporation
may
copyright said materials in the Corporation’s name and secure renewal,
reissues and extensions of such copyrights for such periods of time
as the
law may permit. The Executive hereby waives, as against the Corporation,
its successors and assigns and licensees, all his moral rights which
he
may have or will acquire in respect of the copyright in any Developments.
The Executive agrees to enforce his moral rights as against others
as
directed by and at the cost of the Corporation or its successor-in-title
of the copyright in the
Developments.
|
|
(b)
|
At
all times hereafter, the Executive agrees promptly to disclose to
the
Corporation all Developments, to execute separate written transfers
or
assignments to the Corporation at the Corporation’s request, and to assist
the Corporation in obtaining any Intellectual Property Right in Canada,
the United States and in any other countries, on any Developments
granted,
transferred or assigned to the Corporation that the Corporation,
in its
sole discretion, seeks to register. The Executive also agrees to
sign all
documents, and do all things necessary to obtain such Intellectual
Property Rights, to further assign them to the Corporation, and to
reasonably protect the Corporation against infringement by other
parties
at the Corporation’s expense with the Corporation’s prior written
approval.
|
|
(c)
|
The
Executive shall keep complete, accurate, and authentic information
and
records on all Developments in the manner and form reasonably requested
by
Corporation. Such information and records, and all copies thereof,
shall
be the property of Corporation as to any Developments assigned to
the
Corporation. The Executive agrees to promptly surrender such information
and records at the request of the Corporation. All these materials
will be
Confidential Information upon their
creation.
|
11
ARTICLE
11
PROPERTY
OF THE CORPORATION
Section
11.1 Deliveries
Upon Termination
The
Executive hereby agrees to return to the Corporation immediately upon the
termination of the employment of the Executive hereunder and without making
copies or disclosing information relating thereto, any and all documents,
equipment and other property belonging to the Corporation. Without restricting
the generality of the foregoing, the Executive shall return all credit cards,
identification cards and keys belonging to the Corporation.
12
ARTICLE
12
NOTICES
Section
12.1 Notices
Any
notice required or permitted to be given by a party hereto to the other shall
be
deemed validly given if personally delivered or mailed by registered prepaid
post and addressed as follows:
in
the
case of the Corporation to:
Tm
Bioscience Corporation
000
Xxxxxxxxxx Xxxxxx
Xxxxx
000
Xxxxxxx,
Xxxxxxx
X0X
0X0
Attention:
President
and Chief Executive Officer
Telephone:
(000)
000-0000
Facsimile:
(000)
000-0000
with
a
copy to:
Stikeman
Elliott
0000
Xxxxxxxx Xxxxx Xxxx
000
Xxx
Xxxxxx
Xxxxxxx,
Xxxxxxx
X0X
0X0
Attention:
Xxxxxx Xxxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
in
the
case of the Executive, to:
Attention: Xxxx
Xxxxx
Telephone:
Facsimile:
Any
notice so delivered or so mailed shall be deemed to be effected, if delivered,
on the date of its delivery or, if mailed, on the fifth Business Day following
the date of mailing. The Executive or the Corporation may change its address
for
service from time to time by notice given in accordance with the foregoing
and
any subsequent notice shall be sent to such party at his or its changed
address.
ARTICLE
13
MISCELLANEOUS
Section
13.1 Assignment
This
Agreement may not be assigned by the Executive. This Agreement and the rights
and obligations hereunder may, without the consent of the Executive, be assigned
by the Corporation to any Entity which succeeds to all or substantially all
of
the business or property of the Corporation.
13
Section
13.2 Governing
Law
This
Agreement is to be governed by and construed and enforced in accordance with
the
laws of the Province of Ontario and the laws of Canada applicable
therein.
Section
13.3 Severability
If
any
provision of this Agreement is invalid, illegal or incapable of being enforced
for any reason, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect.
Section
13.4 Entire
Agreement
This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter contemplated herein and supersedes and replaces any provision
of any other document heretofore entered into by them or by any predecessor
of
the Corporation with respect to the subject matter of this Agreement. This
Agreement shall not be amended except by a written instrument hereafter signed
by the Executive and the Corporation.
Section
13.5 Successors
and Assigns
This
Agreement shall enure to the benefit of and be binding upon the successors
and
assigns of the Corporation.
Section
13.6 Amendment
and Waiver
No
supplement, modification, amendment or waiver of this Agreement shall be binding
unless executed in writing by the Executive and the Corporation. No waiver
of
any of the provisions of this Agreement shall constitute a waiver of any other
provision (whether or not similar) nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.
Section
13.7 Required
Deductions For Withholdings
The
Corporation shall make such deductions and withholdings from any payments
hereunder as may be required by law.
Section
13.8 Independent
Legal Advice
The
Executive acknowledges that he has been afforded the opportunity to obtain
independent legal advice with respect to this Agreement and that he understands
the nature and consequences of this Agreement.
Section
13.9 Counterparts
This
Agreement may be executed by the parties in one or more counterparts, each
of
which when so executed and delivered shall be deemed to be an original and
such
counterparts shall together constitute one and the same instrument.
IN
WITNESS WHEREOF
the
parties hereto have executed this Agreement at the place and as of the date
first mentioned above.
SIGNED,
SEALED AND
DELIVERED )
in
the
presence
of
)
)
)
)
)
)
|
/s/
Xxxxx Xxxxx
Witness
|
|
/s/
Xxxx Xxxxx
Xxxx Xxxxx |
|
|
|
|
| Tm BIOSCIENCE CORPORATION | ||
| |
|
|
| Per: | /s/ Xxxxxxx X. Xxxxx | |
|
Xxxxxxx X. Xxxxx |
||
| President and Chief Executive Officer | ||
