EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 14 day of MAY, 2004.
BETWEEN:
CHEMOKINE THERAPEUTICS CORP., a Delaware Corporation with its wholly
owned subsidiary CHEMOKINE THERAPEUTICS (BC) CORP. a BC Corporation,
having a business office at 0000 Xxxx Xxxx, Xxxx 000, Xxxxxxxxx, XX.
X0X 0X0 (collectively the "Company")
AND:
XXXXX XXXX, 0000 XXXXXXXX XXX., XXXX XXXXXXXXX, XX, X0X 0X0 (the
"Employee")
WHEREAS,
A. The Company is engaged in the business of the development of biotechnology
products.
B. The Employee is presently employed, or is about to be employed, by the
Company on the terms and conditions which are now set forth in this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES that for and in consideration of the
Employee's continued employment, the premises and mutual covenants and
agreements hereinafter contained, the sum of $1.00 of lawful money of Canada now
paid by the Company to the Employee and other good and valuable consideration
(the receipt and sufficiency of which is hereby acknowledged) the parties hereto
covenant and agree as follows:
1.0 EMPLOYMENT
1.1 The Company hereby employs the Employee in the position of CHIEF FINANCIAL
OFFICER (CFO).
1.2 The Employee shall report to the PRESIDENT & CEO, and shall perform, observe
and conform to such duties and instructions as from time to time are reasonably
and lawfully assigned or communicated to the Employee and are consistent with
the position.
1.3 Where the Employee is a new employee, the first three months of the
Employee's employment with the Company shall constitute a probationary period so
that the Company
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shall have an opportunity to determine the Employee's ability to perform the
duties of and the suitability for that position. The Company may terminate the
Employee's employment during the Probationary Period as provided for in section
6 herein.
1.4 Throughout the term of this Agreement the Employee shall:
(a) diligently, honestly and faithfully serve the Company and shall use
all reasonable efforts to promote and advance the interests and
goodwill of the Company;
(b) conduct himself at all times in a manner which is not materially
prejudicial to the Company's interests;
(c) devote all of his business time to the business and affairs of the
Company; and
(d) not acquire, directly or indirectly, any interest that constitutes
10% or more of the voting rights attached to the outstanding shares
of any corporation or 10% or more of the equity or assets in any
firm, partnership or association, the business and operations of
which in any manner, directly or indirectly, compete with the trade
or business of the Company.
1.5 The Employee shall disclose all potential conflicts of interest and
activities which could reasonably be seen to compete, indirectly or directly,
with the trade or business of the Company, to the Board of Directors of the
Company, as from time to time constituted (the "Board"). The Board shall
determine, in its sole discretion, whether the activity in question constitutes
a conflict of interest or competition with the Company. To the extent that the
Board, acting reasonably, determines a conflict or competition exists, the
Employee shall discontinue such activity forthwith or within such longer period
as the Board agrees. The Employee shall immediately certify in writing to the
Company that he has discontinued such activity and that he has, as required by
the Board, cancelled any contracts or sold or otherwise disposed of any interest
or assets over the 10% threshold described in subsection 1.4(d), herein acquired
by the Employee by
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virtue of engaging in the impugned activity, or where no market exists to enable
such sale or disposition, by transfer of the employee's beneficial interest into
blind trust or other fiduciary arrangements over which the Employee has no
control or direction, or other action that is acceptable to the Board.
1.6 Notwithstanding sections 1.4 (d) and 11, the Employee is not restricted from
nor is required to obtain the consent of the Company to make investments in any
company, which is involved in pharmaceuticals or biotechnology and the
securities of which are listed for trading on any Canadian or U.S. stock
exchange, quotation system or the over-the-counter market.
1.7 For the purposes of sections 1.4, 1.5 and 1.6 herein, the Employee includes
any firm or company owned or controlled by the Employee.
1.8 It is understood and agreed that as the Company grows, the Employee's
responsibilities may be changed to meet the needs of the Company, however, such
responsibilities shall be those that are reasonably assigned to the Employee by
the Board and are consistent with the Employee's position.
2.0 COMPENSATION
2.1 In consideration of the services rendered by the Employee under this
Agreement, the Company shall pay to the Employee the gross sum of CD$7,000 per
months of June, July and August. As of September 2004, the Employees salary will
be CD$10,000 per month. Immediately after the Company (Chemokine Therapeutics
Corp.) become a publicly traded company as a result of IPO or similar, the
Employee salary will be $160,000 per annum. The salary is paid in equal
semi-monthly instalments ("Base Salary"). Where the Employee is a new employee,
on successful completion of the probationary period, the Employee's salary may
be increased from time to time. Thereafter, increases to the Employee's Salary
shall be in the absolute discretion of the Company.
Prior to the IPO, the Employee will receive 6,500 Common Stock per month, for
the months of June, July and August. As of September 2004, the Employee will
receive only 3,500 Common Stocks per month. Immediately after the Company goes
public, the Common Stock bonus will be terminated.
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2.2 The Employee shall be eligible to participate in the Company's medical,
dental and any other benefits if applicable.
2.3 The Employee shall be offered 250,000 Stock Options under the Company's
Stock Option Plan.
3.0 BENEFITS
3.1 Subject to the successful completion of the three (3) month Probationary
Period and, subject to any eligibility requirements, the Employee shall be
entitled to such benefits which the Company offers from time to time to similar
employees (the "Benefits").
3.2 The introduction and administration of the Benefits is within the Company's
sole discretion, and the introduction, deletion or amendment of the Benefits
shall not constitute a breach of this Agreement.
4.0 VACATION
4.1 The Employee shall be entitled to an annual vacation of three (3) weeks per
year. The Employee's entitlement to vacation shall not be cumulative from year
to year and any vacation entitlement not taken during the current year in excess
of the minimum standard provided for in the Employment Standards Act, R.S.B.C.
1996, c. 113. as amended, shall be forfeited. The timing of vacations shall be
in accordance with the Company's policies and practices and with the Company's
needs.
4.2 At the time of termination of this Agreement any accrued vacation time for
the current fiscal year of the Company shall be paid out or taken as time off,
at the election of the Employee.
5.0 TERM OF EMPLOYMENT
5.1 The term of employment of the Employee by the Company pursuant to the terms
of this Agreement shall commence as of the date of this Agreement and shall
continue until such time as this Agreement is terminated pursuant to section 6
herein.
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6.0 TERMINATION
6.1 The Company may terminate the Employee's employment at any time, with no
notice, for cause.
6.2 If this Agreement and the Employee's employment are terminated for cause, no
notice, salary, benefits or allowances shall be paid or payable to the Employee
after or as a result of such termination except in respect of those amounts
which were payable in respect of the period ending immediately prior to such
termination.
6.3 The Company may terminate the Employee's employment, without cause:
(a) at any time during the first, second and third months of the
Probationary Period without notice or pay in lieu of notice;
(b) at any time after the third month of the Probationary Period,
without cause, by providing the Employee with:
(i) one (1) month written notice or pay of in lieu of notice or
any combination of written notice and pay in lieu of notice
equal to one (1) month Base Salary; and
(ii) an additional two (2) weeks of written notice or pay in lieu
of notice or any combination of written notice and pay in lieu
of notice equal to two (2) weeks Base Salary for each year of
service with the Company, prorated to the extent that a year
of service is incomplete, provided that the total amount of
notice or notice hereunder.
6.4 The Employee may terminate this employment Agreement with the Company during
the Probationary Period without notice. Thereafter the Employee may terminate
this employment Agreement with the Company upon giving the Company four (4)
weeks notice of resignation. On the giving of such notice by the Employee, or at
any time thereafter, the Company shall have the right to elect to immediately
terminate the Employee's employment, and upon such election, shall provide to
the Employee a lump sum equal to
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the Base Salary only for four (4) weeks or to such proportion of the time that
remains outstanding at the time of the election.
7.0 CONFIDENTIALITY AND COMPANY PROPERTY
7.1 The Employee understands and acknowledges that the Company is engaged in a
continuous program of research, development and production relating to Chemokine
Research and related products ("Business"). Because of the nature of the
Business, the Employee's employment creates a relationship of confidence between
the Employee and the Company with respect to certain information that gives the
Company an advantage in its business and marketplace. In the course of carrying
out and performing the Employee's duties and responsibilities to the Company,
the Employee will obtain access to and be entrusted with Confidential and
Proprietary Information (as hereinafter defined) relating to the Business and
other affairs of the Company.
7.2 The term "Confidential and Proprietary Information" as used in this
Agreement means all trade secrets, proprietary information and other data or
information (and any tangible evidence, record or representation thereof),
whether prepared, conceived or developed by an employee of the Company
(including the Employee) or received by the Company from an outside source which
is maintained in confidence by the Company or any of its customers to obtain a
competitive advantage over competitors who do not have access to such trade
secrets, proprietary information, or other data or information. Without limiting
the generality of the foregoing, Confidential and Proprietary Information
includes:
(a) any information, ideas, improvements, know-how, concepts, research,
inventions, innovations, products, services, sales, scientific or
other formulas, systems, strategies, formulae, algorithms, patterns,
processes, methods, machines, manufactures, compositions, processes,
procedures, tests, treatments, developments, data, experimental
software, libraries and routines, audio-visual displays technical
specifications, technical data, designs, devices, patterns,
concepts, computer programs, training or service manuals, plans for
new or revised services or products or other plans, items or
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strategy methods on compilation of information, or works in process,
or any Invention (as defined in Section 8 below), or parts thereof,
and any and all revisions and improvements relating to any of the
foregoing (in each case whether or not reduced to tangible form)
that relate to the Business or affairs of the Company or its
subsidiary or affiliated companies, or that result from its
marketing, research and/or development activities;
(b) any information relating to the relationship of the Company with any
consultants, collaborators, associates, clients, customers,
suppliers, principals, contacts or prospects of the Company and any
information relating to the requirements, specifications, proposals,
orders, contracts or transactions of or with any such consultants,
collaborators, associates, clients, customers, suppliers,
principals, contacts or prospects of the Company. Including but not
limited to client lists;
(c) any sales plan, price schedule, product literature, user
documentation, technical documentation, marketing material, plan or
survey, business plan or opportunity, product or service development
plan or specification, business proposal; and
(d) any information relating to the present Business or proposed
business of the Company.
7.3 The Employee acknowledges and agrees that the Confidential and Proprietary
Information is and will remain the exclusive property of the Company. The
Employee also agrees that the Confidential and Proprietary Information:
(a) constitutes a proprietary right which the Company is entitled to
protect; and
(b) constitutes information and knowledge not generally known to the
trade.
7.4 The Employee understands that the Company has from time to time in its
possession information belonging to others or which is claimed by others to be
confidential
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or proprietary and which the Company has agreed to keep confidential. The
Employee agrees that all such information shall be Confidential and Proprietary
Information for the purposes of this Agreement.
7.5 For purposes of the copyright laws of the United States of America, to the
extent, if any, that such laws are applicable to any Confidential and
Proprietary Information, it shall be considered a work made for hire and the
Company shall be considered the author thereof.
7.6 The Employee agrees to maintain securely and hold in strict confidence all
Confidential and Proprietary Information received, acquired or developed by the
Employee or disclosed to the Employee as a result of or in connection with the
Employee's employment with the Company. The Employee agrees to continue to hold
the Confidential and Proprietary Information in strict confidence at all times
after the termination of the Employee's employment for whatever reason. The
Employee will not disclose any of the Confidential and Proprietary Information
to any person, firm or corporation, nor will the Employee use any of the
Confidential and Proprietary Information for any purpose other than in the
normal and proper course of the Employee's duties either during the term of the
Employee's employment with the Company or at any time afterwards without the
express written consent of the Company. The Employee will use the Employee's
best efforts to protect and safeguard Confidential and Proprietary Information
from, without limitation, loss, theft, destruction or seizure.
7.7 The Employee agrees that documents, copies, records and other materials made
or received by the Employee that pertain to the Business and affairs of the
Company or its subsidiary or affiliated companies, including all Confidential
and Proprietary Information and which are in the Employee's possession or under
the Employee's control are the property of the Company and that the Employee
will return same and any copies of them to the Company forthwith upon the
termination of the Employee's employment or at any time immediately upon the
request of the Company.
7.8 The restrictive obligations set forth above shall not apply to the
disclosure or use of any information which:
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(a) is or later becomes publicly known under circumstances involving no
breach of this Agreement by the Employee;
(b) is already known to the Employee outside his work for the Company at
the time of receipt of the Confidential Information;
(c) is disclosed to a third party under an appropriate confidentiality
agreement;
(d) is lawfully made available to the Employee by a third party;
(e) is independently developed by the Employee who has not been privy to
the Confidential Information provided by the Company, or
(f) is required by law to be disclosed but only to the extent of such
requirement and the Employee shall immediately notify in writing the
Chief Executive Officer of the Company upon receipt of any request
for such disclosure.
7.9 The Employee represents and warrants that he has not brought and will not
bring with him to the Company any materials or use, while performing his duties
for the Company, any materials or documents of a former employer which are not
generally available to the public. The Employee understands that, while employed
by the Company, the Employee shall not breach any obligation or confidence or
duty the Employee may have to a former employer and the Employee agrees that the
Employee will fulfil all such obligations during the Employee's employment with
the Company.
7.10 The Employee represents and warrants that the Employee will not use or
cause to be incorporated in any of the Employee's work product any data
software, information, designs, techniques or know-how which the Employee or the
Company does not have the right to use.
7.11 The provisions of this section 7 shall survive the termination of this
Agreement.
8.0 INVENTIONS
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8.1 The Employee agrees that all Confidential and Proprietary Information and
all other discoveries, inventions, ideas, concepts, processes, products,
protocols, treatments, methods, tests and improvements, algorithms, computer
programs, or parts thereof, conceived, developed, reduced to practice or
otherwise made by the Employee either alone or with others, and in any way
relates to the present or proposed programs, services, products or Business of
the Company, or to task assigned to the Employee during the period of the
Employee's employment by the Company, whether or not conceived, developed,
reduced to practice or made during the Employee's employment (collectively
"Inventions"), and any and all services and products which embody, emulate or
employ any such Invention shall be the sole property of the Company and all
copyrights, patents, patent rights, trademarks, service marks and reproduction
rights to, and other proprietary rights in, each such Invention, whether or not
patentable or copyrightable, shall belong exclusively to the Company. For
purposes of the copyright laws of the United States of America, to the extent,
if any, that such laws are applicable to any such Invention or any such service
or product, it shall be considered a work made for hire and the Company shall be
considered the author thereof.
8.2 The Employee will promptly disclose to the Company, or any persons
designated by it, all Inventions.
8.3 The Employee hereby assigns to the Company or its nominee, their successors
or assigns, all the Employee's rights, title and interest in and to the
Inventions.
8.4 The Employee hereby waives for the benefit of the Company and its successors
and assigns all the Employee's moral rights in respect of the Inventions.
8.5 The Employee further agrees to assist the Company in every proper way (but
at the Company's expense) to obtain and from time to time to enforce patents or
copyrights in respect of the Inventions in any and all countries, and to that
end the Employee will execute all documents for use in applying for, obtaining
and enforcing patents and copyrights on such Inventions as the Company may
desire, together with any assignments of such Inventions to the Company or
persons designated by it. The
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Employee's obligation to assist the Company in obtaining and enforcing patents
and copyrights for the Inventions in any and all countries shall continue beyond
the termination of the Agreement.
8.6 In the event that the Company is unable for any reason whatsoever to secure
the Employee's signature to any lawful and necessary document required to apply
for or execute any patent, copyright, trademark or other applications with
respect to any Invention (including improvements, renewals, extensions,
continuations, divisions or continuations in part thereof), the Employee hereby
irrevocably appoints the Company and its duly authorized officers and agents as
the Employee's agents and attorneys-in-fact to execute and file any such
application and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, copyrights or other rights thereon with the
same legal force and effect as if executed by the Employee.
8.7 The Employee hereby represents and warrants that the Employee is subject to
no contractual or other restriction or obligation, which will in any way limit
the Employee's activities on behalf of the Company. The Employee hereby
represents and warrants to the Company that the Employee has no continuing
obligations to any previous employer (a) with respect to any previous invention,
discovery or other item of intellectual property or (b) which require the
Employee not to disclose any information or data to the Company.
8.8 The provisions of this section 8 shall survive the termination of this
Agreement.
9.0 REMEDIES
9.1 The Employee acknowledges and agrees that a breach by the Employee of any of
the covenants contained in sections 7 and 8 of this Agreement herein shall
result in damages to the Company and that the Company could not be adequately
compensated for such damages by a monetary award. Accordingly, in the event of
any such breach, in addition to all other remedies available to the Company at
law or in equity, the Company shall be entitled as a matter of right to apply to
a court of competent jurisdiction for such relief by way of restraining order,
temporary or permanent injunction, to cure any such breach, or as may be
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appropriate, to ensure compliance with the provisions of this agreement.
10.0 PROPERTY RIGHTS OF THE COMPANY
10.1 Notwithstanding anything else in this Agreement, it is expressly
acknowledged and understood by the Employee that all the work product of the
Employee while engaged by the Company pursuant to the terms hereof shall vest in
the Company absolutely and notwithstanding the generality of the foregoing, all
software, product information, improvements, notes, documents, correspondence,
produced by the Employee during the term of employment hereunder shall belong
absolutely to the Company. The Employee further agrees to execute without
further consideration any assignments, conveyances, other documents and
assurances as may be necessary to effect the intent of this provision.
Notwithstanding the generality of the foregoing, the Company acknowledges that
intellectual property, know-how and the like known by or in possession of the
Employee as of or prior to the Employee becoming an employee of the Company is
hereby expressly excluded from the foregoing restrictions.
11.0 NON-COMPETITION
11.1 The Employee agrees that following the termination of his employment with
the Company for any reason, he shall not, within Canada, the United States of
America and the countries comprising the European Economic Union, for a period
of three (3) months from the date of such termination (without the prior written
consent of the Company) either individually or in partnership, or in conjunction
with any person or persons, firm, association, syndicate, company or corporation
as principal, agent, director, officer, employee, consultant, investor or in any
other 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 part thereof to be used or employed by any person or
persons, firm, association, syndicate, company or corporation.
11.2 The Employee acknowledges that a breach by the Employee of any of the
covenants contained in section 1.4(d) and section 11 herein shall result in
damages to the Company and that the Company could not be adequately
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compensated for such damages by a monetary award. Accordingly, in the event of
any such breach, in addition to all other remedies available to the Company at
law or in equity, the Company shall be entitled as a matter of right to apply to
a Court of competent jurisdiction for such relief by way of restraining order,
temporary or permanent injunction, decree or otherwise, as may be appropriate to
ensure compliance with the provisions of this Agreement.
11.3 The Employee agrees that all documents, copies, records and other materials
made or received by the Employee and which are in his possession or under his
control that pertain to the business and affairs of the Company are the property
of the Company and shall be returned to the Company by the Employee forthwith
upon the termination of this Agreement or at any time during the term hereof
immediately upon the request of the Company.
11.4 The Employee hereby agrees that all restrictions in this Agreement are
reasonable and valid and all defences to the strict enforcement thereof by the
Company are hereby waived by the Employee.
12.0 EMPLOYMENT STANDARDS
12.1 In the event that the minimum standards in the Employment Standards Act, as
it exists from time to time, are more favourable to the Employee in any respect,
including but not limited to the provisions herein in respect of notice of
termination, minimum wage or vacation entitlement than provided for herein, the
provisions of the Employment Standards Act shall apply.
13.0 GENERAL PROVISIONS
13.1 In this Agreement, unless context otherwise requires, words Importing the
singular include the plural and vice versa, and words importing gender include
all genders.
13.2 The headings and the clauses of this Agreement have been inserted as a
matter of convenience and for reference only and in no way define, limit or
enlarge the scope or meaning of this Agreement or any of its provisions.
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13.3 This Agreement may not be assigned by either party. This Agreement shall
ensure to the benefit of the parties and shall be binding upon the successors of
the Company.
13.4 The waiver of the Company of a breach of any provision of this Agreement by
the Employee shall not operate or be construed as a waiver of any subsequent
breach by the Employee.
13.5 This Agreement constitutes the entire agreement between the parties hereto
relating to the employment of the Employee and supersedes any and all employment
agreements or understandings, oral or written, between the Company and the
Employee and any such prior agreements relating to the employment of the
Employee by the Company are hereby terminated and cancelled.
13.6 This Agreement shall not be amended except in writing signed by both
parties.
13.7 In the event that any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, the remaining
provisions and portions of this Agreement shall not be affected by such
determination and shall remain in full force and effect to the fullest extent
permitted by law.
13.8 The Employee shall, upon the reasonable request of the Company, make, do,
execute or cause to be made, done or executed, all such further and lawful acts,
deeds, things, documents and assurances of whatsoever nature and kind for the
better or more perfect or absolute performance of the terms, conditions and
intent of this Agreement.
13.9 Every notice, request, demand or direction (each for the purposes of this
section, a "notice") to be given pursuant to this Agreement by any party to
another shall be in writing and shall be delivered in person or sent by
registered mail postage prepaid or by facsimile addressed as applicable as
follows:
If to the Employee at:
0000 XXXXXXXX XXX.
XXXX XXXXXXXXX, XX.
X0X 0X0
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If to the Company at:
0000 XXXX XXXX,
XXXXX 000,
XXXXXXXXX,
XX. X0X 0X0
or at such other address as specified by the particular party by notice to the
other.
13.10 Any notes delivered or sent in accordance with section 13.09 will be
deemed to have been given and received:
(a) if personally delivered, on the day of delivery,
(b) if by registered mail, on the earlier of the day of receipt and the
fifth (5th) business day after the day of mailing, or
(c) if by facsimile, on the first business day following the day of
transmittal.
If a notice is sent by registered mail and mail service is interrupted between
the point of mailing and the destination by strike, slow down, force majeure or
other cause within three (3) days before or after the time of mailing, the
notice will not be deemed to be received until actually received, and the party
sending the notice will use any other service which has not been so interrupted
or will deliver the notice in order to ensure prompt receipt.
13.11 A reference to a statute includes all regulations made pursuant thereto,
all amendments to the statute or regulations in force from time to time, and any
statute or regulation which supplements or supersedes such statute or
regulations.
13.12 All sums of money which are referred to in this Agreement are expressed in
lawful money of Canada.
13.13 Time is of the essence of this Agreement.
13.14 The Company shall have the right to deduct and withhold from the
Employee's compensation any amounts
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required to be deducted and withheld under the applicable provincial or federal
laws of Canada.
14.0 INDEPENDENT LEGAL ADVICE
14.1 The Employee acknowledges that this Agreement has been prepared by the
Company's solicitors and acknowledges that the Employee has had sufficient
time to review this Agreement thoroughly, that the Employee has read and
understood the terms of this Agreement and that the Employee has been
given the opportunity to obtain independent legal advice concerning the
interpretation and effect of this Agreement prior to its execution.
15. START DATE.
The Employee Start Date at the Job with the Company is June 01, 2004.
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto as of
the day and year first above written.
CHEMOKINE THERAPEUTICS CORP.
-----------------------------------
President & CEO
Name: Xx. Xxxxxx Xxxxxx Date:
EMPLOYEE:
-----------------------------------
Name: Xxxxx Xxxx Date:
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