SCHEDULE B ASPREVA PHARMACEUTICALS CORPORATION
Exhibit
10.31
SCHEDULE
B
ASPREVA
PHARMACEUTICALS CORPORATION
October
24, 2006
Xxxxxxx
X. Xxxxxxxx
000
Xxxxx Xxxxxxxx Xxxx
Far
Hills, NJ 07931
Dear
Mr. Goulburn:
Aspreva Pharmaceuticals Corporation (the “Corporation”) considers it essential
to the best interests of its members to xxxxxx the continuous employment of
its
senior executive officers. In this regard, the Board of Directors of the
Corporation (the “Board”) has determined that it is in the best interests of the
Corporation and its members that appropriate steps should be taken to reinforce
and encourage management’s continued attention, dedication and availability to
the Corporation in the event of a Potential Change in Control (as defined in
Section 2), without being distracted by the uncertainties which can arise from
any possible changes in control of the Corporation.
In order to induce you to agree to remain in the employ of the Corporation,
such
agreement evidenced by the employment agreement entered into as of the date
of
this Agreement between you and the Corporation (the “Employment Agreement”) and
in consideration of your agreement as set forth in Section 3 below, the
Corporation agrees that you shall receive and you agree to accept the severance
and other benefits set forth in this Agreement should your employment with
the
Corporation be terminated subsequent to a Change of Control (as defined in
Section 2) in full satisfaction of any and all claims that now exist or then
may
exist for remuneration, fees, salary, bonuses or severance arising out of or
in
connection with employment by the Corporation or the termination of your
employment:
1.
Terms
of Agreement.
This
Agreement shall be in effect for a term commencing on the Effective Date of
the
Employment Agreement (as therein defined) and ending on the date of termination
of the Employment Agreement.
2.
Definitions.
(a) “Affiliate” means a corporation
that is an affiliate of the Corporation
under the Securities
Act
(British Columbia), as amended from time to time.
(b)
“Change in Control” of the Corporation shall be deemed to have
occurred:
(i) if
a merger, amalgamation, arrangement, consolidation,
reorganization or transfer takes place in which Equity Securities
of the
Corporation possessing more than 50% of the total combined voting
power of the Corporation’s outstanding Equity Securities are
acquired by a person or persons different from the persons holding those Equity
Securities immediately prior to such transaction, and the composition of the
Board following such transaction is such that the directors of the Corporation
prior to the transaction constitute less than 50% of the Board membership
following the transaction, except that no Change in Control will be deemed
to
occur if such merger, amalgamation, arrangement, consolidation, reorganization
or transfer is with any subsidiary or subsidiaries of the
Corporation;
(ii) if
any person, or any combination of persons acting jointly or in
concert
by virtues of an agreement, arrangement, commitment or understanding shall
acquire of hold, directly or indirectly, 50% or more of the voting rights
attached to all outstanding Equity Securities; or
(iii) if
any person, or any combination of persons acting jointly or in concert by virtue
of an agreement, arrangement, commitment or understanding shall acquire or
hold,
directly or indirectly, the right to appoint a majority of the directors of
the
Corporation; or
(iv) if
the Corporation sells, transfers or otherwise disposes of all or substantially
all of its assets, except that no Change of Control will be deemed to occur
if
such sale or disposition is made to a subsidiary or subsidiaries of the
Corporation.
Provided
however, that a Change in Control shall not be deemed to have occurred if such
Change in Control results solely from the issuance, in connection with a bona
fide financing or series of financings by the Corporation of Equity
Securities.
(c)
“Base Salary” shall mean the annual base salary, as referred to in Section 3
(Base Salary), and as adjusted from time to time in accordance with Section
4
(Annual Review), of the Employment Agreement.
(d)
“Bonus” shall mean the bonus referred to in Section 5 (Performance Bonus) of the
Employment Agreement.
(e)
“Cause” shall have the meaning set out in Section 16 (Termination by the
Corporation for Cause) of the Employment Agreement.
(f)
“Date of Termination” shall mean, if your employment is terminated, the date
specified in the Notice of Termination.
(g)
“Equity Security” in respect of a security of the Corporation, shall have the
meaning ascribed thereto in Part II of the Securities
Act (British
Columbia), as it existed on the date of this Agreement, and also means any
security carrying the right to convert such security into, exchange such
security for , or entitling the holder to subscribe for, any equity security,
or
into or for any such convertible or exchangeable security or security carrying
a
subscription right.
(h)
“Good Reason” shall mean the occurrence of one or more of the following events,
without your express written consent, within 12 months of Change in
Control:
(i) a
material change in your status, position, authority or responsibilities that
does not represent a promotion from or represent an adverse change from your
status, position, authority or responsibilities in effect immediately prior
to
the Change in Control;
(ii) a
material reduction by the corporation, in the aggregate, in your
Base Salary, or incentive, retirement, health benefits, bonus or other
compensation plans provided to you immediately prior to the Change in Control,
unless an equitable arrangement has been made with respect to such benefits
in
connection with a Change in Control;
(iii) a
failure by the Corporation to continue in effect any other compensation
plan in which you participated immediately prior to the Change in control
(except for reasons of non-insurability), including but not limited to,
incentive, retirement and health benefits, unless an equitable arrangement
has
been made with respect to such benefits in connection with a Change in
Control;
(iv) any
request by the Corporation or any affiliate of the Corporation that you
participate in an unlawful act; or
(v) any
purported termination of your employment by the Corporation after a Change
in
Control which is not effected pursuant to a Notice of Termination satisfying
the
requirements of clause (i) below and for the purposes of this Agreement, no such
purported termination shall be effective.
(i)
‘Notice of Termination” shall mean a notice, in writing, communicated to the
other party in accordance with Section 6 below, which shall indicate the
specific termination provision in this Agreement relied upon and shall set
forth
in reasonable detail the facts and circumstances claimed to provide a basis
for
termination of your employment under the provision so indicated.
(j)
“Potential Change in Control” of the Corporation shall be deemed to have
occurred if:
(i)
the Corporation enters into an agreement, the consummation of which would result
in the occurrence of a Change in Control;
(ii) any person (including
the Corporation) publicly announces an
intention to take or to consider taking actions which if consummated would
constitute a Change in Control; or
(iii) the Board adopts a
resolution to the effect that, for the purposes of
this Agreement, a Potential Change in Control of the Corporation has
occurred.
3. Potential
Change in Control.
You
agree that, in the event of a Potential Change in control of the Corporation
occurring after the Effective Date, and until 12 months after a Change in
Control, subject to your right to terminate your employment by issuing and
delivering a Notice of Termination for Good Reason, you will continue to
diligently carry out your duties and obligations, on the terms set out in the
Employment Agreement.
4.
Compensation
Upon Termination Following Change in Control.
Subject
to compliance by you with Section 3, upon your employment terminating pursuant
to a Notice of Termination within 12 months after a Change in Control, the
Corporation agrees that you shall receive and you agree to accept, subject
to
your prior resignation as a director of the Corporation, the following payments
in full satisfaction of
any
and all claims you may have or then may have against the Corporation, for
remuneration, fees, salary, benefits, bonuses or severance, arising out of
or in
connection with your employment by the Corporation or the termination of your
employment:
(a)
If your employment shall be terminated by the Corporation of Cause or by
you
other than for Good Reason, the terms of the Employment Agreement shall govern
and the Corporation shall have no further obligations to you under this
Agreement.
(b) If
your employment by the
Corporation shall be terminated by you for Good
Reason or by the Corporation other than for Cause, then you shall be entitled
to
the payments and benefits provided below:
(i) subject
to the withholding of all applicable statutory deductions, the Corporation
shall
pay you a lump sum equal to 12 months’ Base Salary, as referred to in Section 3
(Base Salary) and as adjusted from time to time in accordance with Section
4
(Annual Review) of the Employment Agreement, plus other sums owed for arrears
of
salary, vacation pay and, if awarded, Bonus;
(ii) to the extent permitted
by
law and subject to the terms and
conditions of any benefit plans in effect from time to time, the Corporation
shall maintain the benefits and payments set out in Section 6 (Benefits) of
the
Employment Agreement during the 12 month period;
(iii) the Corporation shall
arrange for you to be provided with such outplacement
career counseling services as are reasonable and appropriate, to assist you
in
seeking new executive level employment; and
(iv) all
incentive stock options granted to you by the Corporation under any
stock option agreement that is entered into between you and the Corporation
and
is outstanding at the time of termination of your employment, which incentive
stock options have not yet vested, shall immediately vest upon the termination
of your employment and shall be fully exercisable by you in accordance with
the
terms of the agreement or agreements under which such options were
granted.
You
shall not be required to mitigate the amount of any payment provided for in
this
Section 4 by seeking other employment or otherwise, nor will any sums actually
received be deducted.
5.
Binding
Agreement
This Agreement shall ensure to the benefit of and be enforceable by your
personal or legal representatives, executors, administrators, successors, heirs,
distributes, devisees and legatees. If you dies while any amount would
still be payable to you under this Agreement if you had continued to live,
that
amount shall be paid in accordance with the terms of this Agreement to your
devisee, legatee or other designee or, if there is no such designee, to your
estate.
6.
Notices.
Any notice or other communication required or contemplated under, this Agreement
to be given by one party to the other shall be delivered or mailed by prepaid
registered post to the party to receive same at the addresses set out
below:
If
to Aspreva Pharmaceuticals Corporation:
Aspreva Pharmaceuticals Corporation
c/o Xxxxxx, Xxxxxxx, Xxxxx & Xxxxxx
26th
Floor, 000 Xxxx Xxxxxxx Xxxxxx
Vancouver, BC V7Y 1B3
Attn: X. Xxxxxx XxxXxx-Xxxx
If
to Xxxx Xxxx:
Xxxx Xxxx
0000 Xxxxxxx Xxx Xxxx
Victoria, BC V8Y 2K1
Any
notice delivered shall be deemed to have been given and received on the first
business day following the date of delivery. Any notice mailed shall be
deemed to have been given and received on the fifth business day following
the
date it was posted, unless between the time of mailing and actual receipt of
the
notice there shall be a mail strike, slow-down or other labour dispute which
might affect delivery of the notice by mail. In such event, the notice
shall be effective only if actually delivered.
7.
Modification:
Amendments: Entire Agreement
This
Agreement may not be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by you and such
officer as may be specifically designated by the Board. No waiver by
either party at any time of any breach by the other party of, or compliance
with, any condition or provision of this Agreement to be performed by such
other
party will be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. Except as set forth in
your Employment Agreement, no agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made
by
either party which are not expressly set forth in this Agreement.
8.
Governing
Law
This
Agreement shall be governed by and interpreted in accordance with the laws
of
the Province of British Columbia and applicable laws of Canada and the parties
hereto attorn to the exclusive jurisdiction of the provincial and federal courts
of such province.
9.
Validity
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
10.
No
Employment or Service Contract
Nothing
in this Agreement shall confer upon you any right to continue in the employment
of the Corporation for any period of specific duration or interfere with or
otherwise restrict in any way the rights of the Corporation or you, which rights
are hereby expressly reserved by each, to terminate your employment at any
time
for any reason whatsoever, with or without cause.
If
the foregoing sets forth our agreement on this matter, kindly sign and return
to
the Corporation a copy of this letter.
Yours truly, | ||
ASPREVA PHARMACUETICALS CORPORATION | ||
By: | /s/ Xxxxxxx X. Xxxxxxxx | |
Authorized Signatory | ||
Accepted
and agreed to by Xxxxxxx X. Xxxxxxxx, as of the 24th
day of October 2006.
/s/ Xxxx Xxxxxxxx | |
Xxxx Xxxxxxxx | |
October
23rd,
2006
Xxxx
Xxxxxxxx,
Dear
Xxxx,
I
am pleased to present to you the following proposal for EVP
Global Pharmaceutical Operations and an
Officer of
Aspreva Pharmaceuticals Corp. The position
description attached as schedule A) with Aspreva Pharmaceuticals Corporation,
(“the Company”). Please review the changes and if acceptable, execute and return
the letter to my attention.
Position:
|
EVP
Global Pharmaceutical Operations
These duties and functions will be conducted in accordance with
and
adhering to all corporate policies and procedures. The Company
may change
your position, duties, and work location from time to time in
its
discretion, acting reasonably.
|
Department:
|
Global
Pharma Operations
|
Location:
|
Basking
Ridge, New Jersey, USA
|
Supervisor:
|
President
or subsequent designate
|
Start
Date:
|
November
1st,
2006
|
Salary:
|
$277,000
USD per annum
|
Bonus:
|
Remains
unchanged
|
Benefits:
|
No
change
|
Vacation:
|
No
change
|
Change
of Control: An amendment to your current “Change of Control” terms is also
enclosed.
If
you have any questions or concerns please feel free to contact me. Please
sign
and return this letter, which will become an amendment to your employment
agreement, the position description below and the change of control form
attached.
Sincerely,
ASPREVA
PHARMACEUTICALS CORPORATION
N
Hall
President
Enclosure
/s/ Xxxx Xxxxxxxx |
October
24, 2006
|
|
R Goulburn |
Date
|