EMPLOYMENT AGREEMENT
THIS
AGREEMENT made as at the 1st
day
of January
2007.
BETWEEN:
having
an
office at the City of Edmonton,
in
the
Province of Alberta,
(hereinafter
called the "Employer"),
OF
THE
FIRST PART,
-
and
-
[________________________]
of
the
City of Spruce Grove,
in
the
Province of Alberta,
(hereinafter
called the "Employee"),
OF
THE
SECOND PART,
WHEREAS:
| A. |
The
Employee has agreed to terms of employment with the Employer in the
capacity and position of Senior Vice President Operations;
and
|
| B. |
The
Employer and the Employee wish to confirm their relationship upon the
terms and conditions as provided in this
Agreement.
|
NOW
THEREFORE THIS AGREEMENT WITNESSES
that in
consideration of the mutual covenants and agreements referred to herein, and
the
sum of TEN DOLLARS ($10) now paid or to be paid on behalf of the Employer to
the
Employee, the receipt and sufficiency of which consideration is hereby
acknowledged, the parties covenant and agree as follows:
ARTICLE
1. INTERPRETATION
| 1.1 |
Number
and Gender
|
Words
importing the singular number only shall include the plural and vice versa
and
words importing the masculine gender shall include the feminine gender and
words
importing persons shall include firms and corporations and vice
versa.
| 1.2 |
Division
|
The
division of this Agreement into Articles and Sections forms no part of this
Agreement and shall be deemed to have been inserted and done for convenience
only.
1
| 1.3 |
Headings
|
The
headings of all the Articles and Sections hereof and the table of contents,
if
any, are inserted for convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
| 1.4 |
Recitals
|
All
recitals to this Agreement shall be included in and form part of this
Agreement.
| 1.5 |
Continuance
of Agreement
|
The
provisions of this Agreement shall continue in effect until the final
performance of all the respective obligations set forth herein or until amended
or altered by agreement in writing.
| 1.6 |
Agreement
Supersedes
|
This
Agreement represents a composite of all previous agreements, if any, reached
to
date and that hereafter, this Agreement and the Employee Confidentiality
Agreement, a copy of which is annexed hereto as Schedule “B”, are the only
agreements between the parties with respect to the matters contemplated by
this
Agreement, and shall supersede and replace any discussion letter or form of
Agreement, oral or written, which may exist as of the date of execution and
delivery of this Agreement.
| 1.7 |
Applicable
Law
|
This
Agreement shall be governed by the laws of the Province of Alberta.
| 1.8 |
Schedules
|
The
following schedules are incorporated into and form part of this
Agreement:
Schedule
"A" -
Position Profile
Schedule
"B" -
Employee Confidentiality Agreement
Schedule
"B" to this Agreement is referenced in Article 6 and is in full force and effect
when fully executed.
| 1.9 |
Effective
Date
|
Notwithstanding
the date of execution of this Agreement by the Employer and the Employee, this
Agreement shall be deemed for all purposes to be effective as at and from the
1st
day
of January 2007 (the "Effective
Date").
| 1.10 |
Severability
|
In
the
event that any provision or part of this Agreement shall be deemed void or
invalid by a court of competent jurisdiction, the remaining provisions or parts
shall be and remain in full force and effect.
2
| 1.11 |
Modification
of Agreement
|
Any
modification to this Agreement must be in writing and signed by the parties
or
it shall have no effect and shall be void.
ARTICLE
2. EMPLOYMENT
| 2.1 |
Employment
|
The
Employer hereby employs the Employee to be the Employer's Senior Vice President
Operations for the purposes of undertaking the duties of and exercising the
powers of that office. The Employee represents and warrants to the Employer
that
the Employee has the required skills and experience to perform the duties and
exercise the responsibilities required of the Employee as Senior Vice President
Operations. In carrying out his duties and responsibilities, the Employee shall
comply with all lawful and reasonable instructions as may be given by the
President of the Employer and shall comply with all government and other
professional requirements, rules, by-laws and regulations.
| 2.2 |
Employee's
Undertaking
|
2.2.1
The
Employee, in collaboration with the Employer's President and Employer's Board
of
Directors, shall be responsible for such reasonable duties consistent with
the
position of Senior Vice President Operations as may from time to time be
required or authorized by the President and/or the Board of Directors of the
Employer, without restricting the generality of the foregoing, shall
include:
2.2.1.1
discharging those duties and responsibilities set out in the Position Profile
attached as Schedule "A", which may be amended from time to time by the
Employer, so long as those amended duties and responsibilities are consistent
with the duties of a Senior Vice President Operations; and
2.2.1.2
using his best efforts to promote the interests and goodwill of the
Employer.
2.2.2
In
the performance of the responsibilities listed in Section 2.2, the Employee
may,
under
direction of the President of the Corporation,
delegate
or assign duties as appropriate to staff and external experts/consultants as
required provided that the Employee shall maintain management responsibility
over those to whom duties have been delegated and/or assigned.
2.3
Time
Devotion
2.3.1
The
Employee shall, during the term of this Agreement, devote his full business
time, attention and ability to the affairs of the Employer in furtherance of
the
Employer's best interest as is necessary to fulfill his duties hereunder. It
is
understood that the hours of work involved are going to vary and be irregular
and shall include reasonably sufficient hours required to meet the objectives
of
employment herein described.
2.3.2
The
Employer acknowledges and agrees that the Employee is an Adjunct Professor
at
the University of Alberta and that he may use a reasonable amount of time to
continue to fulfill these obligations.
3
2.4
Serving
the Company
The
Employee shall well and faithfully serve the Employer and use his best efforts
to promote the interests thereof. In carrying out his duties, functions and
responsibilities, the Employee shall comply with, adhere to, execute and fulfill
all of the
Employer's written
policies, procedures, rules and regulations, as
amended in writing by the Employer from time to time. It is understood and
agreed to by the Employee that his assignments, duties, responsibilities and
reporting arrangements may be changed by the Employer in its sole discretion
without causing termination of this Agreement.
2.5
Business
Conduct
The
Employee agrees that in all matters affecting the conduct of the Employer's
business, the Employee shall maintain a standard of conduct which in all
respects meets a reasonable standard of business conduct in the industry in
which the Employer operates.
2.6
Employer
Powers
Subject
always to this Agreement and all applicable laws, the Employer shall have the
power and authority to review all work performed by the Employee and to
determine standards of performance; provided always, that the Employer's
exercise of such power and authority shall be reasonably done in good faith
and
be consistent with its prior practice.
2.7
Responsibility of Employee
The
Employee assumes no responsibility under this Agreement other than to render
the
services called for hereunder in good faith.
2.8
Liability of the Employee
The
Employee will not be liable to the Employer or others except by reason of acts
constituting bad faith, willful misconduct, negligence or reckless disregard
of
his duties.
2.9 Exercise
of Duties
At
all
times, the Employee shall act on a basis which is fair and reasonable to the
Employer and shall exercise his powers and discharge his duties under this
Agreement honestly, in good faith and in the best interests of the Employer,
and
in connection therewith shall exercise that degree of care, diligence and skill
that a reasonably prudent person would exercise in comparable
circumstances.
2.10 Location
The
Employee's place of employment shall be at the head office of the Employer
located at 0000 Xxxxx Xxxx, XX, Xxxxxxxx, Xxxxxxx or such other place as the
Board of Directors directs.
2.11 Records
and Materials
Upon
expiry or termination of the Employee's employment with the Employer, the
Employee shall deliver to the Employer all proprietary information and all
Confidential Information referred
to in Article 6, including but not restricted to all data,
records
and materials with respect to the Employer which are in his possession and/or
under his control.
4
2.12 No
Interest
Nothing
herein shall be construed to give the Employee any interest in the tangible
or
intangible assets of the Employer.
ARTICLE
3. REMUNERATION
| 3.1 |
Compensation
of the Employee
|
Throughout
the term of this Agreement, commencing January
1, 2007, the Employer shall pay to the Employee a salary, set from time to
time
by the Board of Directors, stated as an annualized amount but payable
semi-monthly
in arrears in equal monthly installments for each year during the term of the
Employee's employment and commencing on the Effective Date. The Employee's
salary at the commencement of and throughout the term of this Agreement shall
be
no less than ONE
HUNDRED SIXTY THOUSAND ($160,000.00) DOLLARS
Canadian
per annum. The Employee's compensation and performance shall be reviewed by
the
Board of Directors annually at least one month prior to each anniversary date
of
commencement. The Employee shall have the right to provide information to the
Board of Directors on all factors relevant to the Board's decision on any
increase in compensation
| 3.2 |
Bonuses
|
For
each
year of the term of this Employment Agreement and any extension or renewal
thereof, the Employee is eligible to be considered for a bonus to be decided
on
by the Board of Directors. The current Compensation Plan calls for a bonus
of
20% for this level of employment. Considering that ViRexx is in Development
phase and currently does not have income inflow, Management reserves the right
whether or not to pay this bonus subject to the availability of
cash.
| 3.3 |
Benefits
|
The
Employer shall provide the Employee with participation in any benefit programs
as they are made generally available by the Employer to its other employees
including
life,
disability, health and dental insurance,
Alberta
Health Care and Parking.
| 3.4 |
Pension
|
The
Employer agrees to make matching annual contributions to the Employee's RRSP
up
to a maximum of 3% of the Employee's salary.
| 3.5 |
Stock
Options
|
|
3.5.1
|
The
Employee will be eligible to participate in the Employer's stock
option
program or plan as may be determined and/or amended from time to
time in
the sole discretion of Employer and as approved by the Board of Directors
subject to any applicable regulatory or necessary shareholder
approvals.
|
5
|
3.5.2
|
It
is hereby acknowledged that any option granted
to
the Employee shall be within the sole discretion of the
Board of Directors subject to any applicable regulatory or necessary
shareholder approvals.
|
|
3.5.3
|
If
the Employee’s
employment is terminated or deemed terminated
by
the Employer
pursuant to Section 5.3 then
all unvested
options granted
to
the Employee shall
vest immediately upon termination and
the Employee shall have ninety
(90) days from the date of termination to exercise
his
options unless
such ninety (90) day
period is
extended
by
the
Board of Directors.
|
|
3.5.4
|
If
the Employee
is
terminated or deemed terminated pursuant to Section
5.5, all
options not
yet vested shall be vested immediately upon termination or deemed
terminated for Good Reason and
the
stock option exercise period
will be
extended
from ninety
(90)
days
to
twelve (12)
months.
|
| 3.6 |
Car
Allowance and Business Expenses
|
The
Employee shall be paid a car mileage allowance for longer trips away from
Edmonton and his reasonable business expenses, including business-related mobile
phone charges, shall be reimbursed by the Employer.
| 3.7 |
Additional
Benefits
|
The
Employer shall pay all professional association and development fees and all
course costs which are incurred from time to time by the Employee in maintaining
his professional designations and upgrading and/or continuing his education
and
development to improve the performance of his duties.
ARTICLE
4. VACATION
The
Employee shall be entitled to a period of four weeks paid vacation per calendar
year. The Employee will provide the Employer with reasonable written notice
of
his intention to take any vacation days. The Employee shall be allowed to
accumulate one week vacation per year from the previous year but at no time
shall the Employee be entitled to accumulate unused weeks such that he has
more
than five (5) weeks of vacation in any one (1) year.
ARTICLE
5. TERM
AND TERMINATION
| 5.1 |
Term
|
This
Agreement commenced on the Effective Date and shall continue indefinitely unless
terminated earlier.
| 5.2 |
Termination
by the Employer for Cause
|
The
Board
of Directors, by majority decision acting reasonably, shall have the right
to
terminate the Employee's employment
for
cause, including, but without restricting the generality of the foregoing,
upon
the occurrence of one or more of the following default events:
6
| 5.2.1 |
the
Employee's failure or refusal to comply with policies established from
time to time by the Board of Directors, provided always that such policies
are documented in writing and communicated to the Employee and are
reasonable and consistent with the Employer's best
interests;
|
| 5.2.2 |
the
Employee's failure or refusal to comply with the directions of the
Board
of Directors or the Board of Directors determine, in their sole
discretion, that the Employee's performance of his duties under this
Agreement is unsatisfactory;
|
| 5.2.3 |
the
Employee's fraud, dishonesty or other willful misconduct or the Employee's
negligence;
|
| 5.2.4 |
if
the Employee engages in any criminal activity or unethical conduct
which,
in the sole discretion of the Employer, is judged to seriously impair
the
Employee's ability to perform his duties hereunder, or would or could
impair the business reputation of the Employer, including, but not
limited
to, where the Employee is convicted of any indictable criminal
offence;
|
| 5.2.5 |
any
actual or material breach of the provisions of this
Agreement;
|
| 5.2.6 |
the
Employee is adjudged bankrupt.
|
| 5.3 |
Termination
by the Employee or
by
the Employer Without Cause
|
5.3.1 This
Agreement may be terminated by the Employer
or the
Employee without cause in the following manner in the specified
circumstances:
5.3.1.1
by the Employee on giving ninety
(90)
days
notice in writing to the Employer, the Employer may waive the notice in whole
or
in part;
5.3.1.2
by the Employer on giving one (1) years notice in writing to the Employee or
payment in lieu of notice inclusive of all benefits except for those detailed
in
the paragraph below;
5.3.2 None
of
the payments in lieu of notice referred to in 5.3.1.1
and
5.3.1.2
above
include bonus which may be payable, the value of benefits otherwise received
over the same period and any accrued vacation pay, nor do these payments include
any reasonable out placement and relocation assistance from the
Employer
which
may be agreed upon as a full and final settlement to the Employee.
| 5.4 |
Termination
Upon a Change of Control
|
5.4.1 “Change
of Control” for the purposes of this Agreement means the
occurrence of any one or more of the following:
7
5.4.1.1 a
change
of control of the Employer or
of any
material subsidiary of the Employer;
5.4.1.2 the
closing of a merger, acquisition, sale of securities, amalgamation, plan of
arrangement, take-over bid, insider bid, issuer bid other than a normal course
issuer bid, reorganization, exchange of assets or securities, any one of which
results in a change of voting control of the issued and outstanding securities
of the Employer and a subsequent election of new directors who gain control
of
the Board of Directors; sale of all or substantially all of the assets of the
business of the Employer, a proxy contest resulting in appointment of new
directors who take control of the Board of Directors; or any other change which
the Board of Directors declares to be a Change of Control; but
5.4.1.3 excludes
internal reorganizations, reverse takeovers (where the Employer remains the
dominant entity) and transfers among the group of entities controlled by a
substantial shareholder.
5.4.2 “Good
Reason”
for
the
purposes of this Agreement means a material adverse change to
the
Employee’s
terms
and conditions of employment following a Change of Control including but not
limited to:
5.4.2.1 failure
by the Employer to maintain the Employee in at least the same or an equivalent
position which the Employee occupied before the Change in Control of the
Employer;
5.4.2.2 failure
by the Employer to provide the Employee with compensation benefits equal to
or
greater than the Employee was receiving prior to the Change in Control of the
Employer;
5.4.2.3 relocation
of Employee’s place of work to a location more than fifty (50) miles from it’s
location immediately prior to the Change of Control; or
5.4.2.4 if
there
is any material change in the Employee’s reporting relationships, any material
reduction in the Employee’s duties, responsibilities or authority or any other
action that has the effect of a demotion of the Employee: to the extent the
Change of Control results in the Employer (or a successor to the Employer by
merger, consolidation or the like), continuing in existence as a direct or
indirect subsidiary of an acquirer, then the Employee shall be considered to
have been demoted unless given the same or equivalent position, duties and
authority in the ultimate parent of the acquirer.
5.4.3 Notwithstanding
any other provisions hereof, this Agreement may be terminated at any time within
the twelve (12)
months
following a Change of Control:
5.4.3.1 by
the
Employee, for Good Reason, on giving sixty (60) days notice in writing to the
Employer and the Employer may waive the notice in whole or in part;
or
5.4.3.2 by
the
Employer without cause and without notice.
5.4.4 Upon
termination of the Agreement within twelve months following a Change of Control
either by the Employee for Good Reason as provided for in 5.4.2. above or by
the
Employer without cause as provided for in 5.4.1 above, the Employee is entitled
to the following severance:
8
5.4.4.1 twelve
(12) months salary inclusive of any bonus payable for the twelve (12) month
period;
5.4.4.2 continuation
for twelve (12) months of all Benefits except for those detailed in the
paragraph below;
5.4.4.3 immediate
vesting of all stock options granted to the Employee; and
5.4.4.4 an
extension of the Employer's stock option exercise period from ninety (90) days
to twelve (12) months.
5.4.5 The
severance includes the value of any bonus which may be payable but excludes
the
value of benefits otherwise received, that is, parking; pension matching; car
allowance and business expenses; additional benefits of Section 3.7; any accrued
vacation pay; out placement and relocation assistance from the Employer.
5.4.6 If
the
termination does occur as described in 5.4.1 or 5.4.2, each of the salary,
bonus
and benefits (“Benefits”) given to the Employee shall be equal to at least a
minimum of what they were for the year immediately prior to the Change of
Control.
| 5.5 |
Termination
of the Employee for Disability
|
If
the
Employee suffers from any mental or physical disability or illness which results
in the Employee being unable to substantially perform his duties for a
continuous ninety (90)
day
period
or for
periods aggregating one hundred and twenty days in any period of three hundred
and sixty five days, the Employer may terminate this Agreement upon giving
the
Employee sixty days notice in writing and shall pay to the Employee six months'
salary, the value of benefits otherwise received over the same period and any
accrued vacation pay as full and final settlement to the Employee.
| 5.6 |
Survival
of Agreement
|
Notwithstanding
the termination of the Employee's employment or the termination of this
Agreement for any reason, Sections 2.12, 7.5 and Article 5 and Article 6 of
this
Agreement shall not be deemed to have been terminated and shall continue in
full
force and effect.
| 5.7 |
Subsidiaries
|
For
the
purposes of this Agreement, employment by a corporation or other entity that
is
controlled directly or indirectly by the Employer will be deemed to be
employment by the Employer. Thus, references in this Agreement to “Employer”
include such corporations, subsidiaries, affiliates or other entities where
appropriate in context.
| 5.8 |
Effect
of Termination
|
Upon
termination of this Agreement, howsoever terminated, the Employee shall be
entitled to receive compensation for services provided under this Agreement
("Earned
Compensation"),
up to
and including the date of termination. However, termination of this Agreement
shall not accelerate the payment date of any monies accrued or accruing to
the
Employee as a result of any Earned Compensation, or other compensation, if
any,
nor shall termination vest in the Employee any right in connection
therewith
unless
otherwise stipulated herein.
9
In
the
event of termination of this Agreement for any reason provided in Section
5.2,
5.3
or
5.4,
all
rights and obligations of the Employer and the Employee shall cease to exist
immediately, except that the Employee's and Employer's obligations under
Sections 2.12, 7.5 and Article 5 and Article 6 hereof shall survive such
termination.
ARTICLE
6. CONFIDENTIAL
INFORMATION
AND SOLICITATION
| 6.1 |
Confidential
Information
|
The
Employee shall not, either during the term of his Employment and for a period
of
five years thereafter, disclose or cause to be disclosed, to any person, unless
required by law, any secrets or Confidential Information, as defined in Schedule
"B" hereto, concerning the business or affairs or financial position of the
Employer or any company with which the Employer is or may hereafter be
affiliated. This Agreement is governed by the confidentiality provisions as
set
forth in Schedule "B". PROVIDED it is agreed by the Employer that the Employee
shall have the sole discretion to decide how to manage any Confidential
Information and Intellectual Property Rights as between the Employer and the
University of Alberta given that he is employed by both simultaneously as long
as he uses reasonable practices which are consistent with practices of similar
companies.
| 6.2 |
Non-Solicitation
|
6.2.1 In
this
Section 6.2, in the context of any action taken by the Employee, the words
"directly
or indirectly"
include
any action:
6.2.1.1 taken
by
the Employee, for the Employee's own benefit, as the case may be;
6.2.1.2 taken
by
an "Associate"
or an
"Affiliate"
(as
each term is defined in the Securities
Act (Alberta))
of the Employee for the benefit of such Associate or Affiliate and/or the
Employee; or
6.2.1.3 otherwise
taken for the benefit of any person competing with the business of the Employer,
whether carried out directly by the Employer, or indirectly by any Associate,
any Affiliate, any joint venture partner or any agent (the "Business"),
by
the Employee, whether taken individually or in partnership or jointly or in
conjunction with any person as principal, agent, consultant, partner, trustee,
director, officer, employee or shareholder of that person (other than a holding
of shares listed on a Canadian or United States stock exchange that does not
exceed 5% of the outstanding shares so listed).
6.2.2
At
any
time during a period of one (1) year from the Employee ceasing to be employed
by
the Employer for any reason whatsoever (the "Restricted
Period"),
the
Employee shall not, without the prior written consent of the Employer (which
consent may be withheld by the Employer in its absolute and unfettered
discretion), directly or indirectly, alone or in concert or in any manner
whatsoever solicit or endeavor to solicit, or induce or endeavor to induce,
any
employee of the Business to leave his or her employment with the Employer or
any
Affiliate of the Employer.
10
ARTICLE
7. GENERAL
| 7.1 |
Further
Acts
|
Each
of
the parties to this Agreement shall, at the request and expense of the other
party, execute and deliver any further documents and do all acts and things
as
that party may reasonably require to carry out the true intent and meaning
of
this Agreement.
| 7.2 |
Time
|
Time
is
of the essence of this Agreement.
| 7.3 |
Parties
of Interest
|
This
Agreement enures to the benefit of and is binding upon the Employer and the
Employee and upon their administrators, legal representative, executor,
successors and permitted assigns as applicable.
| 7.4 |
Assignment
|
This
Agreement may not be assigned or transferred in any manner by the
Employee.
| 7.5 |
Employer's
Property
|
The
Employee acknowledges that all items of any and every nature or kind created
or
used by the Employee pursuant to the Employee's employment under this Agreement,
or furnished by the Employer to the Employee, and all equipment, automobiles,
credit cards, books, records, reports, files, manuals, literature, Confidential
Information
or other
materials shall remain and be considered the exclusive property of the Employer
at all times and shall be surrendered to the Employer, in good condition,
promptly on the cessation or termination of the Employee's employment
irrespective of the time, manner or cause of the termination.
ARTICLE
8. NOTICE
| 8.1 |
Manner
of Delivery
|
All
notices given under this Agreement shall be deemed to have been duly given
only
if personally delivered, mailed by prepaid registered mail, sent by facsimile
or
by electronic mail in portable document format ("PDF")
addressed as follows:
TO
THE
EMPLOYER:
0000
Xxxxx Xxxx, XX
Xxxxxxxx,
Xxxxxxx X0X 0X0
TO
THE
EMPLOYEE:
____________________
____________________
____________________
11
| 8.2 |
When
Notices Deemed Delivered
|
Any
notice personally delivered in the manner set out in Section 8.1 shall be deemed
given when personally delivered or upon receipt of confirmation of delivery
of
facsimile or electronic mail and any notice mailed in the manner set out in
Section 8.1 shall be deemed to have been received on the fifth regular business
day next following the date of posting.
| 8.3 |
Disruption
of Mail Service
|
In
the
event of disruption, or threatened disruption, of regular mail service, all
notices shall be deemed to have been duly given only if personally delivered,
sent by facsimile or electronic mail.
| 8.4 |
Change
of Address
|
Any
party
may change his address for notice by giving a notice to that effect pursuant
to
this Article 8.
IN
WITNESS WHEREOF this Agreement has been made effective as on the day and year
first written above.
|
Per:
|
||
|
Per:
|
||
|
SIGNED,
SEALED AND DELIVERED in the presence of:
|
)
)
)
)
|
|
|
WITNESS
|
[____________________]
|
|
12
SCHEDULE
"A"
POSITION
PROFILE
Reporting
to the President and the Chief Operating Officer, the Senior Vice President
of
Operations will be responsible for overseeing the _______________ Division
of
ViRexx Medical Corp including but not limited to the following
duties.
| · |
Oversee
all aspects of the _______________ Division including the management
of
Oncology staff.
|
| · |
Focus
on achieving regulatory and marketing approval of the Occlusin® 500 Device
for the treatment of hypervascular tumors and the treatment of uterine
fibroids. This will involve completing preclinical testing of the product
in an animal model, GMP manufacturing of the material, identification
and
scale-up of a manufacturing process suitable for commercialization
and
completing clinical testing of the
product.
|
| · |
Assist
in the operations of ViRexx by overseeing the maintenance and security
of
the building, and liaise with insurance brokers to maintain adequate
general, clinical and D&O insurance.
|
| · |
Assist
the Chief Executive Officer and the Chief Financial Officer in their
Investor Relations activities by being a backup for the Chief Executive
Officer from a "science" perspective if scheduling conflicts exist.
|
| · |
Assist
the Vice President of Clinical/Regulatory in drafting presenting
regulatory documents by providing required documentation, reviewing
document packages, and giving presentations to regulatory bodies as
part
of pre-IDE, pre-CTA, IDE and CTA
meetings.
|
| · |
Assist
in managing the intellectual property for ViRexx and specifically the
Intellectual Property for the T-ACT
Platform.
|
| · |
Be
an active member of the Intellectual Property committee by assisting
in
the management of ViRexx's Intellectual Property portfolio.
|
| · |
Liaise
directly with patent attorneys and examiners regarding the T-ACT®
technology including the Occlusin® products.
|
| · |
Assist
in preparing and submitting the necessary documentation to forward
the
T-ACT® Intellectual Property.
|
| · |
Assist
in disseminating communications within and external to
ViRexx.
|
13
| · |
Be
an active member of ViRexx's communications committee by assisting
in
drafting and reviewing communications within and outside
ViRexx.
|
| · |
Plan
and implement budgets to support activities in the Oncology Division
keeping in mind that ViRexx needs to operate under tight fiscal
constraints until the first commercial income
arrives.
|
| · |
Assist
in the identification and development of new products.
|
| · |
Travel
on behalf of ViRexx to support development and commercialization of
products. Travel involves meeting with Contract Manufacturers; attending
business development meetings; and attending the Society of Interventional
Radiology meeting to gather business intelligence on competing products
and improvements to our product
candidates.
|
14
SCHEDULE
"B"
EMPLOYEE
CONFIDENTIALITY AGREEMENT
THIS
AGREEMENT made as at the 1st
day of
January, 2007
(hereinafter referred to as the "Agreement").
BETWEEN:
a
corporation amalgamated pursuant to the
laws
of
Canada
(hereinafter
referred to as "ViRexx")
OF
THE
FIRST PART
-
and
-
[____________________]
of
the
City of Spruce Grove
in
the
Province of Alberta
(hereinafter
referred to as the "Employee")
OF
THE
SECOND PART
WHEREAS:
| A. |
the
Employee is presently employed, or is about to be employed pursuant
to an
Employment Agreement ("Employment
Agreement")
dated concurrently herewith, by ViRexx in a position of confidence
and
trust and under conditions where he has or may have access to technical,
confidential and secret information regarding existing or contemplated
business of ViRexx;
|
| B. |
the
Employee recognizes that as a part of the duties of his employment,
certain ideas and suggestions of interest to ViRexx, conceived or made
by
the Employee while he is retained or employed by ViRexx shall be
immediately made available to and become the property of ViRexx without
any further consideration;
|
| C. |
ViRexx
desires to receive from the Employee specific covenants relating to
the
non-disclosure of confidential information and ownership of Intellectual
Property, and the employment contract with the Employee is conditional
on
ViRexx receiving these covenants.
|
15
THEREFORE
IN CONSIDERATION
of the
premises set forth and the remuneration paid by ViRexx to the Employee, the
parties agree as follows:
1. Definition
of Confidential Information
1.1 For
purposes of this Agreement, the term "Confidential
Information",
shall
mean all information, whether or not reduced to writing and whether or not
patentable or protected by copyright, which the Employee receives, received
access to, conceived or developed, in whole or in part, directly or indirectly,
in connection with the Employee's relationship with ViRexx, and includes, but
is
not limited to:
| (i) |
information
concerning bioinformatics, medinformatics and cheminformatics software,
databases and services, including but not limited to, source codes,
object
codes, flowcharts and programs and other materials whatsoever (tangible
or
intangible and machine readable or human
readable);
|
| (ii) |
information
concerning products and services provided to the global community to
bridge the gap between biology in
vitro
(in the test tube) and biology in
silico
(in the computer);
|
| (iii) |
information
concerning the handling and analysis of DNA and protein xxxxxxxx
xxxx;
|
| (iv) |
information
concerning drug development and development processes, including but
not
limited to, designing optimal drug molecules for treating
diseases;
|
| (v) |
information
concerning pre-clinical, analytical and formulation
services;
|
| (vi) |
technology
developed for high throughput screening of new chemical entities or
drug
levels;
|
| (vii) |
discoveries
relating to, and developments of, patented in-house
formulations;
|
| (viii) |
information
concerning research, development and commercialization of vaccines
and
antibodies for preventative or therapeutic use including, without
restriction, those based upon peptide-synthetic carrier protection
vaccine
formulations for infectious disease;
|
| (ix) |
formulations,
including but not limited to, the development of new formulations for
existing drugs, assessments of current formulations and the development
of
strategies for formulations of new drug chemical entities
(NCE);
|
| (x) |
information,
drugs, delivery systems, devices or models under a patent, or potential
or
pending patent, whether or not such a patent is in fact obtained or
expires;
|
| (xi) |
test
results, clinical studies, clinical trial results, and all research
whatsoever;
|
16
| (xii) |
products
and devices developed, patents, discoveries, concepts, compilations
and
ideas of any nature whatsoever including, without limitation, the nature
and results of research and development activities, the software,
molecular and analytical tools to facilitate research in the fields
of
biology, medicine and pharmaceutical science, and processes, formulas,
inventions, technology, techniques, computer programs and models, designs,
drawings, and specifications;
|
| (xiii) |
production
processes, marketing techniques and arrangements, marketing materials,
promotions, demos and publications, mailing lists, purchasing information,
pricing policies, quoting procedures, financial information, customer
and
prospect names and requirements, Employee, customer, supplier and
distributor data and other materials or information relating to ViRexx's
business and activities and the manner in which ViRexx does business,
including but not limited to the names of drug firms, biotechnology
firms,
contact research organizations (CRO), generic drug manufacturers,
pharmaceutical companies, pre-clinical clients, principal investigators
and alliances with whom ViRexx has or may have a business relationship
with,
|
| (xiv) |
any
other materials or information related to, or that is or may be used
in,
the business, trade or activities of ViRexx
which:
|
| (a) |
are
not generally known to others engaged in similar business or activities;
|
| (b) |
has
an economic value from not being generally known;
and
|
| (c) |
is
the subject of efforts that are reasonable in the circumstances to
maintain its secrecy; and
|
| (xv) |
any
financial information or information relating to the day to day business
of ViRexx.
|
1.2 For
the
purposes of this Agreement the term “Intellectual
Property”
shall
mean all copyrights, registered and unregistered trademarks, trade names, logos,
licenses, patent and patent applications, including continuations and
continuations in part, trade secrets, computer software, know-how and all other
intellectual property which the Employee creates, invents or of which he becomes
aware as a result of his employment with ViRexx.
1.3 Failure
to xxxx any of the Confidential Information as confidential, proprietary or
protected shall not affect its status as part of the Confidential Information
under the terms of this Agreement.
1.4 For
purposes of this Agreement, the term "Confidential
Information"
shall
not include information which:
|
(i)
|
has
been in the possession of the Employee prior to the date of the
commencement of the Employee's employment with ViRexx including,
without
limitation, information pertaining to the matters set out in Section
1.1,
if any;
|
17
|
(ii)
|
has
been publicly available prior to coming into the possession of
ViRexx;
|
|
(iii)
|
becomes
publicly available without a breach by the Employee of: i) this Agreement;
ii) any other agreement between the Employee and ViRexx; or iii)
any
lawful duty owed by the Employee to
ViRexx;
|
|
(iv)
|
has
been supplied to the Employee by a third party who is under no obligation
to ViRexx.
|
The
information described in paragraphs 1.3(i) and (iv) above is hereinafter called
the "Employee
Information".
2. Treatment
of Information
2.1 The
Employee acknowledges that in his position, or in any other position the
Employee may hold, in and as a result of the Employee's relationship with
ViRexx, the Employee shall, or may be making use of, acquiring or adding to
Confidential Information about certain matters and things which are confidential
to ViRexx and which information is the exclusive property of
ViRexx.
2.2 As
a
material inducement for ViRexx to retain the services of the Employee, the
Employee agrees that during his term as an Employee with ViRexx, and for a
term
of five (5) years following the date of expiry or termination of the Employment
Agreement or expiry or termination of any extension or renewal thereof, the
Employee shall not, except with the prior written consent of ViRexx, which
consent may be arbitrarily withheld, or except if the Employee is acting in
the
course of his duties on behalf and for the benefit of ViRexx in connection
with
ViRexx's business practices and policies, directly or indirectly, disclose,
divulge, reveal, report, publish, transfer or use for any purpose, or cause
to
be disclosed, divulged, revealed, reported, published, transferred or used
for
any purpose, the Confidential Information which has been obtained, created,
learned or disclosed by, or to, the Employee.
2.3 Disclosure
of any Confidential Information of ViRexx by the Employee shall not be
prohibited if the disclosure is directly pursuant to a valid and existing order
of a governing court or other governmental body or agency within Canada;
provided, however that:
|
(i)
|
the
Employee shall first provide immediate written notice to ViRexx of
any
possible or prospective order, or proceeding pursuant to which any
order
may result; and
|
|
(ii)
|
ViRexx
shall have been afforded a reasonable opportunity to prevent or limit
any
disclosure.
|
3. Ownership
of ViRexx Intellectual Property and Confidential
Information
3.1 The
Employee agrees that all right, title and interest in any Confidential
Information and any Intellectual Property shall
be
and shall remain the exclusive property of ViRexx.
18
3.2 The
Employee agrees immediately to disclose in writing to ViRexx all Confidential
Information and any Intellectual Property pertaining to the business of ViRexx
developed in whole or in part by the Employee during the term of the Employee's
relationship with ViRexx and does hereby assign to ViRexx, any right, title
or
interest the Employee may have in the Confidential Information
and the
Intellectual Property.
The
Employee agrees to execute any instruments and to do all other things reasonably
requested by ViRexx, in order to vest more fully in ViRexx, all ownership rights
in the
Confidential
Information and Intellectual Property.
3.3 All
Intellectual
Property
and
all
Confidential Information
shall
belong exclusively to ViRexx and the Employee does hereby transfer any interest
he may have in it and agrees to turn it over to ViRexx including but not limited
to all originals and all copies of any
materials, tapes, notes, data
reference items, sketches, drawings, memoranda, hardware,
software,
disks,
records, inventions, technology,
all
Intellectual Property and all Confidential Information,
in, or
that at any time whatsoever were in, the Employee's possession, power or
control, at the request of ViRexx, or in the absence of a request, on the
termination of the Employee's relationship with ViRexx, howsoever the Employee's
termination occurs, including but not limited to, the Employee's retirement
or
death.
4. Injunctive
Relief
4.1 The
Employee understands and agrees that ViRexx shall suffer irreparable harm in
the
event that the Employee breaches any of the Employee's obligations under this
Agreement and that monetary damages shall be inadequate to compensate ViRexx
for
the breach. Accordingly the Employee agrees that, in the event of a breach
or
threatened or potential breach by the Employee of any of the provisions of
this
Agreement, ViRexx, in addition to and not in limitation of any other rights,
remedies or damages available to ViRexx at law or in equity, shall be entitled
to an interim injunction, interlocutory injunction, and permanent injunction,
in
order to prevent or to restrain any such breach by the Employee, or by any
or
all of the Employee's partners, co-venturers, ViRexx's servants, agents,
representatives and any and all persons directly or indirectly acting for,
on
behalf of, or with the Employee.
5. Accounting
for Profits and Indemnification
5.1 The
Employee agrees that if the Employee shall violate any of the Employee's
covenants under this Agreement, ViRexx shall be entitled to an accounting and
repayment of all profits, compensation, royalties, commissions, remunerations
or
benefits which the Employee directly or indirectly shall have realized or may
realize relating to, growing out of, or in connection with any violations of
this Agreement. This remedy shall be in addition to and not in limitation of
any
injunctive relief at law or in equity or otherwise under this
Agreement.
5.2 The
Employee agrees to defend, hold harmless and indemnify ViRexx against and in
respect of:
|
(i)
|
any
and all losses and damages resulting from, relating or incident to,
or
arising out of any misrepresentation or breach by the Employee of
any
warranty or covenant made or contained in this
Agreement;
|
19
|
(ii)
|
any
and all actions, suits, proceedings, claims demands, judgments, costs,
and
expenses (including all legal fees, on a solicitor and his own client
basis), incident to the foregoing.
|
6. Severability
6.1 In
the
event that any provision or part of any provision of this Agreement shall be
deemed to be void or invalid by a court of competent jurisdiction, the remaining
provisions or parts shall be and remain in full force and effect. The Employee
agrees that the breach or alleged breach by ViRexx of:
|
(i)
|
any
covenant contained in another agreement (if any) between ViRexx and
the
Employee or;
|
|
(ii)
|
any
obligation owed to the Employee by
ViRexx;
|
shall
not
affect the validity or enforceability of the covenants and agreements of the
Employee set forth in this Agreement.
7. No
Prior Agreements
7.1 The
Employee represents to the best of the Employee's knowledge that the Employee's
performance of all the terms of this Agreement do not and shall not breach
any
fiduciary or other duty or any covenant, agreement or understanding (including
any agreement relating to any proprietary information, knowledge or data
acquired by the Employee in confidence, trust or otherwise prior to the
Employee's employment by ViRexx) to which the Employee is a party or by the
terms of which the Employee may be bound. The Employee covenants and agrees
that
the Employee shall not disclose to ViRexx, or induce ViRexx to use any
proprietary information, knowledge or data belonging to any previous employer
or
others. The Employee further covenants and agrees not to enter into any
agreement or understanding, either written or oral, in conflict with the
provisions of this Agreement.
8. Employee's
Status
8.1 Nothing
in this Agreement shall be construed as constituting a commitment, guarantee,
agreement or understanding of any kind or nature that ViRexx shall continue
to
employ the Employee. No change of the Employee's duties as an Employee of ViRexx
shall result in, or be deemed to be, a modification of the terms of this
Agreement.
9. Successors
9.1 This
Agreement shall be binding on and shall enure to the benefit of ViRexx and
the
Employee, and their respective heirs, personal and legal representatives,
successors and assigns. As used in this Agreement, the term "ViRexx"
shall
also include any corporation or entity which is a parent, subsidiary, or
affiliate of ViRexx. The Employee consents to the enforcement of any and all
provisions of this Agreement by or for the benefit of ViRexx as to any other
corporation or entity regarding any of the Confidential
Information.
20
10. Governing
Law
10.1 This
Agreement shall at all times and in all respects be governed by the laws of
the
Province of Alberta and all parties hereto shall irrevocably attorn to the
courts of competent jurisdiction of the Province of Alberta.
11. Notices
11.1 Any
notice required or permitted to be given to the Employee shall be sufficiently
given if delivered to the Employee personally or if mailed by prepaid registered
mail, sent by facsimile or by electronic mail in portable document format
("PDF")
to the
Employee's address last known to ViRexx.
11.2 Any
notice required or permitted to be given to ViRexx shall be sufficiently given
if delivered personally or if mailed by prepaid registered mail to:
0000
Xxxxx Xxxx, XX
Xxxxxxxx,
Xxxxxxx
X0X
0X0
or
at
such other address as the Employer may advise the Employee in
writing.
11.3 Any
notice personally delivered in the manner set out in this Section 11 shall
be
deemed given when personally delivered or upon receipt of confirmation of
delivery of facsimile or electronic mail and any notice mailed in the manner
set
out in Section 11 shall be deemed to have been received on the fifth regular
business day next following the date of posting.
11.4 Either
one of the parties may advise the other, in the manner aforesaid, of any change
of address for the giving of notices.
12. Entire
Agreement
12.1
It is
acknowledged that the parties are parties to an employment agreement to which
this agreement is attached as Schedule "B". This Agreement and the employment
agreement along with any future agreement respecting options or warrants contain
the entire agreements and understandings by and between ViRexx and the Employee
with respect to the subject matter, and no representations, promises, agreements
or understandings, written or oral, express or implied shall be valid or binding
unless the same is in writing and signed by the party intended to be bound.
No
waiver of any provision of this Agreement shall be valid unless it is in writing
and signed by the party against whom the waiver is sought to be enforced;
moreover, no valid waiver of any provision of this Agreement shall be deemed
a
waiver of any other provision of this Agreement at the time or shall be deemed
a
valid waiver of the provision at any other time.
13. Assignment
13.1 This
Agreement is assignable by ViRexx without the prior consent of the
Employee.
21
13.2 As
this
Agreement is personal in nature with respect to the Employee, it is not
assignable by the Employee under any circumstance.
14. Gender
14.1 Whenever
the singular is used, it shall be deemed to extend to and include the plural.
Where one gender is used, it shall include all genders.
15. Headings
15.1 The
headings and other captions in this Agreement are for convenience and reference
only and are not to be construed in any way as additions or limitations of
the
covenants and agreements contained in this Agreement.
16. Effective
Date
16.1 This
Agreement is effective as of the date and year first above mentioned and
indicated herein.
IN
WITNESS WHEREOF, ViRexx and the Employee have duly executed this Agreement,
where applicable by their respective corporate officers hereunto duly
authorized.
|
Per:
|
||
|
Per:
|
||
|
SIGNED,
SEALED AND DELIVERED in the presence of:
|
)
)
)
)
|
|
|
WITNESS
|
[___________________]
|
22
|
AFFIDAVIT
OF EXECUTION
|
||
|
C
A
N A D A
PROVINCE
OF ALBERTA
TO
WIT:
|
)
)
)
)
)
|
|
|
MAKE
OATH AND SAY:
|
||
1. THAT
I
was personally present and did see [___________________]
named
in
the annexed instrument, who is personally known to me to be the person named
therein, duly sign and execute the same for the purpose named
therein.
2. THAT
the
same was executed at the City of Edmonton in the Province of Alberta, and that
I
am the subscribing witness thereto.
3. THAT
I
know the said [___________________]
and
he is
in my belief of the full age of eighteen years.
|
SWORN
BEFORE ME at the City of Edmonton, in the Province of Alberta, this
_____
day of ____________________,
2007.
|
)
)
)
)
)
)
|
|
|
A
COMMISSIONER OF OATHS IN AND
FOR
THE PROVINCE OF ALBERTA
|
)
)
|
23
