ASPREVA PHARMACEUTICALS
Exhibit
10.38
ASPREVA
PHARMACEUTICALS
Personal
& Confidential
24,
September, 2007
Xx.
Xxxxx Xxxx
0000
Xxxxx xxxxx Xxxx
Furlong,
Pennsylvania, 18925, USA
Dear
Oz,
This
will serve to confirm our recent discussions to amend your employment agreement
dated January 6, 2007, to reflect our mutual agreement for your work location
to
now be based in Basking Ridge, New Jersey. This change will be effective October
1, 2007. This letter (the “Addendum”) sets
forth the substance of the changes to the letter agreement and between you
and
Aspreva Pharmaceuticals Corporation (the
“Corporation”) dated 6, January, 2007 (the
“Employment Agreement”), between you and
the
Corporation and to Schedules A (“Confidentiality
Agreement”) and B (“Change in Control
Agreement” ) thereto (collectively the
“Schedules”). All Capitalized Terms not
defined in this Addendum that are defined in the Employment Agreement or the
Schedules, shall have the same meaning as defined in the Employment Agreement
and/or the Schedules as the context requires.
The
Employment Agreement is amended as follows:
1. Since
you are not relocating to Victoria, Canada, you
are no longer eligible for any relocation assistance or tax assistance pursuant
to Section 2(i) (ii) and (iii), Section 6(b) or Section 10 of the Employment
Agreement.
2. The
benefits referenced in Section 6(a) of the Employment Agreement will be those
benefits offered to United States based employees for which you are
eligible.
3. Section
13(b) will be applicable only to the extent benefit continuation is permitted
by
the terms of the United States benefit plans in which you participate and
applicable U.S. law.
4. Section
26 is amended as to read as follows: This Agreement shall be governed by and
interpreted in accordance with the laws of the State of New Jersey and
applicable laws of the United States and the parties hereto agree to the
exclusive jurisdiction of the state and federal courts of New Jersey; provided,
however that the reference to “just cause at common law” in Section 15(e) shall
refer to the common law of the Province of British Columbia and of
Canada.
5. The
reference to “Schedule A” in Section 18 shall refer to Schedule A as amended by
this Addendum.
The
Confidentiality Agreement shall be amended as follows:
6. The
reference to “Moral Rights” in Section 4.3 shall be amended to include Moral
Rights under both United States and Canadian copyright law.
7. Section
5.13 shall be amended to read as follows: This Agreement shall be
governed by and interpreted in accordance with the laws of the State of New
Jersey and applicable laws of the United States and the parties hereto agree
to
the exclusive jurisdiction of the state and federal courts of New
Jersey.
The
Change in Control Agreement is amended as follows:
8. The
definition of Good Reason in Section 2 is amended to read as
follows:
“Good
Reason” shall mean the occurrence of one or more of the following events, all of
which for purposes of this provision shall constitute a material breach of
the
Employment Agreement between you and the Corporation, without your express
written consent, within 12 months of Change in Control:
a
material change in your status, position, authority or responsibilities that
does not represent a promotion from or represents an adverse change from your
status, position, authority or responsibilities in effect immediately prior
to
the Change in Control;
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;
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;
any
request by the Corporation or any affiliate of the Corporation that you
participate in an unlawful act; or
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.
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“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. Notice of Termination must be given by you within
sixty (60) days of the occurrence of Good Reason. Following
your notice, the Corporation shall have thirty (30) days to cure
the
circumstances constituting Good Reason. In the absence of cure,
your resignation shall take effect thirty (30) days following your
notice.
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9. Section
4 is amended to clarify that the compensation for which you are eligible
pursuant to that Section is in lieu of, and not in addition to, any compensation
for which you are otherwise eligible pursuant to the Employment
Agreement.
10. Section
8 is amended as follows: This Agreement shall be governed by and
interpreted in accordance with the laws of the State of New Jersey and
applicable laws of the United States and the parties hereto agree to the
exclusive jurisdiction of the state and federal courts of New
Jersey.
Other
than as set provided in this Addendum, the Employment Agreement and the
Schedules will otherwise remain in full force and effect. This
Addendum may not be modified or amended except in a writing signed by both
you
and a duly authorized officer of the Corporation. This Addendum will
bind the heirs, personal representatives, successors and assigns of both you
and
the Company, and inure to the benefit of both you and the Corporation, their
heirs, successors and assigns. If any provision of this Addendum is
determined to be invalid or unenforceable, in whole or in part, this
determination will not affect any other provision of this Addendum or of the
Employment Agreement and the Schedules and the provision in question will be
modified by the court so as to be rendered enforceable. This Addendum
will be deemed to have been entered into and will be construed and enforced
in
accordance with the laws of the State of New Jersey as applied to contracts
made
and to be performed entirely within New Jersey.
If
you accept and agree to the foregoing, please confirm your acceptance and
agreement by signing the enclosed duplicate copy of this letter where indicated
below and by returning it to us.
| Yours truly, | |||
| ASPREVA PHARMACEUTICALS CORPORATION | |||
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By:
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/s/ X. Xxxxxxx Xxxxxxx | |
| X. Xxxxxxx Xxxxxxx | |||
Accepted
and agreed to by Xxxxx Xxxx as of the 24th September,
2007
/s/
Xxxxx Xxxx
