EMPLOYMENT AGREEMENT ASPREVA PHARMACEUTICALS CORPORATION 1203- 4464 Markham Street Victoria, BC. V8Z 7X8
Exhibit
10.35
ASPREVA
PHARMACEUTICALS CORPORATION
0000-
0000 Xxxxxxx Xxxxxx Xxxxxxxx, XX. X0X 0X0
PRIVATE
AND CONFIDENTIAL
July
10, 2007
Dr. J. Xxxxxxx Xxxxxxx, Ph.D.
0000-0000 Xxxxxxx
XxxxxxXxxxxxxx,
Xxxxxxx Xxxxxxxx
Xxxxxx
X0X 0X0
Dear
Xxxx,
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Re:
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Terms
of Employment with ASPREVA PHARMACEUTICALS CORPORATION (the
“Corporation”)
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This
Agreement confirms the terms and conditions of your employment by the
Corporation and will constitute your employment agreement. Those
terms and conditions are set out below:
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1.
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Position
and Duties.
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You
will be employed by and will serve the Corporation as its Chairman and Chief
Executive Officer. You will report directly
to the Board of Directors and perform such duties as it may reasonably assign
to
you, including those duties particularly described in Schedule
A attached hereto.
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2.
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Term.
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Your
employment will commence no later than July 10, 2007 (the “Effective Date”) and
will continue until terminated pursuant to the terms of this
Agreement.
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3.
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Base
Salary.
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The
Corporation shall pay you a starting base salary of $625,000 USD per year (the
“Base Salary”), subject to the withholding of all applicable statutory
deductions. Your Base Salary will be paid in Canadian dollars using the closing
Bank of Canada exchange rate in effect on January 2nd of the calendar year
in
which the Base Salary is being paid; provided, however, that the closing Bank
of
Canada exchange rate in effect on July 2, 2007 will be used for the payment
of
your Base Salary in 2007. All other dollar figures set out in this Agreement
refer to Canadian dollars unless otherwise stated.
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4.
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Annual
Review.
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The
Compensation Committee shall review your Base Salary annually as part of its
standard review for senior executives of the Corporation. This review
shall not result in a decrease of your Base Salary nor shall it necessarily
result in an increase in your Base Salary and any increase shall be in the
discretion of the Board.
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5.
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Performance
Bonus.
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You
will participate in the Corporation’s bonus plan. Your target annual bonus will
be equal to 100% of your Base Salary and your maximum possible bonus will be
125% of your Base Salary, subject to the withholding of all applicable statutory
deductions. The annual bonus will be determined by the Compensation Committee
and will be based on performance against a set of objectives set out in advance
by the Compensation Committee and approved by the Board of Directors. The
objectives will be related to both the performance of the Corporation and your
personal performance.
Your
bonus for 2007 will be equal to 100% of your Base Salary and will be pro-rated
to take into account that you are only working part of the calendar 2007
year. Such bonus shall be paid by the Corporation prior to March 15,
2008.
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6.
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Benefits
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The
Corporation will arrange for you to have health, medical, dental, and such
other
benefits as are made available by the Corporation to its employees in Canada
from time to time. In addition, after July 1, 2008, the Corporation
will arrange for you and your wife to have health, medical, dental and other
benefits in the United States that are substantially similar to those provided
to you in Canada. Participation in the Corporation’s benefit programs
may require payroll deductions and/or direct contributions by you, as it does
for other senior executives. The Corporation will
reimburse you for income taxes that you may be required to pay relating to
the
cost of the benefits described above to the extent that such benefits are
considered a taxable benefit.
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7.
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Reimbursement
of Expenses
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The
Corporation shall reimburse you for reasonable travelling and other expenses
(including business class airfare or first class airfare if business class
is
unavailable) actually and properly incurred by you in connection with the
performance of your duties. These shall be in accordance with customary Human
Resource practices and ultimately the Board’s discretion.
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8.
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Vacation
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During
your employment with the Corporation under this Agreement, you will be entitled
to an annual paid vacation of not less than five weeks per annum. The
five weeks includes three personal days and three days of family
leave.
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9.
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Taxes
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You
will be required to file tax returns in Canada and the US. If, for
any reason, you are subject to double taxation (with no relief under the
provisions of the Income Tax Act, the Internal Revenue Code or
the Canada-US Treaty), the Corporation will, for a period of three years
following the Effective Date, reimburse you for such double
taxation. The Corporation will gross-up such payment to take into
account that the payment will be considered a taxable benefit for income tax
purposes. For a period of three years following the Effective Date,
the Corporation will provide, at no cost to you, the services of the
International Executive Services group at KPMG (or a similarly qualified
international accounting firm acceptable to you and the Corporation) in order
to
determine the extent of double taxation, if any. KPMG (or a similarly
qualified international accounting firm acceptable to you and the Corporation)
will also be retained by the Corporation, at no cost to you, for preparation
of
your Canadian and US tax returns. In addition, the services of KPMG (or a
similarly qualified international accounting firm acceptable to you and the
Corporation) will be made available to you by the Corporation for tax advisory
services related to your move to Canada. The Corporation will
reimburse you for income taxes that you may be required to pay relating to
the
cost of the services to be rendered by KPMG (or a similarly qualified
international accounting firm acceptable to you and the Corporation) and
described above to the extent that such services are considered a taxable
benefit.
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10.
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Vehicle
Allowance
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The
Corporation will pay you a motor vehicle allowance of $750 per
month.
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11.
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Stock
Options
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You
will be granted 700,000 stock options (the “Options”). The grant date
and strike price will be determined at the first meeting of the Compensation
Committee following the Effective Date at which options may be
granted. One forty-eighth (1/48th) of these
Options
will vest at the end of each of the first 48 months of your employment. The
Options will cease to vest on the following occurrences:
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(a)
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the
date of your last day of service with the Corporation pursuant to
Section
16 (Termination by Employee);
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(b)
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the
date of your last day of service with the Corporation pursuant to
Sections
17 and 18 (Termination without Cause or Termination for Good Reason);
provided, however, that on such date 50% of any unvested Options
shall
immediately vest;
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(c)
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the
date the Corporation terminates your employment pursuant to Section
19
(Termination for Cause); or
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(d)
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otherwise
on the date this Agreement is terminated or deemed
terminated.
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The
terms and conditions relating to the Options will be subject to the Option
Agreement that is entered into concurrently with this Agreement, as well as
the
Aspreva 2002 Incentive Stock Option Plan. If there is any conflict between
the
terms of this Agreement and the Plan, the terms of the Plan will govern; except
with respect to the Options vesting over the first 48
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3
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months
of your employment, as set out above. If there is any conflict between the
terms
of this Agreement and the Option Agreement, the terms of this Agreement will
govern to the extent of the conflict.
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12.
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Location
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The
Corporation recognizes that your current residence is in Boulder, Colorado
and
that you intend to spend up to one-third of your time working out of an office
in Boulder. You agree to schedule work in Boulder when it is not inconvenient
for the Corporation and does not interfere with the performance of your duties
as Chairman and Chief Executive Officer.
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13.
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Relocation
Allowance
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The
Corporation will pay all reasonable expenses associated with your relocation
to
Victoria (the “Relocation Allowance”). The Relocation Allowance will include
travel expenses between Boulder and Victoria, moving expenses for any physical
goods or property, and any brokerage commissions or administrative fees
associated with purchasing or renting a full-time residence in the greater
Victoria area and the sale of your residence in Boulder, Colorado. It will
also
include the reasonable cost of renting a temporary residence in Victoria for
a
period of up to six months. Relocation expenses will be governed by the
Corporation’s standard relocation policies and will be managed through the Human
Resources Department.
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14.
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Immigration
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The
Corporation will work with you to obtain all necessary work permits for you
to
become a full-time employee of the Corporation working in Victoria. Due to
the
uncertain nature of the timing required to obtain this documentation, it may
be
necessary to establish an interim solution which will allow you to start working
before the necessary document is in place. The Corporation will lead the effort
and bear all expenses related to any interim and/or final resolution of this
issue.
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15.
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Service
to Employer
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During
your employment under this Agreement you will:
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(a)
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well
and faithfully serve the Corporation, at all times act in, and promote,
the best interests of the
Corporation;
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(b)
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comply
with all rules, regulations, policies and procedures of the Corporation,
including the Corporation’s Code of Conduct Policy, Whistleblower Policy,
Privacy Policy, IT Acceptable Use Policy, Corporate Disclosure Policy
and
Xxxxxxx Xxxxxxx Policy.
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(c)
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not,
without the prior approval of the Board, carry on or engage in any
other
business or occupation or become a director, officer, employee or
agent of
or hold any position or office with any other corporation, firm or
person,
except as a volunteer for a non-profit organization, for personal
investments, a personal holding company,
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which
may include members of your family as shareholders, or those positions
listed in Schedule
D.
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16.
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Termination
By Employee
(Resignation)
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You
may resign your employment with the Corporation by giving 3 months’ written
notice of the effective date of your resignation. The Corporation
shall have the right to waive this notice period in whole or in part in which
case your resignation will become effective on the date set by the
Corporation.
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17.
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Termination
by the Employee For Good Reason
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If
you believe that you have Good Reason to terminate your employment with the
Corporation, you shall first give the Corporation 30 days’ written notice of the
circumstances that you believe constitute Good Reason within not more than
90
days after such circumstances first arise. During the 30-day notice
period, you agree to provide the Corporation with an opportunity to resolve
your
concerns and agree to work with the Corporation to that end.
At
the end of the 30-day notice period, you may terminate your employment with
the
Corporation by notice in writing to the Corporation. If you have Good
Reason to terminate your employment, your employment will be deemed to have
been
terminated by the Corporation without Cause within the meaning of Section 18
of
this Agreement, and you will be entitled to the rights and benefits set out
therein.
For
the purposes of this Agreement, “Good Reason” shall mean one or more of the
following events, without your consent:
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(a)
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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;
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(b)
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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, unless an equitable arrangement
has
been made with respect to such
benefits;
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(c)
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a
failure by the Corporation to continue in effect any other compensation
plan in which you participate (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; or
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(d)
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any
request by the Corporation or any affiliate of the Corporation that
you
participate in an unlawful act.
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18.
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Termination
by the Corporation Without
Cause
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If
the Corporation terminates your employment as Chairman and Chief Executive
Officer without Cause (as defined below), you will be entitled to a severance
payment in an amount equal to 12 months of your then Base Salary, plus any
guaranteed portion of any bonus, in lieu of notice. The severance payment will
be paid in a single lump sum cash payment within 7 days after the effectivedate
of your executed release of all claims against the Corporation, but in no case
later than March 15 of the year following the year in which the termination
occurs (if you have signed such a release). This payment will be in full and
final satisfaction of any claims you may have against the Corporation other
than
claims for monies that are already due or accruing due for services rendered
to
the date of termination.
Subject
to the terms and conditions of the applicable plans, the Corporation will also
maintain, at no cost to you, (or reimburse you for the cost of continuation
of)
your group benefit coverage for a period of 12 months following the termination
of your employment, or until such earlier date as you arrange new employment
with similar benefits. The Corporation will reimburse you for income taxes
that
you may be required to pay with respect to such continued group benefit coverage
to the extent that such coverage is considered a taxable
benefit. Such reimbursement for taxes will be made in three lump sum
payments as follows: as to the taxes relating to up to the first 3
months of continued health coverage, payment shall be made on the date that
is
two months after the termination date; as to the taxes relating to up to the
next 4 months of continued health coverage, payment shall be made on the date
that is 7 months after the termination date; and as to the taxes relating to
up
to the remaining 5 months of continued health coverage, payment shall be made
on
the date that is 11 months after the termination date.
It
is intended that (1) each installment of the payments provided under this
Section 18 is a separate “payment” for purposes of Xxxxxxx 000X xx xxx Xxxxxx
Xxxxxx Internal Revenue Code of 1986 (the “Code”), (2) that the payments
satisfy, to the greatest extent possible, the exemptions from the application
of
Section 409A provided under of Treasury Regulation 1.409A-1(b)(4),
1.409A-1(b)(9)(iii), and 1.409A-1(b)(9)(v). Notwithstanding the
foregoing, if the Corporation (or, if applicable, the successor entity thereto)
determines that the payments provided under this Agreement constitute “deferred
compensation” under Section 409A of the Code (together, with any international,
state or local law of similar effect, “Section 409A”)
and you are a “specified employee” of the Corporation or any successor entity
thereto at the relevant date, as such term is defined in Section
409A(a)(2)(B)(i) (a “Specified Employee”), then,
solely to the extent necessary to avoid the incurrence of the adverse personal
tax consequences under Section 409A, the timing of the payments shall be delayed
as follows: on the earliest to occur of (i) the date that is six
months and one day after the termination date or (ii) the date of your death
(such earliest date, the “Delayed Initial Payment
Date”), the Corporation (or the successor entity thereto, as
applicable) shall (A) pay you a lump sum amount equal to the sum of the payments
that you would otherwise have received through the Delayed Initial Payment
Date
if the commencement of the payment of the payments had not been delayed pursuant
to this Section 18 and (B) commence paying the balance of the payments in
accordance with the applicable payment schedules set forth
above.
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19.
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Termination
by the Corporation for Cause
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The
Corporation may terminate your employment for just cause without notice or
severance. “Cause” shall include, but not be limited to, the
following:
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(a)
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the
commission of theft, embezzlement, fraud, obtaining funds or property
under false pretences or similar acts of misconduct with respect
to the
property of the Corporation or its employees or the Corporation’s
customers or suppliers;
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(b)
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your
entering of a guilty plea or conviction for any crime involving fraud,
misrepresentation or breach of trust, or for any serious criminal
offence
that impacts adversely on the
Corporation;
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(c)
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persistent
unsatisfactory performance of your job duties after written notice
from
the company and a reasonable opportunity to cure, if possible;
or
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(d)
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intentional
damage to any material property of the
Corporation.
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20.
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Termination
Following Change in Control
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Concurrently
with execution and delivery of this Agreement, you and the Corporation shall
enter into a “Change of Control Agreement” in the form attached hereto as
Schedule B setting out the compensation provisions to be
applicable in the event of the termination of your employment as Chairman and
Chief Executive Officer of the Corporation in certain circumstances following
a
“Change in Control” of the Corporation (as defined in the Change in Control
Agreement).
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21.
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No
Additional Compensation upon
Termination
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If
your employment is terminated and if so requested by the Board, you agree to
resign as a director of the Corporation. You shall not be entitled to
any notice, fee, salary, bonus, severance or other payments, benefits or damages
arising by virtue of, or in any way relating to, your employment or any other
relationship with the Corporation (including termination of such employment
or
relationship) in excess of what is specified or provided for in this Agreement,
including Sections 17, 18, 19, and 20, which payments, benefits or damages
are
subject to your resignation as a director of the Corporation if requested by
the
Board and subject to execution by you of a release satisfactory to the
Corporation.
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22.
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Confidentiality
and Assignment of Inventions
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Concurrently
with execution and delivery of this Agreement and in consideration of your
employment by the Corporation, you and the Corporation will enter into a
“Confidentiality Agreement and Assignment of Inventions” in the form attached
hereto as Schedule C.
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23.
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Disclosure
of Conflicts of Interest
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During
your employment with the Corporation, you will promptly, fully and frankly
disclose to the Corporation in writing:
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(a)
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the
nature and extent of any interest you or your Associates (as hereinafter
defined) have or may have, directly or indirectly, in any contract
or
transaction or proposed contract or transaction of or with the Corporation
or any subsidiary or affiliate of the
Corporation;
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(b)
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every
office you may hold or acquire, and every property you or your Associates
may possess or acquire, whereby directly or indirectly a duty or
interest
might be created in conflict with the interests of the Corporation
or your
duties and obligations under this Agreement;
and
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(c)
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the
nature and extent of any conflict referred to in subsection (b)
above.
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In
this Agreement the expression “Associate” shall include all those persons and
entities that are included within the definition or meaning of “associate” as
set forth in Section 1(1) of the Securities Act (British Columbia), as
amended, or any successor legislation of similar force and effect, and shall
also include your spouse, children, parents, brothers and
sisters. For greater clarity, the positions set forth in
Schedule D attached hereto shall not be considered a conflict
of interest.
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24.
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Avoidance
of Conflicts of Interest
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You
acknowledge that it is the policy of the Corporation that all interests and
conflicts of the sort described in Section 23 (Disclosure of Conflicts of
Interest) be avoided, and you agree to comply with all reasonable policies
and
directives of the Board from time to time regulating, restricting or prohibiting
circumstances giving rise to interests or conflicts of the sort described in
Section 23 (Disclosure of Conflicts of Interest). During your
employment with the Corporation, without approval of the Board in its sole
discretion, you shall not enter into any agreement, arrangement or understanding
with any other person or entity that would in any way conflict or interfere
with
this Agreement or your duties or obligations under this Agreement or that would
otherwise prevent you from performing your obligations hereunder, and you
represent and warrant that you neither you nor any of your Associates have
entered into any such agreement, arrangement or understanding. For greater
clarity, the positions set forth in Schedule D attached hereto
shall not be considered a conflict of the sort described in Section 23
(Disclosure of Conflicts of Interest).
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25.
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Provisions
Reasonable.
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It
is acknowledged and agreed that:
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(a)
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both
before and since the Effective Date, the Corporation has operated
and
competed and will operate and compete in a global market, with respect
to
the business of the Corporation set out in Schedule E
attached hereto (the
“Business”);
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(b)
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competitors
of the Corporation and the Business are located in countries around
the
world;
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(c)
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in
order to protect the Corporation adequately, any enjoinder of competition
would have to apply world wide;
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(d)
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during
the course of your employment by the Corporation, both before and
after
the Effective Date, on behalf of the Corporation, you have acquired
and
will acquire knowledge of, and you have come into contact with, initiated
and established relationships with and will come into contact with,
initiate and establish relationships with, both existing and new
clients,
customers, suppliers, principals, contacts and prospects of the
Corporation, and that in some circumstances you have been or may
well
become the senior or sole representative of the Corporation dealing
with
such persons; and
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(e)
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in
light of the foregoing, the provisions of Section 26 (Restrictive
Covenant) below are reasonable and necessary for the proper protection
of
the business, property and goodwill of the Corporation and the
Business.
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26.
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Restrictive
Covenant.
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Subject
to the exceptions set out in Schedule F attached hereto, you
agree that you will not, either alone or in partnership or in conjunction with
any person, firm, company, corporation, syndicate, association or any other
entity or group, whether as principal, agent, employee, director, officer,
shareholder, consultant or in any capacity or manner whatsoever, whether
directly or indirectly, for the term of this Agreement and continuing for a
period of 12 months from the lawful termination of your employment, regardless
of the reason for such termination:
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(a)
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carry
on or be engaged in, concerned with or interested in, or advise,
invest in
or give financial assistance to, any business, enterprise or undertaking
that:
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(i)
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is
involved in the Business or in the sale, distribution, development
or
supply of any product or service that is competitive with the Business
or
any product or service of the Business;
or
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(ii)
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competes
with the Corporation with respect to any aspect of the
Business;
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provided,
however, that the foregoing will not prohibit you from acquiring, solely as
an
investment and through market purchases, securities of any such enterprise
or
undertaking which are publicly traded, so long as you are not part of any
control group of such entity and such securities, which if converted, do not
constitute more than 5% of the outstanding voting power of that
entity;
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(b)
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solicit,
agree to be employed by, or agree to provide services to any person,
firm,
corporation or other entity that was a client, customer, supplier,
principal, shareholder, collaborator, strategic partner, licensee,
contact
or prospect of the Corporation during the time of your employment
with the
Corporation, whether before or after the Effective Date, for any
business
purpose that is competitive with the Business or any product or service
of
the Business; or
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(c)
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divert,
entice or take away from the Corporation or attempt to do so or solicit
for the purpose of doing so, any business of the Corporation, or
any
person, firm, corporation or other entity that was an employee, client,
customer, supplier, principal, shareholder, investor, collaborator,
strategic partner, licensee, contact or prospect of the Corporation
during
the time of your employment with the Corporation, whether before
or after
the Effective Date.
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27.
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Compliance
with Xxxxxxx Xxxxxxx Guidelines and
Restrictions
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As
a result of your position as Chairman and Chief Executive Officer, you are
subject to xxxxxxx xxxxxxx regulations and restrictions and are required to
file
insider reports disclosing the grant of any options as well as the purchase
and
sale of any shares in the capital of the Corporation. The Corporation may from
time to time publish trading guidelines and restrictions for its employees,
officers and directors as are considered by the Board, in its discretion, to
be
prudent and necessary for a publicly listed company. It is a term of your
employment as a senior officer of the Corporation that you comply with such
guidelines and restrictions.
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28.
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Director’s
& Officer’s Liability
Insurance
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The
Corporation shall use best efforts to provide you with director’s and officer’s
liability insurance under the policies for such insurance arranged by the
Corporation from time to time upon such terms and in such amounts as the Board
may reasonably determine in its discretion.
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29.
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Remedies
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You
acknowledge and agree that any breach of any of the provisions of Section 15
(Service to Employer), Section 22 (Confidentiality and Assignment of
Inventions), Section 23 (Disclosure of Conflicts of Interest), Section 24
(Avoidance of Conflicts of Interest) or Section 26 (Restrictive Covenant) could
cause irreparable damage to the Corporation or its partners, subsidiaries or
affiliates, that such harm could not be adequately compensated by the
Corporation’s recovery of monetary damages, and that in the event of a breach or
threatened breach thereof, the Corporation shall have the right to seek an
injunction, specific performance or other equitable relief as well as any
equitable accounting of all your profits or benefits arising out of any such
breach. It is further acknowledged and agreed that the remedies of the
Corporation specified in this Section 29 are in addition to and not in
substitution for any rights or remedies of the Corporation at law or in equity
and that all such rights and remedies are cumulative and not alternative and
that the Corporation may have recourse to any one or more of its available
rights or remedies as it shall see fit.
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30.
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Binding
Effect
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This
Agreement shall be binding upon and inure to the benefit of the Corporation
and
its successors and assigns. Your rights and obligations contained in this
Agreement are personal and such rights, benefits and obligations shall not
be
voluntarily or involuntarily assigned, alienated or transferred, whether by
operation of law or otherwise, without the prior written consent of the
Corporation. This Agreement shall otherwise be binding upon and inure to the
benefit of your personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees, legatees and permitted
assigns.
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31.
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Agreement
Confidential
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Both
parties shall keep the terms and conditions of this Agreement confidential
except as may be required to enforce any provision of this Agreement or as
may
otherwise be required by any law, regulation or other regulatory
requirement.
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32.
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Governing
Law
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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.
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33.
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Exercise
of Functions
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The
rights of the Corporation as provided in this Agreement may be exercised on
behalf of the Corporation only by the Board (excluding you).
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34.
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Entire
Agreement
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The
terms and conditions of this Agreement are in addition to and not in
substitution for the obligations, duties and responsibilities imposed by law
on
employees of corporations generally, and you agree to comply with such
obligations, duties and responsibilities. Except as otherwise provided in this
Agreement, this Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof, and may only be varied by further
written agreement signed by you and the Corporation. This Agreement supersedes
any previous communications, understandings and agreements between you and
the
Corporation regarding your employment. It is acknowledged and agreed that this
Agreement is mutually beneficial and is entered into for fresh and valuable
consideration with the intent that it shall constitute a legally binding
agreement.
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35.
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Further
Assurances
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The
parties will execute and deliver to each other such further instruments and
assurances and do such further acts as may be required to give effect to this
Agreement.
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36.
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Surviving
Obligations
|
Your
obligations and covenants under Section 22 (Confidentiality and Assignment
of
Inventions), Section 26 (Restrictive Covenant), and Section 29 (Remedies) shall
survive the termination of this Agreement.
|
37.
|
Independent
Legal Advice
|
You
hereby acknowledge that you have obtained or have had an opportunity to obtain
independent legal advice in connection with this Agreement, and further
acknowledge that you have read, understand, and agree to be bound by all of
the
terms and conditions contained herein.
-
11
-
|
38.
|
Notice
|
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 address as set out
below:
If
to the Corporation:
Aspreva
Pharmaceuticals Corporation
c/o
Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP
0000-000
Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxx Xxxxxxxx
Xxxxxx X0X
0X0
Attention:
R. Xxxxxx XxxXxx-Xxxx, Q.C.
If
to you:
J.
Xxxxxxx Xxxxxxx, Ph.D.
1203-
0000 Xxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxx Xxxxxxxx
Xxxxxx
X0X 0X0
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, then the notice shall be effective only
if actually delivered.
|
39.
|
Severability
|
If
any provision of this Agreement or any part thereof shall for any reason be
held
to be invalid or unenforceable in any respect, then such invalid or
unenforceable provision or part shall be severable and severed from this
Agreement and the other provisions of this Agreement shall remain in effect
and
be construed as if such invalid or unenforceable provision or part had never
been contained herein.
|
40.
|
Waiver
|
Any
waiver of any breach or default under this Agreement shall only be effective
if
in writing signed by the party against whom the waiver is sought to be enforced,
and no waiver shall be implied by any other act or conduct or by any indulgence,
delay or omission. Any waiver shall only apply to the specific matter waived
and
only in the specific instance in which it is waived.
-
12
-
|
41.
|
Counterparts
|
This
Agreement may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, and such counterparts will together
constitute but one Agreement.
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. You are urged to consider fully all the above
terms and conditions and to obtain, at your expense, independent legal advice or
any other advice you feel is necessary before you execute this
agreement.
|
Yours
truly,
|
||
| ASPREVA PHARMACEUTICALS CORPORATION | ||
| By: | /s/ Xxx Xxxx | |
|
Xxx
Xxxx, Chair, Compensation Committee
|
||
Accepted
and agreed to by J. Xxxxxxx Xxxxxxx, Ph.D. as of July 10, 2007
| /s/ J. Xxxxxxx Xxxxxxx |
|
J.
Xxxxxxx Xxxxxxx, Ph.D.
|
-
13
-
SCHEDULE
A
DESCRIPTION
OF THE DUTIES AND FUNCTIONS
OF
THE CHAIRMAN AND CHIEF EXECUTIVE OFFICER
| Aspreva Position: | #100c |
| Name: | J. Xxxxxxx Xxxxxxx |
| Reports to: | BOD |
| Department: | G&A |
| Location: | Victoria B.C. |
Purpose
of Position:
CHAIRMAN
OF THE BOARD - THE CHAIRMAN PLAYS A CRITICAL ROLE ON THE BOARD OF
DIRECTORS (THE “BOARD”) BY LEADING THE BOARD IN ITS STRATEGIC MANAGEMENT AND
SUPERVISION OF THE BUSINESS AND AFFAIRS OF THE COMPANY.
CHIEF
EXECUTIVE OFFICER - THE CHIEF EXECUTIVE OFFICER OF COMPANY SHALL HAVE
RESPONSIBILITY FOR THE GENERAL MANAGEMENT, DIRECTION AND AFFAIRS OF THE COMPANY
AND SHALL HAVE ALL POWERS AND PERFORM ALL DUTIES INCIDENT TO THE OFFICE OF
CHIEF
EXECUTIVE OFFICER.
Responsibilities:
The
primary responsibilities of the Chairman include:
Relationship
with Management
|
|
•
|
Communicating
to senior management the views of the Board, shareholders and other
stakeholders.
|
|
|
•
|
Acting
as a resource and sounding board for senior
management.
|
|
|
•
|
Communicating
to the Board management strategy, plans and
performance.
|
|
|
•
|
Facilitating
the Board’s interaction with key management as
appropriate.
|
Managing
the Board
|
|
•
|
Providing
strong leadership to, and facilitating the effective operation and
management of, the Board.
|
|
|
•
|
Chairing
Board meetings and ensuring they are conducted in an efficient and
effective manner.
|
Relationship
with Shareholders
|
|
•
|
Chairing
meetings of shareholders.
|
|
|
•
|
Facilitating
the Board’s efforts to accommodate feedback from
shareholders.
|
Lead
Director
|
|
•
|
For
so long as the Chairman is not independent under the current requirements
of the NASDAQ National Market and the rules and regulations of the
Canadian provincial securities regulatory authorities and the Board
has
appointed a Lead Director, the Chairman shall work and cooperate
with the
Lead Director so that the Lead Director may provide independent leadership
to the Board and facilitate the functioning of the Board independently
of
the Company’s management.
|
The
primary responsibilities of the Chief Executive Officer
include:
|
|
•
|
Providing
leadership and managing the business and affairs of the
Company.
|
|
|
•
|
Reporting
to the Board as the representative of senior management of the
Company.
|
|
|
•
|
Keeping
the Board current in a timely fashion on major developments and providing
the Board with sufficient information on a timely basis to enable
the
Board to discuss matters, make decisions and fulfill its
mandate.
|
|
|
•
|
Recommending
to the Board strategic directions for the Company’s business and, when
approved, implementing the corresponding strategic and operational
plans.
|
|
|
•
|
Developing
a long-term strategy and vision for the Company that leads to the
creation
of shareholder value.
|
|
|
•
|
Directing
and monitoring the activities of the Company to achieve the Company’s
objectives and goals and to safeguard and optimize the best interests
of
all the shareholders while also having regard to the interests of
other
stakeholders of the Company.
|
|
|
•
|
Developing
and implementing operational policies to guide the Company within
the
limits prescribed by applicable laws and regulations and the framework
of
the strategy approved by the Board.
|
|
|
•
|
Developing
and recommending to the Board the overall corporate organization,
structure and staffing.
|
|
|
•
|
Creating,
maintaining and reviewing with the Compensation Committee an annual
plan
for the development and succession of executive
management.
|
|
|
•
|
Overseeing
the relationship between the Company and the
public.
|
|
|
•
|
Facilitating
interaction between the Board and other key members of management
of the
Company as appropriate.
|
|
|
•
|
Compliance
with all signatory limits as communicated by the finance function
on
behalf of the company.
|
|
|
•
|
Compliance
with all Corporate Policies, rules, and regulations as set out and
communicated by the company pursuant to good business
practice.
|
Requirements:
|
|
•
|
A
leader, with a track record of building successful Biotech / Pharma
enterprises.
|
|
|
•
|
Excited
about opportunity and committed to the vision on which the company
was
founded.
|
|
|
•
|
Appropriately
qualified to instill confidence in the leadership, the board and
investors. A sound working knowledge of global drug development and
commercialization.
|
|
|
•
|
Exceptional
leadership qualities and established track record of demonstrating
these
qualities in mid-sized organizations. Proven track record in delivering
business results to budget and timeline
specifications
|
|
|
•
|
Team
builder with engaging style, good listener and ability to integrate
with
an existing culture but also introduce a fresh perspective. Demonstrated
mentorship skills.
|
|
|
•
|
Clear,
decisive thinker with proven ability to distill down complex issues,
identify and focus on critical objectives and handle crisis calmly
and
thoughtfully.
|
|
|
•
|
Exceptional
strategic thinker with ability to create, communicate and sell a
vision.
|
|
|
•
|
Extensive
medical, clinical and pharmaceutical knowledge. Broad knowledge of
the
drug development process, regulatory processes, lifecycle management
and
global challenges for a Bio / Pharma
company.
|
|
|
•
|
Advanced
education credentials in a medical or scientific
discipline.
|
|
|
•
|
Credibility
on the street/capital markets
|
|
|
•
|
Demonstrated
success in public company
management.
|
|
|
•
|
Demonstrated
qualities of executive leadership: ability to interact productively
and
effectively influence other senior management and external colleagues;
ability to set and communicate goals, and to drive efforts, overcome
obstacles and achieve results within budget and timeline specifications;
exceptional leadership, organizational, interpersonal and communication
abilities; team-building and team-oriented approach; willing to contribute
at all levels; highly developed negotiation skills; high ethical
standards
and integrity; independent thinking; excellent judgment in making
information and
logic-based decisions
|
Position
Description Sign-off
|
I
have read and I understand the contents of this job
description.
Employee:
____________________
Signature:
/s/ X. Xxxxxxx Freytag________
Date:
____________________
|
|
This
description is an accurate statement of the position’s assigned duties,
responsibilities and reporting relationships as at
_______________.
Manager:
____________________
Signature:
__/s/ Xxx
Hunt__________________ Title:
__________________
|
|
Human
Resources:
Signature:
__/s/ Xxxxx O'Grady_________________
Date:
____________________
|
-
2 -
SCHEDULE
B
ASPREVA
PHARMACEUTICALS CORPORATION
As
of July 10, 2007
J.
Xxxxxxx Xxxxxxx, Ph.D.
0000-0000
Xxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxx Xxxxxxxx
Xxxxxx
X0X 0X0
Dear
Xxxx:
Re:
Change in Control Agreement
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 3), 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 in 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 your employment by the Corporation or
the
termination of your employment:
|
1.
|
Term
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 (different from those person(s)
holding Equity Securities prior to the date hereof) acting jointly
or in
concert by virtue of an agreement, arrangement, commitment or
understanding shall acquire or 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 (different from those person(s)
holding Equity Securities prior to the date hereof) 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 of Equity Securities in
connection with a bona fide financing or series of financings by the
Corporation.
|
|
(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 19 (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 represents an adverse
change
from your status, position, authority or responsibilities in effect
immediately prior to the Change in
Control;
|
-
2
-
|
|
(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 at the request of the
Board, the following payments in full satisfaction of any and all claims you
may
have or then may
-
3
-
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 for 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, subject
to your
execution of an effective release of claims against the Corporation,
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, within 7 days after the effective date of your executed
release of all claims against the Corporation, but in no case later
than
March 15 of the year following the year in which the termination
occurs, a
lump sum equal to 18 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 any guaranteed
portion
of any 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,
at no cost to you,(or reimburse you for the cost of continuing) the
health, medical and dental benefits set out in Section 6 (Benefits)
of the
Employment Agreement during the 18 month period (or
such shorter period of time until you become eligible for comparable
benefits from a subsequent employer) and will reimburse you for income
taxes that you may be required to pay with respect to such continued
group
benefit coverage to the extent that such coverage is considered a
taxable
benefit. Such reimbursement for taxes will be made in four lump
sum payments as follows: as to the taxes relating to up to the
first 3 months of continued health coverage, payment shall be made
on the
date that is two months after the termination date; as to the taxes
relating to up to the next 4 months of continued health coverage,
payment
shall be made on the date that is 7 months after the termination
date; as to the taxes relating to up to the next 7 months of continued
health coverage, payment shall be made on the date that is 13 months
after
the termination date; and as to the taxes relating to up to the remaining
4 months of continued health coverage, payment shall be made on the
date
that is 17 months after the termination
date.;
|
|
|
(iii)
|
the
Corporation shall arrange for you to be provided with such outplacement
career counselling services as are reasonable and appropriate, to
assist
you in seeking new executive level employment;
and
|
|
|
(iv)
|
all
incentive stock options and trust shares granted to you by the Corporation
under any stock option and/or trust share agreement that is entered
into
between you and the Corporation and is outstanding at the time of
termination of your employment, which stock options and or trust
shares
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.
|
-
4
-
It
is intended that (1) each installment of the payments provided under this
Section 4 is a separate “payment” for purposes of Xxxxxxx 000X xx xxx Xxxxxx
Xxxxxx Internal Revenue Code of 1986 (the “Code”), (2) that the payments
satisfy, to the greatest extent possible, the exemptions from the application
of
Section 409A provided under of Treasury Regulation 1.409A-1(b)(4),
1.409A-1(b)(5), 1.409A-1(b)(9)(iii), and
1.409A-1(b)(9)(v). Notwithstanding the foregoing, if the Corporation
(or, if applicable, the successor entity thereto) determines that the payments
provided under this Agreement constitute “deferred compensation” under Section
409A of the Code (together, with any international, state or local law of
similar effect, “Section 409A”) and you are a
“specified employee” of the Corporation or any successor entity thereto
at the
relevant date, as such term is defined in Section 409A(a)(2)(B)(i) (a
“Specified Employee”), then, solely to the extent
necessary to avoid the incurrence of the adverse personal tax consequences
under
Section 409A, the timing of the payments shall be delayed as
follows: on the earliest to occur of (i) the date that is six months
and one day after the termination date or (ii) the date of your death (such
earliest date, the “Delayed Initial Payment Date”),
the Corporation (or the successor entity thereto, as applicable) shall (A)
pay
you a lump sum amount equal to the sum of the payments that you would otherwise
have received through the Delayed Initial Payment Date if the commencement
of
the payment of the payments had not been delayed pursuant to this Section 4
and
(B) commence paying the balance of the payments in accordance with the
applicable payment schedules set forth above.
If
any payment, distribution or benefit you would receive pursuant to a Change
in
Control from the Corporation or otherwise, but determined without regard to
any
additional payment required under this Section 4 (the
“Payment”) would (i) constitute a “parachute payment”
within the meaning of Section 280G of the Internal Revenue
Code of 1986, as
amended (the “Code”), and (ii) be subject to the excise
tax imposed by Section 4999 of the Code or any interest or penalties payable
with respect to such excise tax (such excise tax, together with any such
interest and penalties, are hereinafter collectively referred to as the
“Excise Tax”), then you shall be entitled to receive from the
Corporation an additional payment (the “Gross-Up Payment”) in
an amount that shall fund the payment by you of any Excise Tax on the Payment
as
well as all income and employment taxes imposed on the Gross-Up Payment, any
Excise Tax imposed on the Gross-Up Payment and any interest or penalties imposed
with respect to income and employment taxes imposed on the Gross-Up
Payment.
The
accounting firm engaged by the Corporation for general audit purposes as of
the
day prior to the effective date of Change in Control shall perform the foregoing
calculations. If the accounting firm so engaged by the Corporation is
serving as accountant or auditor for the individual, entity or group effecting
the Change in Control, the Corporation shall appoint a nationally recognized
accounting firm to make the determinations required hereunder. The
Corporation shall bear all expenses with respect to the determinations by such
accounting firm required to be made hereunder.
The
accounting firm engaged to make the determinations hereunder shall provide
its
calculations, together with detailed supporting documentation, to the
Corporation and you within fifteen calendar days after the date on which your
right to a Payment is triggered (if requested at that time by the Corporation
or
you) or such other time as requested by the Corporation or you. If
the accounting firm determines that no Excise Tax is payable with respect to
a
Payment, it shall furnish the Corporation and you with an opinion reasonably
acceptable to you that no Excise Tax will be imposed with respect to such
Payment. If the accounting firm determines that an Excise Tax is
payable, it shall furnish the Corporation and you with an opinion setting forth
the amount of the Excise Tax due and the amount of the Gross-Up Payment due,
and
such Gross-Up Payment shall be paid to you on the later of (i) the date that
is
six months and one day after the termination date and (ii) the date that is
four
months after the date on which the accounting firm makes its determination
that
the Excise Tax is due. Any good faith determinations of the
accounting firm made hereunder shall be final, binding and conclusive upon
the
Corporation and you.
-
5
-
If
requested by the Board, upon your employment terminating pursuant to a Notice
of
Termination within 12 months after a Change in Control, you agree to resign
as a
director of the Corporation. 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 enure to the benefit of and be enforceable by your personal
or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If you die 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.
|
All
notices and other communications that are required or permitted by this
Agreement must be in writing and shall be hand delivered or sent by express
delivery service or certified or registered mail, postage prepaid, or by
facsimile transmission (with written confirmation copy by registered mail)
to
the parties at the addresses indicated below.
If
to Aspreva:
Aspreva
Pharmaceuticals Corporation
c/o
Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP
0000-000
Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxx Xxxxxxxx
Xxxxxx X0X
0X0
Attention:
R. Xxxxxx XxxXxx-Xxxx, Q.C.
If
to Dr. J. Xxxxxxx Xxxxxxx:
J.
Xxxxxxx Xxxxxxx, Ph.D.
0000-0000
Xxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxx Xxxxxxxx
Xxxxxx
X0X 0X0
Any
such notice shall be deemed to have been received on the earlier of the date
actually received or the date five (5) days after the same was posted or
sent. Either party may change its address or its facsimile number by
giving the other party written notice, delivered in accordance with this
Section.
|
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.
-
6
-
|
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 PHARMACEUTICALS CORPORATION | ||
| By: | /s/ Xxx Xxxx | |
|
Xxx
Xxxx, Chair, Compensation Committee
|
||
Accepted
and agreed to by J. Xxxxxxx Xxxxxxx as of July 10, 2007
| /s/ J. Xxxxxxx Xxxxxxx |
|
J.
Xxxxxxx Xxxxxxx, Ph.D.
|
-
7
-
SCHEDULE
C
CONFIDENTIALITY
AGREEMENT AND
ASSIGNMENT
OF INVENTIONS
ASPREVA
PHARMACEUTICALS CORPORATION
| PRIVATE AND CONFIDENTIAL |
As
of July 10, 2007
|
J.
Xxxxxxx Xxxxxxx, Ph.D.
0000- 0000 Xxxxxxx XxxxxxXxxxxxxx,
Xxxxxxx Xxxxxxxx
Xxxxxx
X0X 0X0
Dear
Xxxx:
The
purpose of this letter is to confirm and record the terms of the agreement
(the
“Agreement”) between you and Aspreva Pharmaceuticals
Corporation (“Aspreva”) concerning the terms on which you will
(i) receive from and disclose to Aspreva proprietary and confidential
information; (ii) agree to keep the information confidential, to protect it
from
disclosure and to use it only in accordance with the terms of this Agreement;
and (iii) assign to Aspreva all rights, including any ownership interest which
may arise in all inventions and intellectual property developed or disclosed
by
you over the course of your work during your employment with Aspreva. The
effective date (“Effective Date”) of this Agreement is the date
that you start or started working at Aspreva, as indicated in the employment
agreement between you and Aspreva dated July 10, 2007.
In
consideration of the offer of employment by Aspreva and the payment by Aspreva
to you of the sum of CDN$1.00 and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, you and Aspreva hereby
agree as follows:
|
1.
|
INTERPRETATION
|
|
1.1
|
Definitions. In
this Agreement:
|
|
|
(a)
|
“Aspreva’s
Business” shall mean the businesses actually carried on by
Aspreva, directly or indirectly, whether under an agreement with
or in
collaboration with, any other party including but not exclusively,
the
development and commercialization of drugs for rare diseases and
conditions and orphan drugs as defined by the U.S. Orphan Drug
Act.
|
|
|
(b)
|
“Confidential
Information”, subject to the exemptions set out in Section 2.8,
shall mean any information relating to Aspreva’s Business (as hereinafter
defined), whether or not conceived, originated, discovered, or developed
in whole or in part by you, that is not generally known to the public
or
to other persons who are not bound by obligations of confidentiality
and:
|
|
|
(i)
|
from
which Aspreva derives economic value, actual or potential, from the
information not being generally known;
or
|
|
|
(ii)
|
in
respect of which Aspreva otherwise has a legitimate interest in
maintaining secrecy;
|
and
which, without limiting the generality of the foregoing, shall
include;
|
|
(iii)
|
all
proprietary information licensed to, acquired, used or developed
by
Aspreva in its search and development activities including but not
restricted to the development and commercialization of drugs for
rare
diseases and conditions and orphan drugs as defined by the U.S. Orphan
Drug Act, other scientific strategies and concepts, designs,
know-how, information, material, formulas, processes, research data
and
proprietary rights in the nature of copyrights, patents, trademarks,
licenses and industrial designs;
|
|
|
(iv)
|
all
information relating to Aspreva’s Business, and to all other aspects of
Aspreva’s structure, personnel, and operations, including financial,
clinical, regulatory, marketing, advertising and commercial information
and strategies, customer lists, compilations, agreements and contractual
records and correspondence; programs, devices, concepts, inventions,
designs, methods, processes, data, know-how, unique combinations
of
separate items that is not generally known and items provided or
disclosed
to Aspreva by third parties subject to restrictions on use or
disclosure;
|
|
|
(v)
|
all
know-how relating to Aspreva’s Business including, all biological,
chemical, pharmacological, toxicological, pharmaceutical, physical
and
analytical, clinical, safety, manufacturing and quality control data
and
information, and all applications, registrations, licenses,
authorizations, approvals and correspondence submitted to regulatory
authorities;
|
|
|
(vi)
|
all
information relating to the businesses of competitors of Aspreva
including
information relating to competitors’ research and development,
intellectual property, operations, financial, clinical, regulatory,
marketing, advertising and commercial strategies, that is not generally
known;
|
|
|
(vii)
|
all
information provided by Aspreva’s agents, consultants, lawyers,
contractors, licensors or licensees to Aspreva and relating to Aspreva’s
Business; and
|
|
|
(viii)
|
all
information relating to your compensation and benefits, including
your
salary, vacation, stock options, rights to continuing education,
perquisites, severance notice, rights on termination and all other
compensation and benefits, except that you shall be entitled to disclose
such information to your bankers, advisors, agents, consultants and
other
third parties who have a duty of confidence to you and who have a
need to
know such information in order to provide advice, products or services
to
you.
|
|
|
(c)
|
“Inventions”
shall mean any and all discoveries, developments, enhancements,
improvements, concepts, formulas, processes, ideas, writings, whether
or
not reduced to practice, industrial and other designs, patents, patent
applications, provisional patent applications, continuations,
continuations-in-part, substitutions, divisionals, reissues, renewals,
re-examinations, extensions, supplementary protection certificates
or the
like, trade secrets or utility models, copyrights and other forms
of
intellectual property including all applications, registrations and
related foreign applications filed and registrations granted
thereon.
|
|
|
(d)
|
“Work
Product” shall mean any and all Inventions and possible
Inventions relating to Aspreva’s Business resulting from any work
performed by you for Aspreva that you may invent or co-invent during
your
involvement in any capacity with Aspreva, except those Inventions
invented
by you entirely on your own time that do not relate to Aspreva’s
|
-
2
-
|
|
|
Business
or do not derive from any equipment, supplies, facilities, Confidential
Information or other information, gained, directly or indirectly,
by you
from or through your involvement in any capacity with
Aspreva.
|
|
2.
|
CONFIDENTIALITY
|
|
2.1
|
Basic
Obligation of Confidentiality. You hereby acknowledge
and agree that in the course of your involvement with Aspreva, Aspreva
may
disclose to you or you may otherwise have access or be exposed to
Confidential Information. Aspreva hereby agrees to provide such
access to you and you agree to receive and hold all Confidential
Information on the terms and conditions set out in this
Agreement. Except as set out in this Agreement, you will keep
strictly confidential all Confidential Information and all other
information belonging to Aspreva that you acquire, observe or are
informed
of, directly or indirectly, in connection with your involvement,
in any
capacity, with Aspreva.
|
|
2.2
|
Fiduciary
Capacity. You will be and act toward Aspreva as a
fiduciary in respect of the Confidential
Information.
|
|
2.3
|
Non-disclosure. Unless
Aspreva first gives you written permission to do so under Section
2.7 of
this Agreement, you will not at any time, either during or after
your
involvement in any capacity with
Aspreva;
|
|
|
(a)
|
use
or copy Confidential Information or your recollections
thereof;
|
|
|
(b)
|
publish
or disclose Confidential Information or your recollections thereof
to any
person other than to employees of Aspreva who have a need to know
such
Confidential Information for their work for
Aspreva;
|
|
|
(c)
|
permit
or cause any Confidential Information to be used, copied, published,
disclosed, translated or adapted except as otherwise expressly permitted
by this Agreement;
|
|
|
(d)
|
permit
or cause any Confidential Information to be stored off the premises
of
Aspreva, including permitting or causing such Information to be stored
in
electronic format on personal computers, except in accordance with
written
procedures of Aspreva, as amended from time to time in writing;
or
|
|
|
(e)
|
communicate
the Confidential Information or your recollections thereof to another
employee of Aspreva in a public place or using methods of communication
that are capable of being intercepted (such as unencrypted messages
using
the internet or cellular phones) or overheard, without the written
permission of Aspreva.
|
|
2.4
|
Taking
Precautions. You will take all reasonable precautions
necessary or prudent to prevent material in your possession or control
that contains or refers to Confidential Information from being discovered,
used or copied by third parties.
|
|
2.5
|
Aspreva’s
Ownership of Confidential Information. As between you
and Aspreva, Aspreva shall own all right, title and interest in and
to the
Confidential Information, whether or not created or developed by
you.
|
|
2.6
|
Control
of Confidential Information and Return of
Information. All physical materials produced or
prepared by you containing Confidential Information, including, without
limitation, biological material, chemical entities, test results,
notes of
experiments,
|
-
3
-
|
|
computer
files, photographs, x-ray film, designs, devices, formulas, memoranda,
drawings, plans, prototypes, samples, accounts, reports, financial
statements, estimates and materials prepared in the course of your
responsibilities to or for the benefit of Aspreva, shall belong
to
Aspreva, and you will promptly turn over to Aspreva’s possession every
original and copy of any and all such items in your possession
or control
upon request by Aspreva. You shall not permit or cause any physical
materials to be stored off the premises of Aspreva, unless in accordance
with written procedures of Aspreva, as amended from time to time
in
writing. You shall not transfer any biological material to another
person
outside of Aspreva, unless a material transfer agreement has been
signed
by both Aspreva and the other party. You shall not accept any
biological material from another person outside of Aspreva, unless
in
accordance with written procedures of Aspreva, as amended from
time to
time in writing.
|
|
2.7
|
Purpose
of Use. You will use Confidential Information only for
purposes authorised or directed by
Aspreva.
|
|
2.8
|
Exemptions. Your
obligation of confidentiality under this Agreement will not apply
to any
of the following:
|
|
|
(a)
|
information
that is already known to you, though not due to a prior disclosure
by
Aspreva or by a person who obtained knowledge of the information,
directly
or indirectly, from Aspreva;
|
|
|
(b)
|
information
disclosed to you by another person who is not obliged to maintain
the
confidentiality of that information and who did not obtain knowledge
of
the information, directly or indirectly, from
Aspreva;
|
|
|
(c)
|
information
that is developed by you independently of Confidential Information
received from Aspreva and such independent development can be documented
by you;
|
|
|
(d)
|
other
particular information or material which Aspreva expressly exempts
by
written instrument signed by
Aspreva;
|
|
|
(e)
|
information
or material that is in the public domain through no fault of your
own;
and
|
|
|
(f)
|
information
or material that you are obligated by law to disclose, to the extent
of
such obligation, provided that:
|
|
|
(i)
|
in
the event that you are required to disclose such information or material,
then, as soon as you become aware of this obligation to disclose,
you will
provide Aspreva with prompt written notice so that Aspreva may seek
a
protective order or other appropriate remedy and/or waive compliance
with
the provisions of this Agreement;
|
|
|
(ii)
|
if
Aspreva agrees that the disclosure is required by law, it will give
you
written authorization to disclose the information for the required
purposes only;
|
|
|
(iii)
|
if
Aspreva does not agree that the disclosure is required by law, this
Agreement will continue to apply, except to the extent that a Court
of
competent jurisdiction orders otherwise;
and
|
-
4
-
|
|
(iv)
|
if
a protective order or other remedy is not obtained or if compliance
with
this Agreement is waived, you will furnish only that portion of the
Confidential Information that is legally required and will exercise
all
reasonable efforts to obtain confidential treatment of such Confidential
Information.
|
|
3.
|
ASSIGNMENT
OF INTELLECTUAL PROPERTY
RIGHTS
|
|
3.1
|
Notice
of Invention. You agree to promptly and fully inform
Aspreva of all your Work Product, whether or not patentable, throughout
the course of your involvement, in any capacity, with Aspreva, whether
or
not developed before or after your execution of this
Agreement. On your ceasing to be employed by Aspreva for any
reason whatsoever, you will immediately deliver up to Aspreva all
of your
Work Product. You further agree that all of your Work Product
shall at all times be the Confidential Information of
Aspreva.
|
|
3.2
|
Assignment
of Rights. Subject only to those exceptions set out in
Exhibit A attached hereto, you will assign, and do hereby
assign, to Aspreva or, at the option of Aspreva and upon notice from
Aspreva, to Aspreva’s designee, your entire right, title and interest in
and to all of your Work Product during your involvement, in any capacity,
with Aspreva and all other rights and interests of a proprietary
nature in
and associated with your Work Product, including all patents, patent
applications filed and other registrations granted thereon. To
the extent that you retain or acquire legal title to any such rights
and
interests, you hereby declare and confirm that such legal title is
and
will be held by you only as trustee and agent for Aspreva. You
agree that Aspreva’s rights hereunder shall attach to all of your Work
Product, notwithstanding that it may be perfected or reduced to specific
form after you have terminated your relationship with
Aspreva. You further agree that Aspreva’s rights hereunder are
worldwide rights and are not limited to Canada, but shall extend
to every
country of the world.
|
|
3.3
|
Moral
Rights. Without limiting the foregoing, you
irrevocably waive any and all moral rights arising under the Copyright
Act (Canada), as amended, or any successor legislation of similar
force and effect or similar legislation in other applicable jurisdictions
or at common law that you may have with respect to your Work Product,
and
agree never to assert any moral rights which you may have in your
Work
Product, including, without limitation, the right to the integrity
of such
Work Product, the right to be associated with the Work Product, the
right
to restrain or claim damages for any distortion, mutilation or other
modification or enhancement of the Work Product and the right to
restrain
the use or reproduction of the Work Product in any context and in
connection with any product, service, cause or institution, and you
further confirm that Aspreva may use or alter any such Work Product
as
Aspreva sees fits in its absolute
discretion.
|
|
3.4
|
Goodwill. You
hereby agree that all goodwill you have established or may establish
with
clients, customers, suppliers, principals, shareholders, investors,
collaborators, strategic partners, licensees, contacts or prospects
of
Aspreva relating to the business or affairs of Aspreva (or of its
partners, subsidiaries or affiliates), both before and after the
Effective
Date, shall, as between you and Aspreva, be and remain the property
of
Aspreva exclusively, for Aspreva to use, alter, vary, adapt and exploit
as
Aspreva shall determine in its
discretion.
|
|
3.5
|
Assistance. You
hereby agree to reasonably assist Aspreva, at Aspreva’s request and
expense, in:
|
-
5
-
|
|
(a)
|
making
patent applications for your Work Product, including instructions
to
lawyers and/or patent agents as to the characteristics of your Work
Product in sufficient detail to enable the preparation of a suitable
patent specification, to execute all formal documentation incidental
to an
application for letters patent and to execute assignment documents
in
favour of Aspreva for such
applications;
|
|
|
(b)
|
making
applications for all other forms of intellectual property registration
relating to your Work Product;
|
|
|
(c)
|
prosecuting
and maintaining the patent applications and other intellectual property
relating to your Work Product; and
|
|
|
(d)
|
registering,
maintaining and enforcing the patents and other intellectual property
registrations relating to your Work
Product.
|
|
3.6
|
Assistance
with Proceedings. You further agree to reasonably
assist Aspreva, at Aspreva’s request and expense, in connection with any
defence to an allegation of infringement of another person’s intellectual
property rights, claim of invalidity of another person’s intellectual
property rights, opposition to, or intervention regarding, an application
for letters patent, copyright or trademark or other proceedings relating
to intellectual property or applications for registration
thereof.
|
|
4.
|
GENERAL
|
|
4.1
|
Term
and Duration of Obligation. The term of this Agreement
is from the Effective Date and terminates on the date that you are
no
longer working at or for Aspreva. Except as otherwise agreed in
a written instrument signed by Aspreva, Article 2 shall survive the
termination of this Agreement, including your obligations of
confidentiality and to return Confidential Information, and shall
endure,
with respect to each item of Confidential Information, for so long
as
those items fall within the definition of Confidential
Information. Sections 1.1, 3.2, 3.3, 3.4, 3.5, 3.6, 4.1, 4.2,
4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12 and 4.13 shall also
survive
the termination of this Agreement.
|
|
4.2
|
Binding
Nature of Agreement. This Agreement is not assignable
by you. You agree that this Agreement shall be binding upon
your heirs and estate.
|
|
4.3
|
Non-Competition. While
you are an employee of Aspreva, you will not provide services to
or enter
into a contract of employment or service in any capacity for any
business
which is in any way competitive with Aspreva’s Business without the prior
written consent of Aspreva.
|
|
4.4
|
No
Conflicting Obligations. You represent and warrant
that you will not use or disclose to other persons at Aspreva information
that (i) constitutes a trade secret of persons other than Aspreva
during
your employment at Aspreva, or (ii) which is confidential information
owned by another person. You represent and warrant that you
have no agreements with or obligations to others with respect to
the
matters covered by this Agreement or concerning the Confidential
Information that are in conflict with anything in this
Agreement.
|
|
4.5
|
Equitable
Remedies. You acknowledge and agree that a breach by
you of any of your obligations under this Agreement would result
in
damages to Aspreva that could not be adequately compensated by monetary
award. Accordingly, in the event of any such breach by you, in
addition to all other remedies available to Aspreva at law or in
equity,
Aspreva
|
-
6
-
|
|
shall
be entitled as a matter of right to apply to a court of competent
jurisdiction for such relief by way of restraining order, injunction,
decree or otherwise, as may be appropriate to ensure compliance
with the
provisions of this Agreement, without having to prove damages to
the
court.
|
|
4.6
|
Publicity. You
shall not, without the prior written consent of Aspreva, make or
give any
public announcements, press releases or statements to the public
or the
press regarding your Work Product or any Confidential
Information.
|
|
4.7
|
Severability. If
any covenant or provision of this Agreement or of a section of this
Agreement is determined by a court of competent jurisdiction to be
void or
unenforceable in whole or in part, then such void or unenforceable
covenant or provision shall not affect or impair the enforceability
or
validity of the balance of the section or any other covenant or
provision.
|
|
4.8
|
Time
of Essence/No Waiver. Time is of the essence hereof
and no waiver, delay, indulgence, or failure to act by Aspreva regarding
any particular default or omission by you shall affect or impair
any of
Aspreva’s rights or remedies regarding that or any subsequent default or
omission that is not expressly waived in writing, and in all events
time
shall continue to be of the essence without the necessity of specific
reinstatement.
|
|
4.9
|
Further
Assurances. The parties will execute and deliver to
each other such further instruments and assurances and do such further
acts as may be required to give effect to this
Agreement.
|
|
4.10
|
Notices. All
notices and other communications that are required or permitted by
this
Agreement must be in writing and shall be hand delivered or sent
by
express delivery service or certified or registered mail, postage
prepaid,
or by facsimile transmission (with written confirmation copy by registered
first-class mail) to the parties at the addresses indicated
below.
|
If
to Aspreva:
Aspreva
Pharmaceuticals Corporation
c/o
Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP
0000-000
Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxx Xxxxxxxx
Xxxxxx X0X
0X0
Attention:
R. Xxxxxx XxxXxx-Xxxx, Q.C.
If
to:
J.
Xxxxxxx Xxxxxxx, Ph.D.
0000-0000 Xxxxxxx XxxxxxXxxxxxxx,
Xxxxxxx Xxxxxxxx
Xxxxxx
X0X 0X0
Any
such notice shall be deemed to have been received on the earlier of the date
actually received or the date five (5) days after the same was posted or
sent. Either party may change its address or its facsimile number by
giving the other party written notice, delivered in accordance with this Section
4.10.
-
7
-
|
4.11
|
Amendment. No
amendment, modification, supplement or other purported alteration
of this
Agreement shall be binding unless it is in writing and signed by
you and
by Aspreva.
|
|
4.12
|
Entire
Agreement. This Agreement supersedes all previous
dealings, understandings, and expectations of the parties and constitutes
the whole agreement with respect to the matters contemplated hereby,
and
there are no representations, warranties, conditions or collateral
agreements between the parties with respect to such transactions
except as
expressly set out herein.
|
|
4.13
|
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.
|
**********The
remainder of this page left blank**********
|
4.14
|
Independent
Legal Advice. You hereby acknowledge that you have
obtained or have had an opportunity to obtain independent legal advice
in
connection with this Agreement, and further acknowledge that you
have
read, understand, and agree to be bound by all of the terms and conditions
contained herein.
|
Acceptance
If
the foregoing terms and conditions are acceptable to you, please indicate your
acceptance of and agreement to the terms and conditions of this Agreement by
signing below on this letter and on the enclosed copy of this letter in the
space provided and by returning the enclosed copy so executed to
us. Your execution and delivery to Aspreva of the enclosed copy of
this letter will create a binding agreement between us.
Thank
you for your cooperation in this matter.
Yours
truly,
ASPREVA
PHARMACEUTICALS CORPORATION
| By: | /s/ Xxx Xxxx |
|
Xxx
Xxxx, Chair, Compensation Committee
|
Accepted
and agreed as of July 10, 2007
| /s/ Xxxxx X'Xxxxx | /s/ J. Xxxxxxx Xxxxxxx | |
|
Witness
Signature
|
J.
Xxxxxxx Xxxxxxx, Ph.D.
|
|
|
Witness
Name
|
||
|
Occupation
|
||
|
Address
|
-
8
-
EXHIBIT
A
EXCLUSION
FROM WORK PRODUCT
None
-
9
-
SCHEDULE
D
EXCEPTIONS
TO CONFLICT OF INTEREST
|
•
|
Director
of Immunicon Corporation
|
|
•
|
Director
of Colorado BioSciences Association
|
|
•
|
Director
of ARCA Discovery, Inc.
|
|
•
|
Advisor
to Aurora Biofuels
|
SCHEDULE
E
BUSINESS
OF THE COMPANY
The
business of the Corporation shall mean the business actually carried on by
the
Corporation, directly or indirectly, whether under an agreement with or in
collaboration with any other party including, but not limited to the development
and commercialization of drugs for rare diseases and conditions and orphan
drugs
as defined by the U.S. Orphan Drug Act.
SCHEDULE
F
EXCEPTION
TO RESTRICTIVE COVENANT
|
•
|
Director
of Immunicon Corporation
|
|
•
|
Director
of Colorado BioSciences Association
|
|
•
|
Director
of ARCA Discovery, Inc.
|
|
•
|
Advisor
to Aurora Biofuels
|
