EXECUTIVE EMPLOYMENT AGREEMENT Aspreva Pharmaceuticals Inc
Exhibit
10.30
Aspreva
Pharmaceuticals Inc
PRIVATE
AND CONFIDENTIAL
23
September
2004
Xxxxxxx
X. Goulburn
000
Xxxxx Xxxxxxxx Xxxx
Xxx
Xxxxx, Xxx Xxxxxx, 00000
Dear
Xxxx:
Re:
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Terms
of Employment with Aspreva Pharmaceuticals
Inc
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This
Agreement confirms the terms and conditions of your employment by Aspreva
Pharmaceuticals Inc (the “Corporation”)
and will constitute your employment agreement
(the “Agreement”).
Those terms and conditions are set out below. We also seek to complete
pre-employment, an appropriate medical check, drug screen and criminal
check.
1.
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Position
and Duties.
You will be employed by and will serve the Corporation as its General
Manager
(USA),
and you hereby accept such employment. You will perform such
duties and functions customarily associated
with your then current title, consistent with the Bylaws of the
Company
and as required by the Company’s Board of
Directors (the “Board”),
including those duties and functions particularly described in
Schedule
A attached
to this Agreement. You will initially report directly to the
President
of Aspreva Pharmaceuticals Corporation.
Your duties and functions pertain to the Corporation and any of
its
parents
and subsidiaries
from time to time and may be varied or added to from time to time
by the
President, the Chief Executive Officer or the Board, at its discretion,
exercised reasonably.
Your primary office location shall be based in New Jersey, (the
final
location to be determined). The Corporation reserves the right
to
reasonably require you to perform your duties at places other than
its
corporate headquarters from time to time, and to require reasonable
business travel. The employment relationship between the parties
shall
also be governed by the general employment policies and practices
of the
Company, including those relating to protection of confidential
information and assignment of inventions, except that when the
terms of
this Agreement differ from or are in conflict with the Company’s general
employment policies or practices, this Agreement shall control.
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2.
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Term.
The terms and conditions of this Agreement shall have effect as
of and
from 18th
October, 2004 (the “Effective
Date”)
and your employment hereunder
shall continue unless
terminated prior thereto by either the Corporation or you as provided
herein.
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3.
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Base
Salary.
The Corporation shall pay you an
annualized base
salary at the rate of US $250,000
per year (the “Base
Salary”),
payable semi-monthly, subject to payroll
withholding and deductions.
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4.
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Annual
Review.
The compensation committee (the “Compensation
Committee”)
established by the Board for
the purposes of this Agreement shall review your Base Salary annually.
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.
The Corporation shall review the performance of your duties and
functions
under this Agreement annually.
You will be eligible for an annual bonus
in
an amount to be determined by the Board in its sole discretion
of
up to 30% of your Base Salary,
if the Board, in its sole discretion,
determines that the Corporation has met its short-term and long-term
business performance objectives and
you have met
objectives related to your personal performance (together, the
“Objectives”),
respectively weighted 40% and 60%.
The
Objectives will be established from time to time by the President
or Chief
Executive Officer in consultation with you. For
the remainder of 2004, you will be eligible for a pro-rated performance
bonus, based on initial performance against objectives, from the
Effective
Date. Payment of any performance
bonus set out in this Section 5 shall be made to you within a reasonable
time following the end of each fiscal year and
shall be subject to payroll
withholding and
deductions.
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6.
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Benefits.
You
shall be entitled to all rights and benefits for which you are
eligible
under the terms and conditions of the standard Corporation benefits
and
compensation practices which may be in effect from time to time
and
provided by the Corporation to its employees generally.
These will include, health cover, dental cover, life assurance,
short and
long term disability. You may be required to provide information
and
undergo reasonable assessments of the insurers in order to determine
your
eligibility for benefits coverage. Please note that coverage under
any
benefit plan in effect from time to time is subject to availability
and
other requirements of the applicable insurer
and plan. The Corporation reserves the right to change, alter,
or
terminate any benefit plan in its sole discretion. If
in the short term you are required to use COBRA cover, the company
will
reimburse any relevant costs.
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7.
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Vacation.
During your employment with the Corporation under this Agreement,
you will
be entitled to an annual paid vacation as determined by the Corporation
from time to time, at
a rate of
20 days
per annum. The Corporation reserves the right, acting reasonably,
to
request that vacations be scheduled so as not to conflict with
critical
business operations.
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8.
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Reimbursement
for Expenses.
During your employment under this Agreement, the Corporation shall
reimburse you for reasonable travelling and other expenses actually
and
properly incurred by you in connection with the performance of
your duties
and functions, such reimbursement to be made in accordance with,
and
subject to, the policies of the Corporation from time to time.
For all
such expenses you will be required to keep proper accounts and
to furnish
statements, vouchers, invoices and/or other supporting documents
to the
Corporation within 30 days after the date the expenses are
incurred.
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9.
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Stock
Options.
You will be eligible to receive a
grant of an option to purchase 100,000
shares
of common stock in Aspreva Pharmaceuticals Corporation (the “Option”)
at an exercise price and on such other terms set forth in the Aspreva
2002
Incentive Stock Option Plan
(the “Plan”),
subject to approval of the Board of
Aspreva Pharmaceuticals Corporation and
applicable securities regulatory authorities and to execution and
delivery
by you of a stock option agreement in a form acceptable to Aspreva
Pharmaceuticals Corporation. Except as otherwise provided herein,
no
Option will vest and become exercisable during
the first year following the Effective Date ("First Anniversary
Date"),
and thereafter one thirty-sixth (1/36th)
of the options vest at the end of each month for the next 36 months
commencing at the end of the first month following the First Anniversary
Date. Thus the total grant will vest and become exercisable over
a four (4) year period, in accordance with the Corporation’s standard
vesting and exercisability policy, as long as you remain in continuous
service with the Corporation. The Option shall be governed by the
terms
and conditions set forth in the Plan, the applicable stock option
agreement, and the grant document.
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The
options granted in this Section 9 will cease to vest
on the earlier of the following:
(a)
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on
the date you provide the Corporation with written notice of your
decision
to resign your employment pursuant to Section 14 (Termination by
Executive);
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(b)
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on
the date the Corporation provides you with written notice of its
decision
to terminate your employment pursuant to Section 15 (Termination
without
Cause);
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(c)
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on
the date the Corporation terminates your employment pursuant to
Section 16
(Termination for Cause);
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(d)
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otherwise
on the date this Agreement is terminated or deemed terminated;
or
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(e)
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as
provided by the Plan or the stock option
agreement.
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For
greater certainty; neither the period of notice nor any payment in lieu thereof
will be considered as extending the period of your employment with respect
to
the vesting or exercise of the options granted in this Section 9.
Additionally,
any option granted under the terms of the “Plan”, where your employment is
terminated under Section 15 (Termination without Cause, or Section 14
(Termination by Executive) clause 6.5 (b) will apply and you will have no
more
than (3) three months to exercise any vested options, before the option expires.
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10.
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Compliance
with Xxxxxxx Xxxxxxx Guidelines and Restrictions.
As a result of your position as General
Manager
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 Aspreva
Pharmaceutical Corporation. Aspreva Pharmaceutical Inc or Aspreva
Pharmaceutical
Corporation may from time to time publish trading guidelines and
restrictions for its employees, officers and directors as are considered
by the Board, or
the Board of Aspreva Pharmaceutical Corporation, in
its discretion.
It is a term of your employment as a senior officer of Aspreva
Pharmaceutical Inc
that you comply with such guidelines and restrictions.
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11.
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Directors’
& Officers’ Liability Insurance
and Indemnification.
The Corporation shall use commercially reasonable efforts to provide
you
with directors’ and officers’ 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.
You shall enjoy the same indemnification rights provided to other
officers
of the Corporation, as set forth in the Bylaws of the Corporation.
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12.
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No
Other Compensation or Benefits.
You expressly acknowledge and agree that unless otherwise expressly
agreed
in writing by the Corporation subsequent to execution of this Agreement
by
the parties hereto, you shall not be entitled by reason of your
employment
by the Corporation or by reason of any termination of such employment,
to
any remuneration, compensation or benefits other than as expressly
set
forth in this Agreement.
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13.
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Service
to Employer.
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, and devote substantially
the whole
of your working time, attention and energies to the business and
affairs
of the Corporation;
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(b)
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comply
with all rules, regulations, policies and procedures of the Corporation;
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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;
provided, however, that you may serve
as a volunteer for a non-profit organization
so long as such activities for not materially interfere with the
performance of your duties hereunder.
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(a)
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You
may terminate
your employment hereunder,
on giving 1 month’s
prior
written notice of the effective date of your resignation. On the
giving of
any such notice, the Corporation shall have the right to elect,
in lieu of
the notice period, to pay you a lump sum equal to 1 month’s
Base Salary, as referred to in Section 3 (Base Salary) and as adjusted
from time to time in accordance with Section 4 (Annual Review),
plus other
sums owed for arrears of salary, vacation pay and, if granted pursuant
to
Section 5 (Performance Bonus),
bonus.
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(b)
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If
the Corporation elects to pay you such lump sum in lieu of the
1
month’s
notice
period, the Corporation shall, subject to the terms and conditions
of any
benefit plans in effect from time to time, maintain the benefits
and
payments set out in Section 6 (Benefits) of this Agreement for
1
month
after the date of your notice, to
the extent provided by the plans and applicable law, but
in all other respects, your resignation and the termination of
your
employment will be effective immediately upon notice
by the Corporation that it will pay you
the lump sum
in lieu of the notice period.
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(a)
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The
Corporation may terminate your employment at
any time without Cause (as defined below) by giving you written
notice of
the effective date of such termination and in all respects, except
as set
out below, the
termination of your employment will be effective
immediately.
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(b)
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If
your employment is terminated by the Corporation pursuant to this
Section,
unless otherwise determined by the Board, the Corporation shall
pay
severance payments in the form of a (1) a lump sum payment
to you equal to 6 months, plus one
additional
month for each completed year of employment (measured on the anniversary
of the Effective Date), of Base Salary, as referred to in Section
3 (Base
Salary)
and as adjusted from time to time in accordance with Section 4
(Annual
Review), up to a total maximum number of twelve months;
and
(2) if you timely elect and remain eligible for continued coverage
under
COBRA, the Company, as part of this Agreement, will pay that portion
of
your group health insurance premiums it was paying prior to the
date of
the termination or your employment towards your COBRA premiums
for the
first six months following the date of termination of your employment.
Such payments will only be made, however, if sign
and make effective a full, general release of all claims against
the
Corporation in a form acceptable to the Corporation in order to
receive
such payment. You will also receive such
sums owed for arrears of salary, vacation pay and, if granted pursuant
to
Section 5 (Performance Bonus), bonus.
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(c)
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You
are not entitled to any notice period under this Section 15.
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16.
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Termination
by the Corporation for Cause.
Notwithstanding Section 14 (Termination by Executive) or Section
15
(Termination by the Corporation without Cause), the Corporation
may
terminate your employment
for Cause at any time without any notice or severance. In this
Agreement,
“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; your
entering of a guilty plea or
your
conviction for any crime involving fraud, misrepresentation or
breach of
trust, or your
entering a guilty plea or your conviction for
any serious criminal offence that impacts adversely on the Corporation;
breach
of your duties to the Corporation;
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(b)
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persistent
unsatisfactory performance of your job duties after written notice
from
the Board and a reasonable opportunity to cure, if possible;
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(c)
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intentional
damage to any property of the
Corporation;
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(d)
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conduct
by you which in the good faith and reasonable determination of
the Board
demonstrates gross unfitness to serve;
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(e)
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incapacity
to perform the essential functions of your job for a period of
ninety (90)
calendar days, or for at least sixty-five (65) business days within
a
twelve (12)-month period;
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(f)
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death;
or.
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(g)
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any
other matter constituting just cause at common
law.
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any
of which shall entitle the Corporation to terminate your employment under
this
Section 16.
17.
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No
Additional Compensation upon Termination.
It is agreed that
you shall
not,
as a result of the termination of your employment, 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 Section 14 (Termination by Executive), Section
15
(Termination by the Corporation Without Cause) or Section 16 (Termination
by the Corporation for Cause), whichever is applicable. Payment
of any
amount whatsoever pursuant to Section 14 (Termination by Executive)
or
Section 15 (Termination by the Corporation without Cause) shall
be subject
to payroll
withholding and
deductions.
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18.
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Termination
Following Change in Control.
You may terminate your employment following a Change of Control
of the
Corporation, as defined in the Aspreva 2002 Incentive Stock Option
Plan,
at any time during the term of this Agreement, upon the occurrence
of an
"Activation
Event."
For purposes of this Agreement, an "Activation
Event"
shall mean any of the following events after a Change of Control:
(1) your
assignment without express written approval, of duties inconsistent
with
your position, duties, responsibilities, titles, offices or status
with
the Corporation immediately prior to the Change of Control, or
your
removal from the General Manager (USA) position; ; (2) a material
reduction, in the aggregate, in your Base Salary, or incentive,
health
benefits, bonus or other compensation plans in effect immediately
prior to
the Change of Control; (3) any request by the Corporation or any
other
affiliate of the Corporation that you participate in an unlawful
act; ;
(4) the failure of the Corporation to provide you with benefits
at levels
that were applicable to you immediately prior to the Change of
Control;
(5) your involuntary relocation to any place other than the location
at
which you performed your duties, except for your required travel
on the
Corporation's business to an extent substantially consistent with
your
business travel obligations immediately prior to a Change of Control;
(6)
any purported termination of your employment that is not effected
pursuant
to this Agreement.
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19.
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Confidentiality
and Assignment of Inventions.
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
B.
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20.
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Disclosure
of Conflicts of Interest.
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, “Associates”
shall include all those persons and entities with or in whom you have a
“Substantial
Financial Interest.”
Substantial Financial Interest is defined as (i) more than 1% stake in a
publicly traded company; (ii) a stake which constitutes greater than 5% of
your
assets; or (iii) a venture capital investment of any amount. Associates shall
also include your spouse, children, parents, brothers and sisters.
You
further represent and warrant that your employment by the Corporation will
not
conflict with any prior employment or consulting agreement or other agreement
with any
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third
party, and that you will perform your duties to the Corporation without
violating any such agreement. You represent and warrant that you do not possess
confidential information arising out of prior employment, consulting, or
other
third party relationships, which would be used in connection with your
employment by the Corporation, except as expressly authorized by that third
party. During your employment by the Corporation, you will use in the
performance of your duties only information that is generally known and used
by
persons with training and experience comparable to your own, common knowledge
in
the industry, otherwise legally in the public domain, or obtained or developed
by the Corporation or by you in the course of your work for the Corporation.
21.
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Avoidance
of Conflicts of Interest.
You acknowledge that it is the policy of the Corporation that all
interests and conflicts of the sort described in Section 20 (Disclosure
of
Conflicts of Interest) be avoided, and you agree to comply with
all
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 20 (Disclosure of Conflicts
of
Interest). During your employment with the Corporation, without
Board
approval, 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 or your Associates have not entered into any such agreement,
arrangement or understanding.
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22.
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Remedies.
You acknowledge and agree that any breach or threatened breach
of any of
the provisions of Section 10 (Compliance with Xxxxxxx Xxxxxxx and
Guidelines and Restrictions), Section 13 (Service to Employer),
Section 19
(Confidentiality and Assignment of Inventions), Section 20 (Disclosure
of
Conflicts of Interest)
or
Section 21 (Avoidance of Conflicts of Interest) could
cause irreparable damage to the Corporation or its partners, parents,
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 22
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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23.
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Binding
Effect.
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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24.
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Agreement
Confidential.
You
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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25.
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Governing
Law.
This Agreement shall be governed by and interpreted in accordance
with the
laws of the State
of New Jersey as such laws are applied to agreements entered into
and to
be performed entirely within New Jersey between New Jersey residents.
You
hereby expressly consent to the personal jurisdiction of the
state
and federal courts located
in New Jersey for any lawsuit filed there against you by the Corporation
arising from or related to this Agreement.
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26.
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Exercise
of Functions.
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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27.
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Entire
Agreement.
The terms and conditions of this Agreement and
its exhibits 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 and
its exhibits constitute
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 valuable
consideration with the intent that it shall constitute a legally
binding
agreement.
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28.
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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.
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29.
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Surviving
Obligations.
Your obligations and covenants under Section 17 (No Additional
Compensation upon Termination), Section 19 (Confidentiality and
Assignment
of Inventions),
Section 22
(Remedies), Section 23 (Binding Effect), Section 24 (Agreement
Confidential), Section 25 (Governing Law), Section 27 (Entire Agreement)
and Section 33 (Waiver) shall survive the termination of this
Agreement.
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30.
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Independent
Legal Advice.
You hereby acknowledge that you have obtained (at your own cost)
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.
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31.
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Notice.
Any notice or other communication required or contemplated under
this
Agreement to be given by one party to the other shall be delivered
personally,
by overnight delivery or
mailed by prepaid registered post to the party to receive same
at the
address as set out below:
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If
to the Corporation: Aspreva
Pharmaceuticals Inc
C/o
Aspreva Pharmaceuticals Corporation
0000-0000
Xxxxxxx Xx, Xxxxxxxx, XX, Xxxxxx. X0X 0X0
or
Aspreva Pharmaceuticals Corporation Corporate Headquarters address at the
time
notice is given
Attn:
If
to Xxxxxxx
X. Goulburn:
Xxxxxxx
X. Goulburn
000
Xxxxx Xxxxxxxx Xxxx
Xxx
Xxxxx, Xxx Xxxxxx, 00000
or
home address as shown in the Corporation’s records at the time notice is
given
Any
notice delivered shall be deemed to have been given and received on
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.
32.
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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.
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33.
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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.
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34.
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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.
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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 independent legal advice or any other
advice
you feel is necessary before you execute this agreement.
Yours
truly,
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Aspreva
Pharmaceuticals Inc
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By:
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[Name] | |
[Title]
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Accepted
and agreed to by Xxxxxxx
X. Goulburn as
of the 23rd
day of September, 2004
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/s/ Xxxxxxx X. Goulburn | |
Xxxxxxx
X. Goulburn
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SCHEDULE
B
CONFIDENTIALITY
AGREEMENT AND
ASSIGNMENT
OF INVENTIONS
ASPREVA
PHARMACEUTICALS INC
PRIVATE
AND CONFIDENTIAL
23rd
September, 2004
Xxxxxxx
X. Goulburn
000
Xxxxx Xxxxxxxx Xxxx
Xxx
Xxxxx, Xxx Xxxxxx, 00000
Dear
Xxxx:
The
purpose of this letter is to confirm and record the terms of the agreement
(the
“Agreement”)
between you and Aspreva Pharmaceuticals Incorporated (“Aspreva”)
concerning, among other things, 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; (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; and (iv) agree to certain restrictions
on
competitive activity. 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 as of
18th
October, 2004.
In
consideration of the offer of employment by Aspreva and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
you
and Aspreva hereby agree as follows:
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1.1
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Definitions.
In this Agreement:
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“Confidential
Information”,
subject to the exemptions set out in Section 2.8, shall mean any information,
data, or knowledge of Aspreva and its affiliates, parents, and subsidiaries
(for
purposes of this definition of Confidential Information, “Aspreva”), including
that which relates 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. Confidential
Information, without limiting the generality of the foregoing, shall
include:
(i)
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all
proprietary information licensed to, acquired, used or developed
by
Aspreva in its research 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;
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(ii)
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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, compilations, agreements and contractual records
and
correspondence, programs, devices, concepts, inventions, designs,
methods,
processes, data, know-how, unique combinations of separate items
that are
not generally known and items provided or disclosed to Aspreva
by third
parties subject to restrictions on use or
disclosure;
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(iii)
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all
information relating to customers, including names, lists,
representatives, their desires and needs with respect to the type
of
products and services offered by Aspreva;
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(iv)
|
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;
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(v)
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all
information relating to the businesses of competitors of Aspreva
and its
affiliates, parents and subsidiaries, including information relating
to
competitors’ research and development, intellectual property, operations,
financial, clinical, regulatory, marketing, advertising and commercial
strategies, that is not generally known;
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(vi)
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all
information provided by Aspreva’s agents, consultants, lawyers,
contractors, licensors or licensees to Aspreva and relating to
Aspreva’s
Business;
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(vii)
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all
information relating to compensation and benefits, including 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
as it relate to you 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
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such
information in order to provide advice, products or services
to you; and
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(viii)
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all
other information of Aspreva from which Aspreva derives economic
value,
actual or potential, from the information not being generally known;
or in
respect of which Aspreva otherwise has a legitimate interest in
maintaining secrecy.
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(b)
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“Inventions”
shall mean any and all discoveries, developments, enhancements,
improvements, inventions, concepts, ideas, 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.
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(c)
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“Work
Product”
shall mean any and all Inventions and possible Inventions that
you may
invent, conceive or reduce to practice, either alone or jointly
with
others, during your involvement in any capacity with Aspreva; provided
that those Inventions invented by you entirely on your own time
that do
not relate to Aspreva’s Business or Aspreva’s anticipated business or
research or developments 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 are not Work
Product.
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(d)
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“Aspreva’s
Business”
shall mean the businesses carried on by Aspreva and its affiliates,
parents and subsidiaries, 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.
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2.1 Basic
Obligation of Confidentiality.
You hereby acknowledge and agree that in the course of your involvement with
Aspreva, Aspreva or its affiliates, parents or subsidiaries may disclose
to you
or you may otherwise have access or be exposed to Confidential Information.
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 or its affiliates, parents and subsidiaries,
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.
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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)
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use
or copy Confidential Information or your recollections thereof;
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(b)
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publish
or disclose Confidential Information or your recollections thereof
to any
person other than to employees of Aspreva or its affiliates, parents,
and
subsidiaries who have a need to know such Confidential Information
for
their work for Aspreva;
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(c)
|
permit
or cause any Confidential Information to be used, copied, published,
disclosed, translated or adapted except as otherwise expressly
permitted
by this Agreement;
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(d)
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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
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(e)
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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.
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2.4 Third
Party Information.
You understand, in addition, that Aspreva has received and in the future
will
receive from third parties their confidential and/or proprietary knowledge,
data, or information (“Third
Party Information”).
During my employment and thereafter, you will hold Third Party Information
in
the strictest confidence. You will not disclose to anyone (other than Aspreva
personnel who need to know such information in connection with their work
for
Aspreva) or use, except in connection with my work for Aspreva, Third Party
Information unless expressly authorized by an officer of Aspreva in
writing
2.5 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.
2.6 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.
2.7 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, 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
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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.
2.8 Purpose
of Use.
You will use Confidential Information only for purposes authorised or directed
by Aspreva.
2.9 Exemptions.
Your obligation of confidentiality under this Agreement will not apply to
any of
the following:
(a)
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information
that is already known to you, though not due to a prior disclosure
by
Aspreva or its affiliates, parents, and subsidiaries or by a person
who
obtained knowledge of the information, directly or indirectly,
from
Aspreva or its affiliates, parents, and
subsidiaries;
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(b)
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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 or its affiliates,
parents, and subsidiaries;
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(c)
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information
that is developed by you independently of Confidential Information
received from Aspreva or its affiliates, parents, and subsidiaries
and
such independent development can be documented by
you;
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(d)
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other
particular information or material which Aspreva expressly exempts
by
written instrument signed by
Aspreva;
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(e)
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information
or material that is in the public domain through no fault of your
own;
and
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(f)
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information
or material that you are obligated by law to disclose, to the extent
of
such obligation, provided that:
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(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;
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(ii)
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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;
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(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
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(iv)
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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.
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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 Previous
Inventions. Inventions,
if any, patented or unpatented, which you made prior to the commencement
of your
involvement, in any capacity, with Aspreva, are excluded from the scope of
this
Agreement. To preclude any possible uncertainty, you must set forth on
Exhibit A
(Previous
Inventions) attached hereto a complete list of all Inventions that you have,
alone or jointly with others, conceived, developed or reduced to practice
or
caused to be conceived, developed or reduced to practice prior to the course
of
your involvement, in any capacity, with Aspreva,, that you consider to be
your
property or the property of third parties and that you wish to have excluded
from the scope of this Agreement (collectively referred to as “Previous
Inventions”).
If disclosure of any such Previous Invention would cause you to violate any
prior confidentiality agreement, you understand that you are not to list
such
Previous Inventions in Exhibit A
but are only to disclose a cursory name for each such invention, a listing
of
the party(ies) to whom it belongs and the fact that full disclosure as to
such
inventions has not been made for that reason. A space is provided on
Exhibit
A
for such purpose. If no such disclosure is attached, you represent that there
are no Previous Inventions. If, in the course of your employment with Aspreva,
you incorporate a Previous Invention into a product, process or machine of
Aspreva, Aspreva is hereby granted and shall have a nonexclusive, royalty-free,
irrevocable, perpetual, worldwide license (with rights to sublicense through
multiple tiers of sublicensees) to make, have made, modify, use and sell
such
Previous Invention. Notwithstanding the foregoing, you agree that you will
not
incorporate, or permit to be incorporated, Previous Inventions in any Work
Product without Aspreva's prior written consent.
3.3 Assignment
of Rights.
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
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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 the United States or Canada, but shall extend to every country
of the
world.
3.4 Moral
Rights.
Without limiting the foregoing, you irrevocably waive any and all Moral Rights
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. “Moral Rights” shall mean any
right to claim authorship of an Invention, to object to or prevent the
modification of any Invention, or to withdraw from circulation or control
the
publication or distribution of any Invention, and any similar right, existing
under the judicial or statutory law of any country in the world, or under
any
treaty, regardless of whether or not such right is denominated or generally
referred to as a “moral right.”
3.5 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 parents, 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.
3.6 Assistance.
You hereby agree to reasonably assist Aspreva, at Aspreva’s request,
in:
(a)
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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;
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(b)
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making
applications for all other forms of intellectual property registration
relating to your Work Product;
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(c)
|
prosecuting
and maintaining the patent applications and other intellectual
property
relating to your Work Product; and
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(d)
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registering,
maintaining and enforcing the patents and other intellectual property
registrations relating to your Work
Product.
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Your
obligation to assist the Aspreva shall continue beyond the termination of
your
employment, but Aspreva shall compensate you at a reasonable rate after your
termination for the time
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actually
spent by you on such assistance. In the event Aspreva is unable for any reason,
after reasonable effort, to secure your signature on any document needed
in
connection with the actions specified in this section 3, you hereby irrevocably
designate and appoint Aspreva and its duly authorized officers and agents
as
your agent and attorney in fact, which appointment is coupled with an interest,
to act for and in your behalf to execute, verify and file any such documents
and
to do all other lawfully permitted acts to further the purposes of the preceding
paragraph with the same legal force and effect as if executed by you. You
hereby
waive and quitclaim to Aspreva any and all claims, of any nature whatsoever,
which you now or may hereafter have for infringement of any Work Product
an
intellectual property relating to Work Product assigned hereunder to
Aspreva.
3.7 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.
4.1 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 period of 6 months after the date your
employment ends for any reason, including but not limited to voluntary
termination by you or involuntary termination by Aspreva, solicit,
provide, or attempt to provide Conflicting Services anywhere in the USA,
or for
companies within pharmaceutical or related industry, in direct competition
against Aspreva in those specific disease areas where Aspreva Pharmaceuticals,
Inc was commercially operating or planning to operate, nor will you assist
another person to solicit, attempt to provide, or provide Conflicting Services
anywhere in the USA, or for companies within pharmaceutical or related industry,
in direct competition against Aspreva in those specific disease areas where
Aspreva Pharmaceuticals, Inc was commercially operating or planning to
operate.
4.2 The
parties agree that for purposes of this Agreement, “Conflicting
Services”
means engaging in any business activity, including but not limited to rendering
services or providing any advice or assistance to or on behalf of any person
or
organization other than Aspreva, which relates to any product, service, process
or the like, which directly competes with a product, service, process or
the
like with which you worked directly or indirectly during your employment
by
Aspreva or about which you acquired Confidential Information during your
employment by Aspreva.
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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 employment and continuing for a period
of 6 months after the date your employment ends for any reason, including
but
not limited to voluntary termination by
you or involuntary termination by Aspreva, other than on behalf of
Aspreva:
5.1 solicit,
induce, encourage, or participate in soliciting, inducing, or encouraging
any
employee, independent contractor or consultant of Aspreva to terminate his
or
her relationship with Aspreva or to work in any capacity for any person or
entity other than Aspreva;
5.2 hire,
employ, or engage in business with or attempt to hire, employ, or engage
in
business with any person employed by Aspreva or who has left the employment
of
Aspreva within the preceding three (3) months or discuss any potential
employment or business association with such person, even if you did not
initiate the discussion or seek out the contact;
5.3 solicit,
induce or attempt to induce any Customer, supplier, principal, shareholder,
investor, collaborator, strategic partner, licensee with whom you had direct
or
indirect contact or whose identity you learned as a result of your employment
with Aspreva to terminate, diminish, or materially alter in a manner harmful
to
Aspreva its relationship with Aspreva; or
5.4 solicit,
perform or attempt to perform any Conflicting Services for a Customer or
for any
consultant or contractor of Aspreva with whom you had direct or indirect
contact
or whose identity you learned as a result of your employment with Aspreva
.
The
parties agree that for purposes of this Agreement, a “Customer”
is any person or entity who or which, at any time during the two (2) years
prior
to the date your employment with Aspreva ends, (i) contracted for, was billed
for, or received from Aspreva any product, service or process with which
you
worked directly or indirectly during your employment by Aspreva or about
which
you acquired Confidential Information; or (ii) was in contact with you or
in
contact with any other employee, owner, or agent of Aspreva, of which contact
you were or should have been aware, concerning any product, service or process
with which you worked directly or indirectly during your employment with
Aspreva
or about which you acquired Confidential Information; or (iii) was solicited
by
Aspreva or in consideration or planning to be solicited by Aspreva in an
effort
in which you were involved or of which you were or should have been aware.
6.1 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.
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It
is acknowledged and agreed that:
both
before and since the Effective Date Aspreva has operated and competed
and
will operate and compete in a global market, with respect to the
Aspreva
Business;
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competitors
of Aspreva are located in countries around the
world;
|
in
order to protect Aspreva adequately, any enjoinder of competition
would
have to apply world wide; [comment - may need to adjust depending
upon the
restriction decided upon in the non-compete
provision]
|
during
the course of your employment by Aspreva, both before and after the
Effective Date, on behalf of Aspreva, 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 Aspreva,
and
that in some circumstances you have been or may well become the senior
or
sole representative of Aspreva dealing with such persons;
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You
agree that you have read this entire Agreement and understand it.
You
agree that this Agreement does not prevent you from earning a living
or
pursuing your career. You agree that the restrictions contained in
this
Agreement are reasonable, proper, and necessitated by Aspreva’s legitimate
business interests. You represent and agree that you am entering
into this
Agreement freely and with knowledge of its contents with the intent
to be
bound by the Agreement and the restrictions contained in
it;
|
in
light of the foregoing, the provisions of this Agreement are reasonable
and necessary for the proper protection of the business, property
and
goodwill of Aspreva;
|
In
the event that a court finds this Agreement, or any of its restrictions,
to be ambiguous, unenforceable, or invalid, you and Aspreva agree
that the
court shall read the Agreement as a whole and interpret the restriction(s)
at issue to be enforceable and valid to the maximum extent allowed
by law;
|
If
the court declines to enforce this Agreement in the manner provided
in
subsection 7(g), you and Aspreva agree that this Agreement will be
automatically modified to provide Aspreva with the maximum protection
of
its business interests allowed by law and you agree to be bound by
this
Agreement as modified.
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8.1 You
agree that it may be impossible to assess the damages caused by your violation
of this Agreement or any of its terms. You agree that any threatened or actual
violation of this Agreement or any of its terms will constitute immediate
and
irreparable injury to Aspreva and Aspreva shall have the right to enforce
this
Agreement and any of its provisions by
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injunction,
specific performance or other equitable relief, without bond and without
prejudice to any other rights and remedies that Aspreva may have for a breach
or
threatened breach of this Agreement.
8.2 You
agree that if Aspreva is successful in whole or in part in any legal or
equitable action against you under this Agreement, Aspreva shall be entitled
to
payment of all costs, including reasonable attorney’s fees, from
you.
8.3 In
the event Aspreva enforces this Agreement through a court order, you agree
that
the restrictions of Sections 4 and 5 shall remain in effect for a period
of six
(6) months from the effective date of the Order enforcing the
Agreement.
9.1 In
the event that you leave the employ of Aspreva, you hereby consent to the
notification of your new employer of your rights and obligations under this
Agreement.
10.1 When
you leave the employ of Aspreva, you will deliver to Aspreva any and all
drawings, notes, memoranda, specifications, devices, formulas, and documents,
together with all copies thereof, and any other material containing or
disclosing any Work Product or Confidential Information. You further agree
that
any property situated on Aspreva's premises and owned by Aspreva, including
disks and other storage media, filing cabinets or other work areas, is subject
to inspection by company personnel at any time with or without notice.
11.
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11.1 Continuing
Obligations.
The provisions of this Agreement shall survive the termination of my employment,
regardless of the reason, and the assignment of this Agreement by Aspreva
to any
successor in interest or other assignee.
11.2
Binding
Nature of Agreement.
This Agreement is not assignable by you. You agree that this Agreement shall
be
binding upon your heirs and estate. This Agreement is intended to inure to
the
benefit of and be enforceable by Aspreva, and its successors and assigns.
11.3 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.
11.4 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.
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11.5 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. If moreover, any one or more
of the
provisions contained in this Agreement shall for any reason be held to be
excessively broad as to duration, geographical scope, activity or subject,
it
shall be construed by limiting and reducing it, so as to be enforceable to
the
extent compatible with the applicable law as it shall then appear.
11.6 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.
11.7 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.
11.8 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 the Corporation: Aspreva
Pharmaceuticals Inc
C/o
Aspreva Pharmaceuticals Corporation
0000-0000
Xxxxxxx Xx, Xxxxxxxx, XX, Xxxxxx. X0X 0X0
or
Aspreva Pharmaceuticals Corporation Corporate Headquarters address at the
time
notice is given
Attn:
If to Xxxxxxx
X. Goulburn:
Xxxxxxx
X. Goulburn
000
Xxxxx Xxxxxxxx Xxxx
Xxx
Xxxxx, Xxx Xxxxxx, 00000
or
home address as shown in the Corporation’s records at the time notice is
given
Any
notice delivered shall be deemed to have been given and received on 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.
11.9 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.
11.10 Entire
Agreement.
This Agreement supersedes all previous dealings, understandings, and
expectations of the parties and constitutes the whole agreement with respect
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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.
11.11 Governing
Law.
This Agreement will be governed by and construed according to the laws of
the
State of New Jersey as such laws are applied to agreements entered into and
to
be performed entirely within New Jersey between New Jersey residents. I hereby
expressly consent to the personal jurisdiction of the state and federal courts
located in New Jersey for any lawsuit filed there against me by Company arising
from or related to this Agreement.
11.12 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.
11.13 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 INC
By:
|
|
/s/ Xxxx Xxxx | |
Xxxx
Xxxx
|
Accepted
and agreed as of the 23rd
day of September, 2004
/s/ Xxxxxxx X. Goulburn | ||
Witness
Signature
|
Signature
of Xxxxxxx Goulburn
|
|
Witness
Name
|
||
Occupation
|
||
Address
|
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EXHIBIT
A
Exclusion
from Work Product
TO: | Aspreva Pharmaceuticals, Inc. |
FROM:
|
|
DATE:
|
SUBJECT: Previous
Inventions
1. Except
as listed in Section 2 below, the following is a complete list of all inventions
or improvements relevant to the subject matter of my employment by Aspreva
Pharmaceuticals, Inc.
(the “Company”)
that have been made or conceived or first reduced to practice by me alone
or
jointly with others prior to my engagement by the Company:
o |
No
inventions or improvements.
|
o |
See
below:
|
o |
Additional
sheets attached.
|
2. Due
to a prior confidentiality agreement, I cannot complete the disclosure under
Section 1 above with respect to inventions or improvements generally listed
below, the proprietary rights and duty of confidentiality with respect to
which
I owe to the following party(ies):
Invention
or
Improvement
|
Party(ies)
|
Relationship
|
|||
1. | |||||
2. | |||||
3. | |||||
o |
AAdditional
sheets attached.
|
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