Exhibit 10.92
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated September 17, 2015 with an effective date of October 1, 2015 (the “Agreement”), is by and between Anavex Life Sciences Corp. (the “Company” or “Anavex”), and Sandra Boenisch (the “Employee”). TheCompany and theEmployee are referred to each individually as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, theCompany desires to employ and retain theEmployee in order to advance the business and interests of theCompanyon the terms and conditions set forth herein; and
WHEREAS, theEmployee wishes to be employed by theCompany and desires to provide her services to theCompany in such capacities, on and subject to the terms and conditions hereof; and
WHEREAS, theCompany expends significant time and expense on an ongoing basis in supporting its employees, including theEmployee; and
WHEREAS, the Company is clinical-stage biopharmaceutical company engaged in the development of novel drug candidates to treat Alzheimer’s disease, other CNS diseases and various types of cancer (the “Business”); and
WHEREAS, in the course of theEmployee’s employment by theCompany, theEmployee may receive, be taught or otherwise have access to items and information associated with theBusiness such as technical and non-technical information relating to the Company’s products, research, processes, methods, correspondence, records, clinical data, protocols, specifications, technique, financial information, pricing information, computer systems, computer software applications, business plans and other information which is confidential and proprietary; and
WHEREAS, theCompany has acquired and/or developed certain trade secrets andConfidential Information, as more fully described below, and has expended significant time and expense in acquiring or developing its trade secret orConfidential Information; and
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements contained herein, and intending to be legally bound hereby, theCompany and theEmployeedo hereby agree as follows:
AGREEMENT
1. Adoption of Recitals.TheCompany andEmployee adopt the above recitals as being true and correct.
(a) Employment. This Agreement will commence on the October 1, 2015 (the “Effective Date”) and shall terminate on September 30, 2017 (the “Initial Term”), unless sooner terminated in accordance with the provisions of this Agreement. The Initial Term and any extensions shall be referred to as the “Employment Period.” The Agreement must be renewed in writing, signed by both parties. If the Agreement is not renewed in writing, the non-renewal is not considered a Termination (as defined below).
2. Position and Duties.
(a) TheEmployee shall, during theEmployment Period hereunder, serve as Principal Financial Officer (“PFO”) for theCompanyand shall perform the executive, administrative, and accounting duties, functions and privileges incumbent with the position of PFO and such other duties as reasonably determined by the CEO or the Board of Directors of the Company (the “Board”) from time to time. While the duties may be changed, with or without notice, the PFO’s duties may include preparation of SEC continuous disclosures and regulatory filings; bookkeeping and day-to-day accounting, bill payments and maintenance of accounts payable, preparation of quarterly working papers and financial statements, serving as a liaison with auditors and legal counsel, overseeing and implementing corporate governance procedures and protocols, preparation of the corporate tax returns and filings, preparation of POSAM and registration statements, assist with the establishment, implementation and maintenance of disclosure controls and procedures, and budgeting.
(b) TheEmployee will report to the CEO of the Companyor his designee. TheEmployee’s authority is subject to approval by the CEO of theCompany and/or theBoard.
(c) TheEmployee agrees to serve the Company faithfully, conscientiously and to the best of her ability, and to devote all of her business time to the business and affairs of the Company (and, if requested by the CEO and/or theBoard, any subsidiary or affiliate of the Company) so as to promote the profit, benefit and advantage of the Company and, if applicable, any subsidiaries or affiliates of the Company. TheEmployee shall fulfill her duties of loyalty, fidelity and allegiance to act at all times in the best interests of the Company and to do no act which would injure the business, interests or reputation of the Company. TheEmployee’s employment is subject to compliance with all the Company’s policies, including the Business Code of Conduct & Ethics Policy, all as may be amended from time to time.
3. Compensation.
(a) Base Salary. During theEmployment Period, the Company shall pay to theEmployee an annual base salary (“Base Salary”) of Seventy-Eight Thousand and 00/100 Canadian Dollars ($78,000 CAD) payable by the Company and payable in accordance with the Company’s payroll schedules throughout the term of such employment, subject to the provisions of Section 5 hereof (governing Terminations), and subject to any applicable tax and payroll deductions;provided, however, that in the Company’s sole discretion, based on factors such as the market and theEmployee’s job performance, salary increases may be made. There, however, is never a guarantee of an increase inBase Salary. Salary decreases may be made through a written modification of thisAgreementexecuted and signed by theParties.
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(b) Annual Bonus.
(i) At the sole discretion of the Company, the Company may award theEmployee a bonus (“Annual Bonus”) that reflects and rewards the contributions of theEmployee to the Company’s business and success.
(ii) AnyAnnual Bonusis awarded at the option of the Companybased upon individual and Company milestones. TheEmployee’s bonus target for herAnnual Bonusis anticipated to be 25% of herBase Salary.Annual Bonuses are not deemed earned and accrued until the Board awards theAnnual Bonus.
(iii) Except as set forth in Subsection 5(g)(iii),Annual Bonuses that are not earned and accrued are deemed waived if theEmployee’semployment terminates for any reason prior to theBoardawarding theAnnual Bonus.
(c) Other Benefits. During theEmployment Period, theEmployee shall be entitled to participate in such employee benefit plans, programs or arrangements (collectively the “Plans”), implemented by the Company and available to similarly situated employees of the Company within ninety (90) days following Employee’s starting date. The Companyshall have the right, from time to time and in its sole discretion, to modify and amend the benefits provided to its similarly situated employees, including theEmployee, consistent with the provisions herein.
(d) Fringe benefits.
(i) Business Expenses. During theEmployment Period, the Company shall pay for directly or reimburse theEmployee for all reasonable, customary and necessary business-related expenses incurred by theEmployee in connection with the duties of theEmployee hereunder, upon submission by theEmployee to the Company of such written evidence of such expense as the Company may require. Any disputes as to the eligibility of an expense for reimbursement shall be resolved in the sole discretion of theBoard.
(ii) Paid Time Off. During theEmployment Period, theCompany agrees that theEmployee shall earn four (4) weeks (20 business days) of Paid Time Off (“PTO”) per calendar year for use as theEmployeesees fit, provided that suchPTOintended for use as vacation time shall be taken at times mutually agreeable to theEmployeeandCompany and otherwise pursuant to applicable workplace policies governing the use ofPTO. If at the end of the calendar year, theEmployee has accruedPTO that she did not use, theEmployee shall be permitted to carry forward up to 40 hours of unusedPTO. TheEmployee shall further be entitled to paid holidays and authorized leaves (paid and unpaid) in accordance with the policies of theCompany then in effect for its senior executives. At all times, irrespective of the reason for the use, theEmployee’s use ofPTO shall be consistent with the applicable workplace policies.
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(iii) Long-Term Compensation.
(1) At the next meeting of the Board of Directors of the Company, theCompany shall awardEmployee one-hundred-thousand (100,000) stock options. A portion of the Options shall vest on the final day of each calendar quarter during the three (3) years following execution of this Agreement.
(2) TheCompanyagrees that ifAnavex is subject to a Change in Control, then 100% of the remaining unvested option shares will immediately vest with no restrictions on purchase or sale (other than as legally required per statute or other applicable regulation). “Change in Control” means (a) the consummation of a merger or consolidation of the Company into another entity in which the Company is not the surviving entity, (b) the dissolution, liquidation or winding up of theCompany, (c) the closing of the sale, lease, transfer or other disposition of all or substantially all of the Company’s assets in one transaction or a series of related transactions or (d) the closing of the transfer of theCompany’s outstanding securities, in one transaction or a series of related transactions, to a person or group of affiliated persons if, after such closing, such person or group of affiliated persons would hold a majority of the voting power of the capital stock of theCompany. The foregoing notwithstanding, a merger or consolidation of the Company does not constitute aChange in Control if immediately after the merger or consolidation a majority of the voting power of the capital stock of the continuing or surviving entity, or any direct or indirect parent corporation of the continuing or surviving entity, will be owned by the persons who were theCompany’s stockholders immediately prior to the merger or consolidation in substantially the same proportions as their ownership of the voting power of theCompany’s capital stock immediately prior to the merger or consolidation.
(iv) Nothing paid to theEmployee under any of the Company Plans or fringe benefit arrangements shall be deemed to be in lieu ofBase Salary payable to theEmployee hereunder.
(v) Recovery of Incentive Compensation. Notwithstanding anything herein to the contrary, theEmployee agrees that incentive compensation payable to theEmployee under this Agreement or otherwise shall be subject to any clawback policy adopted or implemented by theCompany in respect to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and such regulations as are promulgated thereunder from time to time, or in respect to any other applicable law, regulation orCompany policy.
4. Termination.
(a) Termination for Cause. The Company may terminate theEmployee for Cause, by giving written Notice of Termination toEmployee. The Date of Termination shall be specified in the Notice of Termination. For purposes hereof, “Cause” shall mean: (i) theEmployee’s failure to perform and discharge the duties and responsibilities of theEmployee under this Agreement after receiving written notice and allowing theEmployee thirty (30) days to cure such failures, if so curable, (provided, however, that after one such notice has been given to theEmployee during the Employment Period, the Company is no longer required to provide time to cure subsequent failures under this Subsection 5(c)(i)); or (ii) any breach by theEmployee of the provisions of Sections 6, 8 and/or 9 hereof; or (iii) misconduct which, in the opinion and sole discretion of the Company, is injurious to the Company; or (iv) felony conviction involving the personal dishonesty or moral turpitude of theEmployee; or (v) engagement in illegal drug use or alcohol abuse which in the sole discretion of the Company prevents theEmployee from performing her duties in any manner; or (vi) any misappropriation, embezzlement or conversion of the Company’s or any of its parent’s, subsidiary’s or affiliate’s property by theEmployee; or (vii) willful misconduct or breach of fiduciary duty by theEmployee in respect of the duties or obligations of theEmployee under thisAgreement.
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(b) Termination by the Company without Cause. Except as set forth in Section 5(c) hereof, the Company may terminate this Agreement at any time by providing a Notice of Termination which includes a Date of Termination at least thirty (30) calendar days after delivery of the Notice of Termination.
(c) Termination by the Employee. TheEmployee may terminate this Agreement by delivering a Notice of Termination to the Company. The Date of Termination shall be specified in the Notice of Termination;provided however, that the Date of Termination shall not be earlier than thirty (30) calendar days after delivery of the Notice of Termination.
(d) Obligations Upon Termination.
(i) Termination for Cause. In the event that the employment of theEmployee is terminated pursuant to Subsection 5(a), no Compensation (as set forth in Section 4 above), no severance, no pro-rated bonuses or other post-termination payment shall be due or payable by the Company to theEmployee(except solely such Base Salary or other payments as may have been accrued but not yet paid prior to the Date of Termination). Any outstanding stock option or other stock awards held byEmployee as of the Date of Termination shall be subject to the terms of the applicable plan documents.
(ii) Termination by the Company without Cause. In the event that the employment of theEmployee is terminated pursuant to Subsection 5(b), no Compensation (as set forth in Section 4 above), no severance, no pro-rated bonuses or other post-termination payment shall be due or payable by the Company to theEmployee(except solely such Base Salary or other payments as may have been accrued but not yet paid prior to the Date of Termination). TheCompany may opt to have theEmployeecease providing services to theCompanyduring the thirty (30) day notice-period. In such event, Company shall continue theCompensation and Benefits (as set forth in Section 4 above) during the thirty (30) day notice-period. Further, any outstanding stock option or other stock awards vesting in the contract year of Termination held byEmployee as of the Date of Termination shall immediately vest and become exercisable.
(iii) Termination by the Employee. In the event that the employment of theEmployee is terminated pursuant to Subsection 5(c), no Compensation (as set forth in Section 4 above), no severance, no pro-rated bonuses or other post-termination payment shall be due or payable by the Company to theEmployee(except solely such Base Salary or other payments as may have been accrued but not yet paid prior to the Date of Termination). TheCompany may opt to acceptEmployee’sresignation and haveEmployeecease providing services to theCompanyprior to the expiration of the thirty (30) day notice-period. If theCompanywaives the thirty (30) day notice-period, the Date of Termination shall be deemed to occur on the final dateEmployeeactually provided services to theCompany.
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(iv) Employee’s Duty to Render Final Accounting and Return Company Property. Upon termination of theAgreement, theEmployeeshall (i) within thirty (30) days thereafter, render a final accounting to theCompanywhich shall include all adjustments between the Parties to ensure that all commitments of theCompanyaddressed; and (ii) immediately surrender to theCompany or as theCompanymay direct, all property, books and records of theCompanythen in the custody, possession, or control of theEmployee, and as further described in Section 8 of thisAgreement.
(e) Notice of Termination. A “Notice of Termination” to effectuate a termination under Section 5 shall be made in accordance with the Notice provision defined in Section 7. For purposes of this Agreement, aNotice of Termination shall mean a notice, in writing, which shall indicate the specific termination provision of this Agreement relied upon as the basis for the Termination and the Date of Termination. The Date of Termination shall not be earlier than the date suchNotice of Termination is delivered (as defined above);provided however, that theCompany, at its option, may elect to have theEmployee not report to work after the date of the written notice.
(f) Date of Termination. “Date of Termination” means the date on which this Agreement shall terminate in accordance with the provisions of this Section 5.
5. Restrictive Covenants.
(a) Definitions.
(i) The term “Anavex” for purposes of Section 6 of this Agreement shall mean Anavex Life Sciences Corp. and its affiliated and related entities including, but not limited to, all of its subsidiaries and joint ventures. It is understood that any affiliated or related entities of Anavex are intended third-party beneficiaries of the provisions of this Agreement.
(ii) The term “Confidential Information” shall include, but not be limited to, (i) all technical and non-technical information relating to Anavex’s pharmaceutical products, research, processes, methods, equipment, products, business practices, and/or clinical trials; Customer lists and Prospective Customer lists; specific information on Customers and Prospective Customers (including information on purchasing preferences, credit information, and pricing); terms and conditions under whichAnavex deals with Vendors and supplier or prospective Vendors or suppliers; employee and independent contractor lists;Anavex’s sources of supply;Anavex’s billing rates; pricing lists (including item and Customer specific pricing information); names of agents; operations; contractual or personnel data; trade secrets; license agreements; proprietary purchasing and sales methods and techniques; proprietary compositions, ideas and improvements; pricing methods and strategies; computer programs, computer systems, computer data, system documentation, special hardware, product hardware, related software development and computer software design and/or improvements; methods of distribution; market feasibility studies; proposed or existing marketing techniques or plans; sales and sales volumes; purchasing, transportation, documentation, marketing and trading techniques of Customers, potential Customers and/or Vendors; inventions (including Inventions as defined below; futureAnavexbusiness plans; project files; design systems; information on current and potential Vendors including, but not limited to, their identity, pricing, and purchasing information not generally known; personal information aboutAnavex’s executives, officers and directors; correspondence, and letters, notes, notebooks, reports, flowcharts, proposals, processes and/or any and all other confidential or proprietary information belonging toAnavex or relating toAnavex’s business and/or affairs; and (ii) any information that is of value or significance toAnavex that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, including information not generally known to the competitors ofAnavex nor intended byAnavex for general dissemination. Confidential Information shall not include any (a) information known generally to the public (other than as a result of unauthorized disclosure by theEmployee), (b) information that became available from a third party source and such source is not bound by a confidentiality agreement, or (c) any information not otherwise considered by theBoard to be Confidential Information.
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(iii) The term “Customer” shall mean any person or entity which has purchased products fromAnavex, entered into any contract for products withAnavex, and/or entered into any contract for the distribution of any products withAnavex within the one (1) year immediately preceding the termination of theEmployee’semployment withAnavex for whatever reason.
(iv) The phrase “directly or indirectly” shall include theEmployee either on her own account, or as a partner, owner, promoter, joint venturer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, stockholder, or otherwise, of an entity.
(v) The term “Non-CompetePeriod” shall mean the Employment Period and the twelve (12) months immediately following termination of theEmployee’s employment withAnavex for whatever reason.
(vi) The term “Prospective Customer” shall mean any person or entity which has expressed interest in purchasing products fromAnavex, expressed interest in entering into any contract for products or services withAnavex, and/or expressed interest in entering into any contract for the distribution of any products withAnavexwithin the one (1) year immediately preceding the termination of theEmployee’s employment withAnavex for whatever reason.
(vii) The term “Restricted Area” shall include any geographical location anywhere in the world whereAnavex, its affiliates or subsidiarieseither(a) are engaged in business,or (b) have evidenced an intention to engage in business.
(viii) The term “Restricted Business” shall mean any business that competes with the business ofAnavex, as such business now exists or as it may exist at the time of the termination of theEmployee’s employment withAnavex for whatever reason, including any entity in the business of developing and/or distributing pharmaceutical products.
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(ix) The term “Vendor” shall mean any supplier, person or entity from whichAnavex has purchased products or services during the one (1) year immediately preceding the termination of theEmployee’s employment withAnavex for whatever reason.
(b) Non-Competition. During the Non-Compete Period, in the Restricted Area, theEmployee shall not, directly or indirectly, engage in, promote, finance, own, operate, develop, sell or manage or assist in or carry on in any Restricted Business,provided, however, that theEmployee may at any time own securities of any competitor corporation whose securities are publicly traded on a recognized exchange so long as the aggregate holdings of theEmployee in any one such corporation shall constitute not more than 5% of the voting stock of such corporation.
(c) Non-Solicitation of Employees or Independent Contractors. During the Non-Compete Period, theEmployee shall not, directly or indirectly, solicit or attempt to induce any employee ofAnavex or independent contractor engaged and/or utilized byAnavex in any capacity to terminate her employment with, or engagement by,Anavex. Likewise, during the Non-Compete Period, theEmployee shall not, directly or indirectly, hire or attempt to hire for another entity or person any employee ofAnavex or independent contractor engaged and/or utilized byAnavex in any capacity.
(d) Non-Solicitation of Customers, Prospective Customers or Vendors. During the Non-Compete Period, theEmployee shall not, directly or indirectly, provide services toAnavex to any Customer, Prospective Customer or Vendor ofAnavex through any entity other thanAnavex. TheEmployee acknowledges and agrees thatAnavex has substantial relationships with its Customers, Vendors and Prospective Customers, whichAnavex expends significant time and resources in acquiring and maintaining, and thatAnavexhasConfidential Information pertaining to its business and its Customer, Vendors and Prospective Customers, and thatAnavex’sConfidential Informationand relationships with its Customers, Vendors and Prospective Customers constitute significant and valuable assets ofAnavex.
(e) Non-Disclosure of Confidential Information. During and after employment under this Agreement, including but not limited to the Non-Compete Period, theEmployee shall not, directly or indirectly, without the prior written consent of theBoard, or a person duly authorized thereby, other than a person to whom disclosure is reasonably necessary or appropriate in connection with the performance by theEmployee of the duties of theEmployee as an employee ofAnavex, disclose or use for the benefit of herself or any other person, corporation, partnership, joint venture, association, or other business organization, any of the trade secrets orConfidential Information ofAnavex. If theEmployee is legally required to disclose anyConfidential Information or trade secrets, theEmployee will notifyAnavex prior to doing so by providingAnavex with written notice ten (10) business days in advance of the intended or compelled disclosure. (If disclosure is required sooner than ten (10) days, theEmployee must provideAnavex with Notice immediately upon learning that disclosure is sought andbefore disclosure is required or compelled.) Notice shall be provided as defined in Section 7 below.
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(f) Need for Restrictions. TheEmployee acknowledges and agrees that each of the restrictive covenants contained in this Section 6 is reasonable and necessary to protect the legitimate business interests ofAnavex, including, without limitation, the need to protectAnavex’s trade secrets andConfidential Information and the need to protect its relationships with its Customers, Prospective Customers, Vendors and agents. TheEmployee also acknowledges and agrees, as set forth in Subsection 6(h) below, that Anavex may obtain a temporary, preliminary and/or permanent injunction to restrain any violations of, or otherwise enforce, the restrictive covenants contained in Section 6. TheEmployee also acknowledges and agrees that, if her future employment’s job duties would inevitably cause her to discloseConfidential Information or trade secrets ofAnavex,Anavex may seek to protect its legitimate business interests by enjoining her from working in that future position.
(g) Proprietary Rights.
(i) Ownership. Anavex shall own all right, title and interest in and to all documentation, manuals, materials, creative works, methods, techniques, compositions, ideas, recipes, creations, improvements, inventions, computer programs and data, system documentation, special hardware, product hardware, related software development, correspondence, letters, notes, notebooks, reports, flowcharts, proposals, know-how and other information, in any medium whatsoever (including, without limitation, anyConfidential Information, trade secrets and all software, software code, processes, copyrights, patents, technologies and inventions (collectively, “Inventions”), including, without limitation, new contributions, improvements, ideas and discoveries, whether patentable or not, conceived, developed, invented or made by theEmployee during her employment byAnavex (including her employment withAnavex prior to the date hereof), provided that suchInventions grew out of theEmployee’s work withAnavex, are related in any manner to theBusiness, as such term is defined in the Recitals, or are conceived or made onAnavex’s time or with the use ofAnavex’s facilities or materials). TheEmployee acknowledges and agrees that any of her work product created, produced or conceived in connection with her association withAnavex shall be deemed work for hire and shall be deemed owned exclusively byAnavex.
(ii) Employee's Obligations. TheEmployee shall (i) promptly disclose suchInventions toAnavex; (ii) assign toAnavex, without additional compensation, all patent and other rights to suchInventions for the United States and foreign countries; (iii) execute and deliver all documents required byAnavex to document or perfectAnavex’s proprietary rights in and toAnavex’s work product; and (iv) give testimony in support of his inventorship. TheEmployee shall deliver allConfidential Information, trade secrets and/orInventions toAnavex uponAnavex’s request, and, in any event, immediately upon termination of theEmployee’s employment byAnavex.
(iii) Employee’s Restrictions. TheEmployee acknowledges that theConfidential Information, trade secrets and/orInventions constitute valuable trade secrets ofAnavex. TheEmployee shall not infringe or violate any trade secret or other proprietary right ofAnavex related to theConfidential Information, trade secrets and/orInventions, and shall not own, apply for or otherwise attempt to obtain, on behalf of theEmployee or others, any proprietary right in anyConfidential Information, trade secrets and/orInventions, whichAnavex owns or has a right to own, in whichAnavexhas an interest and/or to whichAnavex has title.
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(h) Breach of Restrictive Covenants. In the event of a breach or threatened breach by theEmployee of any restrictive covenant set forth in Section 6, theEmployee agrees that such a breach or threatened breach would cause irreparable injury toAnavex, and that, ifAnavex shall bring legal proceedings against theEmployee to enforce any restrictive covenant,Anavex shall be entitled to seek all available civil remedies, at law or in equity, including, without limitation, an injunction without posting a bond, damages, attorneys’ fees, and costs.
(i) Successors and Assigns.Anavex and its successors and assigns may enforce these restrictive covenants.
(j) Construction, Survival. If the period of time, area, or scope of restriction specified in this Section 6 should be adjudged unreasonable in any proceeding, then the period of time, area, or scope shall be reduced so that the restrictions may be enforced as is adjudged to be reasonable. If theEmployee violates any of the restrictions contained in this Section 6, the restrictive period shall be tolled during the time that theEmployee is in violation. All the provisions of this Section 6 shall survive the term of thisAgreement and theEmployee’s employment withAnavex.
6. Notice. For the purpose of thisAgreement, notices and all other communications to eitherParty hereunder provided for in theAgreement shall be in writing and shall be deemed to have been duly given when: (a) delivered in person, mailed by certified mail, return receipt requested or recognized overnight delivery serviceand (b) transmitted via electronic mail.
If toAnavex: | Anavex Life Sciences Corp. |
51 W 52nd Street, 7th floor | |
New York, NY 10019 | |
Telephone: (212) 332 4449 | |
Attention: Christopher U. Missling | |
E-mail:cmissling@anavexcorp.com |
With a copy to: | K&L Gates LLP |
Southeast Financial Center – 39th Floor | |
200 South Biscayne Blvd. | |
Miami, FL 33131-2399 | |
Telephone: 305.539.3300 | |
Attention: Clayton Parker, Esq. | |
E-mail:clayton.parker@klgates.com |
If to theEmployee: | Sandra Boenisch |
1500 West Georgia Street | |
13th Floor | |
Vancouver, BC | |
Canada V6G 2Z6 | |
Telephone: (604) 281 4558 | |
E-mail:sandra.boenisch@nakedbrandgroup.com |
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or to such other address as either party shall designate by giving written notice of such change to the other party.
7. Return of the Company’s Property. All of the Company’s and its subsidiaries’ and affiliates’ products, Customer correspondence, internal memoranda, designs, brochures, training manuals, project files, price lists, Customer and Vendor lists, prospectus reports, Customer or Vendor information, data and databases, clinical trial protocols, project agreements, product literature, notebooks, textbooks, e-mails and Internet access, and all other like information or products, including all copies, duplications, replications and derivatives of such information or products, acquired by theEmployee while in the employ of the Company, whether prepared by theEmployee or coming into theEmployee’s possession, shall be the exclusive property of the Company and shall be returned immediately to the Company upon the expiration or termination of thisAgreement for any reason or upon request by the Chief Executive Officer of the Companyor theBoard. TheEmployee also shall return immediately return any Company issued property including, but not limited to, laptops, computers, thumb drives, removable media devices, flash drives, smartphones, cellular phones, iPads and other devices upon the expiration or termination of this Agreement for any reason or upon request by the Chief Executive Officer of the Company or theBoard. TheEmployee’s obligations under this Section 8 shall exist whether or not any of these items or materials containConfidential Information or trade secrets. TheParties hereto shall comply with all applicable laws and regulations regarding retention of and access to this Agreement and all books, documents and records in connection therewith. TheEmployee shall provide the Companywith a signed certificate evidencing that all such property has been returned, and that no such property orConfidential Information or trade secret has been retained by theEmployee in any form. If the Company has a good faith basis for suspecting thatEmployee has retained documents, property or information in violation of this provision, if requested, theEmployee is obligated to provide the Company and/or its agent with access to theEmployee’s laptop(s), external drive(s), computer(s), flash drive(s) and/or removable media to ensure all property of the Company or its subsidiaries and affiliates has been returned, andEmployee is not retaining copies of the documents or property without the Company permission.
8. Prior Agreements.
(a) TheEmployee represents to the Company (1) that there are no restrictions, agreements, or understandings whatsoever to which theEmployee is a party which would prevent or make unlawful theEmployee’s execution of thisAgreement or employment hereunder, (2) that theEmployee’s execution of thisAgreement and employment hereunder shall not constitute a breach of any contract, agreement or understanding, oral or written, to which theEmployee is a party or by which theEmployee is bound, and (3) that theEmployee is free and able to execute thisAgreement and to enter into employment by the Company. TheEmployeefurther represents and agrees that she will not bring with her, disclose or otherwise use any confidential, proprietary or trade secret information acquired from any prior employer, whether that information was created by theEmployeeor others. A written or oral notice or complaint thatEmployee breached this provision or violated a restrictive covenant or an agreement not to discloseConfidential Information shall subject theEmployee, at the Company’ssole discretion, to immediate termination with Cause. TheEmployee also agrees to fully indemnify the Company for any and all damages, costs and/or attorney’s fees incurred by the Company that arise from any claims that were related to theEmployee’s alleged or actual breach of a restrictive covenant or an agreement not to discloseConfidential Information.
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(b) ThePartiesmutually acknowledge and agree that any prior offer letters and/or employment agreements between and among the Company or any affiliate or subsidiaryand theEmployee, including, but not limited to, the September 2015 draft Management and Administrative Services Agreement between the Company and theEmployee,are declared null and void with no legal effect, and the Employeewill take nothing from any such prior agreements, including any right to any severance or termination benefits.
9. Specific Performance. It is agreed that the rights granted to theParties hereunder are of a special and unique kind and character and that, if there is a breach by anyParty of any material provision of thisAgreement, the other Party would not have any adequate remedy at law. It is expressly agreed, therefore, that the rights of theParties hereunder may be enforced by an action for specific performance and other equitable relief without theParties posting a bond, or, if a bond is required, theParties agree that the lowest bond permitted shall be adequate.
10. Further Assurances. Each of theParties hereto shall execute and deliver any and all additional papers, documents and other assurances, and shall do any and all acts and things reasonably necessary in connection with the performance of their obligations hereunder and to carry out the intent of theParties hereto.
11. Right to Review and Seek Counsel. TheEmployee acknowledges that she has had the opportunity to seek independent counsel and tax advice in connection with the execution of this Agreement, and theEmployee represents and warrants to the Company (a) that she has sought such independent counsel and advice as she has deemed appropriate in connection with the execution hereof and the transactions contemplated hereby, and (b) that she has not relied on any representation of the Company as to tax matters, or as to the consequences of the execution hereof.
12. Waiver/Amendments. The waiver by the Company of a breach or threatened breach of this Agreement by theEmployee shall not be construed as a waiver of any subsequent breach by theEmployee. No provision of thisAgreement may be modified, waived or discharged unless such waiver, modification or discharge is approved by theBoard and agreed to in writing signed byEmployee and such officer as may be specifically authorized by theBoard.
13. Entire Agreement. ThisAgreement contains the entire understanding of thePartiesand no agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by eitherParty, which are not set forth expressly in thisAgreement. ThisAgreement supersedes all negotiations, preliminary agreements, and all prior and contemporaneous discussions and understandings of theParties and/or their affiliates. TheEmployeeacknowledges that she has not relied on any prior or contemporaneous discussions or understandings in entering into thisAgreement.
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14. Neutral Construction. NoParty may rely on any drafts of thisAgreement in any interpretation of theAgreement. EachParty to thisAgreementhas reviewed thisAgreement and has participated in its drafting and, accordingly, noParty shall attempt to invoke the normal rule of construction to the effect that ambiguities are to be resolved against the draftingPartyin any interpretation of thisAgreement.
15. Governing Law. ThisAgreement shall be governed and construed in accordance with the laws of the State of New York without regard to conflicts of law.
16. Headings and Captions. The titles and captions of paragraphs, sections, subparagraphs and subsections contained in thisAgreement are provided for convenience of reference only, and shall not be considered terms or conditions of thisAgreement.
17. Validity. The invalidity or unenforceability of any provision of thisAgreement shall not affect the validity or enforceability of any other provision of thisAgreement, which shall remain in full force and effect.
18. Survival. The provisions of thisAgreement shall not survive the termination of theEmployee’s employment hereunder, except that the provisions of (i) Section 5 hereto relating to post-termination payment obligations; (ii) Section 6 hereto relating to the restrictive covenants; (iii) Section 8 hereto relating to return of the Company’s property; and (iv) Section 17 relating to jurisdiction, venue and waiver of personal service shall remain binding upon theParties.
19. Successors and Assigns. ThisAgreement shall be binding upon and inure to the benefit of the Company and its successors and assigns, and theEmployee agrees that thisAgreement may be assigned by the Company withoutEmployee’s consent. ThisAgreement is not assignable by theEmployee.
20. Counterparts. ThisAgreement may be executed in one or more separate counterparts, each of which, when so executed, shall be deemed to be an original. Such counterparts shall, together, constitute and shall be one and the same instrument. ThisAgreement,and the counterparts thereto, may be executed by theParties using their respective signatures transmitted via facsimile machines or via electronic mail.
21. Jury Trial Waiver, Arbitration. ALL ISSUES, MATTERS AND DISPUTES BETWEEN THE PARTIES CONCERNING THIS AGREEMENT SHALL BE SUBMITTED TO ARBITRATION.Employee agrees, on behalf of herself and her agents or assigns that, except as otherwise provided in this paragraph, all potentially litigable claims or controversies arising out of this Agreement shall be submitted to binding arbitration before a mutually acceptable arbitrator and in accordance with the American Arbitration Association (“AAA”) under the Employment Arbitration Rules and Mediation Procedures. If the Parties cannot agree upon an arbitrator, the claim or controversy shall be arbitrated by a single arbitrator selected in accordance with the applicable AAA rules.THIS PROVISION TO ARBITRATE SHALL NOT APPLY TO ANY CLAIM FOR BREACH OF THE RESTRICTIVE COVENANTS, AS SET FORTH ABOVE IN SECTION 6, INCLUDING ANY REQUEST FOR INJUNCTIVE RELIEF TO ENFORCE COMPLIANCE WITH THE TERMS OF SECTION 6. EITHER PARTY MUST PROCEED EXCLUSIVELY IN COURT TO ENFORCE THE REQUIREMENTS OF SECTION 6. TheEmployee hereby consents to personal jurisdiction and exclusive venue in the United States District Court for the Southern District of New York, if such Court can exercise jurisdiction over the matter for any action brought by the Company seeking injunctive relief. In the event the foregoing Court lacks jurisdiction, theEmployeeconsents to personal jurisdiction and exclusive venue in the Supreme Court of the State of New York, New York County.ALL CLAIMS CONCERNING THIS AGREEMENT FOR INJUNCTIVE RELIEF SHALL BE TRIED BY A JUDGE IN A NON-JURY TRIAL.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on September 17, 2015.
ANAVEX LIFE SCIENCES CORP. | SANDRA BOENISCH | ||
By: | |||
Name: | Christopher U Missling | ||
Title: | President |
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