EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of this 7th day of January 2004,
BETWEEN:
VIVENTIA BIOTECH INC., a corporation continued under the
laws of Ontario
(the "CORPORATION")
- and -
NICK GLOVER, of the City of Oakville, in the Province of
Ontario
(the "EXECUTIVE")
RECITALS:
A. The Corporation and the Executive wish to enter into this Agreement to set
forth the rights and obligations of each of them as regards the Executive's
employment with the Corporation.
NOW THEREFORE in consideration of the mutual covenants and agreements
contained in this Agreement and other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the Corporation and
the Executive agree as follows:
1. DEFINITIONS
1.1. In this Agreement,
1.1.1. "AFFILIATE" has the meaning attributed to such term in the Business
Corporations Act (Ontario) as the same may be amended from time to time and
any successor legislation thereto;
1.1.2. "AGREEMENT" means this agreement and all schedules attached to this
agreement, in each case as they may be amended or supplemented from time to
time, and the expressions "HEREOF", "HEREIN", "HERETO", "HEREUNDER",
"HEREBY" and similar expressions refer to this agreement and unless
otherwise indicated, references to sections are to sections in this
agreement;
1.1.3. "BASIC SALARY" has the meaning attributed to such term in section
5.1;
-2-
1.1.4. "BENEFITS" has the meaning attributed to such term in section 5.3;
1.1.5. "BIO-PHARMACEUTICAL BUSINESS" has the meaning attributed to that
term in section 2;
1.1.6. "BONUS" has the meaning attributed to such term in section 5.2;
1.1.7. "BOARD" means the board of directors of the Corporation;
1.1.8. "BUSINESS DAY" means any day, other than Saturday, Sunday or any
statutory holiday in the Province of Ontario;
1.1.9. "CHAIRMAN" means the chairman of the Board;
1.1.10. "CONFIDENTIAL INFORMATION" means all confidential or proprietary
information, intellectual property and confidential facts relating to and
used or proposed to be used in the business of the Corporation and its
Affiliates and includes all information which is confidential based upon
its nature or the circumstances surrounding its disclosure, including such
information acquired by the Executive during any period in which the
Executive was affiliated with the Corporation in any capacity, including as
an employee, director or shareholder, and includes, without limiting the
generality of the foregoing, information:
(a) relating to the Corporation's or an Affiliate's biotechnology or bio-
pharmaceutical products and services, products and services related to
bio-technology or the Bio-Pharmaceutical Business, or to the
Corporation's or an Affiliate's research and development projects or
plans;
(b) relating to the Corporation's or an Affiliate's trade secrets,
technology, patentable and unpatentable inventions, discoveries,
texts, cell lines, nucleic acid, protein and peptide sequences,
synthetic procedures, processes, test procedures and results, records,
specifications, data, formulations, know-how, samples, specimens,
manufacturing processes, toxicology, regulatory and clinical
information;
(c) relating to the Corporation's or an Affiliates business policies,
strategies, operations, finances, plans or opportunities including the
identity of, or particulars about, the Corporation's clients or
suppliers or other Person with whom the Corporation has a business
relationship; and
(d) marked or otherwise identified as confidential, restricted, secret or
proprietary including, without limiting the generality of the
foregoing, information acquired by inspection or oral disclosure;
provided that Confidential Information does not extend to the skill,
expertise, know-how and experience of the Executive gained in the
performance of his employment.
-3-
1.1.11. "DISABILITY" means the mental or physical state of the Executive
such that the Executive has been unable as a result of illness, disease,
mental or physical disability or similar cause to fulfil his obligations
under this Agreement either for any consecutive six month period or for any
period of aggregating twelve (12) months (whether or not consecutive) in
any consecutive twenty-four (24) month period;
1.1.12. "EFFECTIVE DATE" means January 7, 2004 or such earlier date as may
be agreed upon by the Corporation and the Executive;
1.1.13. "EMPLOYMENT PERIOD" has the meaning attributed to such term in
section 4;
1.1.14. "ESA" means the Employment Standards Act, 2000 (Ontario) as the
same may be amended from time to time and any successor legislation
thereto;
1.1.15. "JUST CAUSE" includes the willful failure of the Executive to
properly carry out his duties after notice by the Corporation of the
failure to do so and an opportunity for the Executive to correct the same
within a reasonable time from the date of receipt of such notice, or theft,
fraud, dishonesty or misconduct by the Executive involving the property,
business or affairs of the Corporation or the carrying out of the
Executive's duties or any other conduct or omission which is to be treated
as just cause by the courts of Ontario from time to time;
1.1.16. "PERSON" means any individual, partnership, limited partnership,
joint venture, syndicate, sole proprietorship, company or corporation with
or without share capital, unincorporated association, trust, trustee,
executor, administrator or other legal personal representative, regulatory
body or agency, government or governmental agency, authority or entity
however designated or constituted;
1.1.17. "RETIREMENT" means resignation of the Executive on or after the
Executive attains the age of sixty-five (65);
1.1.18. "SEVERANCE AMOUNT" has the meaning attributed to such term in
section 9;
1.1.19. "SUBSIDIARIES" has the meaning attributed to such term by the
Business Corporations Act (Ontario) as the same may be amended from time to
time and any successor legislation thereto;
1.1.20. "TERMINATION WITHOUT CAUSE" means termination for any reason other
than for Just Cause or for Disability or by reason of resignation or
Retirement by the Executive;
1.1.21. "YEAR OF EMPLOYMENT" means any twelve (12) month period commencing
on January 1, 2005 or on any anniversary of such date, provided that for
the purposes of this Agreement, the "FIRST YEAR OF EMPLOYMENT" shall be
deemed to commence on the date hereof and to end on December 31, 2004.
-4-
2. EMPLOYMENT OF THE EXECUTIVE
Provided that the Board has approved the terms and conditions of employment
set out in this Agreement, the Corporation shall employ the Executive and the
Executive shall serve the Corporation in the position of President & Chief
Executive Officer. The Executive shall report to the Board. In the capacity as
President & Chief Executive Officer the Executive will play an important
strategic role in the conduct of the business and will be privy to, and acquire
detailed knowledge of, Confidential Information and other business sensitive
information about the Corporation and its Affiliates and will assist in the
business of
2.1.1. research, development, clinical trials, regulatory compliance,
marketing, sales, manufacturing, distribution, licensing or other
exploitation of:
2.1.1.1. monoclonal antibody products, including without limitation
human monoclonal antibodies;
2.1.1.2. the use of the human immune system to identify
therapeutically or diagnostically relevant antibodies and their
cognate antigens for cancer;
2.1.1.3. and any exploitation thereof, related research, products and
services to any of the above and products derived from any of the
above
(the "BIO-PHARMACEUTICAL BUSINESS").
Without limiting the generality of the foregoing, the Executive's
duties shall include:
2.2. management of activities that relate to the Bio-Pharmaceutical Business,
including production, production development, quality control, quality
assurance, project management and marketing activities;
2.3. in conjunction with other members of the Corporation's senior management
team, preparation of the Corporation's annual budget and business plan for
approval by the Board;
2.4. directing and supervising the Corporation's human resource policies and
procedures, including the recruitment and training of the Corporation's
personnel; and
2.5. supervising and directing the Corporation's scientific, clinical and
regulatory affairs.
3. PERFORMANCE OF DUTIES
The Executive represents and warrants that neither his execution of the
Employment Agreement nor his performance of the duties and obligations set out
in the Employment Agreement does or will violate or breach any obligation he may
have to any third party or imposed by statute, contract or order of any judicial
or quasi-judicial authority. During the Employment Period, the Executive shall
faithfully, honestly and diligently serve the
-5-
Corporation. The Executive shall (except in the case of illness or accident)
devote all of his working time and attention to his employment and shall use his
best efforts to promote the interests of the Corporation.
4. EMPLOYMENT PERIOD
The term of employment of the Executive under this Agreement will commence
January 7, 2004 and will continue until terminated in accordance with section 8
of this Agreement (the "EMPLOYMENT PERIOD").
5. REMUNERATION
5.1. Basic Remuneration. The Corporation shall pay the Executive a gross annual
salary of $275,000 (the "BASIC SALARY") payable in periodic equal
instalments in accordance with the practices of the Corporation applicable
to its other senior executives.
5.2. Bonus Remuneration. The Board may award the Executive, an annual bonus of
cash, stock options, other share based compensation or any combination
thereof. Such bonus shall be awarded in the sole discretion of the Board
(the "BONUS"). Each year, at the time that the Board approves the
Corporation's annual business plan and annual budget, the Executive and the
Board (or a committee thereof) shall mutually agree on the objectives upon
which any Bonus shall be based. Such objectives may include subjective and
objective criteria.
5.3. Signing Bonus. The Executive will receive a signing bonus of S20,000.
5.4. Benefits. The Corporation shall provide to the Executive, in addition to
Basic Salary and Bonus, if any, the benefits (the "BENEFITS") generally
available to the executives of the Corporation, such benefits to be
provided in accordance with, to the extent permitted by and subject to the
terms and conditions of the applicable fund, plan or arrangement relating
thereto in effect from time to time. The Corporation acknowledges that the
Executive shall be subject to the provisions of the Corporation's liability
insurance for directors and officers as same may be in effect from time to
time.
5.5. Initial Grant of Stock Options. Subject to the approval of the Board, the
Corporation will grant the Executive an option to purchase 3,000,000 common
shares of the Corporation. The terms of the stock option including, without
limitation, provisions respecting exercise price, vesting and expiry, shall
be governed by the terms of the Viventia Biotech Inc. Share Option Plan.
5.6. Pro-Rata Entitlement in First Year of Employment. Notwithstanding sections
5.1 and 5.2 hereof (i) the Basic Salary shall be prorated in respect of the
First Year of Employment such that the Executive shall be entitled to
receive and the Corporation shall be required to pay in respect of such
year only that proportion of the Basic Salary that the number of days in
the First Year of Employment is to 365; and (ii) any bonus payable in
respect of the First Year of Employment shall be awarded in the sole
discretion of the Board.
-6-
5.7. Pro-Rata Entitlement in the Event of Termination. If the Executive's
employment is terminated pursuant to section 8.1.1, 8.1.2, or 8.1.3, bonus,
if any, will be payable at the board's discretion.
If the Executive dies or retires during the Employment Period, the
Executive shall be entitled to receive in respect of his entitlement to
bonus remuneration and the Corporation shall be required to pay in respect
thereof, only that proportion of the bonus remuneration in respect of the
year of employment at which the effective date of the termination of
employment or the date of death occurs that the number of days elapsed from
the commencement of such year of employment to the effective date of
termination or the date of death is to 365, provided that said bonus shall
be equal to or greater than 66% of the bonus remuneration the Executive
earned in the year proceeding termination.
6. EXPENSES & CAR ALLOWANCE
The Corporation shall pay or reimburse the Executive for all travel and
out-of-pocket expenses reasonably incurred or paid by the Executive in the
performance of his duties and responsibilities upon presentation of expense
statements or receipts or such other supporting documentation as the Corporation
may reasonably require. All travel and other expenses incurred by the Executive
shall be in accordance with the Corporation's travel and expense policies.
In accordance with the Corporation's current policy governing the provision of
automobiles to executive personnel, the Corporation shall provide the Executive
with a monthly car allowance payable in periodic equal instalments in accordance
with the practices of the Corporation applicable to its other senior executives.
7. VACATION
The Executive shall be entitled while employed by the Corporation to four (4)
weeks vacation with pay per year. Vacation shall be taken by the Executive at
such time as may be acceptable to the Corporation having regard to its
operations and no more than two (2) weeks of vacation shall be taken
consecutively. If the Executive has not taken the full vacation to which the
Executive is entitled in any calendar year, the Executive will be paid at the
end of such calendar year Basic Salary in respect of the accrued unused
vacation. Except as required under the ESA, the Executive shall not be entitled
to carry over any unused portion of vacation to the following calendar year and
will lose the entitlement to such unused portion. Notwithstanding the foregoing,
in the event that the Executive's employment is terminated pursuant to section
8, the Executive shall not be entitled to receive any payment in lieu of any
accrued unused vacation except to the extent, if any, required by the ESA.
-7-
8. TERMINATION
8.1. Notice. The Executive's employment shall terminate or be terminable:
8.1.1. by the Executive on three (3) months prior written notice to the
Corporation;
8.1.2. by the Corporation at any time without prior notice and, subject to
the provisions of the ESA and the Human Rights Code (Ontario), without
further obligation to the Executive for reasons of Just Cause or because of
the occurrence of Disability;
8.1.3. by the Corporation, for any reason other than for Just Cause or
Disability, at any time without prior notice and without further obligation
to the Executive other than those obligations of the Corporation set out in
section 9 of this Agreement;
8.1.4. upon the death of the Executive; and
8.1.5. upon the Retirement of the Executive.
8.2. Effective Date. The effective date on which the Executive's employment
shall be terminated shall be:
8.2.1. in the case of termination pursuant to section 8.1.1, the last day
of the three (3) month period set out in the notice;
8.2.2. in the case of termination pursuant to sections 8.1.2 and 8.1.3, the
day the Executive is deemed, under section 12 to have received notice from
the Corporation of such termination;
8.2.3. in the event of the death of the Executive, on the date of his
death; and
8.2.4. in the event of the Retirement of the Executive, on the date of his
Retirement.
9. PAYMENTS ON TERMINATION OF EMPLOYMENT
(a) If the Executive's employment is terminated as a result of
Termination Without Cause, the Corporation shall (subject to the
Executive's obligations contained herein):
(i) for a period of eighteen (18) months from the effective date of
Termination Without Cause make the following payments
(collectively referred to herein as the "SEVERANCE AMOUNT") to
the Executive:
(I) payments to the Executive in the same amount and on the
same basis as the Basic Salary and Bonus Remuneration
being paid to the Executive immediately prior to the
effective date of termination; and
-8-
(II) continue to provide the Executive with Benefits, in
accordance with, and to the extent permitted by and
subject to the terms and conditions of the applicable
fund, plan or arrangement relating thereto;
(III) car allowance in accordance with Article 6;
(IV) payment to the Executive up to a maximum of $10,000.00 to
cover all costs associated with career relocation and
outplacement services obtained by the Executive, upon
presentation of receipts.
(ii) all payments made to the Executive shall be subject to
applicable deductions and withholdings and shall be in full
satisfaction of any and all entitlement that the Executive may
have to notice of termination or payment in lieu thereof,
severance pay and any other payments to which the Executive may
otherwise be entitled to pursuant to ESA and any other
applicable law. The Corporation shall cooperate with the
Executive with respect to the payment of all payments due on
termination such that the Executive shall be entitled to obtain
the benefit of any tax shelters or strategies that may be
available or may become available;
(iii) notwithstanding the foregoing and subject to the ESA:
(I) the Severance Amount payable by the Corporation to the
Executive during the initial twelve (12) month period from
the effective date of Termination Without Cause may not be
reduced for any reason.
(II) any Severance Amount and car allowance payable by the
Corporation in the six (6) month period commencing one year
from the effective date of Termination Without Cause may be
reduced by the Corporation by an amount equal to the base
salary and bonus or other income or benefits earned by the
Executive in connection with any employment by another
employer or employers or any business activity undertaken
by the Executive. The Executive agrees to promptly provide
the Corporation with any evidence of amounts received in
connection with any such other employment or business
activity which the Corporation shall reasonably request;
(iv) notwithstanding any other provisions in this Agreement, the
exercise of the Executive's options will be in accordance with
the terms of the Viventia Biotech Inc. Share Option Plan;
(v) if, following Termination Without Cause, the Executive breaches
any of the provisions of the Confidential Information,
Intellectual Property, Non-
-9-
Competition and Non-Solicitation Agreement (attached as Appendix
A), the Executive shall not be eligible, as of the date of such
breaches for any Severance Amount and all obligations of the
Corporation to pay the Executive the Severance Amount shall
(subject to applicable minimum amounts payable pursuant to the
ESA) cease.
10. REMEDIES
The Executive acknowledges that a breach or threatened breach by the
Executive of the provisions of the Confidential Information, Intellectual
Property, Non-Competition and Non-Solicitation Agreement will result in the
Corporation and its shareholders suffering irreparable harm which is not capable
of being calculated and which cannot be fully or adequately compensated by the
recovery of damages alone. Accordingly, the Executive agrees that the
Corporation shall be entitled to interim and permanent injunctive relief,
specific performance and other equitable remedies, in addition to any other
relief to which the Corporation may become entitled.
11. CO-OPERATION BY EXECUTIVE
The Executive shall co-operate in all respects with the Corporation if the
question arises as to whether a Disability has occurred. Without limiting the
generality of the foregoing, the Executive shall authorize the Executive's
medical doctor or other health care specialist to discuss the condition of the
Executive with the Corporation and shall submit to examination by a medical
doctor or other health care specialist selected by the Corporation.
12. NOTICES
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be given by prepaid first-class mail, by
facsimile or other means of electronic communication or by hand-delivery as
hereinafter provided. Any such notice or other communication, if mailed by
prepaid first-class mail at any time other than during a general discontinuance
of postal service due to strike, lockout or otherwise, shall be deemed to have
been received on the fourth Business Day after the post-marked date thereof, or
if mailed by registered mail, shall be deemed to have been received on the day
such mail is delivered by the post office, or if sent by facsimile or other
means of electronic communication, shall be deemed to have been received on the
Business Day following the sending, or if delivered by hand shall be deemed to
have been received at the time it is delivered to the applicable address noted
below either to the individual designated below or to an individual at such
address having apparent authority to accept deliveries on behalf of the
addressee. Notice of change of address shall also be governed by this section.
In the event of a general discontinuance of postal service due to strike,
lock-out or otherwise, notices or other communications shall be delivered by
hand or sent by facsimile or other means of electronic communication and shall
be deemed to have been received in accordance with this section. Notices and
other communications shall be addressed as follows:
if to the Executive:
-10-
Dr. Nick Glover
2389 Deer Run Avenue
Oakville, Ontario
L6S 6K7
if to the Corporation:
Viventia Biotech Inc.
10 Four Seasons Place
Suite 501
Toronto, Ontario
M9B 6H7
Attention: Chairman
Telecopier number: (416) 335-9306
13. HEADINGS
The inclusion of headings in this Agreement is for convenience of reference
only and shall not affect the construction or interpretation hereof.
14. INVALIDITY OF PROVISIONS
Each of the provisions contained in this Agreement is distinct and
severable and a declaration of invalidity or unenforceability of any such
provision by a court of competent jurisdiction shall not affect the validity or
enforceability of any other provision hereof.
15. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter of this Agreement. This Agreement supersedes
and replaces all prior agreements, if any, written or oral, with respect to the
Executive's employment by the Corporation and any rights which the Executive may
have by reason of any such prior agreement or by reason of the Executive's prior
employment, if any, by the Corporation. There are no warranties, representations
or agreements between the parties in connection with the subject matter of this
Agreement except as specifically set forth or referred to in this Agreement. No
reliance is placed on any representation, opinion, advice or assertion of fact
made by the Corporation or its directors, officers and agents to the Executive,
except to the extent that the same has been reduced to writing and included as a
term of this Agreement. Accordingly, there shall be no liability, either in tort
or in contract, assessed in relation to any such representation, opinion, advice
or assertion of fact, except to the extent aforesaid.
-11-
16. WAIVER, AMENDMENT
Except as expressly provided in this Agreement, no amendment or waiver of
this Agreement shall be binding unless executed in writing by the party to be
bound thereby. No waiver of any provision of this Agreement shall constitute a
waiver of any other provision nor shall any waiver of any provision of this
Agreement constitute a continuing waiver unless otherwise expressly provided.
17. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario and the laws of Canada applicable therein.
18. COUNTERPARTS
This Agreement may be signed in counterparts and each of such counterparts
shall constitute an original document and such counterparts, taken together,
shall constitute one and the same instrument.
-12-
19. ACKNOWLEDGEMENT
The Executive acknowledges that:
19.1. the Executive has had sufficient time to review and consider this
Agreement thoroughly;
19.2. the Executive has read and understands the terms of this Agreement and the
Executive's obligations hereunder;
19.3. the Executive has been given an opportunity to obtain independent legal
advice, or such other advice as the Executive may desire, concerning the
interpretation and effect of this Agreement; and
19.4. this Agreement is entered into voluntarily and without any pressure.
IN WITNESS WHEREOF the parties have executed this Agreement.
) VIVENTIA BIOTECH INC.
)
)
)
)
)
) By: /s/ Leslie Dan
---------------------------------------------
Name: Leslie Dan
Title: Chairman of the Board of
Directors
I/We have the authority to bind the corporation
SIGNED, SEALED AND DELIVERED
in the presence of
/s/ /s/ Nick Glover
- ---------------------------------- --------------------------------------
Witness Nick Glover
VIVENTIA BIOTECH INC.
CONFIDENTIAL INFORMATION, INTELLECTUAL PROPERTY,
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
In consideration of my employment with Viventia Biotech Inc. ("VIVENTIA"),
I acknowledge, understand and agree with Viventia as follows:
1. PROTECTION OF CONFIDENTIAL INFORMATION.
All Confidential Information (as defined in paragraph 2 below) whether it is
developed by me or by others employed or engaged by or associated with Viventia,
is the exclusive and confidential property of Viventia and will at all times be
regarded, treated and protected as such, as provided in this Agreement. Failure
to mark any written material as confidential will not affect the confidential
nature of such written material or the information contained therein.
2. DEFINITION OF CONFIDENTIAL INFORMATION.
"CONFIDENTIAL INFORMATION" means all information, intellectual property
(including trade secrets) and facts, relating to and used or proposed to be used
in the business of Viventia and its affiliates, acquired by the Executive during
any period in which the Executive was affiliated with Viventia in the capacity
of an Executive, director or shareholder which is confidential based upon its
nature or the circumstances surrounding its disclosure, and includes, without
limiting the generality of the foregoing information:
(i) relating to Viventia's or an affiliate's products and services or to
Viventia's or an affiliate's research and development projects or
plans;
(ii) relating to Viventia's or an affiliate's trade secret, technology,
patentable and unpatentable inventions, discoveries, processes, test
procedures and results, records, specifications, data formulations,
formulas, know-how, samples, specimens, manufacturing processes and
regulatory information; or
(iii) relating to Viventia's or an affiliate's business policies,
strategies, operations, finances, plans or opportunities, including
the identity of, or particulars about, Viventia's or an affiliate's
clients or suppliers.
3. EXCLUSIONS FROM CONFIDENTIAL INFORMATION.
"CONFIDENTIAL INFORMATION" will not include information publicly known that is
generally used by persons in my current position with Viventia, and the general
skills and experience gained during my employment with or engagement by Viventia
which I could reasonably have been expected to acquire in similar employment
with or engagement by other companies. The phrase "PUBLICLY KNOWN" shall mean
readily accessible to the public in written publications without breach of this
or similar agreements. The burden of proving that information or skills and
experience are Confidential Information shall be on the party asserting such
exclusion. "CONFIDENTIAL INFORMATION" shall also not include information the
disclosure of which is
Appendix A - Page 2
required to be made by any law, regulation, governmental authority or court,
provided that before disclosure is made, notice of the requirement is provided
to Viventia, and (to the extent possible in the circumstances) Viventia is
afforded an opportunity to dispute the requirement.
4. COVENANTS RESPECTING CONFIDENTIAL INFORMATION.
As a consequence of my acquisition of Confidential Information, I will occupy a
position of trust and confidence with respect to Viventia's affairs and
business. In view of the foregoing and of the consideration to be provided to me
by Viventia, I agree that it is reasonable and necessary for me to make the
following covenants regarding my conduct during and subsequent to my employment
with or engagement by Viventia. I hereby agree as follows:
(i) Non-Disclosure. During and after my employment with or engagement by
Viventia, I will not disclose Confidential Information to any person
or entity other than as necessary in carrying out my duties on behalf
of Viventia, without first obtaining Viventia 's consent, and I will
take all reasonable precautions to prevent inadvertent disclosure of
such Confidential Information. This prohibition against disclosure of
Confidential Information includes, but is not limited to, disclosing
the fact that any similarity exists between the Confidential
Information and information independently developed by another person
or entity, and I understand that such similarity does not excuse me
from abiding by my covenants and other obligations under this
Agreement.
(ii) Using, Copying, etc. During and after my employment with or engagement
by Viventia, I will not use, copy, transfer or destroy any
Confidential Information other than as necessary in carrying out my
duties on behalf of Viventia, without first obtaining Viventia 's
consent, and I will take all reasonable precautions to prevent
inadvertent use, copying, transfer or destruction of any Confidential
Information. The prohibition against my use, copying, transfer or
destruction of Confidential Information includes, but is not limited
to, licensing or otherwise exploiting, directly or indirectly, any
products or services (including software in any form) which embody or
are derived from Confidential Information, or exercising judgment or
performing analysis based upon knowledge of Confidential Information.
5. INTELLECTUAL PROPERTY RIGHTS.
I agree to disclose to Viventia all information relating to Intellectual
Property (as defined below) prior to any public disclosure thereof, including
but not limited to the nature of the Intellectual Property, production data,
technical and engineering data, test data and test results, the status and
details of research and development of products and services, and information
regarding acquiring, protecting, enforcing and licensing proprietary rights
developed by me during my employment with Viventia, either individually or in
collaboration with others, which relates directly or indirectly to the business
of Viventia. I acknowledge and agree that all right, title and interest
whatsoever in and to the Intellectual Property, including the foregoing and any
copyright, is and will be the exclusive property of Viventia and it will have
absolute discretion to determine how such Intellectual Property is used. All
work done while I am employed by Viventia is a
Appendix A - Page 3
work for hire under which Viventia is the first owner for copyright purposes and
any and all copyright will vest in Viventia. I hereby waive all moral rights
that I may have in the Intellectual Property and agree that this waiver may be
invoked by Viventia, and by any of its authorized agents or assignees, to use
any of the Intellectual Property. I agree that, in performing my duties as an
Executive of Viventia, I will not use or disclose any information that is
confidential to any third party or that is subject to the copyright, patent,
trade secret, or topography, rights of any third party. I agree to execute all
such instruments and do all such things as may be reasonably necessary or
desirable to give full effect to the foregoing and will cooperate and assist
Viventia in enforcing its rights under this paragraph.
"INTELLECTUAL PROPERTY" means all legally recognized rights, including patents,
copyrights, trade marks, topographies, and trade secrets which result or derive
from my services provided to Viventia or with the knowledge or use of
Confidential Information, and includes, but is not limited to developments,
inventions, designs, works of authorship, improvements and ideas, whether or not
patentable or copyrightable, conceived or made by me (individually or in
collaboration with others) during my employment with Viventia or which result
from or derive from Viventia's resources or which are reasonably related to the
business of Viventia.
6. NON-SOLICITATION.
(a) No Solicitation of Customers, Clients and Suppliers.
I acknowledge the importance to the business carried on by Viventia of the
customer, client and supplier relationships developed by it and the unique
opportunity that my employment and my access to the Confidential
Information offers to interfere with these relationships. Accordingly, I
will not while employed or engaged by Viventia and for 24 months
thereafter, directly or indirectly, contact or solicit any person who I
know to be a prospective, current or former customer, client or supplier of
Viventia for the purpose of selling to the customer or client or buying
from the supplier any products or services that are the same as or
substantially similar to, or in any way competitive with, the products or
services sold or purchased by Viventia during my employment or at the end
thereof, as the case may be.
Appendix A - Page 4
(b) No Solicitation of Executives.
I acknowledge the importance to the business carried on by Viventia of the
human resources engaged and developed by it and the unique access my
employment offers to interfere with these resources. Accordingly, I will
not while employed or engaged by Viventia and for 12 months thereafter,
hire, engage or retain or induce or solicit, attempt to induce or solicit
or assist any third party in hiring, engaging or retaining or inducing or
soliciting any executive or consultant of the Company, to leave the Company
or to accept employment or engagement elsewhere.
7. NON-COMPETITION.
I will not, while employed or engaged by Viventia and for 12 months thereafter,
directly or indirectly, in any manner whatsoever including either individually,
or in partnership, jointly or in conjunction with any other person, or as
principal, agent, owner, consultant, contractor, Executive, officer, director,
advisor or shareholder:
(i) be engaged in any undertaking;
(ii) have any financial or other interest (including an interest by way of
royalty or compensation arrangements) in or in respect of the business
of any person which carries on a business; or
(iii) advise, render or provide services to, lend money to or guarantee the
debts or obligations of any person that carries on a business;
in any province of Canada or any state of the United States, if, at the relevant
time, Viventia is carrying on business in such province or state, which is a
Competitive Business (as defined below).
"COMPETITIVE BUSINESS" means any Bio-Pharmaceutical Business in Canada and the
United States.
8. CERTAIN WARRANTIES, COVENANTS AND REMEDIES.
(a) I agree that my obligations as set forth in this Agreement will commence as
of the date on which I was first employed by Viventia.
(b) I acknowledge that a breach by me of this Agreement will result in
Viventia, its affiliates and shareholders suffering irreparable harm which
is not capable of being calculated and which cannot be fully or adequately
compensated by the recovery of damages alone. Accordingly, I agree that
Viventia will be entitled to interim and permanent injunctive relief,
specific performance and other equitable remedies, in addition to any other
relief to which Viventia may become entitled if I breach or threaten to
breach this Agreement.
(c) My obligations under this Agreement are to remain in effect in accordance
with each of their terms and will exist and continue in full force and
effect notwithstanding any breach
Appendix A - Page 5
or repudiation, or alleged breach or repudiation, of this Agreement or my
employment agreement by Viventia.
9. BINDING EFFECT.
This Agreement shall be binding on me and my heirs, executors and legal
representatives.
10. GOVERNING LAWS.
This Agreement shall be governed by the laws in force in the Province of
Ontario.
11. OTHER AGREEMENTS.
This Agreement is supplemental to and separate from the agreement under which I
am employed or engaged by Viventia. However, if there is any conflict or
inconsistency between the provisions of such other agreement and this Agreement,
the provisions of this Agreement will govern and prevail.
IN WITNESS WHEREOF, I have signed and sealed this Agreement as of the
date set forth below.
SIGNED, SEALED AND DELIVERED
in the presence of
/s/ /s/ Nick Glover
- ---------------------------------- --------------------------------------
Witness Nick Glover