EXHIBIT 4.20
[DRAXIS LETTERHEAD]
April 15, 1999
PERSONAL & CONFIDENTIAL
DELIVERED
Mr. Dan Brazier
316 Lori Avenue
Stouffville, Ontario
L4A 6C2
Dear Mr. Brazier:
Since July 17, 1998, the date you executed your original employment
agreement (the "Original Agreement"), Draxis Health Inc. ("Draxis") has
restructured its marketing operations by amalgamating the management and
operations of Draxis' two Canadian pharmaceutical marketing units which
formerly operated separately as Draxis Pharmaceutica ("Draxis"), and
SpectroPharm Dermatology (the amalgamated Canadian pharmaceutical unit
hereinafter called "Draxis Pharmaceutica"). Commensurate with that
restructuring, your duties and responsibilities have increased and expanded.
In addition, there have been modifications of the Original Agreement.
Accordingly, both parties agree that it is beneficial to formally confirm the
terms and conditions of your employment with Draxis.
With respect to Sections 13 and 14 of this Agreement, we acknowledge
that you have fully disclosed to us the nature and extent of your interest in
Carr Brazier Group Inc. and "Ultimate Essentials", and we specifically consent
to your continued interest and involvement therein.
1. EMPLOYMENT
You shall be employed with Draxis as its President, DRAXIS
Pharmaceutica, a division of Draxis Health Inc. on the terms and conditions
outlined in this Agreement. You shall report to the President and Chief
Executive Officer of Draxis or his designate. As President of Draxis
Pharmaceutica, you shall be responsible for all aspects of the business in
order to maximize its value to Draxis including exercising sound leadership,
management, human resources management, financial performance, marketing and
selling, new product development and/or in-licensing, and business
development. You will also participate as a member of the Draxis Corporate
Management group. In addition, you will perform any additional employment
responsibilities commensurate with your position as President, Draxis
Pharmaceutica which may be assigned to you by the President and Chief
Executive Officer of Draxis, or his designate, from time to time.
-2-
Dan Brazier April 15, 1999
2. BASE SALARY
Draxis will pay to you during the term of this Agreement a salary of
$165,000 per annum, payable semi-monthly, in arrears ("Base Salary"). Such
salary shall be subject to review in accordance with Draxis' regular
administrative practices of salary review applicable to members of the Draxis
Corporate Management group. Any salary increases shall be determined on merit
by the Chief Executive Officer and President of Draxis. The Chief Executive
Officer will advise you of any changes to your salary in advance of the
implementation date.
3. BENEFITS
You will be entitled to participate in all benefit plans which Draxis
shall from time to time make available to its executive employees, subject to
applicable eligibility rules thereof. The benefits currently offered are:
- major medical
- dental
- group life
- long term disability
- accidental death and dismemberment
4. STOCK OPTION PLAN
You will be eligible to participate in Draxis' Stock Option Plan,
in accordance with the terms and conditions of that plan and as described in
this paragraph. Draxis has granted you options to purchase 100,000 shares.
These options shall vest as follows:
(a) 33,334 options on the later of (i) the date upon which the Chief
Executive Officer of Draxis confirms that the restructuring
associated with the discontinuation of the detailing of
SpectroDerm-Registered Trademark- to dermatologists in the United
States, and the severance of Draxis employees associated therewith,
has been successfully completed and (ii) July 31, 1999;
(b) 33,333 options on the later of (i) 30 days following the end of the
fiscal quarter when the Contribution of Draxis Pharmaceutica for the
immediately preceding four fiscal quarters exceeds $2.1 million and
(ii) July 31, 2000; and
(c) 33,333 options on the later of (i) 30 days following the end of the
fiscal quarter when the Contribution of Draxis Pharmaceutica for the
immediately preceding four fiscal quarters exceeds $4.0 million and
(ii) July 31, 2001.
The price of each option shall be the closing price of the Draxis shares
on The Toronto Stock Exchange on the trading date immediately preceding the
date of the grant. The options may be exercised in whole or in part at any
time within five years after the date of the grant, subject to vesting as set
out above.
For purposes of this Agreement:
(a) "Revenues" is defined as product sales less returns as determined
on a consistent basis in accordance with Canadian generally
accepted accounting principles.
-3-
Dan Brazier April 15, 1999
(b) "Contribution" is defined as Revenues less cost of sales and
direct operating expenses as determined on a consistent basis in
accordance with Canadian generally accepted accounting principles.
Direct operating expenses shall not include: (a) corporate
overheads or any other such allocations, (b) annual bonus accruals,
or (c) research and development expenditures.
For greater certainty, Revenues and Contribution shall not include
one-time or non-recurring items (e.g. milestone payments, asset write-downs,
etc.).
5. STOCK OWNERSHIP PLAN
You will be eligible to participate in the Stock Ownership Plan which
Draxis shall from time to time make available to employees, subject to
applicable eligibility rules thereof and in accordance with the terms and
conditions of that plan.
6. EMPLOYEE PARTICIPATION SHARE PURCHASE PLAN
You will be eligible to participate in the Employee Participation Share
Purchase Plan which Draxis shall from time to time make available to its
employees, subject to applicable eligibility rules thereof and in accordance
with the terms and conditions of that plan.
7. DISCRETIONARY BONUS
The President and Chief Executive Officer of Draxis, or his designate,
and the Draxis Compensation Committee, in their sole discretion, may declare
a bonus payable. Such bonus payment is not guaranteed and payment of a
discretionary bonus in any prior year is not a promise or guarantee of
payment in subsequent years. Further, to receive any discretionary bonus
payment, should one be declared, you must be employed on December 31 of the
calendar year for which the bonus is declared. Commencing January 1, 1999,
for that calendar year and each calendar year thereafter, should a
discretionary bonus be declared, you may be eligible to receive an amount up
to a maximum equivalent to 40% of your then Base Salary, as determined by the
President and Chief Executive Officer of Draxis, or his designate, and the
Draxis Compensation Committee in their sole discretion.
8. SIGNING AND RETENTION BONUS
As an incentive to encourage you to become employed with Draxis, and to
remain employed with Draxis, you were paid the gross amount of $20,000
("Retention Bonus"). You expressly agree to fully repay to Draxis the total
amount of $20,000 in the event that you resign, retire or are terminated with
cause prior to August 1, 2000.
By executing this Agreement, in the event that you resign, retire or are
terminated for cause on or prior to August 1, 2000, you hereby authorize
Draxis to deduct $20,000 (or a portion thereof), from any outstanding amounts
which Draxis may owe to you at the time of your resignation, retirement or
termination for cause.
- 4 -
Dan Brazier April 15, 1999
9. VACATION
Each calendar year, commencing on January 1, 1999 you shall be entitled
to four weeks vacation per annum to be taken at a time or times acceptable to
Draxis, having regard to its operations. There shall be no vacation time
carried over from one calendar year into the following calendar year, unless
previous authorization has been received from the President and Chief
Executive Officer of Draxis, or his designate.
10. PROFESSIONAL FEES
Draxis will reimburse you for reasonable legal fees incurred by you in
the negotiation of this Agreement.
11. EXPENSES
Draxis agrees that it shall reimburse you for all authorized travelling
and other out of pocket expenses actually and properly incurred in connection
with your duties with Draxis. For all such expenses you agree you will
furnish statements and vouchers as and when required by Draxis. Mileage shall
be reimbursed in accordance with the prevailing Revenue Canada guideline.
12. DEDUCTIONS AND CURRENCY
All salary and other payments and allowances outlined in this Agreement
are subject to such withholding and deduction at source as may be required by
law. All salary payments and allowances outlined in this Agreement shall be
payable in Canadian funds.
13. EMPLOYEE'S COVENANTS
You agree that you shall devote the whole of your working time, attention
and ability to the business of Draxis and shall use your best efforts to
promote the interests of Draxis.
Further, you agree that you shall duly and diligently perform all the
duties assigned to you while in our employ and shall well and faithfully
serve Draxis. You agree that while employed with Draxis you shall not,
without the prior written consent of the President and Chief Executive
Officer of Draxis, or his designate, engage or otherwise be concerned in any
other business or occupation, or become a director, officer, agent or
employee of any other entity.
14. CONFIDENTIAL INFORMATION, NON-SOLICITATION AND NON-COMPETITION
(a) NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
As President of Draxis Pharmaceutica, you acknowledge that you are
creating, having access to, and require knowledge of confidential and
commercially valuable information of Draxis Pharmaceutica and Draxis and its
Affiliates (as defined below), the unauthorized use or disclosure of which
could cause the Company (as defined below) serious and irreparable damage.
(1) "Confidential Information" means all information, and all documents
and other intangible things recording any such information, relating to or
useful in connection with the business of Draxis
- 5 -
Dan Brazier April 15, 1999
Pharmaceutica, Draxis and its Affiliates (together, the "Company"), whether
or not a trade secret within the meaning of the applicable law, which at the
time or times concerned is not generally known to Competitors (as defined
below) and which has been or is from time to time disclosed to or developed
by you as a result of your employment with Draxis. Confidential Information
includes, but is not limited to, the following information of the Company:
(i) new products;
(ii) marketing strategies and plans;
(iii) development strategies and plans;
(iv) manufacturing processes and technologies;
(v) research in progress and unpublished manuals or know how;
(vi) regulatory filings;
(vii) identity of and relationship with licensees, licensors or
suppliers of the Company;
(viii) finances, financial information, financial management
systems of the Company;
(ix) market research;
(x) market experience with products;
(xi) customer lists;
(xii) pricing;
(xiii) employee salaries, benefits and perquisites; and
(xiv) any other research, information or documents which you are
told or reasonably ought to know that the Company regards as
proprietary or confidential.
(2) You agree that you shall hold all Confidential Information in the
strictest confidence, as a fiduciary. Without limiting such obligation, you
shall use Confidential Information only at times and places designated by
Draxis in furtherance of the business of the Company. You shall not, except
where Draxis otherwise provides its prior written consent, or where required
by law, directly or indirectly disclose to any Person any Confidential
Information, directly or indirectly sell, give, loan or otherwise transfer
any Confidential Information or copy thereof to any Person, publish, lecture
on or display any Confidential Information to any Person or use Confidential
Information for your own benefit or the benefit of any other Person.
(3) Your obligations under this Section shall remain in effect with
respect to each item of Confidential Information until the date upon which
such Confidential Information has been publicly disclosed in a manner
properly authorized by Draxis or otherwise has become known to Competitors
without any breach of this Section by you.
(4) For purposes of this Agreement, "Affiliate", "Affiliated" and
"Associate" have the meaning attributed to such terms in the CANADA BUSINESS
CORPORATIONS ACT, as amended from time to time, and any successor legislation
thereto.
(5) For purposes of this Agreement, "Competitor" shall mean any Person
which engages or is preparing to engage, in whole or in part, in the design,
development, manufacture, marketing or sale of
- 6 -
Dan Brazier April 15, 1999
any products or services which compete directly with a product or service
which, during the two years immediately preceding the date of your departure
from Draxis for any reason, Draxis marketed or manufactured or at the time of
termination of this Agreement and your employment hereunder, is then
preparing to market.
(6) For purpose of this Agreement, "Person" shall include individuals,
partnerships, associations, trusts, unincorporated organizations and
corporations and vice versa.
(b) NON-SOLICITATION AND NON-COMPETITION
(1) You acknowledge that the pharmaceutical industry is a highly
competitive business. You acknowledge that as President of Draxis
Pharmaceutica, you will be a key executive of the Company, and that you will
acquire extensive background in and knowledge of Draxis Pharmaceutica's
business and the pharmaceutical industry in which it operates and as a member
of the Draxis Corporate Management group, you will acquire knowledge and
awareness of the business of Draxis and its Affiliates. You further
acknowledge that at time of signing this Agreement, Draxis Pharmaceutica
develops and markets its products on a North American basis. You recognize
that the information and knowledge you will gain is commercially valuable and
is deserving of protection by Draxis in order to permit Draxis and its
Affiliates to develop and maintain their competitive edge throughout North
America, and in the other jurisdictions in which it operates. Accordingly,
you agree that in the course of your employment, and thereafter for a period
of one year (or if such period is held to be excessive by a court of
competent jurisdiction then for a period of six months) you shall not,
without the prior written authorization of the President and Chief Executive
Officer of Draxis, or his designate, whether as principal, as agent, or as an
employee of, or in partnership, or association with any other Person, in any
manner whatsoever directly or indirectly:
(i) become employed by or associated or affiliated with any
Competitor of the Company in North America in a function
dealing with a product or service, which during the
twelve-month period immediately prior to the termination of
this Agreement and your employment hereunder, for any reason,
competed directly with a product or service of the Company;
(ii) seek to employ or encourage others to employ or otherwise
engage employees, agents or subcontractors of Draxis who are
employed in Draxis Pharmaceutica, (who are employees, agents
or subcontractors on the date this Agreement is terminated) or
seek to in any way disrupt the relationship of those
employees, agents or subcontractors with Draxis;
(iii) obtain by any means whatsoever the business of any Person who
at the time of the termination of this Agreement and your
employment hereunder, was a customer of Draxis Pharmaceutica,
if to obtain such business may result in a reduction of that
Person's business with Draxis; or
(iv) approach any Person who at the time of the termination of this
Agreement and your employment hereunder was a customer of
Draxis Pharmaceutica with the intention of soliciting or
enticing the business of that Person away from Draxis.
For clarity, nothing prevents you from holding shares listed on a
Canadian, American or other stock exchange where your holdings do not exceed
5% of the outstanding shares so listed.
- 7 -
Dan Brazier April 15, 1999
(c) REASONABLENESS
You agree that the obligations set out in Sections 14(a) and (b)
together with your other obligations under this Agreement are reasonably
necessary for the protection of Draxis' proprietary and business interests
and you expressly agree that:
(i) the scope of each of the covenants set out in Sections
14(a) and (b) above in all respects, and in particular,
in respect of area, time and subject matter, are
necessary and reasonable because Draxis is marketing the
Draxis Pharmaceutica products on a North American basis;
(ii) given your general knowledge and experience, the
obligations contained in this Agreement will not preclude
you from becoming gainfully employed with other
employers who are not Competitors following termination
of this Agreement and your employment hereunder for any
reason.
(d) BREACH OF AGREEMENT
You also recognize that any breach of the terms and conditions of this
Agreement by you will result in material damage to Draxis, although it may be
difficult for Draxis to establish the monetary value of such damage. You
therefore agree that Draxis shall be entitled to injunctive relief, in
addition to any other remedies available to it, in a court of appropriate
jurisdiction in the event of any breach or threatened breach by you of any of
the provisions of this Agreement.
15. TERMINATION OF EMPLOYMENT
(a) TERMINATION BY DRAXIS FOR CAUSE
Draxis may terminate this Agreement and your employment hereunder at
any time for cause without notice and without payment of any kind of
compensation either by way of anticipated earnings or damages of any kind.
For all purposes in this Agreement, "cause" shall be defined as such of your
failure to perform, incapacity, or breach of duty that would be considered by
the Courts of Ontario to be just cause for dismissal in contracts of
employment of this nature. The onus shall be upon Draxis to establish the
existence of such just cause and that there has been no condonation. Draxis
agrees that "cause", particularly in the first year of your employment, shall
not include your failure to reach monetary goals or objectives not related to
your efforts, endeavors, and judgment.
(b) TERMINATION BY DRAXIS WITHOUT CAUSE BUT WITH NOTICE
Draxis may terminate this Agreement and your employment hereunder by
providing to you one year's actual notice of termination. At its sole
discretion, Draxis may provide to you a shorter period of notice of
termination, in which case, the payments referred to in Section 15(c) shall
be applicable, but such payments as may be required by Sections 15(c)(1) and
(4) shall be reduced by the actual notice provided, so that the total notice
and compensation in lieu of notice provided to you shall be equivalent to one
year from the date you are advised of the termination. Draxis understands,
and agrees, that during any such notice period you will be able to seek
suitable replacement employment.
- 8 -
Dan Brazier April 15, 1999
(c) TERMINATION BY DRAXIS WITHOUT CAUSE AND WITHOUT NOTICE
Draxis may terminate this Agreement and your employment hereunder, in
its sole discretion, without notice and without cause, effective immediately
upon the date you are advised of the termination.
Except as outlined in Section 15(b), if your employment is terminated
without cause pursuant to this Section, or you are constructively dismissed,
Draxis shall:
(1) Pay to you a severance allowance equivalent to one year of your
then Base Salary in a lump sum within two weeks following the date
of such termination.
(2) Pay to you all outstanding vacation pay and any earned but unpaid
salary up to the date of such termination within two weeks of the
date of termination.
(3) Reimburse you for any business expenses incurred by you up to and
including the date of such termination following provision by you
of applicable receipts.
(4) Ensure that it has complied with all statutory obligations
imposed by the EMPLOYMENT STANDARDS ACT.
The payment referred to in paragraph 1, above, shall be guaranteed and
shall not be subject to set off or deduction as a result of your obtaining
alternate employment following such termination or otherwise mitigating any
damages arising from such termination. Further, the payment referred to in
paragraph 1, above, is inclusive of all statutory payments, including
statutory termination and severance, which may be owed to you.
The amounts paid to you pursuant to this paragraph shall be subject to
all required deductions.
You authorize any outstanding amounts which you may owe to Draxis,
including, if this Agreement and your employment hereunder should be
terminated prior to August 1, 2000, the Signing and Retention Bonus in the
amount of $20,000 referred to in Section 8 to be deducted from the payment
referred to in Section 15(c)(1) above.
TERMINATION PAYMENT FOLLOWING A CHANGE OF CONTROL
(1) In accordance with Section 15(d)(2) below, if there is a Change
of Control, as defined below, you shall be entitled to the following:
A. the amounts of any unpaid salary earned up to and including date
of termination;
B. any unpaid vacation pay earned up to and including date of
termination;
C. a lump sum amount, equal to two times your Base Salary in effect
immediately prior to the date of the Change of Control; and
D. any statutory obligations imposed by the EMPLOYMENT STANDARDS
ACT.
The payment referred to in Section 15(d)(1)(C) above, shall be
guaranteed and shall not be subject to set off or deduction as a result of
your obtaining alternate employment following termination or otherwise
mitigating any damages arising from termination. Further, notwithstanding
Section 15(d)(1)(D) above, the payment referred to in Section 15(d)(1)(C)
above, is inclusive of all statutory payments which may be owed to you
following termination.
The amounts paid to you pursuant to this Section shall be subject to
all required deductions.
- 9 -
Dan Brazier April 15, 1999
(2) These payments outlined in Section 15(d)(1) shall become due and
payable if, and only if:
A. there has been a Change of Control; and
B. within 24 months following any Change of Control:
(i) your employment is terminated without cause by Draxis or by
any successor employer to Draxis, as the case may be; or
(ii) by its conduct as described below, Draxis or any successor
employer to Draxis, as the case may be, constructively
terminates your employment by:
- relocating the position and/or location of your
principal office more than 20 kilometres from the
location of your office on the date immediately prior
to the Change of Control, without your consent; or
- materially reducing your title, reporting
relationship, responsibilities or authority without
your consent; or
- reducing the salary paid to you by the successor
employer or terminating or materially reducing the
value of your benefit programs, including, but not
limited to, life insurance benefits, accidental death
and dismemberment benefits, long term disability
benefits, extended health coverage, dental benefit,
which are referred to in Section 3 of this Agreement;
and
C. you elect in writing to receive the payments outlined in Section
15(d)(1).
(3) For purposes of this agreement "Change in Control" means a
transaction or series of transactions whereby directly or indirectly;
A. any Person or combination of Persons acting jointly and in
concert (other than you or a corporation controlled
directly or indirectly by you) acquires a sufficient number
of securities of Draxis to materially affect the control of
Draxis as defined below. For the purposes of this
Agreement, a Person or combination of Persons acting
jointly and in concert, holding shares or other securities
in excess of the number which, directly or following the
conversion or exercise thereof, would entitle the holders
thereof to cast 20% or more of the votes attached to all
shares of Draxis which may be cast to elect directors of
Draxis, shall be deemed to affect materially the control
of Draxis, in which case the Change in Control shall be
deemed to occur on the date that is the later of the date
that the security representing one more than that required
to cast 20% of the votes attached to all shares of Draxis
which may be cast to elect directors of Draxis is acquired
or the date on which the persons acting jointly and in
concert agree to so act;
B. Draxis shall consolidate or merge with or into, amalgamate
with, or enter into a statutory arrangement or business
combination with, any other Person (other than a
corporation controlled directly or indirectly by you) and,
in connection therewith, all or part of the outstanding
shares of Draxis which have voting rights attached thereto
shall be changed in any way, reclassified or converted into,
exchanged or otherwise acquired for shares or other
securities of Draxis or any other Person or for cash or any
other property and control of Draxis is thereby materially
affected, as defined above, in which case the Change in
Control shall
-10-
Dan Brazier April 15, 1999
be deemed to occur on the date of closing of the consolidation,
merger, amalgamation, statutory arrangement or business
combination, as the case may be;
C. Draxis shall sell or otherwise transfer, including by way of
the grant of a leasehold interest (or one or more subsidiaries of
Draxis shall sell or otherwise transfer, including without
limitation by way of the grant of a leasehold interest) property
or assets aggregating more than 50% of the consolidated assets
(measured by either book value or fair market value based on the
most recent audited financial statements) of Draxis and its
subsidiaries as at the end of the most recently completed
financial year to any other Person or Persons, in which case the
Change in Control shall be deemed to occur on the date of
transfer of the assets representing one dollar more than 50% of
the consolidated assets; or
D. the sale, transfer or any manner of disposition of 50% or more
of the assets of, or 50% or more of Draxis' interest in, Draxis
Pharmaceutica to an arm's length Person.
other than a transaction or series of transactions which involves a
sale of securities or assets of Draxis with which you are involved
as a purchaser in any manner, whether directly or indirectly, and
whether by way of participation in a corporation or partnership
that is a purchaser or by provision of debt, equity or purchase
leaseback financing (but excluding where your sole involvement
with such a purchase is the ownership of an equity interest of less
than 5% of the acquirer where the acquirer is a public company) and
you and persons acting jointly and in concert with you hold
securities of the acquirer which, directly, or following the
conversion or exercise thereof, would entitle the holders thereof
to cast 5% or more of the votes attached to all shares or other
interests of the acquirer which may be cast to elect directors or
the management of the acquirer.
Draxis shall use its reasonable best efforts to require any successor
(whether direct or indirect) to all or substantially all of its (or Draxis
Pharmaceutica's) shares and/or assets to expressly agree in writing to assume
and to perform this Agreement in the same manner that Draxis would have been
required to perform it if no such succession had occurred. If Draxis fails to
obtain any such successor's express written agreement prior to the effective
date of such succession, such failure shall be deemed to be a termination of
your employment by Draxis and such termination shall be deemed to have
occurred on the date immediately prior to the Change of Control date. In such
event, at the discretion of Draxis, Section 15(b) or (c) will not be
applicable, and Draxis shall pay to you those amounts outlined in section
15(d)(1) above and section 15(h) shall be applicable.
(4) For greater certainty, notwithstanding the occurrence of an event
described in Section 15(d)(2)(c) hereof, this Section 15(d) shall not be
applicable in the event that you are offered a comparable position on
comparable terms (including the continuation of a Change of Control
provision) within Draxis or its Affiliates.
-11-
Dan Brazier April 15, 1999
(e) TERMINATION BY DRAXIS WITHOUT CAUSE UPON DISABILITY
If, as a result of incapacity due to physical or mental illness, you are
unable to render services of substantially the kind and nature, and
substantially to the extent required to be rendered in accordance with this
Agreement, and if such incapacity is expected to continue for a period of at
least six consecutive months from the date such incapacity commenced
("Absence Date") this contract may be deemed to be frustrated. Your
employment hereunder shall cease to be effective on the tenth day after
written notice of cessation to you, provided that prior to such cessation
Draxis has been furnished with the written certification of a qualified
medical doctor designated by Draxis and you jointly which states that you are
and are expected to continue to be for at least six consecutive months from
the Absence Date, unable to render such services by reason of such incapacity
and the date upon which such incapacity commenced. If Draxis and you are
unable to agree on the designation of a qualified medical doctor to make such
determination, then each party shall designate a medical doctor who,
together, shall agree upon a third qualified medical doctor to make such
determination. The decision of the third medical doctor shall be binding on
Draxis and you. You consent to submit to such examination as may be required
by any such medical doctor or doctors.
If your employment ceases pursuant to this Section, you shall be
entitled to receive a total amount equivalent to one year then
Base Salary, commencing the date upon which the notice of cessation
is delivered and payable in 24 regular payments on the regular Draxis pay
days. If you are in receipt of disability benefits payable pursuant to the
benefit plans described above, then each semi-monthly payment payable by
Draxis shall be reduced by an amount equivalent to the disability benefits
payment received during that pay period.
Further, notwithstanding Section 8, should your employment contract be
frustrated on or prior to August 1, 2000 in accordance with this Section,
Draxis will waive the payment of $20,000 referred to in Section 8.
These payments shall be guaranteed and not subject to set off or
deduction as a result of your obtaining alternate employment following the
cessation of your employment or otherwise mitigating any damages arising from
such cessation. Further, these payments are inclusive of all statutory
payments which may be owed to you.
(f) DEATH
In the event that you should die during the term of this Agreement, your
employment shall automatically terminate. All Base Salary, vacation pay and
any bonus payments earned to date of death but unpaid will be paid to your
estate. In addition, if applicable, repayment of the $20,000 referred to in
Section 8 shall be waived, however, except as outlined in Section 15(h)
below, no other payment of any compensation either by way of anticipated
earnings or damages of any kind shall be paid.
(g) RESIGNATION AND RETIREMENT
You shall provide Draxis with two months' notice, in writing, of your
resignation or your retirement from Draxis.
-12-
Dan Brazier April 15, 1999
(h) NO FURTHER NOTICE OR COMPENSATION
For further clarity, in the event of termination of this Agreement and
your employment hereunder for any reason, the terms provided in the event of
termination under the Draxis Stock Option Plan, Stock Ownership Plan, and
Employee Participation Share Purchase Plan shall apply effective the date
upon which your termination actually occurs.
16. FAIR AND REASONABLE
The parties confirm that the notice requirements and pay in lieu of
notice provisions set out above in Section 15 are fair and reasonable and
that no further notice or payments of any kind are owed or required. The
parties agree that upon any termination of this Agreement by Draxis or upon
any termination of this Agreement by you, that you shall have no action,
cause of action, claim or demand, either statutory or at common law, against
Draxis, any of its Affiliates or their respective officers, directors,
employees or agents as a consequence of such termination.
17. RETURN OF PROPERTY
In the event your employment with Draxis is terminated for any reason,
including resignation or retirement, you will immediately return all Draxis
property in your possession or under your control.
18. PROVISIONS OPERATING FOLLOWING TERMINATION
Notwithstanding any termination of your employment with or without
cause, Sections 14, 15, 16 and 17 and any provision of this Agreement
necessary to give it efficacy shall continue in full force and effect
following such termination.
19. ACKNOWLEDGEMENT
You acknowledge that Draxis shall not, for any purpose, including in the
event of a subsequent termination, be required to recognize or take into
account any prior service with Allergan Inc.
20. SEVERABILITY
If any provision of this Agreement is determined to be invalid or
unenforceable in whole or in part, such invalidity or unenforceability shall
attach only to such provision or part thereof and the remaining part of such
provision and all other provisions hereof shall continue in full force and
effect.
-13-
Dan Brazier April 15, 1999
21. NOTICE
Any notice to be given in connection with this Agreement shall be given
in writing and may be given by personal delivery or by registered mail
addressed to the recipient as follows:
To: Dan Brazier
316 Lori Avenue
Stouffville, Ontario
L4A 6C2
To: Draxis Health Inc.
6870 Goreway Drive
Mississauga, Ontario
L4V 1P1
ATTENTION: PRESIDENT AND CHIEF EXECUTIVE OFFICER
or such other address or individual as may be designated by notice by either
party to the other. Any notice given by personal delivery or by fax shall be
deemed to have been given on the day of actual delivery and, if made or given
by registered mail on the third day, other than a Saturday, Sunday or a
statutory holiday in Ontario, following the deposit thereof in the mail.
22. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
law of the Province of Ontario.
23. BENEFIT OF AGREEMENT
This Agreement shall enure to the benefit of and be binding upon your
heirs, executors, administrators and legal personal representatives and the
successors and assigns of Draxis respectively.
24. ENTIRE AGREEMENT
This Agreement and the Draxis Code of Ethics constitutes the entire
agreement between the parties with respect to your terms and conditions of
employment and cancels and supersedes any prior understandings and agreements
between the parties to this Agreement. There are no representations,
warranties, forms, conditions, undertakings or collateral agreements
expressed, implied or statutory between the parties other than as expressly
set forth in this Agreement and the Draxis Code of Ethics. You waive any
right to assert a claim in tort based on any pre-contractual representations,
negligent or otherwise, made by Draxis.
-14-
Dan Brazier April 15, 1999
To acknowledge that the terms of employment as expressed in this
Employment Agreement are acceptable to you, please execute the enclosed copy
of this letter as indicated below and return it to me at your earliest
opportunity.
Yours truly,
DRAXIS HEALTH INC.
Per: /s/ Martin Barkin
Martin Barkin, MD, FRCSC
President and Chief Executive Officer
*****
I accept the above-noted terms of employment with Draxis Health Inc. as
the President of Draxis Pharmaceutica and in consideration of my continued
employment with Draxis Health Inc. and the payment of $5.00, the sufficiency
and receipt of which is acknowledged, I agree to comply with and be bound by
the terms of employment outlined in this Agreement.
Dated at Mississauga, as of the 20 day of April, 1999.
/s/ Debbie Carr Brazier /s/ Dan Brazier
- ----------------------------------- --------------------------------------
Witness Dan Brazier