EXHIBIT 10.14
EXECUTIVE EMPLOYMENT AGREEMENT
ASPREVA PHARMACEUTICALS CORPORATION
PRIVATE AND CONFIDENTIAL
As of August 25, 2003
Dr. Reinhard Baildon
308 Arbana
Ann Arbor, MI
U.S.A. 48103
Dear Dr. Baildon:
RE: TERMS OF EMPLOYMENT WITH ASPREVA PHARMACEUTICALS CORPORATION (THE
"CORPORATION")
This Agreement confirms the terms and conditions of your employment by the
Corporation and will constitute your employment agreement. Those terms and
conditions are set out below:
1. Position and Duties. You will be employed by and will serve the
Corporation as its Vice President of Clinical and Regulatory, and a member
of the corporation's executive management team, having the duties and
functions customarily performed by, and have all responsibilities
customary to, a vice president of clinical and regulatory of a corporation
engaged in a business similar to that of the Corporation, including those
duties and functions particularly described in SCHEDULE A attached to this
Agreement. You will report directly to the Chief Executive Officer of the
Corporation. Your duties and functions pertain to the Corporation and any
of its, subsidiaries from time to time and may be varied or added to from
time to time by the Chief Executive Officer, at his discretion, exercised
reasonably.
2. Term. The terms and conditions of this Agreement shall have effect as of
and from December 1, 2003 (the "EFFECTIVE DATE") and your employment as
Vice President of Clinical and Regulatory of the Corporation shall
continue for a period of 4 years, renewable thereafter by mutual written
agreement of the parties for successive one year terms, or until earlier
terminated as provided in this Agreement.
3. Base Salary. The Corporation shall pay you a base salary at the rate of
CDN$350,000 per year (the "BASE SALARY"), payable semi-monthly, subject to
the withholding of all applicable statutory deductions from such Base
Salary and including any taxable benefits received under this Agreement or
in respect of your employment.
4. Signing Bonus. On or after the Effective Date, upon both parties executing
this Agreement, the Corporation shall pay to you a one-time signing bonus
(the "SIGNING BONUS") of CDN$130,000, subject to the withholding of all
applicable statutory
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deductions in respect of such Signing Bonus. You shall be required to
promptly repay the Signing Bonus to the Corporation if you terminate your
employment pursuant to Section 17 (Termination by Executive) within 2
years following the Effective Date. In addition, the Corporation shall
have the right to set off the Signing Bonus against any amounts owed by
the Corporation to you on the effective date of termination of your
employment.
5. Annual Review. The compensation committee (the "COMPENSATION COMMITTEE")
established by the Board of Directors (the "BOARD") of the Corporation for
the purposes of this Agreement shall review your Base Salary annually.
This review shall not result in a decrease of your Base Salary nor shall
it necessarily result in an increase in your Base Salary and any increase
shall be in the discretion of the Board.
6. Performance Bonus. The Corporation shall review the performance of your
duties and functions under this Agreement annually and shall pay you a
cash bonus of up to 30% of your Base Salary if the Board, in its sole
discretion, determines that certain short-term and long-term business
performance objectives of the Corporation and objectives related to your
personal performance (together, the "OBJECTIVES"), respectively weighted
40% and 60%, have been achieved. The Objectives will be established from
time to time by the Board or the Compensation Committee after consultation
with you. Payment of the performance bonus set out in this Section 6 shall
be made to you within a reasonable time following the end of each fiscal
year and shall be subject to the withholding of all applicable statutory
deductions by the Corporation.
7. Benefits. The Corporation will arrange for you to be provided with health,
medical, dental, accident and life insurance and such other benefits as
are reasonable and appropriate for an executive level benefits plan, as
determined by the Board from time to time, based on the recommendations of
the Compensation Committee after consultation with you. You may be
required to provide information and undergo reasonable assessments of the
applicable insurer in order to determine your eligibility for benefits
coverage. You acknowledge and agree that coverage under any benefit plan
in effect from time to time is subject to availability and other
requirements of the applicable insurer and the Corporation makes no
promise about your eligibility for or entitlement to benefits and will
have no liability or responsibility in the event you are denied coverage.
You further acknowledge and agree that the components of the benefits
package may be amended, modified or terminated from time to time by the
Corporation in its sole discretion, and this may include terminating or
changing carriers.
8. Vacation. During your employment with the Corporation under this
Agreement, you will be entitled to an annual paid vacation as determined
by the Corporation from time to time, not less than 4 weeks per annum,
plus one week during the Christmas holiday period. The Corporation
reserves the right, acting reasonably, to request that vacations be
scheduled so as not to conflict with critical business operations.
9. Relocation and Reimbursement. You acknowledge and agree that the
Corporation's head office is located in the metropolitan area of Victoria,
British Columbia and that the principal place of your employment is at
such head office. You shall relocate your principal residence from Ann
Arbor, Michigan, to a new location in the metropolitan area
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of Victoria, British Columbia upon commencing employment with the
Corporation under this Agreement. In consideration of your agreement to
relocate your principal residence, the Corporation shall reimburse you for
the cost of one house-hunting trip to Victoria for you and your spouse and
shall loan to you the following amounts (the "RELOCATION LOAN") associated
with your move:
(a) reasonable moving expenses to a maximum of US$25,000 incurred by you
to relocate you and your spouse and personal possessions from 308
Arbana, Ann Arbor, Michigan, to your new residence in the
metropolitan area of Victoria, British Columbia, subject to receipt
by the Corporation of the applicable invoice or invoices for such
expenses;
(b) real estate fees associated with the sale of your existing principal
residence at 308 Arbana, Ann Arbor, Michigan, up to a maximum of
US$25,000;
(c) professional fees incurred by you to obtain professional advice
relating to cross-border and immigration issues, up to a maximum of
US$15,000. The Corporation may, at its sole discretion upon your
request, reimburse you for any such fees in excess of the
aforementioned maximum amount;
(d) professional fees for the first two years related to tax advice
provided by accountants of your choice to a maximum of CDN$5,000 per
year; and
(e) medical benefits covering your existing benefits program to a
maximum of CDN$2,000 per month for a period between October 22, 2003
until the employee becomes eligible for the corporation's benefits
program.
The Relocation Loan shall repayable by you to the Corporation in
accordance with the following schedule:
Years of Employment Repayment of Relocation Loan
- ------------------- ----------------------------
0-1 year Full repayment of Relocation Loan
1-2 years 2/3 of Relocation Loan
2-3 years 1/3 of Relocation Loan
after 3 years Nil
10. Reimbursement for Expenses. During your employment under this Agreement,
the Corporation shall reimburse you for reasonable travelling and other
expenses actually and properly incurred by you in connection with the
performance of your duties and functions, such reimbursement to be made in
accordance with, and subject to, the policies of the Corporation from time
to time. For all such expenses you will be required to keep proper
accounts and to furnish statements, vouchers, invoices and/or other
supporting documents to the Corporation.
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11. Incentive Share Purchase Plan. By his execution of this Agreement, Richard
Glickman, as Trustee (Richard Glickman, as Trustee, or any successor
Trustee, is herein referred to as the "TRUSTEE") of the 2002 Aspreva
Incentive Stock Purchase Plan Trust Agreement (the "TRUST AGREEMENT"),
hereby acknowledges and agrees that as soon as reasonably practicable
following the execution of this Agreement he will distribute to you under
the Trust Agreement 300,000 Common shares of the Corporation (the "TRUST
SHARES") and will cause to be delivered to you a share certificate (the
"TRUST SHARE CERTIFICATE") registered in the your name representing the
Trust Shares.
You acknowledge and agree that as a condition to being entitled to receive
the Trust Shares and the Trust Share Certificate, you will sign and
deliver to the Corporation an Agreement to Be Bound to the Shareholders'
Agreement dated for reference January 16, 2003 among the Corporation and
its shareholders (in a form acceptable to the Corporation).
You further acknowledge and agree that as an additional condition to being
entitled to receive the Trust Shares and the Trust Share Certificate, you
will, if this Agreement is terminated in accordance with its terms,
immediately transfer to the Trustee, or as the Trustee may direct, for no
consideration, all right, title and interest in and to the following Trust
Shares, if any, and will cause a certificate representing such Trust
shares to be issued to the Trustee, or as the Trustee may direct, unless
there has been a "CHANGE IN CONTROL" of the Corporation (as defined in the
Change of Control Agreement in the form attached hereto as SCHEDULE B)
during the Term:
TERMINATION DATE NUMBER OF TRUST SHARES TO BE TRANSFERRED
- --------------------------- ----------------------------------------
Before September 15, 2003 291,667
Before October 15, 2003 283,334
Before November 15, 2003 275,002
Before December 15, 2003 266,668
Before January 15, 2004 258,335
Before February 15, 2004 250,003
Before March 15, 2004 241,669
Before April 15, 2004 233,336
Before May 15, 2004 225,004
Before June 15, 2004 216,670
Before July 15, 2004 208,337
Before August 15, 2004 200,005
Before September 15, 2004 191,671
Before October 15, 2004 183,338
Before November 15, 2004 175,006
Before December 15, 2004 166,672
Before January 15, 2005 158,339
Before February 15, 2005 150,007
Before March 15, 2005 141,673
Before April 15, 2005 133,340
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Before May 15, 2005 125,008
Before June 15, 2005 116,674
Before July 15, 2005 108,341
Before August 15, 2005 100,009
Before September 15, 2005 91,675
Before October 15, 2005 83,342
Before November 15, 2005 75,010
Before December 15, 2005 66,676
Before January 15, 2006 58,343
Before February 15, 2006 50,011
Before March 15, 2006 41,677
Before April 15, 2006 33,344
Before May 15, 2006 25,012
Before June 15, 2006 16,678
Before July 15, 2006 8,346
On or after August 15, 2006 Nil
12. Stock Options. You will be eligible to receive 200,000 stock options at an
exercise price and on such other terms set forth in the Aspreva 2002
Incentive Stock Option Plan, subject to approval of the Board and
applicable securities regulatory authorities and to execution and delivery
by you of a stock option agreement in a form acceptable to the
Corporation. The stock options shall, vest and be exercisable in the
following instalments:
(a) 66,667 options on the first anniversary of the date of the grant;
(b) 66,667 options on the second anniversary of the date of the grant;
and
(c) 66,666 options on the third anniversary of the date of the grant.
The options granted in this Section 12 will cease to vest:
(d) on the date you provide the Corporation with written notice of your
decision to resign your employment pursuant to Section 17
(Termination by Executive);
(e) on the date the Corporation provides you with written notice of its
decision to terminate your employment pursuant to Section 19
(Termination without Cause);
(f) on the date the Corporation terminates your employment pursuant to
Section 19 (Termination for Cause); or
(g) otherwise on the date this Agreement is terminated or deemed
terminated.
For greater certainty, neither the period of notice nor any payment in lieu
thereof will be considered as extending the period of your employment with
respect to the vesting or exercise of the options granted in this Section 12.
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13. Compliance with Insider Trading Guidelines and Restrictions. As a result
of your position as Vice President of Clinical and Regulatory, you are
subject to insider trading regulations and restrictions and are required
to file insider reports disclosing the grant of any options as well as the
purchase and sale of any shares in the capital of the Corporation. The
Corporation may from time to time publish trading guidelines and
restrictions for its employees, officers and directors as are considered
by the Board, in its discretion, prudent and necessary for a publicly
listed company. It is a term of your employment as a senior officer of the
Corporation that you comply with such guidelines and restrictions.
14. Directors' & Officers' Liability Insurance. The Corporation shall use
commercially reasonable efforts to provide you with directors' and
officers' liability insurance under the policies for such insurance
arranged by the Corporation from time to time upon such terms and in such
amounts as the Board may reasonably determine in its discretion.
15. No Other Compensation or Benefits. You expressly acknowledge and agree
that unless otherwise expressly agreed in writing by the Corporation
subsequent to execution of this Agreement by the parties hereto, you shall
not be entitled by reason of your employment by the Corporation or by
reason of any termination of such employment, to any remuneration,
compensation or benefits other than as expressly set forth in this
Agreement.
16. Service to Employer. During your employment under this Agreement you will:
(a) well and faithfully serve the Corporation, at all times act in, and
promote, the best interests of the Corporation, and devote
substantially the whole of your working time, attention and energies
to the business and affairs of the Corporation;
(b) comply with all rules, regulations, policies and procedures of the
Corporation; and
(c) not, without the prior approval of the Board, to carry on or engage
in any other business or occupation or become a director, officer,
employee or agent of or hold any position or office with any other
corporation, firm or person, except as a volunteer for a non-profit
organization, for personal investments or a personal holding
company, which may include members of your family as shareholders.
17. Termination By Executive.
(a) Subject to Section 20 (Termination Following Change in Control), you
may resign as Vice President of Clinical and Regulatory at any time,
but only by giving the Corporation at least 2 months' prior written
notice of the effective date of your resignation. On the giving of
any such notice, the Corporation shall have the right to elect, in
lieu of the notice period, to pay you a lump sum equal to 2 months'
Base Salary, as referred to in Section 3 (Base Salary) and as
adjusted from time to time in accordance with Section 5 (Annual
Review), plus other sums owed for arrears of salary, vacation pay
and, if granted pursuant to Section 6 (Performance Bonus), bonus. If
you are a director of the Corporation you will be
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deemed to have resigned as a director, effective upon your receipt
of the notice of termination without any further action on your
part.
(b) If the Corporation elects to pay you such lump sum in lieu of the 2
months' notice period, the Corporation shall, subject to the terms
and conditions of any benefit plans in effect from time to time,
maintain the benefits and payments set out in Section 7 (Benefits)
of this Agreement for 2 months after the date of your notice, but in
all other respects, your resignation and the termination of your
employment will be effective immediately upon your receipt of the
lump sum.
18. Termination by the Corporation Without Cause.
(a) The Corporation may terminate your employment as Vice President of
Clinical and Regulatory at any time without Cause (as defined below)
by giving you written notice of such termination and in all
respects, except as set out below, the termination of your
employment will be effective immediately upon your receipt of such
notice. If you are a director of the Corporation you will be deemed
to have resigned as a director, effective upon your receipt of the
notice of termination without any further action on your part.
(b) If your employment is terminated by the Corporation pursuant to this
Section 18, the Corporation shall pay to you as a lump sum the
number of months of Base Salary, as referred to in Section 3 (Base
Salary) and as adjusted from time to time in accordance with Section
5 (Annual Review) set out in the table below depending upon the year
of employment in which you are terminated, plus such other sums owed
for arrears of salary, vacation pay and, if granted pursuant to
Section 6 (Performance Bonus), bonus:
Year of Employment Lump Sum Payment of Base Salary (as adjusted)
- ------------------ ---------------------------------------------
1-2 6 months
after 2 12 months
(c) To the extent permitted by law and subject to the terms and
conditions of any benefit plans in effect from time to time, the
Corporation shall maintain the benefits and payments set out in
Section 7 (Benefits) of this Agreement (the "MAINTENANCE PAYMENTS")
during a period of 6 months following termination.
(d) The payments of Base Salary and benefits set out in this Section 18
shall be in lieu of any applicable notice period.
19. Termination by the Corporation for Cause. Notwithstanding Section 17
(Termination by Executive), Section 18 (Termination by the Corporation
Without Cause), or Section 20 (Termination Following Change of Control),
the Corporation may terminate your employment as Vice President of
Clinical and Regulatory for Cause upon written notice
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of such termination at any time without any notice or severance. In this
Agreement, "CAUSE" shall include, but not be limited to, the following:
(a) the commission of theft, embezzlement, fraud, obtaining funds or
property under false pretences or similar acts of misconduct with
respect to the property of the Corporation or its employees or the
Corporation's customers or suppliers;
(b) your entering of a guilty plea or conviction for any crime involving
fraud, misrepresentation or breach of trust, or for any serious
criminal offence that impacts adversely on the Corporation; or
(c) any other matter constituting just cause at common law.
any of which shall entitle the Corporation to terminate your employment
under this Section 19. If you are a director of the Corporation you will
be deemed to have resigned as a director, effective upon your receipt of
the notice of termination without any further action on your part.
20. Termination Following Change in Control. Concurrently with execution and
delivery of this Agreement, you and the Corporation shall enter into a
"Change of Control Agreement" in the form attached hereto as Schedule B
setting out the compensation provisions to be applicable in the event of
the termination of your employment as Vice President of Clinical and
Regulatory of the Corporation in certain circumstances following a "Change
in Control" of the Corporation (as defined in the Change of Control
Agreement).
21. No Additional Compensation upon Termination. It is agreed that neither you
nor the Corporation shall, as a result of the termination of your
employment, be entitled to any notice, fee, salary, bonus, severance or
other payments, benefits or damages arising by virtue of, or in any way
relating to, your employment or any other relationship with the
Corporation (including termination of such employment or relationship) in
excess of what is specified or provided for in Section 17 (Termination by
Executive), Section 18 (Termination by the Corporation Without Cause),
Section 19 (Termination by the Corporation for Cause), or Section 20
(Termination Following Chance in Control), whichever is applicable.
Payment of any amount whatsoever pursuant to Section 17 (Termination by
Executive), Section 18 (Termination by the Corporation Without Cause),
Section 19 (Termination by the Corporation for Cause), or Section 20
(Termination Following Change in Control) shall be subject to the
withholding of all applicable statutory deductions by the Corporation.
22. Confidentiality and Assignment of Invention. Concurrently with execution
and delivery of this Agreement and in consideration of your employment by
the Corporation, you and the Corporation will enter into a
"Confidentiality Agreement and Assignment of Inventions" in the form
attached hereto as SCHEDULE C.
23. Disclosure of Conflicts of Interest. During your employment with the
Corporation, you will promptly, fully and frankly disclose to the
Corporation in writing:
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(a) the nature and extent of any interest you or your Associates (as
hereinafter defined) have or may have, directly or indirectly, in
any contract or transaction or proposed contract or transaction of
or with the Corporation or any subsidiary or affiliate of the
Corporation;
(b) every office you may hold or acquire, and every property you or your
Associates may possess or acquire, whereby directly or indirectly a
duty or interest might be created in conflict with the interests of
the Corporation or your duties and obligations under this Agreement;
and
(c) the nature and extent of any conflict referred to in subsection (b)
above.
In this Agreement the expression "ASSOCIATE" shall include all those
persons and entities that are included within the definition or meaning of
"associate" as set forth in Section 1(1) of the Company Act (British
Columbia), as amended, or any successor legislation of similar force and
effect, and shall also include your spouse, children, parents, brothers
and sisters.
24. Avoidance of Conflicts of Interest. You acknowledge that it is the policy
of the Corporation that all interests and conflicts of the sort described
in Section 23 (Disclosure of Conflicts of Interest) be avoided, and you
agree to comply with all policies and directives of the Board from time to
time regulating, restricting or prohibiting circumstances giving rise to
interests or conflicts of the sort described in Section 23 (Disclosure of
Conflicts of Interest). During your employment with the Corporation,
without Board approval, in its sole discretion, you shall not enter into
any agreement, arrangement or understanding with any other person or
entity that would in any way conflict or interfere with this Agreement or
your duties or obligations under this Agreement or that would otherwise
prevent you from performing your obligations hereunder, and you represent
and warrant that you or your Associates have not entered into any such
agreement, arrangement or understanding, provided however you will be
permitted to accept teaching or academic activities appointments as long
as such activities related to such appointments do not conflict or hinder
the performance of your duties.
25. Provisions Reasonable. It is acknowledged and agreed that:
(a) both before and since the Effective Date. the Corporation has
operated and competed and will operate and compete in a global
market, with respect to the business of the Corporation set out in
SCHEDULE D attached hereto (the "BUSINESS");
(b) competitors of the Corporation and the Business are located in
countries around the world;
(c) in order to protect the Corporation adequately, any enjoinder of
competition would have to apply world wide;
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(d) during the course of your employment by the Corporation, both before
and after the Effective Date, on behalf of the Corporation, you have
acquired and will acquire knowledge of, and you have come into
contact with, initiated and established relationships with and will
come into contact with, initiate and establish relationships with,
both existing and new clients, customers, suppliers, principals,
contacts and prospects of the Corporation, and that in some
circumstances you have been or may well become the senior or sole
representative of the Corporation dealing with such persons; and
(e) in light of the foregoing, the provisions of Section 26 (Restrictive
Covenant) below are reasonable and necessary for the proper
protection of the business, property and goodwill of the Corporation
and the Business.
26. Restrictive Covenant. Subject to the exceptions set out in SCHEDULE E
attached hereto, you agree that you will not, either alone or in
partnership or in conjunction with any person, firm, company, corporation,
syndicate, association or any other entity or group, whether as principal,
agent, employee, director, officer, shareholder, consultant or in any
capacity or manner whatsoever, whether directly or indirectly, for the
Term of Employment and continuing for a period of 6 months from the lawful
termination of your employment, regardless of the reason for such
termination:
(a) carry on or be engaged in, concerned with or interested in, or
advise, invest in or give financial assistance to, any business,
enterprise or undertaking that:
(i) is involved in the Business or in the sale, distribution,
development or supply of any product or service that is
competitive with the Business or any product or service of the
Business; or
(ii) competes with the Corporation with respect to any aspect of
the Business;
provided, however, that the foregoing will not prohibit you from
acquiring, solely as an investment and through market purchases,
securities of any such enterprise or undertaking which are publicly
traded, so long as you are not part of any control group of such entity
and such securities, which if converted, do not constitute more than 5% of
the outstanding voting power of that entity;
(b) solicit, agree to be employed by, or agree to provide services to
any person, firm, corporation or other entity that was a client,
customer, supplier, principal, shareholder, investor, collaborator,
strategic partner, licensee, contact or prospect of the Corporation
during the time of your employment with the Corporation, whether
before or after the Effective Date, for any business purpose that is
competitive with the Business or any product or service of the
Business; or
(c) divert, entice or take away from the Corporation or attempt to do so
or solicit for the purpose of doing so, any business of the
Corporation, or any person, firm, corporation or other entity that
was an employee, client, customer, supplier, principal, shareholder,
investor, collaborator, strategic partner, licensee, contact or
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prospect of the Corporation during the time of your employment with
the Corporation, whether before or after the Effective Date.
27. Remedies. You acknowledge and agree that any breach or threatened breach
of any of the provisions of Section 13 (Compliance with Insider Trading
Guidelines and Restrictions), Section 16 (Service to Employer), Section 22
(Confidentiality and Assignment of Inventions), Section 23 (Disclosure of
Conflicts of Interest), Section 24 (Avoidance of Conflicts of Interest) or
Section 26 (Restrictive Covenant) could cause irreparable damage to the
Corporation or its partners, subsidiaries or affiliates, that such harm
could not be adequately compensated by the Corporation's recovery of
monetary damages, and that in the event of a breach or threatened breach
thereof, the Corporation shall have the right to seek an injunction,
specific performance or other equitable relief as well as any equitable
accounting of all your profits or benefits arising out of any such breach.
It is further acknowledged and agreed that the remedies of the Corporation
specified in this Section 27 are in addition to and not in substitution
for any rights or remedies of the Corporation at law or in equity and that
all such rights and remedies are cumulative and not alternative and that
the Corporation may have recourse to any one or more of its available
rights or remedies as it shall see fit.
28. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Corporation and its successors and assigns. Your rights and
obligations contained in this Agreement are personal and such rights,
benefits and obligations shall not be voluntarily or involuntarily
assigned, alienated or transferred, whether by operation of law or
otherwise, without the prior written consent of the Corporation. This
Agreement shall otherwise be binding upon and inure to the benefit of your
personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees, legatees and permitted assigns.
29. Agreement Confidential. Both parties shall keep the terms and conditions
of this Agreement confidential except as may be required to enforce any
provision of this Agreement or as may otherwise be required by any law,
regulation or other regulatory requirement.
30. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the Province of British Columbia and
applicable laws of Canada and the parties hereto attorn to the exclusive
jurisdiction of the provincial and federal courts of such province.
31. Exercise of Functions. The rights of the Corporation as provided in this
Agreement may be exercised on behalf of the Corporation only by the Board.
32. Entire Agreement. The terms and conditions of this Agreement are in
addition to and not in substitution for the obligations, duties and
responsibilities imposed by law on employees of corporations generally,
and you agree to comply with such obligations, duties and
responsibilities. Except as otherwise provided in this Agreement, this
Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof, and may only be varied by further
written agreement signed by you
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and the Corporation. This Agreement supersedes any previous
communications, understandings and agreements between you and the
Corporation regarding your employment. It is acknowledged and agreed that
this Agreement is mutually beneficial and is entered into for fresh and
valuable consideration with the intent that it shall constitute a legally
binding agreement.
33. Further Assurances. The parties will execute and deliver to each other
such further instruments and assurances and do such further acts as may be
required to give effect to this Agreement.
34. Surviving Obligations. Your obligations and covenants under Section 22
(Confidentiality and Assignment of Inventions), Section 26 (Restrictive
Covenant) and Section 27 (Remedies) shall survive the termination of this
Agreement.
35. Independent Legal Advice. You hereby acknowledge that you have obtained or
have had an opportunity to obtain independent legal advice in connection
with this Agreement, and further acknowledge that you have read,
understand, and agree to be bound by all of the terms and conditions
contained herein.
36. Notice. All notices and other communications that are required or
permitted by this Agreement must be in writing and shall be hand delivered
or sent by express delivery service or certified or registered mail,
postage prepaid, or by facsimile transmission (with written confirmation
copy by registered mail) to the parties at the addresses indicated below.
IF TO ASPREVA:
Aspreva Pharmaceuticals Corporation
Farris, Vaughan, Wills & Murphy
26th Floor, 700 West Georgia Street
Vancouver, BC V7Y 1B3
Attn: R. Hector MacKay-Dunn
IF TO DR. REINHARD BAILDON:
Dr. Reinhard Baildon
308 Arbana
Ann Arbor, MI
U.S.A. 48103
Any such notice shall be deemed to have been received on the earlier of the date
actually received or the date five (5) days after the same was posted or sent.
Either party may change its address or its facsimile number by giving the other
party written notice, delivered in accordance with this Section.
37. Severability. If any provision of this Agreement or any part thereof shall
for any reason be held to be invalid or unenforceable in any respect, then
such invalid or unenforceable
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provision or part shall be severable and severed from this Agreement and
the other provisions of this Agreement shall remain in effect and be
construed as if such invalid or unenforceable provision or part had never
been contained herein.
38. Waiver. Any waiver of any breach or default under this Agreement shall
only be effective if in writing signed by the party against whom the
waiver is sought to be enforced, and no waiver shall be implied by any
other act or conduct or by any indulgence, delay or omission. Any waiver
shall only apply to the specific matter waived and only in the specific
instance in which it is waived.
39. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original,
and such counterparts will together constitute but one Agreement.
If you accept and agree to the foregoing, please confirm your acceptance and
agreement by signing the enclosed duplicate copy of this letter where indicated
below and by returning it to us. You are urged to consider fully all the above
terms and conditions and to obtain independent legal advice or any other advice
you feel is necessary before you execute this agreement.
Yours truly,
ASPREVA PHARMACEUTICALS
CORPORATION
By: /s/ RICHARD M. GLICKMAN
-----------------------------
Authorized Signatory
Accepted and agreed to by Dr. Reinhard Baildon as of the 23 day of September,
2003
/s/ REINHARD BAILDON
- --------------------
Dr. Reinhard Baildon
SCHEDULE A
DESCRIPTION OF THE DUTIES AND FUNCTIONS
OF THE VICE PRESIDENT OF CLINICAL AND REGULATORY
- - Participate as a member of the Corporation's executive management team.
- - Lead and play a key role in the development and implementation of the
Corporation's clinical programs.
- - Lead and play a key role in the development and implementation of the
Corporation's clinical programs.
- - Lead and play a key role in the development and implementation of the
Corporation's regulatory strategies.
- - Participate in the formulation of long-range strategic plans and the
setting of goals and objectives;
- - Assist the Corporation in its business development activities including
the identification and securing of additional drug candidates.
- - Assist the management team in building organization (e.g. facilities,
personnel, contract research organizations, collaborations, strategic
alliances, etc.) to successfully carry out the operational business plan
- - Assist the management team ensuring expenditures are in accordance with
approved budgets.
- - Hire and develop a strong team of clinical and regulatory operatives.
- - Analyze the clinical and regulatory results and ensure executive
management team is informed and take corrective action when required.
- - Participate in policy and executive direction of the Corporation.
- - Keep the Chief Executive Officer apprised of clinical and regulatory
developments and activities such as:
- performance compared to the operational business plan
- economic, industry and business matters that may impact the
Corporation and
- other matters of relevance
- - Such other duties as may be requested by the Chief Executive Officer from
time to time.
SCHEDULE B
ASPREVA PHARMACEUTICALS CORPORATION
As of August 25, 2003
Dr. Reinhard Baildon
308 Arbana
Ann Arbor, MI
U.S.A. 48103
Dear Dr. Baildon:
RE: CHANGE IN CONTROL AGREEMENT
Aspreva Pharmaceuticals Corporation (the "CORPORATION") considers it
essential to the best interests of its members to foster the continuous
employment of its senior executive officers. In this regard, the Board of
Directors of the Corporation (the "BOARD") has determined that it is in the best
interests of the Corporation and its members that appropriate steps should be
taken to reinforce and encourage management's continued attention, dedication
and availability to the Corporation in the event of a Potential Change in
Control (as defined in Section 2), without being distracted by the uncertainties
which can arise from any possible changes in control of the Corporation.
In order to induce you to agree to remain in the employ of the
Corporation, such agreement evidenced by the employment agreement entered into
as of the date of this Agreement between you and the Corporation (the
"EMPLOYMENT AGREEMENT") and in consideration of your agreement as set forth in
Section 3 below, the Corporation agrees that you shall receive and you agree to
accept the severance and other benefits set forth in this Agreement should your
employment with the Corporation be terminated subsequent to a Change in Control
(as defined in Section 2) in full satisfaction of any and all claims that now
exist or then may exist for remuneration, fees, salary, bonuses or severance
arising out of or in connection with your employment by the Corporation or the
termination of your employment:
1. TERM OF AGREEMENT.
This Agreement shall be in effect for a term commencing on the
Effective Date of the Employment Agreement (as therein defined) and ending on
the date of termination of the Employment Agreement.
2. DEFINITIONS,
(a) "Affiliate" means a corporation that is an affiliate of the
Corporation under the Securities Act (British Columbia), as amended
from time to time.
(b) "Change in Control" of the Corporation shall be deemed to have
occurred:
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(i) if a merger, amalgamation, arrangement, consolidation,
reorganization or transfer takes place in which Equity
Securities of the Corporation possessing more than 50% of the
total combined voting power of the Corporation's outstanding
Equity Securities are acquired by a person or persons
different from the persons holding those Equity Securities
immediately prior to such transaction, and the composition of
the Board following such transaction is such that the
directors of the Corporation prior to the transaction
constitute less than 50% of the Board membership following the
transaction, except that no Change in Control will be deemed
to occur if such merger, amalgamation, arrangement,
consolidation, reorganization or transfer is with any
subsidiary or subsidiaries of the Corporation;
(ii) if any person, or any combination of persons (different from
those person(s) holding Equity Securities prior to the date
hereof) acting jointly or in concert by virtue of an
agreement, arrangement, commitment or understanding shall
acquire or hold, directly or indirectly, 50% or more of the
voting rights attached to all outstanding Equity Securities;
or
(iii) if any person, or any combination of persons (different from
those person(s) holding Equity Securities prior to the date
hereof) acting jointly or in concert by virtue of an
agreement, arrangement, commitment or understanding shall
acquire or hold, directly or indirectly, the right to appoint
a majority of the directors of the Corporation; or
(iv) if the Corporation sells, transfers or otherwise disposes of
all or substantially all of its assets, except that no Change
of Control will be deemed to occur if such sale or disposition
is made to a subsidiary or subsidiaries of the Corporation.
provided however, that a Change in Control shall not be deemed to
have occurred if such Change in Control results solely from the
issuance of Equity Securities in connection with a bona fide
financing or series of financings by the Corporation.
(c) "Base Salary" shall mean the annual base salary, as referred to in
Section 3 (Base Salary), and as adjusted from time to time in
accordance with Section 5 (Annual Review), of the Employment
Agreement.
(d) "Bonus" shall mean the bonus referred to in Section 6 (Performance
Bonus) of the Employment Agreement.
(e) "Cause" shall have the meaning set out in Section 19 (Termination by
the Corporation for Cause) of the Employment Agreement.
(f) "Date of Termination" shall mean, if your employment is terminated,
the date specified in the Notice of Termination.
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(g) "Equity Security" in respect of a security of the Corporation, shall
have the meaning ascribed thereto in Part 11 of the Securities Act
(British Columbia), as it existed on the date of this Agreement, and
also means any security carrying the right to convert such security
into, exchange such security for, or entitling the holder to
subscribe for, any equity security, or into or for any such
convertible or exchangeable security or security carrying a
subscription right.
(h) "Good Reason" shall mean the occurrence of one or more of the
following events, without your express written consent, within 12
months of Change in Control:
(i) a material change in your status, position, authority or
responsibilities that does not represent a promotion from or
represents an adverse change from your status, position,
authority or responsibilities in effect immediately prior to
the Change in Control;
(ii) a material reduction by the Corporation, in the aggregate, in
your Base Salary, or incentive, retirement, health benefits,
bonus or other compensation plans provided to you immediately
prior to the Change in Control, unless an equitable
arrangement has been made with respect to such benefits in
connection with a Change in Control;
(iii) a failure by the Corporation to continue in effect any other
compensation plan in which you participated immediately prior
to the Change in Control (except for reasons of
non-insurability), including but not limited to, incentive,
retirement and health benefits, unless an equitable
arrangement has been made with respect to such benefits in
connection with a Change in Control;
(iv) any request by the Corporation or any affiliate of the
Corporation that you participate in an unlawful act; or
(v) any purported termination of your employment by the
Corporation after a Change in Control which is not effected
pursuant to a Notice of Termination satisfying the
requirements of clause (i) below and for the purposes of this
Agreement, no such purported termination shall be effective.
(i) "Notice of Termination" shall mean a notice, in writing,
communicated to the other party in accordance with Section 6 below,
which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination
of your employment under the provision so indicated.
(j) "Potential Change in Control". of the Corporation shall be deemed
to. have occurred if:
(i) the Corporation enters into an agreement, the consummation of
which would result in the occurrence of a Change in Control;
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(ii) any person (including the Corporation) publicly announces an
intention to take or to consider taking actions which if
consummated would constitute a Change in Control; or
(iii) the Board adopts a resolution to the effect that, for the
purposes of this Agreement, a Potential Change in Control of
the Corporation has occurred.
3. POTENTIAL CHANGE IN CONTROL.
You agree that, in the event of a Potential Change in Control of the
Corporation occurring after the Effective Date, and until 12 months after a
Change in Control, subject to your right to terminate your employment by issuing
and delivering a Notice of Termination for Good Reason, you will continue to
diligently carry out your duties and obligations, on the terms set out in the
Employment Agreement.
4. COMPENSATION UPON TERMINATION FOLLOWING CHANGE IN CONTROL.
Subject to compliance by you with Section 3, upon your employment
terminating pursuant to a Notice of Termination within 12 months after a Change
in Control, the Corporation agrees that you shall receive and you agree to
accept, the following payments in full satisfaction of any and all claims you
may have or then may have against the Corporation, for remuneration, fees,
salary, benefits, bonuses or severance, arising out of or in connection with
your employment by the Corporation or the termination of your employment:
(a) If your employment shall be terminated by the Corporation for Cause
or by you other than for Good Reason, the terms of the Employment
Agreement shall govern and the Corporation shall have no further
obligations to you under this Agreement.
(b) If your employment by the Corporation shall be terminated by you for
Good Reason or by the Corporation other than for Cause, then you
shall be entitled to the payments and benefits provided below:
(i) subject to the withholding of all applicable statutory
deductions, the Corporation shall pay you a lump sum equal to
12 months' Base Salary, as referred to in Section 3 (Base
Salary) and as adjusted from time to time in accordance with
Section 5 (Annual Review) of the Employment Agreement, plus
other sums owed for arrears of salary, vacation pay and, if
awarded, Bonus;
(ii) to the extent permitted by law and subject to the terms and
conditions of any benefit plans in effect from time to time,
the Corporation shall maintain the benefits and payments set
out in Section 7 (Benefits) of the Employment Agreement during
the 12 month period;
- 5 -
(iii) the Corporation shall arrange for you to be provided with such
outplacement career counselling services as are reasonable and
appropriate, to assist you in seeking new executive level
employment; and
(iv) all incentive stock options and trust shares granted to you by
the Corporation under any stock option and/or trust share
agreement that is entered into between you and the Corporation
and is outstanding at the time of termination of your
employment, which incentive stock options and or trust shares
have not yet vested, shall immediately vest upon the
termination of your employment and shall be fully exercisable
by you in accordance with the terms of the agreement or
agreements under which such options were granted.
You shall not be required to mitigate the amount of any payment provided for in
this Section 4 by seeking other employment or otherwise, nor will any sums
actually received be deducted.
5. BINDING AGREEMENT.
This Agreement shall enure to the benefit of and be enforceable by
your personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If you die while any amount would
still be payable to you under this Agreement if you had continued to live, that
amount shall be paid in accordance with the terns of this Agreement to your
devisee, legatee or other designee or, if there is no such designee, to your
estate.
6. NOTICES.
All notices and other communications that are required or permitted
by this Agreement must be in writing and shall be hand delivered or sent by
express delivery service or certified or registered mail, postage prepaid, or by
facsimile transmission (with written confirmation copy by registered mail) to
the parties at the addresses indicated below.
IF TO ASPREVA:
Aspreva Pharmaceuticals Corporation
Farris, Vaughan, Wills & Murphy
26th Floor, 700 West Georgia Street
Vancouver, BC V7Y 1B3
Attn.- R. Hector MacKay-Dunn
IF TO DR. REINHARD BAILDON:
Dr. Reinhard Baildon
308 Arbana
Ann Arbor, MI
U.S.A. 48103
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Any such notice shall be deemed to have been received on the earlier of the date
actually received or the date five (5) days after the same was posted or sent.
Either party may change its address or its facsimile number by giving the other
party written notice, delivered in accordance with this Section.
7. MODIFICATION AMENDMENTS: ENTIRE AGREEMENT
This Agreement may not be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by you and
such officer as may be specifically designated by the Board. No waiver by either
party at any time of any breach by the other party of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
will be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. Except as set forth in your Employment
Agreement, no agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement.
8. GOVERNING LAW.
This Agreement shall be governed by and interpreted in accordance
with the laws of the Province of British Columbia and applicable laws of Canada
and the parties hereto attorn to the exclusive jurisdiction of the provincial
and federal courts of such province.
9. VALIDITY
The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
10. NO EMPLOYMENT OR SERVICE CONTRACT
Nothing in this Agreement shall confer upon you any right to
continue in the employment of the Corporation for any period of specific
duration or interfere with or otherwise restrict in any way the rights of the
Corporation or you, which rights are hereby expressly reserved by each, to
terminate your employment at any time for any reason whatsoever, with or without
cause.
If the foregoing sets forth our agreement on this matter, kindly
sign and return to the Corporation a copy of this letter.
Yours truly,
ASPREVA PHARMACEUTICALS
CORPORATION
By: /s/ RICHARD M. GLICKMAN
-------------------------
Authorized Signatory
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Accepted and agreed to by Dr. Reinhard Baildon as of the 23 day of September,
2003
/s/ REINHARD BAILDON
- --------------------
Dr. Reinhard Baildon
SCHEDULE C
CONFIDENTIALITY AGREEMENT
AND ASSIGNMENT OF INVENTIONS
ASPREVA PHARMACEUTICALS CORPORATION
PRIVATE AND CONFIDENTIAL
As of August 25, 2003
Dr. Reinhard Baildon
308 Arbana
Ann Arbor, MI
U.S.A. 48103
Dear Dr. Baildon:
The purpose of this letter is to confirm and record the terms of the agreement
(the "AGREEMENT") between you and Aspreva Pharmaceuticals Corporation
("ASPREVA") concerning the terms on which you will (i) receive from and disclose
to Aspreva proprietary and confidential information; (ii) agree to keep the
information confidential, to protect it from disclosure and to use it only in
accordance with the terms of this Agreement; and (iii) assign to Aspreva all
rights, including any ownership interest which may arise in all inventions and
intellectual property developed or disclosed by you over the course of your work
during your employment with Aspreva. The effective date ("EFFECTIVE DATE") of
this Agreement is the date that you start or started working at Aspreva, as
indicated in the employment agreement between you and Aspreva dated as of August
25, 2003.
In consideration of the offer of employment by Aspreva and the payment by
Aspreva to you of the sum of CDN$1.00 and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, you and Aspreva
hereby agree as follows:
1. INTERPRETATION
1.1 DEFINITIONS. In this Agreement:
(a) "CONFIDENTIAL INFORMATION", subject to the exemptions set out in
Section 2.8, shall mean any information relating to Aspreva's
Business (as hereinafter defined), whether or not conceived,
originated, discovered, or developed in whole or in part by you,
that is not generally known to the public or to other persons who
are not bound by obligations of confidentiality and:
(i) from which Aspreva derives economic value, actual or
potential, from the information not being generally known; or
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(ii) in respect of which Aspreva otherwise has a legitimate
interest in maintaining secrecy;
and which, without limiting the generality of the foregoing, shall
include;
(iii) all proprietary information licensed to, acquired, used or
developed by Aspreva in its search and development activities
including but not restricted to the development and
commercialization of drugs for rare diseases and conditions
and orphan drugs as defined by the U.S. Orphan Drug Act,
other scientific strategies and concepts, designs, know-how,
information, material, formulas, processes, research data and
proprietary rights in the nature of copyrights, patents,
trademarks, licenses and industrial designs;
(iv) all information relating to Aspreva's Business, and to all
other aspects of Aspreva's structure, personnel, and
operations, including financial, clinical, regulatory,
marketing, advertising and commercial information and
strategies, customer lists, compilations, agreements and
contractual records and correspondence; programs, devices,
concepts, inventions, designs, methods, processes, data,
know-how, unique combinations of separate items that is not
generally known and items provided or disclosed to Aspreva by
third parties subject to restrictions on use or disclosure;
(v) all know-how relating to Aspreva's Business including, all
biological, chemical, pharmacological, toxicological,
pharmaceutical, physical and analytical, clinical, safety,
manufacturing and quality control data and information, and
all applications, registrations, licenses, authorizations,
approvals and correspondence submitted to regulatory
authorities;
(vi) all information relating to the businesses of competitors of
Aspreva including information relating to competitors'
research and development, intellectual property, operations,
financial, clinical, regulatory, marketing, advertising and
commercial strategies, that is not generally known;
(vii) all information provided by Aspreva's agents, consultants,
lawyers, contractors, licensors or licensees to Aspreva and
relating to Aspreva's Business; and
(viii) all information relating to your compensation and benefits,
including your salary, vacation, stock options, rights to
continuing education, perquisites, severance notice, rights
on termination and all other compensation and benefits,
except that you shall be entitled to disclose such
information to your bankers, advisors, agents, consultants
and other third parties who have a duty of confidence to you
and who have a need to know such information in order to
provide advice, products or services to you.
(b) "INVENTIONS" shall mean any and all discoveries, developments,
enhancements, improvements, concepts, formulas, processes, ideas,
writings, whether or not
- 3 -
reduced to practice, industrial and other designs, patents, patent
applications, provisional patent applications, continuations,
continuations-in-part, substitutions, divisionals, reissues,
renewals, re-examinations, extensions, supplementary protection
certificates or the like, trade secrets or utility models,
copyrights and other forms of intellectual property including all
applications, registrations and related foreign applications filed
and registrations granted thereon.
(c) "WORK PRODUCT" shall mean any and all Inventions and possible
Inventions relating to Aspreva's Business resulting from any work
performed by you for Aspreva that you may invent or co-invent during
your involvement in any capacity with Aspreva, except those
Inventions invented by you entirely on your own time that do not
relate to Aspreva's Business or do not derive from any equipment,
supplies, facilities, Confidential Information or other information,
gained, directly or indirectly, by you from or through your
involvement in any capacity with Aspreva.
(d) "ASPREVA'S BUSINESS" shall mean the businesses actually carried on
by Aspreva, directly or indirectly, whether under an agreement with
or in collaboration with, any other party including but not
exclusively, the development and commercialization of drugs for rare
diseases and conditions and orphan drugs as defined by the U.S.
Orphan Drug Act.
2. CONFIDENTIALITY
2.1 BASIC OBLIGATION OF CONFIDENTIALITY. You hereby acknowledge and
agree that in the course of your involvement with Aspreva, Aspreva may disclose
to you or you may otherwise have access or be exposed to Confidential
Information. Aspreva hereby agrees to provide such access to you and you agree
to receive and hold all Confidential Information on the terms and conditions set
out in this Agreement. Except as set out in this Agreement, you will keep
strictly confidential all Confidential Information and all other information
belonging to Aspreva that you acquire, observe or are informed of, directly or
indirectly, in connection with your involvement, in any capacity, with Aspreva.
2.2 FIDUCIARY CAPACITY. You will be and act toward Aspreva as a
fiduciary in respect of the Confidential Information.
2.3 NON-DISCLOSURE. Unless Aspreva first Lives you written permission to
do so under Section 2.7 of this Agreement, you will not at any time, either
during or after your involvement in any capacity with Aspreva;
(a) use or copy Confidential Information or your recollections thereof;
(b) publish or disclose Confidential Information or your recollections
thereof to any person other than to employees of Aspreva who have a
need to know such Confidential Information for their work for
Aspreva;
- 4 -
(c) permit or cause any Confidential Information to be used, copied,
published, disclosed, translated or adapted except as otherwise
expressly permitted by this Agreement;
(d) permit or cause any Confidential Information to be stored off the
premises of Aspreva, including permitting or causing such
Information to be stored in electronic format on personal computers,
except in accordance with written procedures of Aspreva, as amended
from time to time in writing; or
(e) communicate the Confidential Information or your recollections
thereof to another employee of Aspreva in a public place or using
methods of communication that are capable of being intercepted (such
as unencrypted messages using the internet or cellular phones) or
overheard, without the written permission of Aspreva.
2.4 TAKING PRECAUTIONS. You will take all reasonable precautions
necessary or prudent to prevent material in your possession or control that
contains or refers to Confidential Information from being discovered, used or
copied by third parties.
2.5 ASPREVA'S OWNERSHIP OF CONFIDENTIAL INFORMATION. As between you and
Aspreva, Aspreva shall own all right, title and interest in and to the
Confidential Information, whether or not created or developed by you.
2.6 CONTROL OF CONFIDENTIAL INFORMATION AND RETURN OF INFORMATION. All
physical materials produced or prepared by you containing Confidential
Information, including, without limitation, biological material, chemical
entities, test results, notes of experiments, computer files, photographs, x-ray
film, designs, devices, formulas, memoranda, drawings, plans, prototypes,
samples, accounts, reports, financial statements, estimates and materials
prepared in the course of your responsibilities to or for the benefit of
Aspreva, shall belong to Aspreva, and you will promptly turn over to Aspreva's
possession every original and copy of any and all such items in your possession
or control upon request by Aspreva. You shall not permit or cause any physical
materials to be stored off the premises of Aspreva, unless in accordance with
written procedures of Aspreva, as amended from time to time in writing. You
shall not transfer any biological material to another person outside of Aspreva,
unless a material transfer agreement has been signed by both Aspreva and the
other party. You shall not accept any biological material from another person
outside of Aspreva, unless in accordance with written procedures of Aspreva, as
amended from time to time in writing.
2.7 PURPOSE OF USE. You will use Confidential Information only for
purposes authorised or directed by Aspreva.
2.8 EXEMPTIONS. Your obligation of confidentiality under this Agreement
will not apply to any of the following:
(a) information that is already known to you, though not due to a prior
disclosure by Aspreva or by a person who obtained knowledge of the
information, directly or indirectly, from Aspreva;
- 5 -
(b) information disclosed to you by another person who is not obliged to
maintain the confidentiality of that information and who did not
obtain knowledge of the information, directly or indirectly, from
Aspreva;
(c) information that is developed by you independently of Confidential
Information received from Aspreva and such independent development
can be documented by you;
(d) other particular information or material which Aspreva expressly
exempts by written instrument signed by Aspreva;
(e) information or material that is in the public domain through no
fault of your own; and
(f) information or material that you are obligated by law to disclose,
to the extent of such obligation, provided that:
(i) in the event that you are required to disclose such
information or material, then, as soon as you become aware of
this obligation to disclose, you will provide Aspreva with
prompt written notice so that Aspreva may seek a protective
order or other appropriate remedy and/or waive compliance with
the provisions of this Agreement;
(ii) if Aspreva agrees that the disclosure is required by law, it
will give you written authorization to disclose the
information for the required purposes only;
(iii) if Aspreva does not agree that the disclosure is required by
law, this Agreement will continue to apply, except to the
extent that a Court of competent jurisdiction orders
otherwise; and
(iv) if a protective order or other remedy is not obtained or if
compliance with this Agreement is waived, you will furnish
only that portion of the Confidential Information that is
legally required and will exercise all reasonable efforts to
obtain confidential treatment of such Confidential
Information.
3. ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS
3.1 NOTICE OF INVENTION. You agree to promptly and fully inform Aspreva
of all your Work Product, whether or not patentable, throughout the course of
your involvement, in any capacity, with Aspreva, whether or not developed before
or after your execution of this Agreement. On your ceasing to be employed by
Aspreva for any reason whatsoever, you will immediately deliver up to Aspreva
all of your Work Product. You further agree that all of your Work Product shall
at all times be the Confidential Information of Aspreva.
3.2 ASSIGNMENT OF RIGHTS. Subject only to those exceptions set out in
EXHIBIT A hereto, you will assign, and do hereby assign, to Aspreva or, at the
option of Aspreva and upon
- 6 -
notice from Aspreva, to Aspreva's designee, your entire right, title and
interest in and to all of your Work Product during your involvement, in any
capacity, with Aspreva and all other rights and interests of a proprietary
nature in and associated with your Work Product, including all patents, patent
applications filed and other registrations granted thereon. To the extent that
you retain or acquire legal title to any such rights and interests, you hereby
declare and confirm that such legal title is and will be held by you only as
trustee and agent for Aspreva. You agree that Aspreva's rights hereunder shall
attach to all of your Work Product, notwithstanding that it may be perfected or
reduced to specific form after you have terminated your relationship with
Aspreva. You further agree that Aspreva's rights hereunder are worldwide rights
and are not limited to Canada, but shall extend to every country of the world.
3.3 MORAL RIGHTS. Without limiting the foregoing, you irrevocably waive
any and all moral rights arising under the Copyright Act (Canada), as amended,
or any successor legislation of similar force and effect or similar legislation
in other applicable jurisdictions or at common law that you may have with
respect to your Work Product, and agree never to assert any moral rights which
you may have in your Work Product, including, without limitation, the right to
the integrity of such Work Product, the right to be associated with the Work
Product, the right to restrain or claim damages for any distortion, mutilation
or other modification or enhancement of the Work Product and the right to
restrain the use or reproduction of the Work Product in any context and in
connection with any product, service, cause or institution, and you further
confirm that Aspreva may use or alter any such Work Product as Aspreva sees fits
in its absolute discretion.
3.4 GOODWILL. You hereby agree that all goodwill you have established or
may establish with clients, customers, suppliers, principals, shareholders,
investors, collaborators, strategic partners, licensees, contacts or prospects
of Aspreva relating to the business or affairs of Aspreva (or of its partners,
subsidiaries or affiliates), both before and after the Effective Date, shall, as
between you and Aspreva, be and remain the property of Aspreva exclusively, for
Aspreva to use, alter, vary, adapt and exploit as Aspreva shall determine in its
discretion.
3.5 ASSISTANCE. You hereby agree to reasonably assist Aspreva, at
Aspreva's request and expense, in:
(a) making patent applications for your Work Product, including
instructions to lawyers and/or patent agents as to the
characteristics of your Work Product in sufficient detail to enable
the preparation of a suitable patent specification, to execute all
formal documentation incidental to an application for letters patent
and to execute assignment documents in favour of Aspreva for such
applications;
(b) making applications for all other forms of intellectual property
registration relating to your Work Product;
(c) prosecuting and maintaining the patent applications and other
intellectual property relating to your Work Product; and
(d) registering, maintaining and enforcing the patents and other,
intellectual property registrations relating to your Work Product.
- 7 -
3.6 ASSISTANCE WITH PROCEEDINGS. You further agree to reasonably assist
Aspreva, at Aspreva's request and expense, in connection with any defence to an
allegation of infringement of another person's intellectual property rights,
claim of invalidity of another person's intellectual property rights, opposition
to, or intervention regarding, an application for letters patent, copyright or
trademark or other proceedings relating to intellectual property or applications
for registration thereof.
4. GENERAL
4.1 TERM AND DURATION OF OBLIGATION. The term of this Agreement is from
the Effective Date and terminates on the date that you are no longer working at
or for Aspreva. Except as otherwise agreed in a written instrument signed by
Aspreva, Article 2 shall survive the termination of this Agreement, including
your obligations of confidentiality and to return Confidential Information, and
shall endure, with respect to each item of Confidential Information, for so long
as those items fall within the definition of Confidential Information. Sections
1.1, 3.2, 3.3, 3.4, 3.5, 3.6, 4.1, 4.2, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10,
4.11, 4.12 and 4.13 shall also survive the termination of this Agreement.
4.2 BINDING NATURE OF AGREEMENT. This Agreement is not assignable by
you. You agree that this Agreement shall be binding upon your heirs and estate.
4.3 NON-COMPETITION. While you are an employee of Aspreva, you will not
provide services to or enter into a contract of employment or service in any
capacity for any business which is in any way competitive with Aspreva's
Business without the prior written consent of Aspreva.
4.4 NO CONFLICTING OBLIGATIONS. You represent and warrant that you will
not use or disclose to other persons at Aspreva information that (i) constitutes
a trade secret of persons other than Aspreva during your employment at Aspreva,
or (ii) which is confidential information owned by another person. You represent
and warrant that you have no agreements with or obligations to others with
respect to the matters covered by this Agreement or concerning the Confidential
Information that are in conflict with anything in this Agreement.
4.5 EQUITABLE REMEDIES. You acknowledge and agree that a breach by you
of any of your obligation under this Agreement would result in damages to
Aspreva that could not be adequately compensated by monetary award. Accordingly,
in the event of any such breach by you, in addition to all other remedies
available to Aspreva at law or in equity, Aspreva shall be entitled as a matter
of right to apply to a court of competent jurisdiction for such relief by way of
restraining order, injunction, decree or otherwise, as may be appropriate to
ensure compliance with the provisions of this Agreement, without having to prove
damages to the court.
4.6 PUBLICITY. You shall not, without the prior written consent of
Aspreva, make or give any public announcements, press releases or statements to
the public or the press regarding your Work Product or any Confidential
Information.
4.7 SEVERABILITY. If any covenant or provision of this Agreement or of a
section of this Agreement is determined by a court of competent jurisdiction to
be void or unenforceable in
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whole or in part, then such void or unenforceable covenant or provision shall
not affect or impair the enforceability or validity of the balance of the
section or any other covenant or provision.
4.8 TIME OF ESSENCE/NO WAIVER. Time is of the essence hereof and no
waiver, delay, indulgence, or failure to act by Aspreva regarding any particular
default or omission by you shall affect or impair any of Aspreva's rights or
remedies regarding that or any subsequent default or omission that is not
expressly waived in writing, and in all events time shall continue to be of the
essence without the necessity of specific reinstatement.
4.9 FURTHER ASSURANCES. The parties will execute and deliver to each
other such further instruments and assurances and do such further acts as may be
required to give effect to this Agreement.
4.10 NOTICES. All notices and other communications that are required or
permitted by this Agreement must be in writing and shall be hand delivered or
sent by express delivery service or certified or registered mail, postage
prepaid, or by facsimile transmission (with written confirmation copy by
registered mail) to the parties at the addresses indicated below.
IF TO ASPREVA:
Aspreva Pharmaceuticals Corporation
Farris, Vaughan, Wills & Murphy
26th Floor, 700 West Georgia Street
Vancouver, BC V7Y 1B3
Attn: R. Hector MacKay-Dunn
IF TO DR. REINHARD BAILDON:
Dr. Reinhard Baildon
308 Arbana
Ann Arbor, MI
U.S.A. 48103
Any such notice shall be deemed to have been received on the earlier of' the
date actually received or the date five (5) days after the same was posted or
sent. Either party may change its address or its facsimile number by giving the
other party written notice, delivered in accordance with this Section.
4.11 AMENDMENT. No amendment. modification, supplement or other purported
alteration of this Agreement shall be binding unless it is in writing and signed
by you and by Aspreva.
4.12 ENTIRE AGREEMENT. This Agreement supersedes all previous dealings,
understandings, and expectations of the parties and constitutes the whole
agreement with respect to the matters contemplated hereby, and there are no
representations, warranties, conditions or collateral agreements between the
parties with respect to such transactions except as expressly set out herein.
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4.13 GOVERNING LAW. This Agreement shall be governed by and interpreted
in accordance with the laws of the Province of British Columbia and applicable
laws of Canada and the parties hereto attorn to the exclusive jurisdiction of
the provincial and federal courts of such province.
4.14 INDEPENDENT LEGAL ADVICE. You hereby acknowledge that you have
obtained or have had an opportunity to obtain independent legal advice in
connection with this Agreement, and further acknowledge that you have read,
understand, and agree to be bound by all of the terms and conditions contained
herein.
ACCEPTANCE
If the foregoing terms and conditions are acceptable to you, please
indicate your acceptance of and agreement to the terms and conditions of this
Agreement by signing below on this letter and on the enclosed copy of this
letter in the space provided and by returning the enclosed copy so executed to
us. Your execution and delivery to Aspreva of the enclosed copy of this letter
will create a binding agreement between us.
Thank you for your cooperation in this matter.
Yours truly,
ASPREVA PHARMACEUTICALS CORPORATION
By: /s/ RICHARD M. GLICKMAN
-------------------------
Authorized Signatory
Accepted and agreed as of the 23 day of September, 2003
/s/ LILIJA SLOKVENKO /s/ REINHARD BAILDON
- --------------------------------- ---------------------------------
Witness Signature SIGNATURE OF DR. REINHARD BAILDON
Lilija Slokvenko
- ---------------------------------
Witness Name
Waitress
- ---------------------------------
Occupation
8120 Wisconsin Avenue, Beth.
- ---------------------------------
Address
EXHIBIT A
EXCLUSION FROM WORK PRODUCT
None
SCHEDULE D
BUSINESS OF THE COMPANY
The business of the Corporation shall mean the business actually carried on by
the Corporation, directly or indirectly, whether under an agreement with or in
collaboration with any other party including, but not limited to the development
and commercialization of drugs for rare diseases and conditions and orphan drugs
as defined by the U.S. Orphan Drug Act.
SCHEDULE E
EXCEPTION TO RESTRICTIVE COVENANT
None