EXHIBIT 10.15
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:
(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.
(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;
(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;
(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
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
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Authorized Signatory
Accepted and agreed to by Dr. Reinhard Baildon as of the 23 day of September,
2003
/s/ REINHARD BAILDON
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Dr. Reinhard Baildon