SCHEDULE B ASPREVA PHARMACEUTICALS CORPORATION
Exhibit
10.12
SCHEDULE
B
ASPREVA
PHARMACEUTICALS CORPORATION
As
of 29th
May, 2007
▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇.
V8X 2N5, B.C.
Dear
▇▇▇▇▇:
Aspreva
Pharmaceuticals Corporation (the “Corporation”)
considers it essential to the best interests of its members to ▇▇▇▇▇▇ 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 4 (Annual
Review), of the Employment Agreement.
d.
“Bonus”
shall mean the bonus referred to in Section 5 (Performance Bonus) of the
Employment Agreement.
e.
“Cause”
shall have the meaning set out in Section 16
(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 II 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
4
(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 6 (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 terms 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
▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇
26th
Floor, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vancouver,
BC V7Y 1B3
Attn: ▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇
If
to ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇:
▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇.
V8X 2N5.
B.C.
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/
▇. ▇▇▇▇▇▇▇▇
|
||
|
Authorized
Signatory
|
|||
|
Accepted
and agreed to by ▇▇.▇▇▇▇▇ ▇▇▇▇▇▇▇ as of the 29th
May, 2007
|
|||
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|||
|
▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|||