THIS AGREEMENT made as at the 1st day of January, 2004.
THIS
AGREEMENT made as at the 1st day of January, 2004.
BETWEEN:
having
an
office at the City of Edmonton,
in
the
Province of Alberta,
(hereinafter
called the “Employer”),
OF
THE
FIRST PART,
-
and
-
Dr.
▇▇▇▇▇
▇▇▇▇▇▇
of
the
City of Edmonton,
in
the
Province of Alberta,
hereinafter
called the “Employee”),
OF
THE
SECOND PART,
WHEREAS:
|
A.
|
The
Employee has agreed to terms of employment with the Employer in the
capacity and positions of Vice President Research and Development
of the
Infectious Diseases Division of ViRexx;
and
|
|
B.
|
The
Employer and the Employee wish to confirm their relationship upon
the
terms and conditions as provided in this
Agreement.
|
WITNESSETH
THEREFORE THAT in consideration of the mutual covenants and agreements contained
in this Agreement, the Employer and the Employee covenant and agree as
follows:
ARTICLE
1. INTERPRETATION
|
1.1
|
Number
and Gender
|
Words
importing the singular number only shall include the plural and vice versa
and
words importing the masculine gender shall include the feminine gender and
words
importing persons shall include firms and corporations and vice
versa.
|
1.2
|
Division
|
The
division of this Agreement into Articles and Sections forms no part of this
Agreement and shall be deemed to have been inserted and done for convenience
only.
|
1.3
|
Headings
|
The
headings of all the Articles and Sections hereof and the table of contents,
if
any, are inserted for convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
|
1.4
|
Recitals
|
All
recitals to this Agreement shall be included in and form part of this
Agreement.
|
1.5
|
Continuance
of Agreement
|
The
provisions of this Agreement shall continue in effect until the final
performance of all the respective obligations set forth herein or until amended
or altered by agreement in writing.
|
1.6
|
Agreement
Supersedes
|
The
parties acknowledge and agree that this Agreement represents a composite of
all
previous agreements, if any, reached to date and that hereafter, this Agreement
is the only agreement between the parties with respect to the matters
contemplated by this Agreement, and shall supersede and replace any discussion
letter or form of Agreement, oral or written, which may exist as of the date
of
execution and delivery of this Agreement.
|
1.7
|
Applicable
Law
|
This
Agreement shall be governed by the laws of the Province of Alberta.
|
1.8
|
Schedules
|
Schedule
“A” to this Agreement is referenced in Article 7 and is in full force and effect
when fully executed.
|
1.9
|
Effective
Date
|
Notwithstanding
the date of execution of this Agreement by the Employer and the Employee, this
Agreement shall be deemed for all purposes to be effective as at and from the
1st
day of
January, 2004 (the “Effective Date”).
|
1.10
|
Severability
|
In
the
event that any provision or part of this Agreement shall be deemed void or
invalid by a court of competent jurisdiction, the remaining provisions or parts
shall be and remain In full force and effect.
|
1.11
|
Modification
of Agreement
|
Any
modification to this Agreement must be in writing and signed by the parties
or
it shall have no effect and shall be void.
2
ARTICLE
2. EMPLOYMENT
|
2.1
|
Employment
|
The
Employer hereby employs the Employee to be the Employer’s Vice President
Research and Development in the Division of Infectious Diseases for the purposes
of undertaking the duties of and exercising the powers of that office. The
Employee represents and warrants to the Employer that the Employee has the
required skills and experience to perform the duties and exercise the
responsibilities required of the Employee as Vice President Research and
Development. In carrying out his duties and responsibilities, the Employee
shall
comply with all lawful and reasonable instructions as may be given by the
President of the Employer and shall comply with all government and other
professional requirements, rules, by-laws and regulations.
|
2.2
|
Employee’s
Undertaking
|
The
Employee, in collaboration with the Employer’s President and Employer’s Board of
Directors, shall be responsible for the overall supervision and management
of
Research and Development and such other duties as the President and/or the
Board
of Directors of the Employer determine, and the Employee’s duties will also
include the following:
|
(a)
|
supervision
and direct responsibility for all research and development and related
initiatives for the Division of Infectious
Diseases;
|
|
(b)
|
supervision
and implementation of a plan to manage the research and development
programs of the Division of Infectious
Diseases;
|
|
(c)
|
support
and assist in the supervision and implementation of a plan to
commercialize the Division of Infectious Diseases technology, including
but not restricted to the commencement, continuation and completion
of
clinical trials;
|
|
(d)
|
supervision
and implementation of research and development strategies for existing
and
new products in the Division of Infectious
Diseases;
|
|
(e)
|
identification,
development and implementation of research and development of new
products, at the request of the President;
and,
|
|
(f)
|
supervision
and direction of research and development processes and all research
labs
in the Division of Infectious Diseases and such other functions as
may be
necessarily related to the foregoing and such additional duties and
functions as the Employer and the President of the Employee shall,
from
time to time, agree upon.
|
a) In
the
performance of the responsibilities listed in Section 2.2,
the
Employee may under direction of the President of the Corporation delegate or
assign duties as appropriate to staff and external experts/consultants as
required provided that the Employee shall maintain management responsibility
over those to whom duties have been delegated and/or assigned.
3
|
2.4
|
Time
Devotion
|
The
Employee shall, during the term of this Agreement, devote his full business
time, attention and ability to the affairs of the Employer in furtherance of
the
Employer’s best interest as is necessary to fulfill his duties hereunder. It is
understood that the hours of work involved are going to vary and be irregular
and shall include reasonably sufficient hours required to meet the objectives
of
employment herein described.
|
2.5
|
Serving
the Company
|
The
Employee shall well and faithfully serve the Employer and use his best efforts
to promote the interests thereof. In carrying out his duties, functions and
responsibilities, the Employee shall comply with, adhere to, execute and fulfil
all Employer’s policies, procedures, rules and regulations, written as are
amended in writing by the Employer from time to time. It is understood and
agreed to by the Employee that his assignments, duties, responsibilities and
reporting arrangements may be changed by the Employer in its sole discretion
without causing termination of this Agreement.
|
2.6
|
Business
Conduct
|
The
Employee agrees that in all matters affecting the conduct of the Employer’s
business, the Employee shall maintain a standard of conduct which in all
respects meets a reasonable standard of business conduct.
|
2.7
|
Employer
Powers
|
Subject
always to this Agreement and all applicable laws, the Employer shall have the
power and authority to review all work performed by the Employee and to
determine standards of performance; provided always, that the Employer’s
exercise of such power and authority shall be reasonably done in good faith
and
be consistent with its prior practice.
|
2.8
|
Responsibility
of Employee
|
The
Employee assumes no responsibility under this Agreement other than to render
the
services called for hereunder in good faith.
|
2.9
|
Liability
of the Employee
|
The
Employee will not be liable to the Employer or others except by reason of acts
constituting bad faith, wilful misconduct, negligence or reckless disregard
of
his duties.
|
2.10
|
Exercise
of Duties
|
At
all
times, the Employee shall act on a basis which is fair and reasonable to the
Employer and shall exercise his powers and discharge his duties under this
Agreement honestly, in good faith and in the best interests of the Employer,
and
in connection therewith shall exercise that degree of care, diligence and skill
that a reasonably prudent person would exercise in comparable
circumstances.
4
|
2.11
|
Location
|
The
Employee’s place of employment shall be at the head office of the Employer
located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ or such other place as the Board of Directors directs.
|
2.12
|
Records
and Materials
|
Upon
expiry or termination of the Employee’s employment with the Employer, the
Employee shall deliver to the Employer all proprietary information referred
to
in Article 7, including but not restricted to all records and materials with
respect to the Employer which are in his possession and/or under his
control.
|
2.13
|
No
Interest
|
Nothing
herein shall be construed to give the Employee any interest in the tangible
or
intangible assets of the Employer.
ARTICLE
3. REMUNERATION
|
3.1
|
Compensation
of the Employee
|
Throughout
the term of this Agreement, commencing January 1, 2004, the Employer shall
pay
to the Employee a salary, set from time to time by the Board of Directors,
stated as an annualized amount but payable monthly in arrears in equal monthly
installments for each year of the three (3) year term of the Employee’s
employment and commencing on the Effective Date. The Employee’s salary at the
commencement of and throughout the term of this Agreement shall be no less
than
ONE HUNDRED TWENTY THOUSAND ($120,000.00) DOLLARS Canadian per annum. The
Employee’s compensation and performance shall be reviewed by the Board of
Directors annually at least one month prior to each anniversary date of
commencement. The Employee shall have the right to provide information to the
Board of Directors on all factors relevant to the Board’s decision on any
increase in compensation.
|
3.2
|
Bonuses
|
For
each
year of the term of this Employment Agreement and any extension or renewal
thereof the Employee is eligible to be considered for a bonus to be decided
on
by the Board of Directors.
|
3.3
|
Benefits
|
The
Employer shall provide the Employee with participation in any benefit programs
as they are made generally available by the Employer to its other employees
including Blue Cross insurance for life, disability, health and dental, Alberta
Health Care and Parking.
|
3.4
|
Pension
|
The
Employer agrees to make matching annual contributions to the Employee’s RRSP up
to a maximum of 3% of the Employee’s salary.
5
|
3.5
|
Stock
Options
|
The
Employer hereby grants to the Employee an option to purchase 150,000 common
shares at a price of $0.80 per share during the first round of financing. The
options shall be governed in accordance with the Employer’s Stock Option Plan.
These options shall be included as being in full force and effect within any
formal option plan adopted by the Employer or any successor
company.
The
Employee shall continue to participate as a senior executive in any stock option
plan adopted by the Employer or any amendment thereof which is adopted by the
Board of Directors and shareholders of the Employer, recognizing that any option
given shall be a decision by the Board.
|
3.6
|
Car
Allowance and Business
Expenses
|
The
Employee shall be paid a car mileage allowance for longer trips away from
Edmonton and his reasonable business expenses, including business-related mobile
phone charges, shall be reimbursed by the Employer.
|
3.7
|
Additional
Benefits
|
The
Employee shall pay all professional association and development fees and all
course costs which are incurred from time to time by the Employee in maintaining
his professional designations and upgrading and/or continuing his education
and
development to improve the performance of his duties.
ARTICLE
4. AUTHORITY
b) The
Employee shall have, subject always to the specific instructions and directions
of the Board of Directors and the President of the Employer full power and
authority to supervise, manage and direct the Research and Development
activities of the Division of Infectious Diseases of the Employer..
ARTICLE
5. VACATION
c) The
Employee shall be entitled to a period of four weeks paid vacation per calendar
year. The Employee will provide the Employer with reasonable written notice
of
his intention to take any vacation days. The Employee shall be allowed to
accumulate one week’s vacation per year from the previous year but at no time
shall the Employee be entitled to accumulate unused weeks such that he has
more
than five (5) weeks of vacation in any one year.
ARTICLE
6. TERM AND TERMINATION
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6.1
|
Term
|
This
Agreement commenced on the Effective Date and shall continue until December
31,
2006 which time the Agreement shall expire unless terminated earlier or unless
a
renewal or extension is negotiated on a mutually satisfactory basis between
the
Employer and the Employee. In the event that this Agreement is not renewed
or
extended for another term of at least one (1) year from December 31, 2006 or
the
Employee’s employment is terminated the Employee shall be entitled to payment of
six (6) months’ salary.
6
|
6.2
|
Termination
by the Employer for
Cause
|
The
Board
of Directors, by majority decision acting reasonably, shall have the right
to
terminate the Employee’s employment if the Employee has not cured any default
event within sixty (60) days of receiving written notice to do so from the
Board
of Directors, for cause, including, but without restricting the generality
of
the foregoing, upon the occurrence of one or more of the following default
events:
|
(a)
|
the
Employee’s failure or refusal to comply with policies established from
time to time by the Board of Directors, provided always that such
policies
are documented in writing and communicated to the Employee and are
reasonable and consistent with the Employer’s best
interests;
|
|
(b)
|
the
Employee’s failure or refusal to comply with the directions of the Board
of Directors or the Board of Directors determine, in their sole
discretion, that the Employee’s performance of his duties under this
Agreement is unsatisfactory;
|
|
(c)
|
the
Employee’s fraud, dishonesty or other wilful misconduct or the Employee’s
negligence;
|
|
(d)
|
if
the Employee engages in any criminal activity or unethical conduct
which,
in the sole discretion of the Employer, is judged to seriously impair
the
Employee’s ability to perform his duties hereunder, or would or could
impair the business reputation of the Employer, including, but not
limited
to, where the Employee is convicted of any indictable criminal
offence;
|
|
(e)
|
any
actual or material breach of the provisions of this
Agreement;
|
|
(f)
|
the
Employee is adjudged bankrupt.
|
|
6.3
|
Termination
by the Employee and the Employer Without Cause or Change of Control
of the
Employees
|
This
Agreement may be terminated by the Employer or the Employee without cause in
the
following manner in the specified circumstances:
|
(a)
|
by
the Employee on giving sixty (60) days notice in writing to the Employer,
the Employer may waive the notice in whole or in
part;
|
|
(b)
|
if
the Employee has been employed for less than one (1) year from January
1,
2004, by the Employer on giving six (6) months notice in writing
to the
Employee or payment in lieu of notice and if the Employee has been
employed for more than one year from January 1, 2004, by the Employer
on
giving one (1) years’ notice in writing to the Employee or payment in lieu
of notice.
|
7
None
of
the payments in lieu of notice referred to in 6.3(a) and (b) above include
any
bonus which may be payable, the value of benefits otherwise received over the
same period and any accrued vacation pay and, in addition, reasonable out
placement and relocation assistance from the Employer which may be agreed upon
as a full and final settlement to the Employee.
In
the
event that a change of control of the Employer occurs and the Employee is
terminated within a year of the change of control the provisions of Sections
6.3(a) and (b) apply.
In
either
a dismissal without cause or a dismissal on change of control as referred above
all options currently outstanding to the Employee shall vest immediately and
the
exercise period shall be extended for all options which remain unexercised
to
the date which is one year from date of termination.
|
6.4
|
Termination
of the Employee for
Disability
|
If
the
Employee suffers from any mental or physical disability or illness which results
in the Employee being unable to substantially perform his duties for a
continuous ninety days or for periods aggregating one hundred and twenty days
in
any period of three hundred and sixty five days, the Employer may terminate
this
Agreement upon giving the Employee sixty days notice in writing and shall pay
to
the Employee six months’ salary, the value of benefits otherwise received over
the same period and any accrued vacation pay as full and final settlement to
the
Employee.
|
6.5
|
Survival
of Agreement
|
Notwithstanding
the termination of the Employee’s employment or the termination of this
Agreement for any reason, Sections 2.12,
8.5
and
Article
6
and
Article
7
of this
Agreement shall not be deemed to have been terminated and shall continue in
full
force and effect.
|
6.6
|
Effect
of Termination
|
Upon
termination of this Agreement, howsoever terminated, the Employee shall be
entitled to receive compensation for services provided under this Agreement
(“Earned Compensation”), up to and including the date of termination. However,
termination of this Agreement shall not accelerate the payment date of any
monies accrued or accruing to the Employee as a result of any Earned
Compensation, or other compensation, if any, nor shall termination vest in
the
Employee any right in connection therewith.
In
the
event of termination of this Agreement for any reason provided in Section
6.2
or
6.3,
all
rights and obligations of the Employer and the Employee shall cease to exist
immediately, except that the Employee’s and Employer’s obligations under
Sections 2.11,
8.5
and
Article
6
and
Article
7
hereof
shall survive such termination.
8
ARTICLE
7. CONFIDENTIAL INFORMATION
d) The
Employee shall not, either during the term of his Employment and for a period
of
five years thereafter, disclose or cause to be disclosed, to any person, unless
required by law, any secrets or Confidential Information, as defined in Schedule
“A” hereto, concerning the business or affairs or financial position of the
Employer or any company with which the Employer is or may hereafter be
affiliated. This Agreement is governed by the confidentiality provisions as
set
forth in Schedule “A”. PROVIDED it is agreed by the Employer that the Employee
shall have the sole discretion to decide how to manage any Confidential
Information and Intellectual Property Rights as between the Employer and the
University of Alberta given that he is employed by both simultaneously as long
as he uses reasonable practices which are consistent with practices of similar
companies.
ARTICLE
8. GENERAL
|
8.1
|
Further
Acts
|
Each
of
the parties to this Agreement shall, at the request and expense of the other
party, execute and deliver any further documents and do all acts and things
as
that party may reasonably require to carry out the true intent and meaning
of
this Agreement.
|
8.2
|
Time
|
Time
is
of the essence of this Agreement.
|
8.3
|
Parties
of Interest
|
This
Agreement enures to the benefit of and is binding upon the Employer and the
Employee and upon their administrators, legal representative, executor,
successors and permitted assigns as applicable.
|
8.4
|
Assignment
|
This
Agreement may not be assigned or transferred in any manner by the
Employee.
|
8.5
|
Employer’s
Property
|
The
Employee acknowledges that all items of any and every nature or kind created
or
used by the Employee pursuant to the Employee’s employment under this Agreement,
or furnished by the Employer to the Employee, and all equipment, automobiles,
credit cards, books, records, reports, files, manuals, literature, confidential
information or other materials shall remain and be considered the exclusive
property of the Employer at all times and shall be surrendered to the Employer,
in good condition, promptly on the cessation or termination of the Employee’s
employment irrespective of the time, manner or cause of the
termination.
9
ARTICLE
9. NOTICE
|
9.1
|
Manner
of Delivery
|
All
notices given under this Agreement shall be deemed to have been duly given
only
if personally delivered, or mailed by prepaid registered mail addressed as
follows:
TO
THE
EMPLOYER:
▇▇▇▇
▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
TO
THE
EMPLOYEE:
Dr.
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telephone
Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier
Number: (780)
|
9.2
|
When
Notices Deemed
Delivered
|
Any
notice personally delivered or telecopied in the manner set out in Section
9.1
shall be
deemed given when personally delivered or telecopied, and any notice mailed
in
the manner set out in Section 9.1 shall be deemed to have been received on
the
fifth regular business day next following the date of posting.
|
9.3
|
Disruption
of Mail Service
|
In
the
event of disruption, or threatened disruption, of regular mail service, all
notices shall be deemed to have been duly given only if personally delivered
or
telecopied.
10
|
9.4
|
Change
of Address
|
Any
party
may change his address for notice by giving a notice to that effect pursuant
to
this Article
9.
IN
WITNESS WHEREOF this Agreement has been made effective as on the day and year
first written above.
|
Per:
Per:
signed
“▇▇▇▇▇▇▇
▇▇▇▇▇▇▇”
|
| SIGNED, SEALED AND DELIVERED | ) | |
|
in
the presence of:
|
) | |
| ) | ||
| signed “▇.▇. ▇▇▇▇▇▇▇” | ) |
signed
“▇▇▇▇▇
▇▇▇▇▇▇”
|
|
WITNESS
|
Dr.
▇▇▇▇▇ ▇▇▇▇▇▇
|
11
|
C
A N A D A
|
) | I, ___________________, of the City of |
|
PROVINCE
OF ALBERTA
|
) | Edmonton, in the Province of Alberta, |
|
TO
WIT:
|
) | MAKE OATH AND SAY: |
| ) |
|
|
1.
|
THAT
I was personally present and did see Dr. ▇▇▇▇▇ ▇▇▇▇▇▇ named in the
annexed
instrument, who is personally known to me to be the person named
therein,
duly sign and execute the same for the purpose named
therein.
|
|
2.
|
THAT
the same was executed at the City of Edmonton, in the Province of
Alberta,
and that I am the subscribing witness
thereto.
|
|
3.
|
THAT
I know the said Dr. ▇▇▇▇▇ ▇▇▇▇▇▇ and he is in my belief of the full
age of
eighteen years.
|
|
SWORN
BEFORE ME at the City of
|
) | |
|
, in the Province of Alberta, this
|
) | |
|
day
of
, 2004.
|
) | |
| ) |
|
|
| ) | ||
| ________________________________ | ) | ________________________________ |
|
A
Commissioner for Oaths in and for the Province of Alberta
|
|
DATED
the 31st
day of December, 2003
|
|
|
-
and -
Dr.
▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
|
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇
Barristers
& Solicitors
▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
- ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention:
▇.▇. ▇▇▇▇▇▇▇
Telephone:
▇▇▇-▇▇▇▇
File
No: 59815.24
|