EMPLOYMENT AGREEMENT ASPREVA PHARMACEUTICALS CORPORATION 1203- 4464 Markham St. Victoria BC. V8Z 7X8
Exhibit
10.32
ASPREVA
PHARMACEUTICALS CORPORATION
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PRIVATE
AND CONFIDENTIAL
6,
January, 2007
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Dear
Oz,
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Re:
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Terms
of Employment with ASPREVA PHARMACEUTICALS CORPORATION (the
“Corporation”)
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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:
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1.
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Position
and Duties.
You will be employed by and will serve the Corporation as its Executive
Vice-President and Chief Medical Officer.
You
will report directly to the Chief Executive Officer or subsequent
designate. Your duties and functions are outlined in the attached
position
description (HR307
- Exhibit B)
and as they pertain to the Corporation and any of its subsidiaries.
These
duties and functions may be varied or added to from time to time
by the
CEO, at their discretion, exercised reasonably. These duties and
functions
will be conducted in accordance with and adhering to all corporate
policies and procedures.
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2.
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Term.
The terms and conditions of this Agreement shall have effect on or
before
Monday 19th
February, 2007 (the “Effective
Date”)
(tentatively January, 22, 2007, and your employment as Executive
Vice-President and Chief Medical Officer of the Corporation shall
continue
until terminated as provided in this Agreement. It is expected that
a
minimum two year period will be completed based in Victoria
B.C.
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(i)
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There
will be a transition period of up to four months from the date employment
commences for you to relocate to Victoria, having secured appropriate
immigration clearances; at which time the two year period will
commence.
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(ii)
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Three
months prior to completing this two year period based from Aspreva’s
Victoria office, we will discuss your interest in relocating to Victoria
on a permanent basis; utilizing any unused funds within your relocation
allowance - as per Section 10.
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(iii)
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Should
you prefer to relocate back to New Jersey, we will discuss the possibility
of you performing the CMO role in the USA and if acceptable to Aspreva,
we
will support the relocation of you and your family back to New Jersey;
utilizing any unused funds within your relocation allowance - as
per
Section 10.
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(iv)
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Should
you prefer to relocate back to New Jersey, and Aspreva concludes
the CMO
role cannot be performed outside of Victoria
then:
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| (a) | Aspreva will relocate you and your family back to New Jersey utilizing any unused funds within your relocation allowance - as per Section 10. |
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(b)
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Additionally,
Aspreva would also provide you severance compensation of up to six
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); this payment
would supersede any claim under section 14 (Termination without Cause),
would be seen as full and final settlement. Furthermore payments
would
cease if you commenced employment with another employer.
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(c)
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Your
stock options would continue to vest in accordance with Aspreva’s Stock
Option Plan guidelines, subject to you agreeing to provide reasonable
consulting services to Aspreva during the remaining vesting period
and
that such consulting did not cause a conflict of interest as per
sections
19 (Disclosure of Conflicts of Interest) and section 20 (Avoidance
of
Conflicts of Interest).
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3.
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Base
Salary.
The Corporation shall pay you a base salary at the rate of $350,000
USD to
be converted to Canadian dollars on transition per year (the “Base
Salary”),
payable semi-monthly, subject to the withholding of all applicable
statutory deductions from such Base Salary in respect of the Base
Salary
and including any taxable benefits received under this Agreement
or in
respect of your employment.
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4.
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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.
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5.
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Performance
Bonus.
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(a)
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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 35%
of annual salary based on achieving certain objectives determined
by
senior management in its sole discretion (weighted 60% personal and
40%
corporate) determines that the Corporation and the employee has met
its
short-term and long-term business performance objectives (together,
the
“Objectives”),
which Objectives will be established from time to time by the Senior
Management in consultation with
you.
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Sign-on
Bonus:
$150,000 (USD) gross sign on bonus, to be paid on first pay period one month
after commencing employment with Aspreva. Should the employee terminate
employment, Aspreva Pharmaceuticals reserves the right to ask for reimbursement
of the sign-on bonus under the following terms - within 12 months 100%, under
24
months 50%, under 36 months 25%.
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6.
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Benefits.
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(a)
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The
Corporation will arrange for you to have health, medical, dental,
and such
other benefits as made available by the Company from time to time.
You may
be required to provide information and undergo reasonable assessments
of
the insurers in order to determine your eligibility for benefits
coverage.
Please note that coverage under any benefit plan in effect from time
to
time is subject to availability and other requirements of the applicable
insurer.
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(b)
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We
are pleased to offer you up to $3,000 CDN: $2,000 in first year and
$1000
in the second year to support the advice for and preparation of American
and Canadian personal income tax returns. Expenses are reimbursed
through
receipts. Expenses are reimbursed through receipts. This is a taxable
benefit to you as the employee.
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7.
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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 20 days per annum. The Corporation
reserves the right, acting reasonably, to request that vacations
be
scheduled so as not to conflict with critical business operations.
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8.
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Reimbursement
for Expenses.
During your employment under this Agreement, the Corporation shall
promptly 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 within 30 days after the date the expenses are
incurred.
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9. Stock
Options.
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You
will be eligible to receive 225,000 stock options (the “Options”). No
Options shall vest during the first
year following your start date and up to 12 months following the
Grant
Date, which ever comes first, as
defined in the option agreement (the “Option Agreement”) between you and
the Corporation. Thereafter,
1/36th
of the Options will vest at the end of each month for the next
36 months.
Thus, all of the Options
will vest and become exercisable over
a four (4) year period. The
Options will cease to vest
on the following
occurrences:
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(a)
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on
the date you provide the Corporation with written notice of your
decision
to resign your employment pursuant to Section 13 (Termination by
Employee);
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(b)
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on
the date the Corporation provides you with written notice of its
decision
to terminate your employment pursuant to Section 14 (Termination
without
Cause);
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(c)
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on
the date the Corporation terminates your employment pursuant to Section
15
(Termination for Cause); or
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(d)
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otherwise
on the
date this Agreement is terminated or deemed terminated.
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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 9.
The
terms and conditions relating to the Options will be subject to the Option
Agreement as well as the Aspreva
2002 Incentive Stock Option Plan, as amended (the “Plan”). If there is any
conflict between the terms of this Agreement and the Plan, the terms of the
Plan
will govern. If there is any conflict between the terms of this Agreement and
the Option Agreement, the terms of this Agreement will govern to the extent
of
the conflict.
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10.
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Relocation
Allowance. You
are eligible to a
$90,000 (USD)
capped allowance to be used
towards:
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a)
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one
trip for family to identify housing
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b)
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temporary
housing
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c)
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moving
household expenses
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This
includes the cost of Aspreva contributing to rental of a temporary residence
in
Victoria of up to $2,000 USD per month for a period of up to two
years.
Expenses
will be reimbursed with receipts.
Subject
to Termination by Employee (Section 13), the Relocation allowance shall
repayable by you to the Corporation in accordance with the following schedule:
Years
of Employment Repayment
of Relocation Allowance
0-1
year Full
repayment of Relocation Allowance
1-2
years 2/3
of Relocation Allowance
2-3
years 1/3
of Relocation Allowance
after
3 years Nil
Please
note for 10a, if you wish to have the company coordinate an economy class return
trip for you, your spouse & dependants to assist with establishing residence
in Victoria as part of your relocation allowance, please contact Human
Resources.
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11.
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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.
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12.
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Service
to Employer.
During your employment under this Agreement you
will:
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(a)
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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;
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(b)
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comply
with all rules, regulations, policies and procedures of the Corporation;
and
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(c)
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not,
without the prior approval of the Board, 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.
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13.
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Termination
By Employee
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(a)
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You
may resign as Executive Vice-President and Chief Medical Officer
with 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 4 (Annual Review),
plus other sums owed for arrears of salary, vacation pay and, if
granted
pursuant to Section 5 (Performance Bonus),
bonus.
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(b)
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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 6 (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.
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14.
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Termination
by the Corporation Without Cause.
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(a)
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The
Corporation may terminate your employment as Executive Vice-President
and
Chief Medical Officer and require that you resign at any time without
Cause (as defined below) by giving you written notice of the effective
date of such termination and in all respects, except as set out below,
your resignation and the termination of your employment will be effective
immediately.
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(b)
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If
your employment is terminated by the Corporation pursuant to this
Section,
unless otherwise determined by the Board, 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 4 (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 5 (Performance Bonus),
bonus:
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Year
of Employment
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Lump
Sum Payment of Base Salary (as adjusted)
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1
- 2
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6
months
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after
2
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12
months
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(c)
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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 this
Agreement (the “Maintenance
Payments”)
during the full notice period as defined by 13.
(b).
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(d)
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If
you obtain a new source of remuneration for personal services, whether
through an office, new employment, a contract for you to provide
consulting or other personal services, or any position analogous
to any of
the foregoing, the Maintenance Payments shall terminate forthwith
on the
date of commencement of such office, employment, contract or position.
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(e)
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The
payments of Base Salary and benefits set out in this Section 14 shall
be
in lieu of any applicable notice period.
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15.
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Termination
by the Corporation for Cause.
Notwithstanding Section 13 (Termination by Employee), Section 14
(Termination by the Corporation Without Cause), the Corporation may
terminate your employment as Executive Vice-President and Chief Medical
Officer for Cause at any time without any notice or severance. In
this
Agreement, “Cause”
shall include, but not be limited to, the
following:
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(a)
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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;
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(b)
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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
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(c)
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persistent
unsatisfactory performance of your job duties after written notice
from
the company and a reasonable opportunity to cure, if
possible;
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(d)
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intentional
damage to any property of the
Corporation;
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(e)
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any
other matter constituting just cause at common
law.
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any
of which shall entitle the Corporation to terminate your employment under this
Section 15.
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16.
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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
Executive Vice-President and Chief Medical Officer of the Corporation
in
certain circumstances following a “Change in Control” of the Corporation
(as defined in the Change of Control
Agreement).
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17.
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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 13 (Termination by Employee), Section 14 (Termination
by the
Corporation Without Cause), Section 15 (Termination by the Corporation
for
Cause), Payment of any amount whatsoever pursuant to Section 13
(Termination by Employee), Section 14 (Termination by the Corporation
Without Cause), Section 15 (Termination by the Corporation for Cause),
Section 16 (Termination Following
Change in Control)shall
be subject to the withholding of all applicable statutory deductions
by
the Corporation.
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18.
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Confidentiality
and Assignment of Inventions.
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
A.
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19.
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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)
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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;
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(b)
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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
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(c)
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the
nature and extent of any conflict referred to in subsection (b)
above.
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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.
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20.
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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 19 (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 19 (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.
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21.
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Compliance
with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Guidelines and Restrictions.
As a result of your position as Executive Vice-President and Chief
Medical
Officer, you are subject to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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.
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22.
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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.
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23.
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Remedies.
You acknowledge and agree that any breach or threatened breach of
any of
the provisions of Section 12 (Service to Employer), Section 17
(Confidentiality and Assignment of Inventions), Section 19 (Disclosure
of
Conflicts of Interest) or Section 20 (Avoidance of Conflicts of Interest)
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
23
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.
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24.
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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.
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25.
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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.
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26.
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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.
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27.
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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 (excluding
you).
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28.
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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
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.
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29.
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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.
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30.
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Surviving
Obligations.
Your obligations and covenants under Section 18 (Confidentiality
and
Assignment of Inventions) and Section 23 (Remedies) shall survive
the
termination of this Agreement.
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31.
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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.
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32.
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Notice.
Any notice or other communication required or contemplated under
this
Agreement to be given by one party to the other shall be delivered
or
mailed by prepaid registered post to the party to receive same at
the
address as set out below:
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If
to the Corporation:
Aspreva
Pharmaceuticals Corporation
▇▇▇▇
- ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇
Attn: Farris,
Vaughan, ▇▇▇▇▇ & ▇▇▇▇▇▇
26th
Floor, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇ ▇▇▇
If
to:
▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇
Any
notice delivered shall be deemed to have been given and received on the first
business day following the date of delivery. Any notice mailed shall be deemed
to have been given and received on the fifth business day following the date
it
was posted, unless between the time of mailing and actual receipt of the notice
there shall be a mail strike, slow-down or other labour dispute which might
affect delivery of the notice by mail, then the notice shall be effective only
if actually delivered.
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33.
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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 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.
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34.
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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.
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35.
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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.
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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, at your expense, independent legal advice
or
any other advice you feel is necessary before you execute this
agreement.
Yours
truly,
ASPREVA
PHARMACEUTICALS CORPORATION
By: /s/
▇▇▇▇▇▇▇ Glickman___________________________________
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Accepted
and agreed to by ▇▇▇▇▇ ▇▇▇▇ as of the 6th January, 2007
/s/
Usman Azam____________________
▇▇.
▇▇▇▇▇ ▇▇▇▇
SCHEDULE
A
CONFIDENTIALITY
AGREEMENT AND
ASSIGNMENT
OF INVENTIONS
ASPREVA
PHARMACEUTICALS CORPORATION
PRIVATE
AND CONFIDENTIAL
▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇
Dear
Oz:
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
January 3rd,
2007.
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:
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2.
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INTERPRETATION
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| 2.1 | Definitions. In this Agreement: |
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(a)
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“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:
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(i)
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from
which Aspreva derives economic value, actual or potential, from the
information not being generally known;
or
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(ii)
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in
respect of which Aspreva otherwise has a legitimate interest in
maintaining secrecy;
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and
which, without limiting the generality of the foregoing, shall
include;
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(iii)
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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;
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(iv)
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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;
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(v)
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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;
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(vi)
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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;
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(vii)
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all
information provided by Aspreva’s agents, consultants, lawyers,
contractors, licensors or licensees to Aspreva and relating to Aspreva’s
Business; and
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(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.
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(b)
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“Inventions”
shall mean any and all discoveries, developments, enhancements,
improvements, concepts, formulas, processes, ideas, writings, whether
or
not 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.
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(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.
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(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.
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3.
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CONFIDENTIALITY
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3.1
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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.
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3.2
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Fiduciary
Capacity.
You will be and act toward Aspreva as a fiduciary in respect of the
Confidential Information.
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3.3
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Non-disclosure.
Unless Aspreva first gives 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;
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(a)
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use
or copy Confidential Information or your recollections thereof;
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(b)
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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;
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(c)
|
permit
or cause any Confidential Information to be used, copied, published,
disclosed, translated or adapted except as otherwise expressly permitted
by this Agreement;
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(d)
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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
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(e)
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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.
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3.4
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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.
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3.5
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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.
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3.6
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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.
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3.7
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Purpose
of Use.
You will use Confidential Information only for purposes authorised
or
directed by Aspreva.
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3.8
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Exemptions.
Your obligation of confidentiality under this Agreement will not
apply to
any of the following:
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(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;
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(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;
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(c)
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information
that is developed by you independently of Confidential Information
received from Aspreva and such independent development can be documented
by you;
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(d)
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other
particular information or material which Aspreva expressly exempts
by
written instrument signed by
Aspreva;
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(e)
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information
or material that is in the public domain through no fault of your
own;
and
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(f)
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information
or material that you are obligated by law to disclose, to the extent
of
such obligation, provided that:
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(g)
|
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;
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(h)
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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;
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(i)
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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
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(j)
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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.
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4.
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ASSIGNMENT
OF INTELLECTUAL PROPERTY
RIGHTS
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4.1
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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.
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4.2
|
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 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.
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4.3
|
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.
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4.4
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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.
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4.5
|
Assistance.
You hereby agree to reasonably assist Aspreva, at Aspreva’s request and
expense, in:
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(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;
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(b)
|
making
applications for all other forms of intellectual property registration
relating to your Work Product;
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(c)
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prosecuting
and maintaining the patent applications and other intellectual property
relating to your Work Product; and
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(d)
|
registering,
maintaining and enforcing the patents and other intellectual property
registrations relating to your Work
Product.
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4.6
|
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.
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5.
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GENERAL
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5.1
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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.
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5.2
|
Binding
Nature of Agreement.
This Agreement is not assignable by you. You agree that this Agreement
shall be binding upon your heirs and
estate.
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5.3
|
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.
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5.4
|
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.
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5.5
|
Equitable
Remedies.
You acknowledge and agree that a breach by you of any of your obligations
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.
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5.6
|
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.
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5.7
|
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 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.
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5.8
|
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.
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5.9
|
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.
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5.10
|
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
first-class mail) to the parties at the addresses indicated
below.
|
If
to Aspreva:
Aspreva
Pharmaceuticals Corporation
▇▇▇▇
- ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇
Attn: Farris,
Vaughan, ▇▇▇▇▇ & ▇▇▇▇▇▇
26th
Floor, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇ ▇▇▇
If
to:
▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇
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
4.10.
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5.11
|
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.
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5.12
|
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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5.13
|
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.
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|
5.14
|
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/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Accepted
and agreed as of the January 3rd,
2007
| /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
/s/
▇▇▇▇▇ ▇▇▇▇
|
|
|
Witness
Signature
|
Signature
of employee
|
|
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||
|
Witness
Name
|
||
| Physician | ||
|
Occupation
|
||
| ▇ ▇▇▇▇▇▇ ▇▇▇ | ||
| ▇▇▇ ▇▇▇▇▇, ▇▇ | ||
| ▇▇▇▇▇ | ||
|
Address
|