Employment Agreement

EMPLOYMENT AGREEMENT ASPREVA PHARMACEUTICALS CORPORATION 1203- 4464 Markham St. Victoria BC. V8Z 7X8

Exhibit 10.11
 
 
ASPREVA PHARMACEUTICALS

29th May, 2007

Bruce Cousins
4505 Emily Carr Dr
Victoria. V8X 2N5. B.C.

Dear Bruce:

It is with great pleasure that I present you with this employment agreement for the position of Executive Vice President (EVP) and Chief Finance Officer. The fundamental terms are outlined below. A more detailed employment agreement is attached. If these details and terms are acceptable and you wish to proceed, please sign and return the attached employment agreement which includes the Confidentiality Disclosure Agreement and Position Description, to my attention.
 
Position:
EVP and Chief Finance Officer
   
Department:
Executive
 
 
Manager:
CEO
   
Start Date:
continuous with previous contract
   
Salary Base:
$360,000 CDN (unchanged)
   
Bonus:
Up to 40% of annual salary based on achieving certain objectives determined by management in its sole discretion, weighted 60% personal and 40% corporate.
   
Benefits:
You will be entitled to continuing participation in the standard Aspreva medical/dental programs subject to meeting any requirements of the provider
   
Tax Support:
As detailed in our letter of 21st Oct, 2005, support remains ongoing and expenses are reimbursed through receipts.
   
Vacation:
4 Weeks (20 days) with additional 3 personal days as outlined within Canadian Policies and Procedures
 
All employees will be required to sign confidentiality and IP assignment agreements and employment will comply with the BC Employees Standards Act.

In order to comply with CCRA, HRDC and BC Employment Standards, Aspreva Pharmaceuticals will be collecting, using and disclosing certain personal information required by these various government agencies as well as our benefits providers.
If you have any questions or concerns please feel free to contact me: 250-744-2488.

Sincerely,

ASPREVA PHARMACEUTICALS CORPORATION


R. Glickman
Chief Executive Officer

 
/s/ R. Glickman                                                    
 



 
ASPREVA PHARMACEUTICALS CORPORATION
1203- 4464 Markham St. Victoria BC. V8Z 7X8
 
 
PRIVATE AND CONFIDENTIAL
 
29th May, 2007
 
Bruce Cousins
4505 Emily Carr Dr
Victoria. V8X 2N5.
B.C.

Dear Bruce:
 
Re:
Terms of Employment with ASPREVA PHARMACEUTICALS CORPORATION (the “Corporation”)
 
This Agreement confirms the terms and conditions of your employment by the Corporation and will constitute your employment agreement. Those terms and conditions are set out below:
 
1.
Position and Duties. You will be employed by and will serve the Corporation as its Executive Vice President (EVP) and Chief Finance Officer. You will report directly to the Chief Executive Officer (CEO). Your duties and functions are outlined in the attached position description (HR122C - 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 its discretion, exercised reasonably. These duties and functions will be conducted in accordance with and adhering to all corporate policies and procedures.
 
2.
Term. The terms and conditions of this Agreement shall have effect as of and from 29th May 2007 the (“Effective Date”), it will provide for continuous service, subsequent to your original contract dated 8th March 2004 and your employment as Executive Vice President (EVP) and Chief Finance Officer of the Corporation shall continue until terminated as provided for in this Agreement.
 
3.
Base Salary. The Corporation shall pay you a base salary at the rate of $360,000 CDN 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.
 
4.
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 senior management.
 

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5.
Performance Bonus.
 
 
(a)
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 40% 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 the Board or Compensation Committee and with you.
 
6.
Benefits.
 
(a)          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. You further acknowledge and agree that the components of the benefits package may be amended, modified or terminated from time to time by the Corporation in its sole discretion, and this may include terminating or changing carriers.
 
 
(b)
We are pleased to confirm your tax support is on-going as per the letter dated 21st October, 2005 for use in preparation of American and Canadian personal income tax returns. Expenses are reimbursed through receipts. This is a taxable benefit to you as the employee.
 
7.
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.
 
In line with all Canadian employees, you are also entitled to 3 personal days per annum in lieu of the previous Christmas week closure arrangements.
 
8.
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.
 
9.        Stock Options.
 
You remain eligible to receive stock options (the “Options”), as per the Aspreva 2002 Incentive Stock Option Plan, as amended (the “Plan”). The Options will cease to vest on the following occurrences:
 
 
(a)
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)
on the date the Corporation provides you with written notice of its decision to terminate your employment pursuant to Section 14 (Termination without Cause);
 
 
(c)
on the date the Corporation terminates your employment pursuant to Section 15 (Termination for Cause); or
 
 
 
(d)
otherwise on the date this Agreement is terminated or deemed terminated.
 
For greater certainty; neither the period of notice nor any payment in lieu thereof will be considered as extending the period of your employment with respect to the vesting or exercise of the options granted in this Section 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.
 
10.
Compliance With Insider Trading Guidelines and Restrictions. As a result of your position as EVP and CFO, you are subject to insider trading regulations and restrictions and are required to file insider reports disclosing the grant of any options as well as the purchase and sale of any shares in the capital of the Corporation. The Corporation may from time to time publish trading guidelines and restrictions for its employees, officers and directors as are considered by the Board, in its discretion, prudent and necessary for a publicly listed company. It is a term of your employment as a senior officer of the Corporation that you comply with such guidelines and restrictions.
 
11.
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.
 
12.
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.
 
13.
Service to Employer. During your employment under this Agreement you will:
 
 
(a)
well and faithfully serve the Corporation, at all times act in, and promote, the best interests of the Corporation, and devote substantially the whole of your working time, attention and energies to the business and affairs of the Corporation;
 
 
(b)
comply with all rules, regulations, policies and procedures of the Corporation; and
 
 
(c)
not, without the prior approval of the Board, 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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14.
Termination By Employee
 
 
(a)
Subject to Section 21 (Termination Following Change in Control) you may resign as EVP and Chief Finance Officer with at least 3 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 3 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.
 
 
(b)
If the Corporation elects to pay you such lump sum in lieu of the 3 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 3 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.
 
15.
Termination by the Corporation Without Cause.
 
 
(a)
The Corporation may terminate your employment as EVP and Chief Finance Officer 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.
 
 
(b)
If your employment is terminated by the Corporation pursuant to this Section 15, 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:
 
 
Year of Employment
 
Lump Sum Payment of Base Salary (as adjusted)
   
1 - 2
6 months
   
2 - 5
12 months
   
5 or more
12 months, plus one additional month for each full year of employment over 5 years, up to a maximum of 18 months aggregate
 
 
(c)
To the extent permitted by law and subject to the terms and conditions of any benefit plans in effect from time to time, the Corporation shall maintain the benefits and payments set out in Section 6 (Benefits) of this Agreement (the “Maintenance Payments”) during a period of 6 months following termination.
 

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(d)
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.
 
 
(e)
The payments of Base Salary and benefits set out in this Section 15 shall be in lieu of any applicable notice period.
 
16.
Termination by the Corporation for Cause. Notwithstanding Section 14 (Termination by Employee), Section 15 (Termination by the Corporation Without Cause), or Section 21 (Termination Following Change in Control) the Corporation may terminate your employment as EVP and Chief Finance Officer for Cause at any time without any notice or severance. In this Agreement, “Cause” shall include, but not be limited to, the following:
 
 
(a)
the commission of theft, embezzlement, fraud, obtaining funds or property under false pretences or similar acts of misconduct with respect to the property of the Corporation or its employees or the Corporation’s customers or suppliers;
 
 
(b)
your entering of a guilty plea or conviction for any crime involving fraud, misrepresentation or breach of trust, or for any serious criminal offence that impacts adversely on the Corporation; or
 
 
(c)
persistent unsatisfactory performance of your job duties after written notice from the company and a reasonable opportunity to cure, if possible;
 
 
(d)
intentional damage to any property of the Corporation;
 
 
(e)
any other matter constituting just cause at common law.
 
any of which shall entitle the Corporation to terminate your employment under this Section 16.
 
17.
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 14 (Termination by Employee), Section 15 (Termination by the Corporation Without Cause), Section 16 (Termination by the Corporation for Cause), Payment of any amount whatsoever pursuant to Section 14 (Termination by Employee), Section 15 (Termination by the Corporation Without Cause), Section 16 (Termination by the Corporation for Cause), shall be subject to the withholding of all applicable statutory deductions by the Corporation.
 
18.
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.
Disclosure of Conflicts of Interest. During your employment with the Corporation, you will promptly, fully and frankly disclose to the Corporation in writing:
 
 
(a)
the nature and extent of any interest you or your Associates (as hereinafter defined) have or may have, directly or indirectly, in any contract or transaction or proposed contract or transaction of or with the Corporation or any subsidiary or affiliate of the Corporation;
 
 
(b)
every office you may hold or acquire, and every property you or your Associates may possess or acquire, whereby directly or indirectly a duty or interest might be created in conflict with the interests of the Corporation or your duties and obligations under this Agreement; and
 
 
(c)
the nature and extent of any conflict referred to in subsection (b) above.
 
In this Agreement the expression “Associate” shall include all those persons and entities that are included within the definition or meaning of “associate” as set forth in Section 1(1) of the Company Act (British Columbia), as amended, or any successor legislation of similar force and effect, and shall also include your spouse, children, parents, brothers and sisters.
 
20.
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 18 (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 18 (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.
 
21.
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 EVP and Chief Finance Officer of the Corporation in certain circumstances following a “Change in Control” of the Corporation (as defined in the Change of Control Agreement).
 
22.
Provisions Reasonable. It is acknowledged and agreed that:
 
 
(a)
both before and since the Effective Date the Corporation has operated and competed and will operate and compete in a global market, with respect to the business of the Corporation set out in Schedule C attached hereto (the “Business”);
 
 
(b)
competitors of the Corporation and the Business are located in countries around the world;
 
 
(c)
in order to protect the Corporation adequately, any enjoinder of competition would have to apply world wide;
 

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(d)
during the course of your employment by the Corporation, both before and after the Effective Date, on behalf of the Corporation, you have acquired and will acquire knowledge of, and you have come into contact with, initiated and established relationships with and will come into contact with, initiate and establish relationships with, both existing and new clients, customers, suppliers, principals, contacts and prospects of the Corporation, and that in some circumstances you have been or may well become the senior or sole representative of the Corporation dealing with such persons; and
 
 
(e)
in light of the foregoing, the provisions of Section 23 (Restrictive Covenant) below are reasonable and necessary for the proper protection of the business, property and goodwill of the Corporation and the Business.
 
23.
Restrictive Covenant. Subject to the exceptions set out in Schedule D attached hereto, you agree that you will not, either alone or in partnership or in conjunction with any person, firm, company, corporation, syndicate, association or any other entity or group, whether as principal, agent, employee, director, officer, shareholder, consultant or in any capacity or manner whatsoever, whether directly or indirectly, for the Term of Employment and continuing for a period of 6 months from the lawful termination of your employment, regardless of the reason for such termination:
 
 
(a)
carry on or be engaged in, concerned with or interested in, or advise, invest in or give financial assistance to, any business, enterprise or undertaking that:
 
 
(i)
is involved in the Business or in the sale, distribution, development or supply of any product or service that is competitive with the Business or any product or service of the Business; or
 
 
(ii)
competes with the Corporation with respect to any aspect of the Business;
 
provided, however, that the foregoing will not prohibit you from acquiring, solely as an investment and through market purchases, securities of any such enterprise or undertaking which are publicly traded, so long as you are not part of any control group of such entity and such securities, which if converted, do not constitute more than 5% of the outstanding voting power of that entity;
 
 
(b)
solicit, agree to be employed by, or agree to provide services to any person, firm, corporation or other entity that was a client, customer, supplier, principal, shareholder, investor, collaborator, strategic partner, licensee, contact or prospect of the Corporation during the time of your employment with the Corporation, whether before or after the Effective Date, for any business purpose that is competitive with the Business or any product or service of the Business; or
 
 
(c)
divert, entice or take away from the Corporation or attempt to do so or solicit for the purpose of doing so, any business of the Corporation, or any person, firm, corporation or other entity that was an employee, client, customer, supplier, principal, shareholder, investor, collaborator, strategic partner, licensee, contact or prospect of the Corporation during the time of your employment with the Corporation, whether before or after the Effective Date.
 

 
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24.
Remedies. You acknowledge and agree that any breach or threatened breach of any of the provisions of Section 13 (Service to Employer), Section 18 (Confidentiality and Assignment of Inventions), Section 19 (Disclosure of Conflicts of Interest), Section 20 (Avoidance of Conflicts of Interest) or Section 23 (Restrictive Covenant) could cause irreparable damage to the Corporation or its partners, subsidiaries or affiliates, that such harm could not be adequately compensated by the Corporation’s recovery of monetary damages, and that in the event of a breach or threatened breach thereof, the Corporation shall have the right to seek an injunction, specific performance or other equitable relief as well as any equitable accounting of all your profits or benefits arising out of any such breach. It is further acknowledged and agreed that the remedies of the Corporation specified in this Section 24 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.
 
25.
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.
 
26.
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.
 
27.
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.
 
28.
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).
 
29.
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.
 
30.
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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31.
Surviving Obligations. Your obligations and covenants under Section 18 (Confidentiality and Assignment of Inventions), Section 23 (Restrictive Covenant) and Section 24 (Remedies) shall survive the termination of this Agreement.
 
32.
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.
 
33.
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:
 
If to the Corporation:
Aspreva Pharmaceuticals Corporation
Farris, Vaughan, Wills & Murphy
26th Floor, 700 West Georgia Street
Vancouver, BC V7Y 1B3
Attn: R. Hector MacKay-Dunn


 
If to: Bruce Cousins
Attn : Bruce Cousins
4505 Emily Carr Dr
Victoria. V8X 2N5, B.C.
 
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.
 
34.
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.
 
35.
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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36.
Counterparts. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts will together constitute but one Agreement.
 
If you accept and agree to the foregoing, please confirm your acceptance and agreement by signing the enclosed duplicate copy of this letter where indicated below and by returning it to us. You are urged to consider fully all the above terms and conditions and to obtain, 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/ R. Glickman
     
R Glickman
Accepted and agreed to by B Cousins as of the 29th May, 2007
     
       
/s/ Bruce Cousins      
Bruce Cousins
     
 
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SCHEDULE A
 
CONFIDENTIALITY AGREEMENT AND
ASSIGNMENT OF INVENTIONS
 
ASPREVA PHARMACEUTICALS CORPORATION
 
 
PRIVATE AND CONFIDENTIAL
 
29th May, 2007
Bruce Cousins
4505 Emily Carr Dr
Victoria. V8X 2N5, B.C.
 
Dear Bruce:
 
The purpose of this letter is to re-confirm and update 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 original employment agreement between you and Aspreva dated as of 8th March 2004
 
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:
 
2.
INTERPRETATION
   
2.1 Definitions. In this Agreement:
 
 
(a)
Confidential Information”, subject to the exemptions set out in Section 2.8, shall mean any information relating to Aspreva’s Business (as hereinafter defined), whether or not conceived, originated, discovered, or developed in whole or in part by you, that is not generally known to the public or to other persons who are not bound by obligations of confidentiality and:
 
 
(i)
from which Aspreva derives economic value, actual or potential, from the information not being generally known; or
 
 
(ii)
in respect of which Aspreva otherwise has a legitimate interest in maintaining secrecy;
 
and which, without limiting the generality of the foregoing, shall include;
 


 
 
(iii)
all proprietary information licensed to, acquired, used or developed by Aspreva in its search and development activities including but not restricted to the development and commercialization of drugs for rare diseases and conditions and orphan drugs as defined by the U.S. Orphan Drug Act, other scientific strategies and concepts, designs, know-how, information, material, formulas, processes, research data and proprietary rights in the nature of copyrights, patents, trademarks, licenses and industrial designs;
 
 
(iv)
all information relating to Aspreva’s Business, and to all other aspects of Aspreva’s structure, personnel, and operations, including financial, clinical, regulatory, marketing, advertising and commercial information and strategies, customer lists, compilations, agreements and contractual records and correspondence; programs, devices, concepts, inventions, designs, methods, processes, data, know-how, unique combinations of separate items that is not generally known and items provided or disclosed to Aspreva by third parties subject to restrictions on use or disclosure;
 
 
(v)
all know-how relating to Aspreva’s Business including, all biological, chemical, pharmacological, toxicological, pharmaceutical, physical and analytical, clinical, safety, manufacturing and quality control data and information, and all applications, registrations, licenses, authorizations, approvals and correspondence submitted to regulatory authorities;
 
 
(vi)
all information relating to the businesses of competitors of Aspreva including information relating to competitors’ research and development, intellectual property, operations, financial, clinical, regulatory, marketing, advertising and commercial strategies, that is not generally known;
 
 
(vii)
all information provided by Aspreva’s agents, consultants, lawyers, contractors, licensors or licensees to Aspreva and relating to Aspreva’s Business; and
 
 
(viii)
all information relating to your compensation and benefits, including your salary, vacation, stock options, rights to continuing education, perquisites, severance notice, rights on termination and all other compensation and benefits, except that you shall be entitled to disclose such information to your bankers, advisors, agents, consultants and other third parties who have a duty of confidence to you and who have a need to know such information in order to provide advice, products or services to you.
 
 
(b)
Inventions” shall mean any and all discoveries, developments, enhancements, improvements, concepts, formulas, processes, ideas, writings, whether or not 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.
 
 
(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.
 
3.
CONFIDENTIALITY
 
3.1                Basic Obligation of Confidentiality. You hereby acknowledge and agree that in the course of your involvement with Aspreva, Aspreva may disclose to you or you may otherwise have access or be exposed to Confidential Information. Aspreva hereby agrees to provide such access to you and you agree to receive and hold all Confidential Information on the terms and conditions set out in this Agreement. Except as set out in this Agreement, you will keep strictly confidential all Confidential Information and all other information belonging to Aspreva that you acquire, observe or are informed of, directly or indirectly, in connection with your involvement, in any capacity, with Aspreva.
 
3.2                Fiduciary Capacity. You will be and act toward Aspreva as a fiduciary in respect of the Confidential Information.
 
3.3                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;
 
 
(a)
use or copy Confidential Information or your recollections thereof;
 
 
(b)
publish or disclose Confidential Information or your recollections thereof to any person other than to employees of Aspreva who have a need to know such Confidential Information for their work for Aspreva;
 
 
(c)
permit or cause any Confidential Information to be used, copied, published, disclosed, translated or adapted except as otherwise expressly permitted by this Agreement;
 
 
(d)
permit or cause any Confidential Information to be stored off the premises of Aspreva, including permitting or causing such Information to be stored in electronic format on personal computers, except in accordance with written procedures of Aspreva, as amended from time to time in writing; or
 
 
(e)
communicate the Confidential Information or your recollections thereof to another employee of Aspreva in a public place or using methods of communication that are capable of being intercepted (such as unencrypted messages using the internet or cellular phones) or overheard, without the written permission of Aspreva.
 

 
- 3 -


 
3.4            Taking Precautions. You will take all reasonable precautions necessary or prudent to prevent material in your possession or control that contains or refers to Confidential Information from being discovered, used or copied by third parties.
 
3.5            Aspreva’s Ownership of Confidential Information. As between you and Aspreva, Aspreva shall own all right, title and interest in and to the Confidential Information, whether or not created or developed by you.
 
3.6            Control of Confidential Information and Return of Information. All physical materials produced or prepared by you containing Confidential Information, including, without limitation, biological material, chemical entities, test results, notes of experiments, computer files, photographs, x-ray film, designs, devices, formulas, memoranda, drawings, plans, prototypes, samples, accounts, reports, financial statements, estimates and materials prepared in the course of your responsibilities to or for the benefit of Aspreva, shall belong to Aspreva, and you will promptly turn over to Aspreva’s possession every original and copy of any and all such items in your possession or control upon request by Aspreva. You shall not permit or cause any physical materials to be stored off the premises of Aspreva, unless in accordance with written procedures of Aspreva, as amended from time to time in writing. You shall not transfer any biological material to another person outside of Aspreva, unless a material transfer agreement has been signed by both Aspreva and the other party. You shall not accept any biological material from another person outside of Aspreva, unless in accordance with written procedures of Aspreva, as amended from time to time in writing.
 
3.7            Purpose of Use. You will use Confidential Information only for purposes authorised or directed by Aspreva.
 
3.8            Exemptions. Your obligation of confidentiality under this Agreement will not apply to any of the following:
 
 
(a)
information that is already known to you, though not due to a prior disclosure by Aspreva or by a person who obtained knowledge of the information, directly or indirectly, from Aspreva;
 
 
(b)
information disclosed to you by another person who is not obliged to maintain the confidentiality of that information and who did not obtain knowledge of the information, directly or indirectly, from Aspreva;
 
 
(c)
information that is developed by you independently of Confidential Information received from Aspreva and such independent development can be documented by you;
 
 
(d)
other particular information or material which Aspreva expressly exempts by written instrument signed by Aspreva;
 
 
(e)
information or material that is in the public domain through no fault of your own; and
 
 
(f)
information or material that you are obligated by law to disclose, to the extent of such obligation, provided that:
 
 
(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;
 
 
- 4 -

 
 
(h)
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;
 
 
(i)
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
 
 
(j)
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.
 
4.
ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS
 
4.1                  Notice of Invention. You agree to promptly and fully inform Aspreva of all your Work Product, whether or not patentable, throughout the course of your involvement, in any capacity, with Aspreva, whether or not developed before or after your execution of this Agreement. On your ceasing to be employed by Aspreva for any reason whatsoever, you will immediately deliver up to Aspreva all of your Work Product. You further agree that all of your Work Product shall at all times be the Confidential Information of Aspreva.
 
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.
 
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.
 
4.4                  Goodwill. You hereby agree that all goodwill you have established or may establish with clients, customers, suppliers, principals, shareholders, investors, collaborators, strategic partners, licensees, contacts or prospects of Aspreva relating to the business or affairs of Aspreva (or of its partners, subsidiaries or affiliates), both before and after the Effective Date, shall, as between you and Aspreva, be and remain the property of Aspreva exclusively, for Aspreva to use, alter, vary, adapt and exploit as Aspreva shall determine in its discretion.
 

- 5 -

 
4.5                  Assistance. You hereby agree to reasonably assist Aspreva, at Aspreva’s request and expense, in:
 
 
(a)
making patent applications for your Work Product, including instructions to lawyers and/or patent agents as to the characteristics of your Work Product in sufficient detail to enable the preparation of a suitable patent specification, to execute all formal documentation incidental to an application for letters patent and to execute assignment documents in favour of Aspreva for such applications;
 
 
(b)
making applications for all other forms of intellectual property registration relating to your Work Product;
 
 
(c)
prosecuting and maintaining the patent applications and other intellectual property relating to your Work Product; and
 
 
(d)
registering, maintaining and enforcing the patents and other intellectual property registrations relating to your Work Product.
 
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.
 
5.
GENERAL
 
5.1                  Term and Duration of Obligation. The term of this Agreement is from the Effective Date and terminates on the date that you are no longer working at or for Aspreva. Except as otherwise agreed in a written instrument signed by Aspreva, Article 2 shall survive the termination of this Agreement, including your obligations of confidentiality and to return Confidential Information, and shall endure, with respect to each item of Confidential Information, for so long as those items fall within the definition of Confidential Information. Sections 1.1, 3.2, 3.3, 3.4, 3.5, 3.6, 4.1, 4.2, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12 and 4.13 shall also survive the termination of this Agreement.
 
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.
 
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.
 
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.
 
- 6 -

 
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.
 
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.
 
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.
 
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.
 
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.
 
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
Farris, Vaughan, Wills & Murphy
26th Floor, 700 West Georgia Street
Vancouver, BC V7Y 1B3
Attn: R. Hector MacKay-Dunn


 
If to:
Bruce Cousins
4505 Emily Carr Dr
Victoria. 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 4.10.
 

- 7 -

 
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.
 
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.
 
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.
 
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/ R. Glickman    
 
 
Accepted and agreed as of the 29th May, 2007
 
 
/s/ M. Thornton
 
/s/ Bruce Cousins
Witness Signature
 
Signature of employee 
     
M. Thornton
   
Witness Name
   
     
HR Director
   
Occupation
   
     
Aspreva Inc.
   
Address
   
 

- 8 -



 
EXHIBIT A
 
EXCLUSION FROM WORK PRODUCT
 

 
None
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 



 
EXHIBIT B


EVP & Chief Financial Officer

Aspreva Position:   #0122c

Name:                                        Bruce Cousins

Reports to:                                CEO

Department:                             Finance

Location:   Victoria, BC

Purpose of Position

The EVP & Chief Financial Officer will be responsible for all company financial activities globally and will oversee the operational effectiveness of Aspreva via the Executive Management Team
 
Responsibilities:
Build and manage relationships with the investment community, investors, partners, attorneys and vendors
Develop and lead financing initiatives
Negotiate contracts and equity arrangements
Provide direction for accounting, forecast and budget functions ensuring all general economic, business and financial conditions have been considered
Direct and control the organization’s overall financial policies for compliance with CDN, US and EU accounting, tax and public reporting requirements
Identify and solve problems in international reporting
Set treasury direction
Provide Strategic Direction to the Finance, Information Systems, Corporate Communications and HR functions.
Provide strategic and operational guidance to the Executive management Team and through that team ensure alignment and efficient operation of all aspects of Aspreva
Oversee and direct the Business Analytics function globally, supporting Clinical, Finance, Corporate, Commercial and Business Development groups; including provision of forecasting, market research and analytics, business development evaluations and analytics, sales tracking amongst other products delivered.
You will agree to comply with all signatory limits as communicated by the finance function on behalf of the company.
You will comply with all Corporate Policies, rules, and regulations as set out and communicated by the company pursuant to good business practice.

Requirements:
5 to 10 years experience in a globally oriented organization in a financial management role, preferably in the pharmaceutical industry
Extensive public company experience is preferred
MBA and/or Professional Accounting designation
An intelligent, creative and articulate individual who can relate to people at all levels of an organization and possesses excellent communication skills
Energetic and enthusiastic, with the drive and determination to improve quality at every level and the business acumen to manage complex issues and environments

 


Position Description Sign-off
 
I have read and I understand the contents of this job description.
 
       
       
Employee:
/s/ Bruce Cousins
Date:
 
       
       
This description is an accurate statement of the position’s assigned duties, responsibilities and reporting relationships as at__________________________________.
       
       
Manager:
/s/ R. Glickman
Title:
 
       
   
Human Resources:
 
       
       
Signature:
/s/ M. Thornton
Date:
 
 
 
 
- 2 -


 
SCHEDULE B
 
ASPREVA PHARMACEUTICALS CORPORATION
 
As of 29th May, 2007
 

Bruce Cousins
4505 Emily Carr Dr
Victoria. V8X 2N5, B.C.
 
Dear Bruce:
 
Re: Change in Control Agreement
 
Aspreva Pharmaceuticals Corporation (the “Corporation”) considers it essential to the best interests of its members to foster the continuous employment of its senior executive officers. In this regard, the Board of Directors of the Corporation (the “Board”) has determined that it is in the best interests of the Corporation and its members that appropriate steps should be taken to reinforce and encourage management’s continued attention, dedication and availability to the Corporation in the event of a Potential Change in Control (as defined in Section 2), without being distracted by the uncertainties which can arise from any possible changes in control of the Corporation.
 
In order to induce you to agree to remain in the employ of the Corporation, such agreement evidenced by the employment agreement entered into as of the date of this Agreement between you and the Corporation (the “Employment Agreement”) and in consideration of your agreement as set forth in Section 3 below, the Corporation agrees that you shall receive and you agree to accept the severance and other benefits set forth in this Agreement should your employment with the Corporation be terminated subsequent to a Change in Control (as defined in Section 2) in full satisfaction of any and all claims that now exist or then may exist for remuneration, fees, salary, bonuses or severance arising out of or in connection with your employment by the Corporation or the termination of your employment:
 

 
1.
Term of Agreement.
 
This Agreement shall be in effect for a term commencing on the Effective Date of the Employment Agreement (as therein defined) and ending on the date of termination of the Employment Agreement.
 
 
2.
Definitions.
 
 
a.
“Affiliate” means a corporation that is an affiliate of the Corporation under the Securities Act (British Columbia), as amended from time to time.
     
  b.  “Change in Control” of the Corporation shall be deemed to have occurred:

- 3 -


 
(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.
 
- 4 -

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.
     
 
 

 
- 5 -


 
 
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.
 
- 6 -

 
 
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
Farris, Vaughan, Wills & Murphy
26th Floor, 700 West Georgia Street
Vancouver, BC V7Y 1B3
 
Attn: R. Hector MacKay-Dunn
 

 
If to Mr. Bruce Cousins:
Bruce Cousins
4505 Emily Carr Dr
Victoria. 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.
 
- 7 -

 
 
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/ R. Glickman
     
Authorized Signatory
Accepted and agreed to by Mr.Bruce Cousins as of the 29th May, 2007
     
       
/s/ Bruce Cousins
     
Mr. Bruce Cousins
     
 


- 8 -


 
SCHEDULE C
 
BUSINESS OF THE COMPANY
 
The business of the Corporation shall mean the business actually carried on by the Corporation, directly or indirectly, whether under an agreement with or in collaboration with any other party including, but not limited to the development and commercialization of drugs for less common and rare diseases and conditions and orphan drugs as defined by the U.S. Orphan Drug Act.

- 9 -




SCHEDULE D

EXCEPTION TO RESTRICTIVE COVENANT



MedBioGene





Aspreva Pharmaceuticals Canadian Information Technology Acceptable Use Policy (CA)

Issued Date: Aug 24 2004
Effective Date: Jan 01 2005


Acceptable Use Agreement Acknowledgement

Please read the following statements and sign below to indicate your receipt and acknowledgment of the Aspreva Pharmaceuticals CA Information Technology Acceptable Use Policy.
 
I have received access to a copy of the Aspreva Pharmaceuticals CA Information Technology Acceptable Use Policy. I understand that the policy described is subject to change at the sole discretion of Aspreva at any time. I understand that nothing contained in this policy or this acknowledgment page, in whole or in part, shall act as a contract or guarantee of employment.
 
I agree to follow and be bound by the rules and regulations of Aspreva at all times during my employment with Aspreva Pharmaceuticals.
 
I understand that my signature below indicates that I have read and understand the above statements and have received access to a copy of the Aspreva Pharmaceuticals CA Information Technology Acceptable Use Policy.
 
A signed copy of this page should be forwarded to Human Resources. If you have any questions, please see Human Resources.
 
/s/ Bruce Cousins
 
EVP & CFO
Employee’s Signature   Position
     
B. Cousins
 
May 30, 2007
Printed Name   Date
 

 
- 2 -


Acceptable Use Policy


1.0     Purpose:
4
2.0     Revision History:
4
3.0     Persons, Groups, & Systems Affected:
4
4.0     Policy:
4
5.0     Definitions:
7
6.0     Responsibilities
7
7.0     Technical
8
8.0     Security
8
9.0     Procedures
8
 
- 3 -

Acceptable Use Agreement Acknowledgement
 
6.
1.0 PURPOSE: 
This policy identifies acceptable use of information technology resources of Aspreva, provides awareness of expected end-user behavior, and is also intended to safeguard IT resources. This policy requires that end-users maintain respect for the privacy of personal information at all times. A cooperative effort from every employee is necessary to prevent misuse, eliminate the risk of liability to the Corporation, and promote the efficient utilization of IT resources and information technology services. All existing Corporation policies apply to the use of IT resources.
 
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2.0 REVISION HISTORY:
Date
Revision Number
Aug 25 2004
03
 
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3.0 PERSONS, GROUPS, & SYSTEMS AFFECTED:
3.1 All Aspreva computer end-users; including employees, interns or co-ops, vendors, contractors, and volunteers.
3.2 Corporation hosted application service users at home, traveling, or wireless access points.
3.3 System and network administrators.
3.4 Lead-workers, supervisors, administrators, and management at all levels.
3.5 All mobile devices and their users, such as Blackberries, Palms or Ipaqs.
3.6 All computing equipment, desktop computers, projectors, laptops, phones, devices, systems, servers, and data networks and any peripherals of stated equipment.
 
9.
4.0 POLICY:
4.1 A primary function of Aspreva Information Services is to provide and support end-user computing devices, systems, applications, and network communications resources. These resources are for the official use by employees and others to meet the daily operational and business requirements of departments, offices, and the sub-offices of Aspreva Pharmaceuticals Corporation. Information technology resources provided to employees and others are for the purpose of delivering services to the Corporation’s diverse groups of customers in a more efficient manner. No personal or personnel information is to be kept on the network outside of the Human Resources file data. The Human Resource files are properly safeguarded against intrusion and access by unauthorized personnel. Employees should have no expectations of personal privacy protection when using Corporation owned IT resources. The Corporation may monitor and investigate complaints regarding the use of IT resources to ensure compliance with this policy and other Corporation policies and procedures. The Corporation reserves the right to inspect all files stored in private areas of its network in order to ensure compliance with this policy.
4.2 Acceptable uses of IT resources include:
A. Uses authorized by department business processes, with the exception of items listed in section 4.3.
B. Personal use by employees and others for interaction with human resource, time accounting, compensation, and employee benefits and health administration programs managed by or administered for Aspreva. Personal use is also permitted during meal breaks provided that this policy is otherwise adhered to and such use does not interfere with job duties or the business interests of the Corporation.
C. Access to information and data made available on Aspreva’s Internet Website.
 
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D. Use of applications or access to information provided for general audience use on enterprise intranet hosts, called AsprevaNET.
E. Access to Internet hosted on-line reference and information sources such as phone directories, on line dictionaries, or mapping and weather services if such use adds value to the business unit, increases employee efficiency, or legally avoids costs that would otherwise be incurred by Aspreva for such referenced services.
F. Statutory and regulatory activities.
G. Use of Web conferencing equipment for use with Aspreva employees for sanctioned business unit processes.
4.3 Unacceptable uses of IT resources include (but are not limited to):
A. Any use of computer equipment that violates Canadian or international laws and regulations (including copyright laws and other intellectual property laws) or the Corporation’s policies and procedures (including harassment policies). Computer end-users and their direct supervisors must be aware of and be accountable for the elements of these laws, regulations, policies, and procedures as they affect daily work and responsibilities related to the use of IT resources utilized within their line of business work group.
B. Creating or forwarding of Chain Mail or Mass Mail regardless of content, sources or destinations. The posting corporation information to external email accounts, newsgroups, or bulletin boards or other public forums without authority.
C. Using equipment for personal profit, personal email, unauthorized solicitation, political fundraising, gambling activity, non-business related instant messaging or chat room discussions, or downloading or displaying offensive or sexually explicit or otherwise inappropriate or offensive material, downloading entertainment software, games and other non-business related files, or sending threatening, harassing or disruptive messages.
D. Any use that violates public safety or compromises the privacy of persons or their legally protected personal information.
E. Hacking systems and databases or acting to disrupt systems or cause unnecessary network congestion or application delays. Use of IT resources to propagate any virus, worm, Trojan Horse or back door program code.
F. Use of any remote control software on any internal or external host personal computers or systems not specifically set up by IT staff or using methods not authorized by standard policy.
G. Any unnecessary consumption of data bandwidth, network resources, or computer processor time.
H. Storing non-business related data or information on a Corporation device or storage medium.
I. Installation any program or data on any Corporation device not authorized or approved by the IT department.
4.4 All employees and other computer end users shall be made aware of this policy and educated about its content and the impact of violations of acceptable use criteria.
A.   Awareness and education:
(1) Each end user is required to acknowledge each revision of this policy in writing.
(2) Log in screen agreements are annually required for reminding employees of this and similar policies directly affecting end-users. These reminders will be presented on screen prior to or during the login routine.
(3) IT resources training sponsored by Aspreva may include a segment on this policy and good cyber-citizenship.
(4) Application specific security rules and procedures mandated by Aspreva as well as federal and provincial laws and regulations (e.g., British Columbia’s Personal Information Protection Act) must also be rigorously adhered to in order to safeguard legally protected data resources from compromise and should be a part of Corporation sponsored privacy and security awareness efforts.
 
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(5) Every user should perform due diligence measures to contribute to a professional, safe, pleasant, and non-offensive IT user environment. . E-mail and other information may still remain on your PC after deletion.
(6) End users are reminded that it is inappropriate to reveal confidential Corporation information, customer data, trade secrets and any other material covered by existing Corporation secrecy policies and procedures.
(7) Violation of this policy may result in Corporation-administered discipline up to and including discharge, dismissal or termination. Criminal or civil action may be initiated in appropriate instances. The Corporation will cooperate with any legitimate law enforcement activity.
(8) Every user should be aware the corporation logs all internet, intranet, email, blackberry, port and protocol, and application traffic. This logging even occurs while the user is using a VPN connection from outside the corporation. A VPN connection is using Corporation resources, and is logged accordingly.
B.  Inadvertent and Erroneous use - End-users inadvertently directed to a web site that violates laws, regulations, or polices may claim erroneous use. Mistakes occur when using IT resources without any employee intent to violate policy. A claim of this type is only substantiated by connection times measured in seconds, rather than minutes when found in network, system, or application log audits done to verify or detect abuse. Report an inadvertent occurrence to supervisors or managers when un-intentional misuse occurs. Self-reporting is encouraged and may be done without consequence.
 
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10.
5.0 DEFINITIONS:
Corporation or Aspreva - Aspreva Pharmaceuticals Corporation, including any subsidiaries, affiliates or associates.
CFO - Chief Financial Officer
CIO - Chief Information Officer
Business Units - Supervised areas of related work responsibility as explicitly defined and delegated to them by corporation directors, boards, or commissions of Aspreva Pharmaceuticals.
Chain Mail- unauthorized non-business related e-mail to large groups, the GAL address book, or to unspecific destination addresses that suggest that the receiver should further disseminate the message.
Due Diligence - activities that ensure the protection mechanisms are continually maintained, operational and applicable to corporation and federal laws.
Employees or computer end-users - includes the broad range of persons who are supplied with any IT resources or application access by IT staff to accomplish Corporation work and include all corporation employees; including interns or co-ops, vendors, contractors, volunteers who are given password access to specific Aspreva Pharmaceuticals hosted applications.
Hacking - Gaining or trying to gain unauthorized access to systems and databases either internal or external to Aspreva Pharmaceuticals Corporation computer systems or networks for the purpose of viewing, stealing, or corrupting data.
IT resources - Data networks (over any media type); computer devices including: servers, hosts, laptops, desktops, Blackberries, handheld, or tablet pc; communication devices: phone, web phones, or pagers; and software applications accessed with any interface device.
Mass Mail- authorized Aspreva business related e-mail to large groups or the whole GAL address book..
 
11.
6.0 RESPONSIBILITIES
6.1 Employee end-users - must read this document, understand the expectations and take personal responsibility for adhering to the provisions of this policy. Each end-user will be required to acknowledge receipt of this policy and any corporation specific addendums. All categories of employees must realize that misuse or abuse of IT resources may lead to an investigation by the Corporation and the initiation of legal or disciplinary actions. Be aware that computers assigned to you may also be removed from your office area for analysis.
6.2 Agents, contract staff, vendors, and volunteers - are required to adhere to this policy, acknowledge an awareness and understanding of this policy.
6.3 Supervisors, managers, or directors - make up the first line of accountability for staff compliance with this policy and shall require that all staff under their management read, and acknowledge and abide by the provisions of this policy
6.4 Corporation Human Resources - shall support supervisors and managers as needed in the awareness and disciplinary enforcement of this policy.
6.5 IT staff - shall report suspected violations to Security when found in the normal course of system support activity and assist management with audits and enforcement actions when requested to do so.
6.6 Security - shall receive and document reports of suspected abuse from any source and act as necessary on each reports. Security shall plan and supervise periodic system and network audits to detect potential abuse and shall use these audits to identify and investigate non-compliance with the provisions of this policy. Report incidents of abuse to corporation CIO, corporation Human Resources liaison, and corporation internal auditor, and where abuse may involve criminal activity to appropriate Aspreva Pharmaceuticals or other law enforcement officials. Assist in the collection and preservation of digital forensic evidence when requested by law enforcement officials.
 
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6.7 Corporation Business Units - shall ensure that all aspects of this policy and standards are communicated to staff within their divisions and work groups.
6.8 Contracts Management and Purchasing Division - Holds the responsibility to communicate this policy to vendors and contract staff that will be using IT resources, emphasizing the need for ensuring compliance with this policy. Purchasing process shall include contract language requiring vendors’ staff to follow this policy, and require that all vendor staff acknowledge this agreement.
 
12.
7.0 TECHNICAL
7.1. User IDs and passwords help maintain individual accountability for IT resource usage. Any employee or other end user who obtains a password or ID for an IT resource from the Corporation must keep that password confidential. Corporation policy prohibits the sharing of user IDs or passwords obtained for access to Internet sites.
7.2. Employees and other end users should schedule communications-intensive operations such as large file transfers, video downloads, mass emailings and the like, for off-peak times.
 
13.
8.0 SECURITY
8.1. The Corporation has installed an Internet firewall to assure the safety and security of the Corporation’s networks. Any employee who attempts to disable, defeat or circumvent any Corporation security facility will be subject to immediate dismissal.
8.2. Files containing sensitive Corporation data, as defined by existing corporate data security policy, that are transferred in any way across the Internet must be encrypted.
8.3. Only those Internet services and functions with documented business purposes for the Corporation will be enabled at the Internet firewall.
 
14.
9.0 PROCEDURES
This policy sets a minimum level of conformance that will be implemented across the Aspreva enterprise. Corporation work rules should support this policy direction and provide departmental guidance on how violations will be handled. Work rules or policies that are consistent need not be reissued. Departments desiring to implement more restrictive policies regarding information technology resources may do so by coordinating with Security prior to implementation
 

 
 
 
 
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