April 5, 2005 Mr. Moray Merchant Medicure Inc. 1200 Waverley Street 4th Floor Winnipeg, Manitoba R3T 0P4 Dear Mr. Merchant, Re: Arrangements on Change of Control
April 5, 2005
Mr. Xxxxx Xxxxxxxx
Medicure Inc.
0000 Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxxxxxxx
X0X 0X0
Dear Xx. Xxxxxxxx,
Re: Arrangements on Change of Control
This letter confirms our agreement with respect to the amounts payable by Medicure Inc. (the Company”) to you in the event that your employment as Vice President Market and Business Development of the Company is terminated or you resign from such position on or within 6 months after a “Change of Control of the Company”.
| 1. | For the purposes of this agreement: |
|
| (a)
|
“Change of Control of the Company” occurs
(i) upon the acquisition by any person or group of persons acting jointly
and in concert of more than 50% of the then issued and outstanding voting
securities of the Company (or its successor by way of merger, amalgamation,
arrangement or other corporate reorganization); or (ii) if during any
period of two consecutive years, individuals who, at the beginning of
such period constituted the board, together with any new director whose
election by the board or nomination for election by the Company’s
shareholders was approved by a vote of at least two-thirds of the directors
then in office either who were directors at the beginning of the two-year
period, or whose election or nomination was previously so approved, cease
for any reason to constitute 60% of the board. |
|
| (b) |
“Compensation” means the sum of 100%
of your annual base compensation in effect on the Occurrence of the Termination
Event, an amount equal to 100% of the bonus, if any, paid to you
with respect to the last completed fiscal year ending prior to the Occurrence
of the Termination Event plus the amount, if any, of your annual car allowance
in effect on the Occurrence of the Termination Event. |
|
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| (c) | “Occurrence of the Termination Event”
means the date of the termination or constructive termination of your
employment or your voluntary resignation as Vice President Market and
Business Development of the Company on or within 6 months after a Change
of Control of the Company. |
||
| (d) | “person” means an individual,
corporation, company, partnership, unincorporated association, unincorporated
syndicate, trust or other entity. |
||
| (e) | The following presumptions apply to determine
whether a person is “acting jointly and in concert” with any
other person or group of persons: |
||
| (i)
|
every person who, as a result of any agreement,
commitment or understanding, whether formal or informal, with another
person (such other person, the “offeror”) or any other person
acting jointly or in concert with the offeror, acquires or offers to acquire
securities of the Company of the same class as those acquired or offered
to be acquired by the offeror; |
||
| (ii) |
every person who, as a result of any agreement,
commitment or understanding, whether formal or informal, with the offeror
or any other person acting jointly or in concert with the offeror intends
to exercise jointly or to exercise jointly or in concert with the offeror
or with any other person acting jointly or in concert with the offeror
any voting rights attaching to any voting securities of the Company; and
|
||
| (iii) |
every associate or affiliate of the offeror (with
the terms “associate” and “affiliate” having the
respective meanings set out in the Securities Act (Ontario) as
in effect on the date hereof). |
||
| 2. | Upon the Occurrence of a Termination Event, the
Company shall pay to you a lump sum equal to the Compensation in satisfaction
of any and all claims you may have against the Company for damages or
otherwise for termination of employment except for your rights under sections
3 and 4 below. |
| 3. | In addition, upon the Occurrence of the Termination
Event, you shall be entitled to continue, for 12 months from the
Occurrence of the Termination Event, your participation in any group health
and welfare plans of the Company then in effect, subject to the approval
of the insurer, or if, as a result of such occurrence, you are no longer
eligible to participate in such plans, you shall be reimbursed, for such
12 month period, for costs incurred by you in obtaining and participating
in substantially equivalent replacement plans, if any, in either case
only until such time as you obtain alternative or new employment. |
| 4. | Upon the Occurrence of the Termination Event, any
options held by you to purchase shares in the Company shall remain in
full force and effect until expiry thereof in accordance with the terms
of the certificates or agreements under which such options or |
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| warrants were granted and all unvested options shall
immediately vest and remain in full force and effect for 60 days following
the Occurrence of the Termination Event. |
|
| 5. | Nothing contained herein shall release you from
any obligations you have as a fiduciary of the Company whether arising
before or after the Occurrence of the Termination Event. |
| 6. | You agree that, after the Occurrence of the Termination
Event, you will not make any disparaging remarks or comments concerning
the Company and its business and affairs. |
| 7. | This agreement shall be governed by and construed
in accordance with the laws of the Province of Manitoba. |
| 8. | This agreement shall enure to the benefit of and
be binding upon you and your heirs, executives, administrators and legal
personal representatives and upon the Company and its successors. |
If you are in agreement with the foregoing, please so indicate by signing the duplicate copy of this letter and returning it to the undersigned.
Yours very truly,
| By: /s/ Xxxxxx X. Xxxxxxx | |
| Accepted and Agreed: | |
| April 5, 2005 | |
| /s/ Xxxxx Xxxxxxxx | /s/ Xxxxx Xxxxxx |
| Witness |
