CHANGE IN CONTROL AGREEMENTASP Hosting Agreement |
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Exhibit
10.12
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:
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1.
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Term
of Agreement.
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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.
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2.
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Definitions.
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a.
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“Affiliate”
means a corporation that is an affiliate of the Corporation under
the
Securities
Act
(British Columbia), as amended from time to
time.
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| b. | “Change in Control” of the Corporation shall be deemed to have occurred: |
(i)
if
a merger, amalgamation, arrangement, consolidation, reorganization or transfer
takes place in which Equity Securities of the Corporation possessing more than
50% of the total combined voting power of the Corporation’s outstanding Equity
Securities are acquired by a person or persons different from the persons
holding those Equity Securities immediately prior to such transaction, and
the
composition of the Board following such transaction is such that the directors
of the Corporation prior to the transaction constitute less than 50% of the
Board membership following the transaction, except that no Change in Control
will be deemed to occur if such merger, amalgamation, arrangement,
consolidation, reorganization or transfer is with any subsidiary or subsidiaries
of the Corporation;
(ii)
if
any person, or any combination of persons (different from those person(s)
holding Equity Securities prior to the date hereof) acting jointly or in concert
by virtue of an agreement, arrangement, commitment or understanding shall
acquire or hold, directly or indirectly, 50% or more of the voting rights
attached to all outstanding Equity Securities; or
(iii)
if
any person, or any combination of persons (different from those person(s)
holding Equity Securities prior to the date hereof) acting jointly or in concert
by virtue of an agreement, arrangement, commitment or understanding shall
acquire or hold, directly or indirectly, the right to appoint a majority of
the
directors of the Corporation; or
(iv)
if
the Corporation sells, transfers or otherwise disposes of all or substantially
all of its assets, except that no Change of Control will be deemed to occur
if
such sale or disposition is made to a subsidiary or subsidiaries of the
Corporation.
provided
however, that a Change in Control shall not be deemed to have occurred if such
Change in Control results solely from the issuance of Equity Securities in
connection with a bona fide financing or series of financings by the
Corporation.
c.
“Base
Salary” shall mean the annual base salary, as referred to in Section 3 (Base
Salary), and as adjusted from time to time in accordance with Section 4 (Annual
Review), of the Employment Agreement.
d.
“Bonus”
shall mean the bonus referred to in Section 5 (Performance Bonus) of the
Employment Agreement.
e.
“Cause”
shall have the meaning set out in Section 16
(Termination by the Corporation for Cause) of the Employment
Agreement.
f. “Date
of Termination” shall mean, if your employment is terminated, the date specified
in the Notice of Termination.
g.
“Equity
Security” in respect of a security of the Corporation, shall have the meaning
ascribed thereto in Part II of the Securities
Act
(British Columbia), as it existed on the date of this Agreement, and also means
any security carrying the right to convert such security into, exchange such
security for, or entitling the holder to subscribe for, any equity security,
or
into or for any such convertible or exchangeable security or security carrying
a
subscription right.
h.
“Good
Reason” shall mean the occurrence of one or more of the following events,
without your express written consent, within 12 months of Change in
Control:
(i) a
material change in your status, position, authority or responsibilities that
does not represent a promotion from or represents an adverse change from your
status, position, authority or responsibilities in effect immediately prior
to
the Change in Control;
(ii) a
material reduction by the Corporation, in the aggregate, in your Base Salary,
or
incentive, retirement, health benefits, bonus or other compensation plans
provided to you immediately prior to the Change in Control, unless an equitable
arrangement has been made with respect to such benefits in connection with
a
Change in Control;
(iii) a
failure by the Corporation to continue in effect any other compensation plan
in
which you participated immediately prior to the Change in Control (except for
reasons of non-insurability), including but not limited to, incentive,
retirement and health benefits, unless an equitable arrangement has been made
with respect to such benefits in connection with a Change in Control;
(iv) any
request by the Corporation or any affiliate of the Corporation that you
participate in an unlawful act; or
(v)
