Exhibit
10.20
THE SYMBOL
'***' IS USED THROUGHOUT THIS EXHIBIT TO INDICATE THAT A PORTION OF
THE EXHIBIT HAS BEEN OMITTED AS CONFIDENTIAL
EXECUTIVE EMPLOYMENT
AGREEMENT
This Agreement dated August 8,
2007
BETWEEN:
KENNETH THOMAS BAILEY
, of Seattle, WA
("Executive")
AND:
ANGIOTECH PHARMACEUTICALS (US),
INC.,
a corporation incorporated under the laws
of the State of Washington
("Angiotech US")
BACKGROUND
A.
Angiotech US wishes to continue to employ
the Executive in the position of Chief Financial Officer, on and
subject to the terms and conditions of this Agreement.
B.
The Executive wishes to continue to be so
employed.
C.
The terms and conditions of this
Agreement were arrived at after negotiations between the
patties.
AGREEMENTS
For good and valuable consideration, the
receipt and sufficiency of which each party acknowledges, the
parties agree as follows:
1.
EMPLOYMENT
1.1
Angiotech US will employ the Executive,
and the Executive will serve Angiotech US, subject to and in
accordance with the terms of this Agreement.
1.2
The Executive:
(a)
will be employed in the position of Chief
Financial Officer at Angiotech's offices in North Bend,
Washington;
(b)
will report solely and directly to
Angiotech's Chief Executive Officer; and
- 2 -
(c)
will perform:
(i)
such duties and responsibilities as are
customarily performed by a person holding the position of Chief
Financial Officer of a company of the size and nature of Angiotech;
and
(ii)
such other duties and responsibilities
reasonably assigned to the Executive by Angiotech, from time to
time, that are not materially inconsistent with, and do not impair,
the Executive's ability to discharge the Executive's duties and
responsibilities under clause (i).
1.3
Angiotech may ask the Executive to serve
as an officer of Angiotech Canada, and/or as a director and/or
officer of Angiotech US or one or more of Angiotech US and
Angiotech Canada's affiliates or subsidiaries.
1.4
The Executive will be employed by
Angiotech on a full-time basis, and agrees that:
(a)
the Executive's hours of work will vary,
and will be those hours required to perform the Executive's duties
and responsibilities under this Agreement; and
(b)
the remuneration paid to the Executive
under this Agreement constitutes remuneration, compensation, and
payment in full for all hours worked and all services provided by
the Executive in connection with the Executive's employment with
Angiotech or otherwise, including any work performed or services
provided as a director or officer of Angiotech US, Angiotech
Canada, or any of their affiliates or subsidiaries.
1.5
Angiotech may, from time to time,
establish or change written policies and procedures concerning its
business and the conduct of its employees, including a Code of
Ethics for its Chief Financial Officer (a current copy of which is
attached as Appendix A), which will, upon publication to the
Executive, be binding on the Executive as if incorporated into this
Agreement, provided that if there is a conflict between the terms
of such policies and procedures (other than the Code of Ethics) and
the terms of this Agreement, the terms of this Agreement will
prevail and govern.
1.6
This Agreement is effective as of January
1, 2007 ("Effective Date"), and will continue in effect until
terminated by either party in accordance with its terms.
1.7
The first day of the Executive's
employment continues to be January 15, 2004 for all purposes under
this Agreement, which will also continue to be the anniversary date
of the Executive's employment for all purposes under this
Agreement.
2.
EXCLUSIVE SERVICE
2.1
The Executive will, to the best of the
Executive's ability, diligently and faithfully devote substantially
all of the Executive's business time, attention, energies, and
abilities exclusively to the Business of Angiotech and the
performance of the Executive's duties and responsibilities under
this Agreement, and will at all times use best efforts to promote
the interests of Angiotech.
- 3 -
2.2
During the Executive's employment with
Angiotech, the Executive will not, directly or
indirectly:
(a)
be employed by or render services of a
business, professional, or commercial nature, including services as
an owner, shareholder, partner, joint venturer, officer, director,
employee, advisor, contractor, consultant, agent, or otherwise, to
any other person, firm, entity, or business, whether for
remuneration or otherwise, without the prior written authorization
of Angiotech's Chief Executive Officer; or
(b)
otherwise engage in any activity that is
competitive with the Business of Angiotech, or that negatively
affects the performance of the Executive's duties and
responsibilities under this Agreement, whether alone, or as an
owner, shareholder, partner, joint venturer, officer, director,
employee, advisor, contractor, consultant, or agent of any other
person, firm, entity, or business.
2.3
For greater certainty, paragraph 2.2(b)
does not, subject to Part 12, restrict the Executive
from:
(a)
with Angiotech's prior written
authorization under paragraph 2.2(a), rendering services to, or
serving as an officer or director of, a person, firm, entity, or
business that is not a Competitor of Angiotech;
(b)
investing in a firm, entity, or business
that is not a Competitor of Angiotech;
(c)
owning a legal or beneficial interest not
exceeding 1% in a Competitor of Angiotech; or
(d)
engaging in charitable activities with a
social or philanthropic purpose that do not have a material
negative effect on the performance of the Executive's duties and
responsibilities under this Agreement or on the interests of
Angiotech.
3.
BASE SALARY
3.1
Angiotech will pay the Executive an
annual base salary of $350,000 per year or such other amount as the
Board may determine, from time to time, in accordance with this
Agreement ("Base Salary"), payable on Angiotech's normal payroll
schedule.
3.2
The Board may, from time to time, in its
sole discretion, review the Base Salary and determine if any
increase is appropriate having regard to the Executive's
performance and contributions, as assessed by the Board in its sole
discretion, and any other factor or factors the Board may consider
appropriate.
- 4 -
4.
SIGNING BONUS
4.1
Angiotech will pay the Executive a
signing bonus of $50,000 ("Signing Bonus"), payable within 15
calendar days of the execution of this Agreement.
5.
BONUS PLAN
5.1
Subject to paragraph 5.3, the Executive
will be eligible to participate in Angiotech's bonus plan for
executive employees ("Bonus Plan"), which currently provides for
bonuses based on a target bonus opportunity of 50% of the Base
Salary earned by the Executive during a fiscal year, provided that
the Board may determine, in its sole discretion, that the amount of
the payment made to the Executive under the Bonus Plan in respect
of a fiscal year may be greater or lesser than the target bonus
opportunity, or that no payment will be made to the Executive from
the Bonus Plan in respect of a fiscal year, having regard to
individual and company performance and any other factor or factors
the Board may consider appropriate.
5.2
Any one payment to the Executive under
the Bonus Plan will not obligate Angiotech to make any other
payment to the Executive under the Bonus Plan or
otherwise.
5.3
The Board may, from time to time, in its
sole discretion and without prior notice to the Executive, change
or terminate the Bonus Plan. If there is a conflict between the
Bonus Plan and the terms of this Agreement (other than paragraph
5.1), the terms of this Agreement (other than paragraph 5.1) will
prevail and govern.
6.
STATUTORY DEDUCTIONS
6.1
The Base Salary, Signing Bonus, any
payments under the Bonus Plan or under Part 10, 11 or 15, and any
other payment, award, or benefit made or provided to the Executive
under this Agreement or otherwise are subject to all required
statutory deductions and withholdings, and any other amount
required by law to be deducted or withheld from such
payment.
7.
INSURANCE, RETIREMENT, AND OTHER
EMPLOYEE BENEFITS
7.1
Subject to paragraphs 7.4 and
7.5:
(a)
during the Executive's employment with
Angiotech, the Executive will be eligible to participate in the
group health, dental, life insurance, and short and long term
disability plans made generally available by Angiotech US for its
comparably situated executive employees, and any other employee
benefit plans that Angiotech US may make generally available from
time to time for its comparably situated executive employees, and,
in each such instance, subject to and in accordance with the terms
of the applicable plan; and
(b)
Angiotech US will pay 100% of the premium
costs required under the group health, dental, life insurance, and
short and long term disability plans under subparagraph
(a).
- 5 -
7.2
Subject to paragraphs 7.4 and
7.5:
(a)
during the Executive's employment with
Angiotech, the Executive will be eligible to participate in the
401(k) plan made available by Angiotech US for its comparably
situated executive employees, or in any other US tax-qualified
retirement plan that Angiotech US may make generally available from
time to time for its comparably situated executive employees, and,
in each such instance, subject to and in accordance with the terms
of the applicable plan; and
(b)
for each completed year of employment
under this Agreement, Angiotech US will make contributions to the
Executive's 401(k) plan or other US tax-qualified retirement plan
under subparagraph (a) equivalent to the lesser of:
(i)
5% of Base Salary; and
(ii)
the maximum amount of such contributions
that may be permitted under the plan and applicable law.
7.3
If the Executive is a director or officer
of Angiotech US, Angiotech Canada, or any of their affiliates or
subsidiaries, Angiotech will maintain a policy of directors' and
officers' liability insurance for the Executive while the Executive
is so serving.
7.4
The Executive's eligibility for any
benefits under any employee benefit plan, including any health,
dental, life insurance, or disability plan, or under any retirement
plan, including any 401(k) plan or other US tax-qualified
retirement plan, or under any liability insurance policy, will be
determined solely on the basis of the applicable plan or plans or
insurance policy or policies ("Policies"), and Angiotech's sole
obligation in relation to such benefits will be:
(a)
to pay such premium costs as may be
required under the Policies, excluding any premium costs to be paid
by the Executive in respect of any Policies to which paragraph
7.1(b) may not apply; and
(b)
to make contributions to the Executive's
401(k) plan or other US tax-qualified retirement plan under
paragraph 7.2(b).
7.5
Angiotech may, in its sole discretion and
without prior notice to the Executive, change or terminate any
employee benefit or insurance coverage made available to its
executive employees generally, including the percentage of premium
costs (if any) paid by Angiotech under paragraph 7.1(b), and the
amount of Angiotech's contributions (if any) to the Executive's
401(k) plan or other US tax-qualified retirement plan under
paragraph 7.2(b).
7.6
Any disputes relating directly to the
Executive's right to receive any benefit under the Policies must be
directed against the provider of the benefit and not against
Angiotech.
7.7
Except as required by applicable law, the
Executive's eligibility for any health, dental, life insurance,
disability, or other insurance or employee benefits, or to
participate in any retirement plan, under this Part 7 will cease on
the Last Day of Employment (subject to any applicable conversion
privileges), and Angiotech will not be liable for any sickness,
injury, illness, disability, or death, or for any claims, damages,
losses, costs, or expenses directly or indirectly suffered or
incurred thereafter, or as a result thereof.
- 6 -
8.
STOCK OPTIONS AND OTHER EQUITY-BASED
INCENTIVE PLANS
8.1
Subject to paragraph 8.2, the
Executive:
(a)
will continue to hold any options to
purchase common shares of Angiotech Canada held by the Executive as
of the Effective Date, subject to the terms of any applicable stock
option agreement, plan, or program; and
(b)
may, from time to time, be eligible to
receive additional stock option grants, or grants or awards under
other equity-based incentive plans or programs of Angiotech Canada,
if and to the extent awarded to the Executive under the terms of
any applicable stock option agreement, plan, or program, or other
equity-based incentive plan or program, which may be approved by
the Angiotech Canada Board and the shareholders of Angiotech
Canada.
8.2
The Angiotech Canada Board may, in its
sole discretion and without prior notice to the Executive, change
or terminate any stock option plan or program or any equity-based
incentive plan or program referred to in paragraph 8.1, subject to
the terms of the applicable plan or program that govern such change
or termination, and any applicable laws or regulatory requirements;
provided that such change or termination will not, without the
Executive's written consent, adversely affect any then outstanding
stock options or other grants or awards held by the Executive
(unless such change or termination occurs solely as a result of a
change in applicable laws or regulatory requirements).
8.3
Subject to paragraph 15.8(f), if
Angiotech or the Executive terminates the Executive's employment
for any reason, any rights and obligations of the Executive in
respect of any then outstanding stock options or other grants or
awards held by the Executive will continue to be governed by the
provisions of the applicable agreement, plan, or program referred
to in paragraph 8.1.
8.4
If there is a conflict between the terms
of this Agreement and the terms of any stock option agreement,
plan, or program, or other equity-based incentive plan or program,
referred to in paragraph 8.1, this Agreement will prevail and
govern, unless applicable laws or regulatory requirements do not
permit this, in which case the terms of such stock option
agreement, plan, or program, or other equity-based incentive plan
or program will prevail and govern to the extent required by such
laws or regulatory requirements.
9.
VACATION
9.1
The Executive will receive an annual
vacation of 23 working days for each fiscal year of employment
under this Agreement, prorated for partial years of employment, in
accordance with Angiotech's policies regarding vacations in effect
from time to time.
- 7 -
9.2
The Executive may take vacation at such
times as are mutually convenient to the Executive and Angiotech,
but subject to Angiotech's operational requirements.
9.3
Unless otherwise provided in Angiotech's
policies regarding vacations,
(a)
if the Executive does not use all of the
Executive's vacation entitlement in a given fiscal year, the
vacation not taken will be available to be used in a later fiscal
year; and
(b)
if the Executive's employment is
terminated before the end of a given fiscal year, the Executive
will be paid for:
(i)
any unused vacation days for previous
fiscal years; and
(ii)
any unused vacation days for the fiscal
year in which the Executive's employment is terminated, on a
prorated basis.
9.4
Angiotech may, in its sole discretion and
without prior notice to the Executive, change Angiotech's policies,
plans, or practices regarding vacations for its executive employees
generally.
10.
TAX EQUALIZATION
10.1
In this Agreement:
(a)
"Actual Tax Liability"
means the total of the Executive's actual
US and foreign personal income tax liabilities payable in respect
of the Executive's Gross Annual Income, as determined by the Tax
Advisors;
(b)
"Gross Annual Income"
means the total of:
(i)
the Base Salary,
(ii)
the Signing Bonus (if
applicable),
(iii)
any payment under the Bonus Plan,
and
(iv)
any Gross-Up Payment under this Part
10,
paid to the Executive in respect of a
fiscal year, and, for greater certainty, does not include any other
amounts or taxable benefits paid or provided to the Executive under
this Agreement or otherwise, unless otherwise agreed to by
Angiotech and the Executive;
(c)
"Gross-Up Payment"
means an annual payment equal
to:
(i)
the difference, if any, between the
Actual Tax Liability and the Hypothetical Tax Liability in respect
of a fiscal year, plus
- 8 -
(ii)
the total of any additional US and
foreign personal income tax liabilities payable in respect of the
Gross-Up Payment, as determined by the Tax Advisors;
(d)
"Hypothetical Tax
Liability" means the amount of
the Executive's hypothetical US personal income tax liability that
would have been payable in respect of the Executive's Gross Annual
Income, if the Executive had performed all services under this
Agreement in the United States during the applicable fiscal year,
as determined by the Tax Advisors;
(e)
"Tax Advisors" means the tax advisors engaged by Angiotech, as
agreed by Angiotech and the Executive, to determine the amount of
the Gross-Up Payment, if any, payable to the Executive under this
Part 10.
10.2
Angiotech will pay the Executive the
Gross-Up Payment, if any, in the amount determined annually by the
Tax Advisors in accordance with this Part 10.
10.3
Any determination made by the Tax
Advisors under this Part 10 will be final and binding, and will not
be questioned, reviewed, amended, or set aside by an arbitrator or
arbitrators under Part 22 or by any Court.
10.4
Angiotech will pay any professional fees,
disbursements, and applicable taxes the Tax Advisors may charge for
determining of the amount of the Gross-Up Payment, if any, payable
to the Executive under this Part 10.
11.
EXPENSES
11.1
Angiotech will, upon the submission by
the Executive of appropriate receipts, reimburse the Executive
for:
(a)
business expenses incurred by the
Executive that Angiotech, in its sole discretion, determines are
reasonably necessary for the proper discharge of the Executive's
duties and responsibilities, in accordance with Angiotech's
policies in effect from time to time;
(b)
professional fees, disbursements, and
applicable taxes payable to the Tax Advisors with respect to the
preparation and filing of any foreign personal income tax returns
on behalf of the Executive if and to the extent any such returns
are required as a result of, and relate to, the Executive's receipt
of any payment or benefit under this Agreement, and provided that
the Executive engages the Tax Advisors for that purpose;
(c)
the following perquisites, for so long as
Angiotech may make such perquisites generally available for its
comparably situated executive employees, and up to a combined
maximum amount of $15,000 for each fiscal year:
(i)
automobile lease;
- 9 -
(ii)
financial or tax planning services (in
addition to any amount reimbursed under subparagraph (b));
and
(iii)
health club membership; and
(d)
legal fees, disbursements, and applicable
taxes actually and reasonably incurred by the Executive in relation
to the negotiation and preparation of this Agreement, up to a
combined maximum amount of $20,000.
11.2
Angiotech will, upon the submission by
the Executive of appropriate receipts, reimburse the Executive, up
to a combined total maximum amount of $250,000, for:
(a)
expenses incurred by the Executive after
the Effective Date and before the Last Day of Employment, that
Angiotech, in its sole discretion, determines are reasonably
necessary for:
(i)
legal fees, real estate fees and
commissions, and land transfer taxes in respect of the sale of the
Executive's residence in [***]; and
(ii)
the interest portion of any mortgage
carrying costs for the Executive's residence in [***];
and
(b)
any personal income tax liabilities
payable by the Executive in respect of the amounts paid to the
Executive under this paragraph 11.2, as determined by Angiotech in
its sole discretion.
12.
RESTRICTIONS ON SOLICITATION AND
COMPETITION
12.1
In this Agreement:
(a)
"Business of Angiotech"
means the business of Angiotech through
the Executive's Last Day of Employment, including, without
limitation, the business of researching, developing, manufacturing,
and selling medical devices and/or medical implants, including, for
example, stents, stent grafts, vascular grafts, vascular wraps,
catheters, needles, blades, sutures (including barbed or self-
retaining sutures), filters, vascular snares, biopsy devices,
guidewires, ophthalmic implants, orthopedic devices and implants,
hemostats and hemostatic pads, and tissue sealants, fillers, and
glues, as well as drug-loaded and/or polymer-coated versions of
these products;
(b)
"Competitor of Angiotech"
means any person, persons, entity, firm,
association, corporation, or other enterprise engaged in any
business or activity, anywhere in the world, that is or is being
prepared to be in competition with the Business of Angiotech,
including, without limitation, the development, manufacture, or
sale of any product or service in competition with a product or
service developed, in development, manufactured, or sold by
Angiotech through the Executive's Last Day of
Employment;
- 10 -
(c)
"Control Person"
means a person, entity, or group of
persons or entities acting jointly or in concert, that holds a
sufficient number of the voting rights attached to all outstanding
voting securities of a Competitor of Angiotech to affect materially
the control of the Competitor of Angiotech, provided that, if a
person, entity, or group of persons or entities, holds more than
20% of the voting rights attached to all outstanding voting
securities of the Competitor of Angiotech, the person, entity, or
group of persons or entities will be deemed, in the absence of
evidence to the contrary, to hold a sufficient number of the voting
rights to affect materially the control of the Competitor of
Angiotech;
(d)
"Customer of Angiotech"
means any customer or client or
prospective customer or client of Angiotech to whom the Executive
provided services, or for whom the Executive transacted business,
or whose identity became known to the Executive in connection with
or as a consequence of the Executive's relationship with or
employment by Angiotech;
(e)
"Solicitation" means any direct or indirect communication of any
kind, regardless of who initiates the communication, that in any
way invites, advises, encourages, or asks any person to take or
refrain from taking any action.
12.2
Angiotech is engaged in the Business of
Angiotech, the Business of Angiotech is worldwide in scope, and the
current and potential Competitors of Angiotech and Customers of
Angiotech are located throughout the world.
12.3
Subject to paragraph 12.4, while the
Executive is employed by Angiotech, and for a period of 12 months
after the Last Day of Employment, the Executive will not, whether
as an owner, shareholder, partner, joint venturer, officer,
director, employee, advisor, contractor, consultant, agent, or
otherwise, either on his own or in conjunction with any person,
persons, entity, firm, association, corporation, or other business
enterprise, or in any other manner whatsoever, directly or
indirectly:
(a)
carry on or engage in the Solicitation of
any Customer of Angiotech in any manner that may reasonably be
expected to interfere with, impair, damage, or otherwise
detrimentally affect the Business of Angiotech, including, without
limitation, the sale of any product or service provided by
Angiotech to that Customer of Angiotech;
(b)
willfully interfere with, impair, or
damage any relationship between Angiotech and any Customer of
Angiotech;
(c)
carry on or engage in the Solicitation of
any employee or consultant of Angiotech (including any person who
was an employee or consultant of Angiotech within a period of six
months before the date of the Solicitation) to end his or her
employment or consulting relationship with Angiotech, or to
commence an employment or consulting relationship or any other
relationship with any Competitor of Angiotech;
- 11 -
(d)
carry on or engage in any business or
activity that is, will be, or is being prepared to be in direct
competition with the Business of Angiotech, and that is
substantially related to any business, activity, or
services:
(i)
that the Executive engaged in or
performed, directly or indirectly, for or on behalf of Angiotech
through the Executive's Last Day of Employment; or
(ii)
for which the Executive had direct or
indirect responsibility or oversight with Angiotech through the
Executive's Last Day of Employment;
(e)
manage or supervise personnel of any
Competitor of Angiotech engaged in any business or activity
described in subparagraph (d)(i) or (ii); or
(f)
subject to paragraphs 12.5 and 12.6, own
more than a 1% legal or beneficial interest in any Competitor of
Angiotech.
12.4
While the Executive is employed by
Angiotech, paragraph 12.3 does not restrict the Executive from
engaging in an activity, or owning an interest in an entity, as
described in paragraph 2.3(a) to (d).
12.5
If the Executive owns or acquires more
than a 1% legal or beneficial interest in any entity, firm,
association, corporation, or other enterprise which is not a
Competitor of Angiotech but which later becomes a Competitor of
Angiotech while the Executive is employed by Angiotech, or, subject
to paragraph 12.6, during the 12-month period after the Last Day of
Employment:
(a)
the Executive will, within 90 days after
the Executive knows, or should have known, that such entity, firm,
association, corporation, or other enterprise has become a
Competitor of Angiotech (or, if requested by the Executive, such
longer time period as Angiotech may agree, such agreement not to be
unreasonably withheld), either
(i)
dispose of that interest to the extent
necessary to comply with paragraph 12.3(f), or
(ii)
notify Angiotech that the Executive owns
more than a 1% legal or beneficial interest in such entity, firm,
association, corporation, or other enterprise, and ask that the
Angiotech Canada Board decide whether the Executive must comply
with paragraph 12.3(f);
(b)
if the Executive asks the Angiotech
Canada Board under subparagraph (a)(ii) to decide whether the
Executive must comply with paragraph 12.3(f), the Angiotech Canada
Board will decide, in its sole discretion, whether the Executive
will be required to dispose of the Executive's legal or beneficial
interest in the entity, firm, association, corporation, or other
enterprise that has become a Competitor of Angiotech, to the extent
necessary to comply with paragraph 12.3(f), or to any lesser extent
specified by the Angiotech Canada Board, and Angiotech will notify
and the Executive of the Angiotech
- 12 -
(c)
if the Angiotech Canada Board
decides under subparagraph (b) that the Executive must
dispose of any portion of the Executive's legal or beneficial
interest in the entity, firm, association, corporation, or other
enterprise that has become a Competitor of Angiotech,
(i)
the Executive will, within 90 days of
being notified of the Angiotech Canada Board's decision (or, if
requested by the Executive, such longer time period as Angiotech
may agree, such agreement not to be unreasonably withheld), dispose
of that interest to the extent required by the Angiotech Canada
Board under subparagraph (b) (provided, however, that if such
interest is illiquid or if it is otherwise not reasonably
practicable for the Executive to sell or transfer that interest,
the Executive will use commercially reasonable efforts to dispose
of such interest or to create a legal structure to ensure that such
interest is passive); and
(ii)
if the Executive incurs a loss as a
result of having to comply with the Angiotech Canada Board's
decision under subparagraph (b), Angiotech will provide reasonable
compensation to the Executive for that loss, which will not, in any
event, exceed the difference, if any, between the acquisition cost
of the interest and the proceeds of disposition of the interest
(without regard for the tax consequences of the
disposition).
12.6
Despite paragraphs 12.3 and 12.5, during
the 12-month period after the Last Day of Employment, the Executive
may own or acquire more than 1% of the shares of any class of a
Competitor of Angiotech that are publicly traded on a stock
exchange or trade reporting system, provided that the
Executive:
(a)
does not, on his own behalf, or in
association with or on behalf of any other person, entity, or group
of persons or entities acting jointly or in concert, become a
Control Person; and
(b)
otherwise complies with paragraph 12.3(a)
to (e).
12.7
If paragraph 12.3, or any portion
thereof, is found to be unreasonable or unenforceable to any extent
by an arbitrator or arbitrators under Part 22 or by a Court of
competent jurisdiction determining its validity or enforceability,
whether as to the subject matter or scope of the restriction or
restrictions, the geographic area of the restriction or
restrictions, or the duration of the restriction or restrictions,
then the restriction or restrictions will be changed or reduced to
that which is determined to be reasonable or enforceable by the
arbitrator(s) or the Court.
13.
WORK PRODUCT
13.1
In this Agreement:
(a)
"Intellectual Property"
means all proprietary rights and
interests in, to, or associated with Work Product, including,
without limitation, all registered and unregistered copyrights,
patents, industrial designs, trade-marks, trade names, trade
secrets, goodwill, all applications and all rights to file
applications for all of the foregoing, and all rights of action for
infringement, misappropriation, or other misuse, and any other
rights in and to the Work Product;
- 13 -
(b)
"Non-Angiotech Invention"
means any concept, method, process,
technology, invention, development, or other work which:
(i)
subject to paragraph 13.8, is disclosed
in Appendix C; or
(ii)
is determined by the Angiotech Canada
Board to be a Non-Angiotech Invention under paragraph
13.7;
(c)
"Work Product" means all work product of every kind, including,
without limitation, all inventions, discoveries, concepts, ideas,
plans, strategies, technologies, computer programs, software source
and object codes, writings, formulas, algorithms, compilations,
information, data, devices, designs, prototypes, drawings,
diagrams, schematics, products, manuals, techniques, and other
works of authorship, and all modifications and improvements to any
of the foregoing, whether or not patented, registered, or otherwise
protected, that is invented, made, created, authored, generated,
compiled, conceived, developed, completed, reduced to practice, or
worked on by the Executive, whether alone or with others, whether
during or outside the Executive's working hours, and whether before
or during the Executive's employment with Angiotech:
(i)
relating to the Business of
Angiotech;
(ii)
resulting from work performed by the
Executive with the use of Angiotech's equipment, facilities,
Confidential Information, materials, or personnel;
(iii)
resulting from any work performed by the
Executive for Angiotech;
(iv)
resulting from, based on, or using any of
Angiotech's assets, property, products, or research; or
(v)
relating to an opportunity that is
identified by or presented to the Executive, or of which the
Executive becomes aware, in whole or in part as a consequence of
the Executive's employment with Angiotech, or the functions
performed by the Executive on behalf of Angiotech;
but excluding any Non-Angiotech
Inventions.
13.2
Angiotech is and will be the sole owner
of all Work Product and Intellectual Property.
- 14 -
13.3
For greater certainty:
(a)
the Executive irrevocably assigns and
transfers to Angiotech all rights, title, and interest in and to
all Work Product and Intellectual Property, and all rights of
action for infringement or other misuse, including all rights to
file applications, and all pending applications, to patent,
register, or record the Work Product and Intellectual
Property;
(b)
to the extent the Executive holds or
acquires legal title to any Work Product or Intellectual Property,
the Executive holds it as trustee and agent for Angiotech;
and
(c)
on request by Angiotech, the Executive
will, during and after the Executive's employment with Angiotech,
execute and deliver immediately to Angiotech all instruments that
Angiotech considers necessary or helpful to effect, perfect,
register, or record its interest in Work Product and Intellectual
Property, or to patent, register, or record Work Product and
Intellectual Property in Angiotech's name, or to obtain, maintain,
or enforce its rights and interest in Work Product and Intellectual
Property in connection with any interference, litigation,
opposition, or other proceeding to which Work Product or
Intellectual Property is relevant, provided that Angiotech
reimburses the Executive for all reasonable expenses incurred to
fulfill these obligations.
13.4
The Executive irrevocably nominates,
appoints, and constitutes Angiotech as the Executive's true and
lawful attorney with power to do all things and execute all
documents on the Executive's behalf as may be required to give
effect to this Part 13, including, without limitation, the actions
contemplated in paragraph 13.3. The attorney so appointed may
exercise this power as the attorney deems appropriate to give
effect to the intent of this Part 13.
13.5
The Executive will, during and after the
Executive's employment with Angiotech, assist Angiotech as much as
is reasonably necessary to establish, protect, and enforce Work
Product and Intellectual Property, provided that
Angiotech:
(a)
reimburses the Executive for all
reasonable expenses thereby incurred; and
(b)
provides reasonable compensation to the
Executive for efforts thereby expended after the end of the
Executive's employment with Angiotech.
13.6
The Executive irrevocably waives in favor
of Angiotech any and all moral lights that the Executive may have
with respect to any Work Product, including, without limitation,
the right to attribution of authorship, the right to restrain or
claim damages for any distortion, mutilation, modification, or
enhancement of any Work Product, and the right to retain, use, or
reproduce any Work Product in any context and in connection with
any product, service, or business, and Angiotech may use or alter
any Work Product, as Angiotech sees fit, in its sole
discretion.
- 15 -
13.7
A concept, method, process, technology,
invention, development or other work developed by the Executive may
be determined to be a Non-Angiotech Invention under paragraph 13 .1
(b)(ii) if:
(a)
subject to paragraph 13.11, the Executive
immediately and fully discloses that concept, method, process,
technology, invention, development, or other work, in writing, to
both Angiotech's General Counsel and its Human Resources
Department; and
(b)
the Angiotech Canada Board determines, in
its sole discretion, that the concept, method, process, technology,
invention, development, or other work is a NonAngiotech
Invention, provided that, for greater certainty, the Angiotech
Canada Board may determine that a concept, method, process,
technology, invention, development, or other work is not a
Non-Angiotech Invention if one or more of the following apply to
that concept, method, process, technology, invention, development,
or other work:
(i)
it was developed by the Executive during
the Executive's business time for Angiotech, or using any
equipment, facilities, materials, personnel, trade secrets, or
Confidential Information of Angiotech;
(ii)
it relates to the Business of Angiotech
or to Angiotech's current or anticipated research or development;
or
(iii)
it is otherwise derived from any work
performed by the Executive for Angiotech. 13.8 If the disclosure of
any Non-Angiotech Invention in Appendix C would violate any
obligation of confidentiality that the Executive owes to a third
party, Appendix C must instead include (to the extent it does not
violate that obligation of confidentiality) a brief description of
such Non-Angiotech Invention, a list of all third parties to whom
the Non-Angiotech Invention belongs, and the reason full disclosure
is prohibited.
13.9
If, during t
