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Exhibit 10.12
SCHEDULE B
ASPREVA PHARMACEUTICALS CORPORATION
As of 29
th
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:
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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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;
&
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