Exhibit 10.12 - Change in Control Agreement


    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:

     

    


    
      	 	
              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:




    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


     

    (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)       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.

            


      	 	 	 


      	 	
            	
            


    

     

    


     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


     

    
      	 	
              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.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	
              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.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	
              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