AMENDING AGREEMENT
AMENDING
AGREEMENT
THIS
AMENDING AGREEMENT
is made
as of the 1st
day of
September, 2005 between OCCULOGIX,
INC. (the
“Company”),
a
corporation incorporated under the laws of the State of Delaware, and Xxxxxx
X.
Xxxxxx, who resides in the Town of Richmond Hill in the Province of Ontario
(hereinafter referred to as the “Employee”).
WHEREAS
the
Vascular Sciences Corporation (now the Company) and the Employee entered into
an
employment agreement, dated as of August 1, 2003, setting forth the rights
and
obligations of each of them with respect to the Employee’s employment with
Vascular Sciences Corporation (now the Company) (the “Employment
Agreement”);
AND
WHEREAS
Quest
Clinical Trials Inc. (now AMD Medical Services Inc.), of which the Employee
is a
beneficial owner, director and officer, Rheo Clinic Inc. and OccuLogix, L.P.,
both of which are affiliates of the Company, and the Employee entered into
an
amended and restated consulting agreement (the “Consulting
Agreement”),
dated
as of August 1, 2003, pursuant to which, among other things, Quest Clinical
Trials Inc. (now AMD Medical Services Inc.) provided medical and other services
to Rheo Clinic Inc. in connection with the operation of its Rheopheresis™ clinic
located in the City of Mississauga (the “Rheo
Clinic”);
AND
WHEREAS now
the
Company effectively operates the Rheo Clinic, and the nature of its practice
has
changed in such a manner so as to make it appropriate to adjust the scope and
nature of the services that were being provided by AMD Medical Services Inc.
pursuant to the Consulting Agreement;
AND
WHEREAS the
Company, AMD Medical Services Inc. and the Employee, as of the date hereof,
will
enter into a consulting agreement, that is intended to replace the Consulting
Agreement, which will reflect the adjusted scope and nature of the services
to
be provided by AMD Medical Services Inc. to the Company in connection with
its
operation of the Rheo Clinic and in connection with other clinical trial-related
activities of the Company;
NOW,
THEREFORE, in
consideration of the mutual covenants and undertakings contained in the
Employment Agreement, as amended by this Amending Agreement, and other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Employee agree as follows:
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1.
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Section
5 of the Employment Agreement is hereby deleted in its entirety and
replaced with the following
provision:
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5. Duties.
The
Employee is engaged to serve as Vice President, Clinical Affairs of the Company
and shall have such other duties as, from time to time, may be reasonably
assigned to him by the Board of Directors of the Company. During the term
hereof, the Employee shall devote the necessary time, energy and attention
required to fulfill his duties and responsibilities hereunder. Nothing herein
shall preclude the Employee from being involved, directly or indirectly, with
any other business or profession as long as his involvement in such other
business or profession, in the opinion of the Company, does not interfere or
conflict with the execution of his duties hereunder.
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2.
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Section
6(a) of the Employment Agreement is hereby deleted in its entirety
and
replaced with the following
provision:
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(a) The
Company shall pay to the Employee, as compensation for all services rendered
by
the Employee hereunder, an annual base salary of CDN$225,000, subject to such
deductions as may be agreed upon by the parties or required by law. The Board
of
Directors of the Company, or the Compensation Committee thereof, shall review
the Employee’s performance and base salary on an annual basis and may provide
for such increase, if any, in the base salary as it may determine appropriate.
This salary shall be paid in accordance with the Company’s customary payroll
procedure.
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3.
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Section
6(d) of the Employment Agreement is hereby deleted in its entirety
and
replaced with the following
provision:
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(d) Subject
to achieving objectives determined on an annual basis by the Board of Directors
of the Company (the “Bonus Criteria”), the Employee shall be entitled to an
annual bonus of up to a maximum of 33⅓% of the Employee’s annual base salary,
which bonus shall be calculated based on the formula set out in the Bonus
Criteria.
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4.
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The
Employee’s annual bonus entitlement for 2005 shall be determined, in
whole, in accordance with Section 6(d) of the Employment Agreement,
as it
is amended by this Amending Agreement, and, accordingly, shall be
an
amount equal to the applicable percentage (of up to a maximum of
33⅓%) of
CDN$225,000, being the Employee’s annual base salary.
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5.
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Section
7(c)(ii) of the Employment Agreement is hereby deleted in its entirety
and
replaced with the following
provision:
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(ii) severance
pay equal to: (A) 24 months’ salary hereunder if such termination occurs after
July 31, 2005 but before August 1, 2008; and (B) 32 months’ salary hereunder if
such termination occurs after July 31, 2008; in each case, payable in either
equal monthly installments or in a lump sum payment at the discretion of the
Employee;
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6.
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Section
7(d) of the Employment Agreement is hereby deleted in its entirety
and
replaced with the following
provision:
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(d) Adjustment
to Payment upon Termination.
If
pursuant to Section 6(a) hereof, the Employee’s base salary is increased, the
Board of Directors of the Company, or the Compensation Committee thereof, in
its
complete discretion, may reduce the number of months’ salary payable pursuant to
Section 7(c)(ii), provided, however, that, at no time, shall the amount of
severance pay payable pursuant to Section 7(c)(ii) be less than the amount
of
severance that would have been payable based on an annual base salary of
CDN$225,000.
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7.
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The
Employment Agreement remains in full force and effect, unamended,
other
than as amended by this Amending
Agreement.
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8.
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This
Amending Agreement may be signed by facsimile and in counterpart,
and each
such counterpart will constitute an original document, and such
counterparts, taken together, will constitute one and the same
instrument.
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9.
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This
Amending Agreement shall be governed by, and construed in accordance
with,
the laws of the Province of Ontario and the laws of Canada applicable
therein.
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10.
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The
Employee acknowledges that:
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(a)
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he
has had sufficient time to review and consider this Amending Agreement
thoroughly;
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(b)
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he
has read and understands the terms of this Amending Agreement and
his
obligations under the Employment Agreement, as amended by this Amending
Agreement;
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(c)
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he
has been given an opportunity to obtain independent legal advice,
and such
other advice as he may desire, concerning the interpretation and
effect of
this Amending Agreement; and
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(d)
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this
Amending Agreement is entered into voluntarily and without any pressure
and that his continued employment with the Corporation has not been
made
conditional on execution and delivery by him of this Amending
Agreement.
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[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF
the
parties hereto have executed this Agreement as of the date first written
above.
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Signature
of Witness
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Xxxxxx
X. Xxxxxx
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Name
of Witness (please
print)
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By:
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Xxxxxx
X. Xxxxxx
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President
and Chief Operating Officer
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