TERMINATION AGREEMENT
THIS
AGREEMENT
is made
effective the 13th
day of
April, 2006
A
M O N G:
OCCULOGIX,
INC., a
corporation incorporated under the laws of the State of Delaware
(hereinafter
referred to as “OccuLogix”)
-
and
-
AMD
MEDICAL SERVICES INC., a
corporation incorporated under the laws of the Province of Ontario
(hereinafter
referred to as “AMD”)
-
and
-
XX.
XXXXXX X. XXXXXX, M.D. of
the
Town of Richmond Hill in the Province of Ontario
(hereinafter
referred to as “Xxxxxx”)
-
and
-
OCCULOGIX
CANADA CORP., an
unlimited liability company incorporated under the laws of the Province of
Nova
Scotia
(hereinafter
referred to as “OCC”)
-
and
-
3
RHEO
CLINIC INC., a
corporation incorporated under the laws of Canada
(hereinafter
referred to as “RHEO
CLINIC”)
-
and
-
TLC
VISION CORPORATION, a
corporation incorporated under the laws of the Province of New
Brunswick
(hereinafter
referred to as “TLCV”)
WHEREAS
the
appointment of Xxxxxx as the Vice President, Clinical Affairs of OccuLogix
is
terminated at the close of business on the date hereof;
AND
WHEREAS the
employment agreement (“Xxxxxx’x
Employment Agreement”),
dated
as of August 1, 2003, between Xxxxxx and Vascular Sciences Corporation (now
OccuLogix), as amended by an amending agreement dated as of September 1, 2005,
between Xxxxxx and OccuLogix, is terminated at the close of business on the
date
hereof;
AND
WHEREAS
Xxxxxx
is a beneficial owner, director and officer of AMD;
AND
WHEREAS
Quest
Clinical Trials Inc. (now AMD), Rheo Clinic, Xxxxxx and OccuLogix, L.P., entered
into an amended and restated consulting agreement, dated as of August 1, 2003,
pursuant to which, among other things, Quest Clinical Trials Inc. (now AMD)
provided medical and other services to Rheo Clinic in connection with the
operation of its Rheopheresis™ clinic located in the City of Mississauga (the
“Original
Consulting Agreement”);
AND
WHEREAS the
Original Consulting Agreement amended and restated the consulting agreement,
dated January 8, 2003, among Quest Clinical Trials Inc. (now AMD), Rheo Clinic
and Xxxxxx;
AND
WHEREAS,
in
connection with the Original Consulting Agreement, TLCV, Rheo Clinic and Quest
Clinical Trials Inc. (now AMD) entered into an indemnity agreement, dated as
of
August 1, 2003, pursuant to which Rheo Clinic agreed to indemnify and hold
harmless Quest Clinical Trials Inc. (now AMD) and its doctors and personnel
from
and against liability, losses, damages and expenses suffered under the
circumstances provided for therein and pursuant to which TLCV guaranteed the
performance by Rheo Clinic of its obligations thereunder (the “Indemnity
Agreement”);
AND
WHEREAS
as of
December 31, 2005, OccuLogix, L.P. assigned all of its assets and liabilities
to
OCC, including, without limitation, its rights and obligations under the
Original Consulting Agreement;
AND
WHEREAS the
Original Consulting Agreement had been replaced by the consulting agreement,
dated September 1, 2005, among OccuLogix, AMD and Xxxxxx (the “Current
Consulting Agreement”);
AND
WHEREAS the
services provided under the Current Consulting Agreement are no longer required;
NOW,
THEREFORE, in
consideration of the promises and mutual covenants set out in this Agreement
(the receipt and sufficiency of which are hereby acknowledged by the parties),
the parties hereto agree as follows:
| 1. |
TERMINATION
OF AGREEMENTS
|
1.1 AMD,
Rheo
Clinic, Xxxxxx and OCC hereby acknowledge and agree that, effective as of the
date hereof, pursuant to Section 5.2 of the Original Consulting Agreement,
the
Original Consulting Agreement is automatically terminated, and rendered null
and
void, by reason of the termination of Xxxxxx’x Employment
Agreement.
1.2 TLCV,
Rheo Clinic and AMD hereby agree that, effective as of the date hereof, the
Indemnity Agreement is terminated and rendered null and void, save and except
for those provisions thereof that are expressly stated to survive its
termination.
1.3 OccuLogix,
AMD and Xxxxxx hereby acknowledge and agree that, effective as of the date
hereof, the Current Consulting Agreement is terminated and rendered null and
void, save and except for those provisions thereof that are expressly stated
to
survive its termination.
| 2. |
WAIVER
OF NOTICE
|
2.1 Each
of
OccuLogix, AMD and Xxxxxx hereby waives the requirement, contained in Section
4.1 of the Current Consulting Agreement, to provide 30 days’ written notice of
an intention to terminate the Current Consulting Agreement.
| 3. |
REPRESENTATIONS
AND WARRANTIES
|
3.1 Each
of
the parties hereto, other than Xxxxxx, hereby represents and warrants to the
other parties that:
| (a) |
it
has the corporate power and capacity to enter into, and perform its
obligations under, this Agreement;
and
|
| (b) |
it
has taken all necessary action on its part to authorize the execution
and
delivery by it of this Agreement and the performance of its obligations
hereunder.
|
3.2 Xxxxxx
hereby represents and warrants to the other parties that:
| (a) |
he
has had sufficient time to review and consider this Agreement
thoroughly;
|
| (b) |
he
has read and understands the terms of this Agreement and his obligations
hereunder; and
|
| (c) |
he
has been given an opportunity to obtain independent legal advice,
or such
other advice as he may desire, concerning the interpretation and
effect of
this Agreement.
|
| 4. |
FURTHER
ASSURANCES
|
4.1 Each
of
the parties hereto hereby agrees to do, execute, acknowledge and deliver, or
to
cause to be done, executed, acknowledged and delivered, such further acts,
documents and instruments as may be reasonably necessary to accomplish the
intent of this Agreement.
| 5. |
GOVERNING
LAW
|
5.1 This
Agreement shall be governed by, and construed in accordance with, the laws
of
the Province of Ontario and the federal laws of Canada applicable
therein.
| 6. |
SIGNATURE
|
6.1 This
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 document.
| 7. |
TIME
OF ESSENCE
|
Time
is
of the essence in this Agreement.
IN
WITNESS WHEREOF
the
parties hereto have executed this Agreement.
|
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
||
|
Xxxxxx
X. Xxxxxx
|
|||
|
President
and Chief Operating Officer
|
|||
|
AMD
MEDICAL SERVICES INC.
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
||
|
Xxxxxx
X. Xxxxxx
|
|||
|
President
|
|||
|
/s/
Xxxxxx X. Xxxxxx
|
||
|
Signature
of Witness
|
Xxxxxx
X. Xxxxxx
|
|
|
Name
of Witness (please
print)
|
|
OCCULOGIX
CANADA CORP.
|
|||
|
By:
|
/s/
Xxxxx Xxxxxxxx
|
||
|
Xxxxx
Xxxxxxxx
|
|||
|
President
and Secretary
|
|||
|
RHEO
CLINIC INC.
|
|||
|
By:
|
/s/
Xxxxx Xxxxxx
|
||
|
Xxxxx
Xxxxxx
|
|||
|
Secretary
|
|||
|
TLC
VISION CORPORATION
|
|||
|
By:
|
/s/
Xxxxx Xxxxxx
|
||
|
Xxxxx
Xxxxxx
|
|||
|
Secretary
|
|||
