AMENDING AGREEMENT
Exhibit
10.57
Execution
Copy
THIS AMENDING AGREEMENT is
made as of the 3rd day of March, 2008 by and between Xxxxx X. Xxxxxxxxxxxx (the
“Employee”), a resident
of the Province of Ontario, and OccuLogix, Inc. (the “Employer”), a corporation
incorporated under the laws of the State of Delaware, and having its executive
offices at 0000 Xxxxxxx Xxxxxx, Xxxxxxxx 0, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxx, X0X
0X0.
WHEREAS, the Employer and the
Employee entered into a termination agreement dated as of January 4, 2008 (the
“Termination Agreement”)
pursuant to which the Employee’s employment with the Employer, as its Vice
President, Marketing, was terminated;
AND WHEREAS, capitalized terms
used in this Amending Agreement, but not otherwise defined, shall have the
respective meanings attributed to such terms in the Termination
Agreement;
AND WHEREAS, the Employer and
the Employee mutually have agreed that it would be in the best interests of each
of them to permit the Employer to pay up to 50% of the Severance Balance in a
non-cash form of consideration;
NOW, THEREFORE, in
consideration of the mutual promises and covenants contained in this Amending
Agreement and the Termination Agreement (the receipt and sufficiency of which
are hereby acknowledged by the parties hereto), the parties hereto agree as
follows:
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1.
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AMENDMENT
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1.1 Sections
3.3, 3.4 and 3.5 of the Termination Agreement are hereby deleted in their
entirety and replaced with the following Sections 3.3, 3.4, 3.5 and
3.6:
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3.3
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At
the sole discretion of the Employer, and subject to the provisions of this
Section 3.3 and Section 3.4, and subject further to the Employer obtaining
all requisite corporate approval therefor (including, without limitation,
the approval of the Employer’s stockholders, if required), the Employer
may satisfy and discharge in full its obligation under Section 3.2 to pay
the Severance Balance by: (i) issuing to the Employee stock
options under the Stock Option Plan in a number equal to the quotient of
(a) some percentage of the Severance Balance, which shall not exceed 50%,
divided by (b) the per stock option value of such stock options, which
shall be determined by the Employer using the Black-Scholes valuation
method (collectively, the “Severance Stock
Options”); and (ii) paying the balance of the Severance Balance to
the Employee in cash. The Severance Stock Options shall have a
term of ten years commencing on the date of their grant and, other than as
may be agreed to by the Employer within its sole discretion, will not
become exercisable prior to the 180th
day following the date of their grant. The exercise price of
the Severance Stock Options shall be determined by the Employer’s board of
directors in accordance with the provisions of the Stock Option Plan and
all applicable laws, regulations and rules (including, without limitation,
the rules of the Toronto Stock
Exchange).
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3.4
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If, prior
to the end of the Salary Continuance Period, any petition should be filed
by or against the Employer for liquidation or reorganization, or should
the Employer become insolvent or make an assignment for the benefit of any
creditor or creditors, or should a receiver or trustee be appointed for
all or any significant part of the Employer’s assets, or should the
Employer consent to the winding-up, liquidation or dissolution of itself
or its affairs (each, a “Bankruptcy Event”),
then an amount equal to (i) the Employee’s Severance minus (ii) the
aggregate net amount paid by the Employer to the Employee to the date of
the Bankruptcy Event, together with the aggregate amount of deductions and
withholdings withheld by the Employer, pursuant to Section 3.1, shall
become due and payable, in cash, immediately to the
Employee. If a Bankruptcy Event occurs on or after March 31,
2008, then the Severance Balance shall become due and payable, in cash,
immediately to the Employee.
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3.5
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The
Employer hereby agrees that, in the event that any of Xxxxx Xxxxxxxx, Xxx
Xxxxxx, Nozhat Xxxxxxx, Xxxx Xxxxxxx, Xxxx Dumencu, Xxxxx Xxxxxxxx,
Xxxxxxx Xxxxxx, Xxx Xxx, Xxxxxxx Xxxxx or Xxxxxxx Xxxxxxx (each, an “OLT Member”) should
become entitled to receive severance pursuant to his or her executive
employment agreement at any time before the Employer has paid, in full,
the amount due and payable to her pursuant to Section 3.2 or 3.4, as the
case may be, the Employer shall not pay any OLT Member a percentage of his
or her severance entitlement (without regard to applicable deductions and
withholdings) that exceeds the percentage that (i) the Salary Continuance
Amount plus the
aggregate amount paid to the Employee pursuant to Sections 3.2 and 3.4,
together with the aggregate amount of deductions and withholdings withheld
by the Employer, represents of (ii) the amount of the Employee’s
Severance. For greater certainty, for purposes of calculating
such percentage in a circumstance in which the Employer has exercised its
discretion pursuant to Section 3.3 and has issued Severance Stock Options,
then the aggregate amount paid to the Employee pursuant to Section 3.2
shall be the sum of (i) the value of such Severance Stock Options, as
determined by the Employer using the Black-Scholes valuation method, and
(ii) the amount of the Severance Balance paid in
cash.
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3.6
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For
greater certainty, all cash amounts due and payable by the Employer to the
Employee pursuant to this Article 3 shall be paid, net of applicable
deductions and withholdings.
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1.2 The
Termination Agreement remains in full force and effect, unamended, other than as
specifically amended by this Amending Agreement.
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2.
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ACKNOWLEDGEMENT
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2.1
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The
Employee hereby acknowledges that:
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(a)
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She
has had sufficient time to review and consider this Amending Agreement
thoroughly;
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(b)
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She
has read and understands the terms of this Amending Agreement and her
obligations hereunder;
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(c)
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She
has been given an opportunity to obtain independent legal advice, or such
other advice as she may desire, concerning the interpretation and effect
of this Amending Agreement; and
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(d)
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She
is entering this Amending Agreement voluntarily and without any pressure
from the Employer.
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3.
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MISCELLANEOUS
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3.1 The
headings in this Amending Agreement are included solely for convenience of
reference and shall not affect the construction or interpretation
hereof.
3.2 The
parties hereto expressly agree that nothing in this Amending Agreement shall be
construed as an admission of liability.
3.3 This
Amending Agreement shall be binding upon, and inure to the benefit of, the
parties hereto and their respective heirs, trustees, administrators, successors
and assigns.
3.4 This
Amending Agreement and the Termination Agreement constitute the entire agreement
between the parties hereto pertaining to the subject matter of the termination
of the Employee’s employment with the Employer. This Amending
Agreement, together with the Termination Agreement, supersede and replace all
prior agreements, if any, written or oral, with respect to such subject matter
and any rights which the Employee may have by reason of any such prior
agreements or by reason of the Employee’s employment with the
Corporation. There are no representations, warranties or agreements
between the parties hereto in connection with the subject matter of this
Amending Agreement, except as specifically set forth herein. No
reliance is placed on any representation, opinion, advice or assertion of fact
made by the Employer or any of its officers, directors, agents or employees to
the Employee, except to the extent that the same has been reduced to writing and
included as a term of this Amending Agreement or the Termination
Agreement. Accordingly, there shall be no liability, either in tort
or in contract, assessed in relation to any such representation, opinion, advice
or assertion of fact, except to the extent aforesaid.
3.5 Each
of the provisions contained in this Amending Agreement is distinct and
severable, and a declaration of invalidity or unenforceability of any provision
or part thereof by a court of competent jurisdiction shall not affect the
validity or enforceability of any other provision hereof.
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3.6 This
Amending 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.
3.7 This
Amending Agreement may be signed in counterparts and delivered by facsimile
transmission or other electronic means, and each of such counterparts shall
constitute an original document, and such counterparts, taken together, shall
constitute one and the same instrument.
[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the
parties have executed this Amending Agreement as of the date set forth
above.
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By:
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“Xxx
Xxx”
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Xxx
Xxx
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General
Counsel
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“Xxxxx
X. Xxxxxxxxxxxx”
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Signature
of Witness
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Xxxxx
X. Xxxxxxxxxxxx
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Name
of Witness (please
print)
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