RELEASE AGREEMENT
THIS
AGREEMENT
is made
as of the 13th day of April, 2006 by and between Xxxxxx X. Xxxxxx (the
“Employee”),
a
resident of the Town of Richmond Hill in 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
Vascular
Sciences Corporation (now the Employer) and the Employee entered into an
employment agreement dated as of August 1, 2003 (the “Original
Employment Agreement”)
which
was amended pursuant to an amending agreement, dated as of September 1, 2005,
between the Employer and the Employee (the “Amending
Agreement”);
AND
WHEREAS
the
Original Employment Agreement, as amended by the Amending Agreement, is
hereinafter referred to as the “Employment
Agreement”;
AND
WHEREAS
the
Employee’s employment with the Employer shall be terminated pursuant to Section
7(b) of the Employment Agreement, effective at the close of business on the
date
hereof (the “Termination
Date”);
NOW,
THEREFORE, in
consideration of the mutual promises and covenants contained in this Agreement
(the receipt and sufficiency of which are hereby acknowledged by the parties
hereto), the parties hereto agree as follows:
| 1. |
TERMINATION
|
1.1 The
Employee’s employment with the Employer shall be terminated pursuant to Section
7(b) of the Employment Agreement, effective at the close of business on the
Termination Date.
| 2. |
RETURN
OF PROPERTY
|
2.1 The
Employee hereby certifies that he has returned to the Employer all property
of
the Employer in the Employee’s possession, including, without limitation, all
keys, business cards, computer hardware, including, without limitation,
Blackberry units, printers, mice and other hardware accessories, and computer
software. The Employee hereby further certifies that he has returned to the
Employer, or destroyed, all tangible material embodying Confidential Information
(defined below) in any form whatsoever, including, without limitation, all
paper
copy copies, summaries and excerpts of Confidential Information and all
electronic media or records containing or derived from Confidential Information.
“Confidential
Information” means
all
information of, or relating to, the Employer that is not generally known to
the
public, whether of a technical, clinical, business, financial or other nature,
including, without limitation, trade secrets, know-how and information relating
to the technology, customers, business plans, sales plans, promotional or
marketing activities, finances and other affairs of the Employer.
| 3. |
SEVERANCE
|
3.1 Pursuant
to Section 7(c) of the Employment Agreement, upon the execution and delivery
of
this Agreement by the Employee, the Employer shall pay to the Employee, in
a
lump sum, (i) any compensation earned but not paid to the Employee prior to
the
Termination Date and (ii) the amount of Cdn.$450,000, representing 24 months’
salary under the Employment Agreement, less applicable withholdings and
deductions.
| 4. |
RELEASE
AND TERMINATION
|
4.1 In
consideration of the payment provided for in Section 3.1(ii), the Employee
hereby agrees, on behalf of himself and his administrators, heirs, assigns
and
anyone claiming through him, to release completely and forever discharge the
Employer and its affiliates and subsidiaries, and their respective officers,
directors, shareholders, agents, servants, representatives, underwriters,
successors, heirs and assigns, from any and all claims, demands, obligations
and
causes of action, of any nature whatsoever, whether known or unknown, which
the
Employee ever had, now has or might have in the future as a result of the
Employee’s employment with the Employer or the termination thereof, including,
without limitation, any claim relating to the Employment Agreement or the
termination thereof pursuant to Section 4.2 of this Agreement or any claim
relating to any violation of any Canadian federal or provincial statute or
regulation, any claim for wrongful discharge or breach of contract or any claim
relating to Canadian federal or provincial laws (including, without limitation,
the Employment
Standards Act (Ontario)
and the Ontario Human
Rights Code).
Notwithstanding the foregoing, nothing herein shall be construed as depriving
the Employee of (i) any indemnification rights to which he is entitled under
the
Amended and Restated By-laws of the Employer on or prior to the Termination
Date
or (ii) any protection to which he may be entitled, on, prior to or after the
Termination Date, under the Employer’s directors’ and officers’ liability
insurance policy from time to time, or as releasing the Employer from any of
the
Employer’s representations, warranties and covenants under this
Agreement.
4.2 The
Employment Agreement is hereby terminated and rendered null and void, save
and
except for those provisions thereof that are expressly stated to survive the
termination thereof, if any, and Section 9 of the Employment Agreement (Covenant
not to Compete), Section 10 of the Employment Agreement (Secrecy), Section
11 of
the Employment Agreement (No Interference), Section 12 of the Employment
Agreement (Assignment of Inventions), Section 13 of the Employment Agreement
(Existing Inventions), Section 15 of the Employment Agreement (Indemnification),
Section 18 of the Employment Agreement (Mediation) and Section 19 of the
Employment Agreement (Arbitration). The Employee hereby agrees to abide by
all
of such provisions.
4.3 The
Employer hereby acknowledges and agrees that the Employee holds (i) 300,000
time-based options (the “Time-Based
Options”)
granted
under the Employer’s 2002 Stock Option Plan (the “Plan”)
and
(ii) 75,000 performance-based options (the “Performance-Based
Options”)
granted
under the Plan. The Employer hereby further acknowledges and agrees that,
notwithstanding the termination of the Employee’s employment with the Employer
and the termination of the Employment Agreement pursuant hereto, all of the
Time-Based Options are currently exercisable at U.S.$0.99 per Time-Based Option
and, in all other respects, in accordance with the terms and conditions of
the
Notice of Grant of Stock Option and the Stock Option Agreement, both relating
to
the grant of the Time-Based Options, and the Plan. The Employer hereby further
acknowledges and agrees that there are currently no Employer-imposed
restrictions on the Employee’s ability to exercise any of the Time-Based
Options. The Employee hereby acknowledges and agrees that none of the
Performance-Based Options are exercisable on the Termination Date and that,
by
their terms and conditions, will never be exercisable.
| 5. |
NO
FUTURE ACTIONS
|
5.1 The
Employee represents, warrants and covenants that he will not file any, and,
if
applicable, will withdraw all, complaints, charges, suits or grievances against
the Employer or its affiliates or subsidiaries, or any of their respective
officers, directors, shareholders, agents, servants, representatives,
underwriters, successors, heirs and assigns, with any governmental agency or
court, relating to his employment with the Employer, and the Employee further
agrees that neither he nor any person, organization or any other entity acting
on his behalf will file, or cause or permit to be filed, any other complaint,
charge, suit or grievance against the Employer at any time hereafter involving
any matter occurring or arising in the past up to the date of this Agreement.
In
the event of breach of this representation, warranty and covenant by the
Employee, he will return immediately, in full, all payments made to him pursuant
to Section 3.1 hereof. Furthermore, in the event of such breach, the Employee
will pay the Employer’s reasonable attorneys’ fees incurred in connection with
defending or otherwise responding to such a complaint, charge, suit or
grievance. Notwithstanding anything in this Section 5.1 to the contrary, this
Section 5.1 shall not apply to any complaint, charge, suit or grievance brought
by the Employee, or any person, organization or other entity acting on his
behalf, in connection with a breach by the Employer of any of its obligations
under this Agreement.
| 6. |
CONSULTING
SERVICES
|
6.1 Notwithstanding
the termination of the Employee’s employment with the Employer pursuant to this
Release Agreement, the Employee hereby agrees that, during the period from
May
8, 2006 to June 8, 2006 inclusive, he will provide to the Employer consulting
services in connection with the Employer’s clinical trial known as “MIRA-1”
when, if and as requested by the Employer, acting reasonably, provided that
the
provision of such consulting services shall not require more than five hours
of
the Employee’s time in total. To the extent that the provision of such
consulting services pursuant to this Section 6.1, if any, is anticipated to
consume more than five hours of the Employee’s time, then the Employer and the
Employee will negotiate, in good faith, appropriate compensation for the
excessive time to be spent by the Employee in rendering such consulting
services.
| 7. |
THIRD
PARTY COMMUNICATIONS
|
7.1 In
consideration of the mutual promises and covenants contained herein, each of
the
parties hereto hereby agrees that he and it will not make any statements to,
or
initiate or participate in any discussions with, any other person, including,
without limitation, the Employer’s customers, which are derogatory, disparaging
or injurious to the reputation of the Employee or the Employer. This Section
7.1, in no way, shall be construed as prohibiting either party hereto from
responding truthfully to any question or interrogatory to which such party
is
requested to respond.
| 8. |
ACKNOWLEDGEMENT
|
8.1 The
Employee hereby acknowledges 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;
|
| (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; and
|
| (d) |
He
is entering this Agreement voluntarily and without any pressure from
the
Employer.
|
| 9. |
MISCELLANEOUS
|
9.1 The
headings in this Agreement are included solely for convenience of reference
and
shall not affect the construction or interpretation hereof.
9.2 The
parties hereto expressly agree that nothing in this Agreement shall be construed
as an admission of liability.
9.3 This
Agreement shall be binding upon, and inure to the benefit of, the parties hereto
and their respective heirs, trustees, administrators, successors and
assigns.
9.4 This
Agreement constitutes the entire agreement between the parties hereto pertaining
to the subject matter of the termination of the Employee’s employment with the
Employer. This Agreement supersedes and replaces 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 Agreement, except as specifically set forth in this
Agreement. 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 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.
9.5 Each
of
the provisions contained in this 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.
9.6 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.
9.7 This
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.
3
IN
WITNESS WHEREOF
the
parties hereto have executed this Agreement.
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By:
|
/s/
Xxxxxx X. Xxxxxx
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|
Xxxxxx
X. Xxxxxx
|
|||
|
President
and Chief Operating Officer
|
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|
/s/
Xxxxxx X. Xxxxxx
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|
Signature
of Witness
|
Xxxxxx
X. Xxxxxx
|
|
|
Name
of Witness (please
print)
|
