RELEASE AGREEMENT
THIS
AGREEMENT
is made
as of the 13th day of April, 2006 by and between Xxxx Xxxxx (the “Employee”),
a
resident of the State of California, 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 an employment agreement dated as of
May
18, 2005 (the “Employment
Agreement”);
AND
WHEREAS
the
Employee’s employment with the Employer shall be terminated pursuant to Section
8.1.2 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
8.1.2 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 9 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, the amount of Cdn.$240,000, representing twelve months’ Basic Salary
(as such term is defined in the Employment Agreement) plus 2.5% of Basic Salary
in respect of the Employee’s entitlement to Benefits (as such term is defined in
the Employment Agreement), less applicable withholdings and deductions.
3.2 Upon
the
execution and delivery of this Agreement by the Employee, the Employer shall
pay
to the Employee, in a lump sum, the amount of Cdn.$8,076.92 in respect of his
accrued but unused vacation entitlement.
| 4. |
RELEASE
AND TERMINATION
|
4.1 In
consideration of the payment provided for in Section 3.1, 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 U.S. federal or state
statute or regulation, any claim for wrongful discharge or breach of contract,
any claim relating to Canadian federal or provincial laws (including, without
limitation, the Employment
Standards Act (Ontario)
and the Ontario Human
Rights Code)
or any
claim relating to U.S. state or federal laws (including, without limitation,
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment
Act of 1968, the Employment Retirement Income and Security Act, the Fair Labor
Standards Act, the Americans with Disabilities Act and the Rehabilitation Act).
Notwithstanding the foregoing, nothing herein shall be construed as depriving
the Employee of 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 of 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.
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, including, without limitation, Sections 12
(Non-competition), 13 (No Solicitation of Customers or Patients), 14 (No
Solicitation of Employees), 15 (Confidentiality) and 16 (Remedies) of the
Employment Agreement. The Employee hereby agrees to abide by such
provisions.
4.3 The
Employee hereby acknowledges and agrees that none of the options granted to
him
under the Employer’s 2002 Stock Option Plan 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, 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
and Section 3.2 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.
| 6. |
THIRD
PARTY COMMUNICATIONS
|
6.1 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
6.1, 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.
| 7. |
ACKNOWLEDGEMENT
|
7.1 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.
|
| 8. |
MISCELLANEOUS
|
8.1 The
headings in this Agreement are included solely for convenience of reference
and
shall not affect the construction or interpretation hereof.
8.2 The
parties hereto expressly agree that nothing in this Agreement shall be construed
as an admission of liability.
8.3 This
Agreement shall be binding upon, and inure to the benefit of, the parties hereto
and their respective heirs, trustees, administrators, successors and
assigns.
8.4 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.
8.5 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.
8.6 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.
8.7 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.
[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF
the
parties hereto have executed this Agreement.
|
|
|||
|
By:
|
/s/
Xxxxx Xxxxxxxx
|
||
|
Xxxxx
Xxxxxxxx
|
|||
|
Chairman
and Chief Executive Officer
|
|||
|
/s/
Xxxx Xxxxx
|
||
|
Signature
of Witness
|
Xxxx
Xxxxx
|
|
|
Name
of Witness (please
print)
|
