SETTLEMENT AGREEMENT
THIS
SETTLEMENT AGREEMENT
is made
as of May 20, 2005
A
M O N G:
OCCULOGIX,
INC., a
corporation incorporated under the laws of the State of Delaware
(hereinafter
referred to as the “Corporation”)
-
and-
XXXXX
XXXXX XXXXXXXX, O.D., an
individual resident in the City of Xxxxx in the State of Oklahoma
(hereinafter
referred to as “Xx.
Xxxxxxxx”)
-
and
-
XXXXX
X. XXXXXXXX O.D., P.C.,
a
professional corporation incorporated under the laws of the State of
Oklahoma
(hereinafter
referred to as “Xxxxxxxx
PC”)
WHEREAS,
under
the
Vascular Sciences Corporation 2002 Stock Option Plan, Vascular Sciences
Corporation (now the Corporation) granted to Xx. Xxxxxxxx 36,924 options as
of
October 1, 2002 (the “Options”),
each
of which is exercisable into one share of common stock of the
Corporation;
AND
WHEREAS the
Options were granted to Xx. Xxxxxxxx in partial consideration of the consulting
services that he provided to Vascular Sciences Corporation, at the direction
of
Xxxxxxxx PC, in fulfillment of Xxxxxxxx PC’s obligations under the Consulting
Agreement, dated as of October 1, 2002, between Vascular Sciences Corporation
and Xxxxxxxx PC (the “Consulting
Agreement”);
AND
WHEREAS the
Options were granted to Xx. Xxxxxxxx pursuant to a notice of grant of stock
option and a related stock option agreement entered into on March 24, 2004
(collectively, the “Option
Agreement”);
AND
WHEREAS the
Option Agreement provides that the per share exercise price of the Options
is
U.S.$1.30;
AND
WHEREAS Xx.
Xxxxxxxx has indicated that the Option Agreement does not express accurately
the
business agreement that he and Vascular Sciences Corporation had reached
regarding the equity portion of the consideration payable to him under the
Consulting Agreement in that the management of Vascular Sciences Corporation
had
represented to him, at the time of the entering into of the Option Agreement,
that he would be issued 36,924 shares of common stock of Vascular Sciences
Corporation or, alternatively, 36,924 options, each of which would be
exercisable into one share of common stock of Vascular Sciences Corporation,
with a nil per share exercise price;
AND
WHEREAS, upon
the
recommendation of the Corporation’s management, the board of directors of the
Corporation has concluded that it would be in the best interests of the
Corporation to put Xx. Xxxxxxxx in substantially the same position in which
he
would be if the Option Agreement reflected his understanding of the business
agreement between him and Vascular Sciences Corporation regarding the equity
portion of the consideration payable to him under the Consulting
Agreement;
AND
WHEREAS the
Options remain issued and outstanding and are currently exercisable but
unexercised;
NOW
THEREFORE
in
consideration of the mutual covenants and agreements contained herein, and
other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Corporation, Xx. Xxxxxxxx and Xxxxxxxx PC hereby agree as
follows:
1. |
In
full and complete settlement of the disagreement that has arisen
between
Xx. Xxxxxxxx and the Corporation regarding the equity portion of
the
consideration payable to him under the Consulting Agreement, the
Corporation hereby agrees to pay Xxxxxxxx PC U.S.$48,000 in cash
(the
“Settlement
Amount”)
on the date hereof.
|
2. |
Xx.
Xxxxxxxx and Xxxxxxxx PC hereby direct the Corporation to send
the
Settlement Amount, by wire transfer, to the bank account of
Xxxxxxxx PC,
the relevant particulars of which have been provided to the
Corporation
previously.
|
3. |
Each
of the parties hereto hereby acknowledges and agrees that the
Option
Agreement remains in full force and effect in its entirety, unamended,
and
is enforceable against the parties thereto in accordance with
its terms.
Without limiting the generality of the immediately foregoing
sentence, Xx.
Xxxxxxxx and Xxxxxxxx PC hereby acknowledge and agree that the
Options are
currently exercisable but unexercised and that each of them has
a per
share exercise price of
U.S.$1.30.
|
4. |
Each
of Xx. Xxxxxxxx and Xxxxxxxx PC hereby acknowledges and agrees that
the
Corporation has performed, fulfilled and discharged fully and completely
all of its obligations under the Consulting Agreement and hereby
remises,
releases and forever discharges the Corporation and its present and
former
directors, officers, agents, servants and employees (collectively,
the
“Releasees”)
of and from any and all actions, causes of action, suits, debts,
claims,
covenants and demands, whatsoever, known or unknown, suspected or
unsuspected, which any of Xx. Xxxxxxxx or Xxxxxxxx PC ever had, now
has or
may hereafter have against the Releasees, or any of them, (i) for
or by
reason of the Consulting Agreement, (ii) in any way arising out of
any
cause, matter or thing existing up to the date hereof relating to
the
Consulting Agreement or (iii) arising directly or indirectly by reason
of,
or as a consequence of, the Consulting
Agreement.
|
-2-
5. |
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 Settlement
Agreement.
|
6. |
This
Settlement Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware without regard to the conflicts
of
law principles applicable under such
laws.
|
7. |
This
Settlement 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.
|
IN
WITNESS WHEREOF
the
parties hereto have executed this Agreement as of the date first written
above.
|
|
|
By: | /s/
Xxxxxxx
X. Dumencu
|
|
|
||
Xxxxxxx
X. Dumencu
|
||
Chief
Financial Officer and Treasurer
|
Witness: | ||
|
|
|
/s/ Xxxx X Xxxxx | /s/ Xxxxx Xxxxx Xxxxxxxx | |
|
|
|
Signature of witness: | Xxxxx Xxxxx Xxxxxxxx | |
Xxxx X Xxxxx | ||
|
||
Name
of witness:
(Please
print name.)
|
||
XXXXX
X. XXXXXXXX, O.D., P.C.
|
||
|
|
|
By: | /s/ Xxxxx Xxxxx Xxxxxxxx | |
|
||
Xxxxx
Xxxxx Xxxxxxxx
|
||
President
|
-3-