TERMINATION AGREEMENT
Exhibit
10.40
Execution
Copy Version #3
THIS AGREEMENT is made as of
the 19th day of December, 2007 by and between Xxxx X. Xxxxx (the “Employee”), a resident of the
Commonwealth of Massachusetts, 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 September 1, 2006 (the
“Employment
Agreement”);
AND WHEREAS, the Employee has
been serving the Employer as its President & Founder, Glaucoma Division
pursuant to the Employment Agreement;
AND WHEREAS, the Employer is
intending to sell to Solx Acquisition, Inc., a Delaware corporation, owned by
the Employee, all of the issued and outstanding shares in the capital stock of
Solx, Inc. (“Solx”), the
wholly owned subsidiary of the Employer that has carried on the Employer’s
glaucoma business the (“Transaction”);
AND WHEREAS, in anticipation
of the closing of the Transaction, the Employee’s employment with the Employer
shall be terminated pursuant to Section 8.1.3 of the Employment Agreement,
effective 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 hereby resigns his employment with the Employer, and the Employee’s
employment with the Employer shall be terminated pursuant to Section 8.1.3 of
the Employment Agreement, effective on the Termination Date. The
Employer hereby waives the requirement, under Section 8.1.3 of the Employment
Agreement, to provide one month’s prior written notice to the Employer of the
Employee’s intention to terminate his employment with the Employer.
|
2.
|
RETURN
OF PROPERTY
|
2.1 The
Employee hereby certifies that he has returned to the Employer all property of
the Employer (other than property of Solx, any of which property shall be
retained by the Employee) 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 (as such term is defined in the Employment Agreement,
as modified 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. For purposes of this Section 2.1, the term “property of the Employer”
does not include any property of Solx, and the term “Confidential Information”
does not include Confidential Information relating to the business or affairs of
Solx.
|
3.
|
NO
SEVERANCE
|
3.1 The
Employee hereby acknowledges and agrees that no amounts are due or payable to
him by the Employer pursuant to Sections 9 or 10 of the Employment
Agreement.
|
4.
|
VACATION
PAY
|
4.1 In
full and complete compromise and settlement of a disputed claim regarding
accrued but unpaid vacation during the current Year of Employment (as such term
is defined in the Employment Agreement), the Employee and the Employer hereby
agree that the Employer shall pay to the Employee two weeks’ of accrued but
unpaid vacation pay.
|
5.
|
MUTUAL
RELEASE AND TERMINATION
|
5.1 In
consideration of the Employer entering into the Transaction, the Employee, on
behalf of himself and his administrators, assigns and anyone claiming through
him, hereby releases completely and forever discharges the Employer and its
affiliates and subsidiaries, and their respective officers, directors,
shareholders, agents, servants, representatives, underwriters, successors, heirs
and assigns (collectively, the “Employer Representatives”),
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 5.2 of this Agreement or any claim relating to any violation of any
U.S. federal or state statute or regulation, any claim for wrongful discharge or
breach of contract 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.
5.2 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, with the exception of Sections 12 (Non-competition), 13 (No
Solicitation of Customers), 14 (No Solicitation of
Employees). Notwithstanding the fact that Sections 12, 13 and 14 of
the Employment Agreement are expressly stated to survive the termination of the
Employment Agreement, they are hereby terminated and rendered null and
void. Although Section 15 (Confidentiality) of the Employment
Agreement shall survive the termination of the Employment Agreement, the term
“Confidential Information”
as used therein is hereby amended to exclude Confidential Information of
Solx. Although Section 16 (Remedies) of the Employment Agreement also
shall survive the termination of the Employment Agreement, it shall be read and
construed to apply only to a breach of threatened breach by the Employee of the
provisions of Section 15 of the Employment Agreement, as such Section 15 has
been amended pursuant to this Section 5.2. The Employee hereby agrees
to abide by the provisions of Sections 15 and 16 of the Employment Agreement, as
such Sections 15 and 16 have been amended pursuant to this Section
5.2.
2
5.3 The
Employer, on behalf of itself, the Employer Representatives and anyone claiming
through any of them, hereby releases completely and forever discharges the
Employee and his administrators, heirs and assigns from any and all claims,
demands, obligations and causes of action, of any nature whatsoever, whether
known or unknown, which the Employer 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 5.2 of this
Agreement or any claim relating to any violation of any U.S. federal or state
statute or regulation.
|
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.
|
3
|
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 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 Commonwealth of Massachusetts, without regard to its conflicts of laws rules
which shall be deemed inapplicable to this Agreement.
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]
4
IN WITNESS WHEREOF the parties
hereto have executed this Agreement.
|
By:
|
“Xxxxx
Xxxxxxxx”
|
|
|
Xxxxx
Xxxxxxxx
|
||
|
Chairman
and Chief Executive Officer
|
||
|
“Xxxx
X. Xxxxx”
|
||
|
Signature
of Witness
|
Xxxx
X. Xxxxx
|
|
|
Name
of Witness (please
print)
|
5
