AMENDING AGREEMENT
AMENDING
AGREEMENT
THIS
AMENDING AGREEMENT
is made
as of the 13th day of April, 2006 between OCCULOGIX,
INC. (the
“Corporation”),
a
corporation incorporated under the laws of the State of Delaware, and Xxxx
Xxxxxxx who resides at 000 Xxxxxxxxx Xxxxx in the City of Palm Harbor in the
State of Florida (hereinafter referred to as the “Employee”).
WHEREAS
the
Corporation and the Employee entered into an employment agreement, dated as
of
April 1, 2005, setting forth the rights and obligations of each of them with
respect to the Employee’s employment with the Corporation (the “Employment
Agreement”);
AND
WHEREAS the
Corporation and the Employee entered into an amending agreement, dated as of
June 1, 2005, amending the Employment Agreement in order to increase the
percentage of the working time and attention of the Employee to be devoted
to
his employment with the Corporation from 80% to 85% and in order to increase
his
per annum salary commensurately to $113,104 (the “First
Amending Agreement”);
AND
WHEREAS, as
of
July 1, 2005, following his performance review, the Employee’s per annum salary
was increased to $116,723;
AND
WHEREAS, the
Corporation’s requirement for the Employee’s services has changed;
AND
WHEREAS the
Corporation and the Employee have agreed that it would be in the best interests
of both of them for the Employee to devote less of his working time and
attention to his employment with the Corporation;
NOW,
THEREFORE, in
consideration of the mutual covenants and undertakings contained in the
Employment Agreement, as amended by the First Amending Agreement and as further
amended by this Amending Agreement, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Corporation
and the Employee agree as follows:
| 1. |
Section
3 of the Employment Agreement, as amended by the First Amending Agreement,
is hereby deleted in its entirety and replaced with the following
provision:
|
3. Performance
of Duties
During
the Employment Period, the Employee shall faithfully, honestly and diligently
serve the Corporation and its Subsidiaries as contemplated above. The Employee
shall devote 50% of his working time and attention to his employment hereunder
and shall use his best efforts to promote the interests of the Corporation.
| 2. |
Section
5.1 of the Employment Agreement, as amended by the First Amending
Agreement, is hereby deleted in its entirety and replaced with the
following provision:
|
| 5.1 |
Salary.
The Corporation shall pay the Employee a salary (the “Salary”), minus
applicable deductions and withholdings, in respect of each Year of
Employment in the Employment Period, calculated at the rate of $68,660
per
annum, payable in equal installments according to the Corporation’s
regular payroll practices. The Salary shall, in the sole and absolute
discretion of the board of directors of the Corporation, be subject
to an
increase on the basis of an annual review. The Salary shall be prorated
in
respect of the First Year of Employment such that the Employee shall
be
entitled to and the Corporation shall be required to pay in respect
of
such year only the pro rata portion of the Salary that corresponds
to the
number of days, after May 31, 2005, worked by the Employee in the
First
Year of Employment.
|
For
greater certainty, during the period between June 1, 2005 and June 30, 2005
inclusive and the period between July 1, 2005 to April 12, 2006 inclusive,
the
Salary (as such term is defined in the Employment Agreement) payable to the
Employee was $113,104 and $116,723, respectively, pro rated to the number of
days worked by the Employee during each of such period.
| 3. |
Notwithstanding
Section 2 of this Amending Agreement and the amendment to Section
5.1 of
the Employment Agreement effected thereby, the term “Salary” shall mean
$116,723 for all purposes of the provisions of Sections 9 and 10
of the
Employment Agreement.
|
| 4. |
The
Employment Agreement, as amended by the First Amending Agreement,
remains
in full force and effect, unamended, other than as amended by this
Amending Agreement.
|
| 5. |
This
Amending 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.
|
| 6. |
This
Amending Agreement shall be governed by, and construed in accordance
with,
the laws of the State of Florida, without regard to conflict of laws
rules
which are deemed inapplicable herein. The parties hereto each consent
to
the personal jurisdiction of the federal and state courts of the
State of
Florida.
|
| 7. |
The
Employee acknowledges that:
|
| (a) |
he
has had sufficient time to review and consider this Amending Agreement
thoroughly;
|
| (b) |
he
has read and understands the terms of this Amending Agreement and
his
obligations under the Employment Agreement, as amended by this Amending
Agreement;
|
| (c) |
he
has been given an opportunity to obtain independent legal advice,
and such
other advice as he may desire, concerning the interpretation and
effect of
this Amending Agreement; and
|
| (d) |
this
Amending Agreement is entered into voluntarily and without any pressure
and that his continued employment with the Corporation has not been
made
conditional on execution and delivery by him of this Amending
Agreement.
|
[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-
-
IN
WITNESS WHEREOF
the
parties hereto have executed this Agreement as of the date first written
above.
|
/s/
Xxxx Xxxxxxx
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Signature
of Witness
|
Xxxx
Xxxxxxx
|
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|
Name
of Witness (please
print)
|
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|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
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|
Xxxxxx
X. Xxxxxx
|
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|
President
and Chief Operating Officer
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