AMENDING AGREEMENT
Exhibit
10.3
Execution
Copy #4
THIS AMENDING AGREEMENT is
made as of the 16th day of
June, 2008 by and between Xxxxxxx Xxxxxx (the “Employee”), a resident of 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, the Employer and the
Employee entered into a termination agreement dated as of January 31, 2008 (the
“Termination Agreement”)
pursuant to which the Employee’s employment with the Employer, as its Vice
President, Investor & Public Affairs, was terminated;
AND WHEREAS, capitalized terms
used in this Amending Agreement, but not otherwise defined, shall have the
respective meanings attributed to such terms in the Termination
Agreement;
AND WHEREAS, the Employer has
advised the Employee that it will not be able to pay the Severance Balance on or
prior to June 30, 2008, and they mutually have agreed to extend such deadline to
September 1, 2008;
NOW, THEREFORE, in
consideration of the mutual promises and covenants contained in this Amending
Agreement and the Termination Agreement (the receipt and sufficiency of which
are hereby acknowledged by the parties hereto), the parties hereto agree as
follows:
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1.
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AMENDMENT
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1.1 The
first sentence of Section 3.2 of the Termination Agreement is hereby deleted in
its entirety and replaced with the following sentence:
Subject
to Section 3.4, on the earliest to occur of (i) September 1, 2008, (ii) the date
on which the Employer closes a financing for total gross proceeds in an
aggregate amount of at least U.S.$5,000,000, whether by debt, equity or
otherwise, and whether such financing is effected in a single transaction or a
series of related or unrelated transactions, and (iii) a Change of Control
(defined below), the Employer shall pay the Employee, in a lump sum, an amount
equal to (A) the Employee’s Severance minus (B) the Salary
Continuance Amount, less applicable deductions and withholdings (the “Severance
Balance”).
Without
derogating from the generality of Section 1.3 of this Amending Agreement, and
for greater certainty, the other sentences of Section 3.2 of the Termination
Agreement remain in full force and effect, unamended.
1.2 Section
4.2 of the Termination Agreement is hereby deleted in its entirety and replaced
with the following Section 4.2:
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4.2
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The
Employer shall use commercially reasonable efforts to obtain the Requisite
Stockholder Approval, which covenant shall terminate and become null and
void, and be of no more force or effect, upon the earlier to occur of (i)
the date on which a meeting of the Employer’s stockholders may be convened
to obtain the Requisite Stockholder Approval and (ii) September 30,
2008.
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1.3 The
Termination Agreement remains in full force and effect, unamended, other than as
specifically amended by this Amending Agreement.
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2.
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ACKNOWLEDGEMENT
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2.1 The
Employee hereby acknowledges that:
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(a)
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He
has had sufficient time to review and consider this Amending Agreement
thoroughly;
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(b)
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He
has read and understands the terms of this Amending Agreement and his
obligations hereunder;
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(c)
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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 Amending Agreement; and
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(d)
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He
is entering this Amending Agreement voluntarily and without any pressure
from the Employer.
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3.
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MISCELLANEOUS
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3.1 The
headings in this Amending Agreement are included solely for convenience of
reference and shall not affect the construction or interpretation
hereof.
3.2 The
parties hereto expressly agree that nothing in this Amending Agreement shall be
construed as an admission of liability.
3.3 This
Amending Agreement shall be binding upon, and inure to the benefit of, the
parties hereto and their respective heirs, trustees, administrators, successors
and assigns.
3.4 This
Amending Agreement and the Termination Agreement constitute the entire agreement
between the parties hereto pertaining to the subject matter of the termination
of the Employee’s employment with the Employer. This Amending
Agreement, together with the Termination Agreement, supersede and replace 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
Employer. There are no representations, warranties or agreements
between the parties hereto in connection with the subject matter of this
Amending Agreement, except as specifically set forth herein. 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 Amending Agreement or the Termination
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.
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3.5 Each
of the provisions contained in this Amending 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.
3.6 This
Amending 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.
3.7 This
Amending 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]
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IN WITNESS WHEREOF, the
parties have executed this Amending Agreement as of the date set forth
above.
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By:
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/s/
Xxx Xxx
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Xxx
Xxx
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General
Counsel
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/s/
Xxxxxxx Xxxxxx
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Signature
of Witness
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Xxxxxxx
Xxxxxx
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Name
of Witness (please
print)
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