Employment Agreement - OccuLogix Inc. and Thomas P. Reeves
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of this day of August, 2004,
BETWEEN:
OCCULOGIX INC., a corporation incorporated under the
laws of the State of Delaware
(the "Corporation")
- and -
THOMAS P. REEVES, of the City of Mississauga, in the
Province of Ontario
(the "Employee")
RECITAL:
A. The Corporation and the Employee wish to enter into this Agreement to
set forth the rights and obligations of each of them as regards the
Employee's employment with the Corporation;
NOW THEREFORE in consideration of the mutual covenants and
agreements contained in this 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. DEFINITIONS
1.1. In this Agreement,
1.1.1. "Affiliate" has the meaning attributed to such term in
the Business Corporations Act (Ontario) as the same may be
amended from time to time and any successor legislation
thereto;
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1.1.2. "AGREEMENT" means this agreement and all schedules
attached to this agreement, in each case as they may be
amended or supplemented from time to time, and the expressions
"hereof, "herein", "hereto", "hereunder", "hereby" and similar
expressions refer to this agreement and unless otherwise
indicated, references to sections are to sections in this
agreement;
1.1.3. "BASIC SALARY" and "SALARY" have the respective
meanings attributed to such terms in section 5.1;
1.1.4. "BENEFITS" has the meaning attributed to such term in
section 5.4;
1.1.5. "BUSINESS DAY" means any day, other than Saturday,
Sunday or any statutory holiday in the Province of Ontario;
1.1.6. "CHANGE OF CONTROL" for the purposes of this Agreement,
shall be deemed to have occurred when:
1.1.6.1. any Person, other than a Person or a
combination of Persons presently owning, directly or
indirectly, more than 20% of existing voting
securities of the Corporation, acquires or becomes
the beneficial owner of, or a combination of Persons
acting jointly and in concert acquires or becomes the
beneficial owner of, directly or indirectly, more
than 50% of the voting securities of the Corporation,
whether through the acquisition of previously issued
and outstanding voting securities, or of voting
securities that have not been previously issued, or
any combination thereof, or any other transaction
having a similar effect;
1.1.6.2. the Corporation amalgamates with one or more
corporations other than a Subsidiary or OccuLogix,
L.P.;
1.1.6.3. the Corporation sells, leases or otherwise
disposes of all or substantially all of its assets
and undertaking, whether pursuant to one or more
transactions;
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1.1.6.4. any Person not part of existing management
of the Corporation or any Person not controlled by
the Corporation or by any Affiliate enters into any
arrangement to provide management services to the
Corporation which results in either (i) the
termination by the Corporation of the employment of
any two of the Chairman and Chief Executive Officer,
President and Chief Operating Officer, Chief
Financial Officer or General Counsel for any reason
other than Just Cause; or (ii) the termination of the
employment of all such senior executive personnel
within six months of the date that such arrangement
is entered into for any reason other than Just Cause;
or
1.1.6.5. the Corporation enters into any transaction
or arrangement which would have the same or similar
effect as the transactions referred to in sections
1.1.6.1, 1.1.6.2, 1.1.6.3 or 1.1.6.4 above.
1.1.7. "CONFIDENTIAL INFORMATION" means all confidential or
proprietary information, intellectual property (including
trade secrets) and confidential facts relating to the business
or affairs of the Corporation or any of its Subsidiaries which
the Corporation treats as confidential or proprietary;
1.1.8. "DISABILITY" means the mental or physical state of the
Employee such that the Employee has been unable as a result of
illness, disease, mental or physical disability or similar
cause to fulfil his obligations under this Agreement either
for any consecutive 6 month period or for any period of 12
months (whether or not consecutive) in any consecutive
24-month period;
1.1.9. "EMPLOYMENT PERIOD" has the meaning attributed to such
term in section 4;
1.1.10. "ESA" means the Employment Standards Act, 2000
(Ontario) as the same may be amended from time to time and any
successor legislation thereto;
1.1.11. "GOOD REASON" means:
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1.1.11.1. without the consent of the Employee, any
material change or series of material changes in the
responsibilities or status of the Employee with the
Corporation, such that immediately after such change
or series of changes the responsibilities and status
of the Employee are materially diminished in
comparison to his responsibilities and status
immediately prior to such change or series of
changes, except in connection with the termination of
the Employee's employment by the Corporation for Just
Cause or on death, Disability or Retirement or a
voluntary resignation by the Employee other than a
resignation for Good Reason;
1.1.11.2. a reduction by the Corporation in the
Employee's Basic Salary as in effect on the date
hereof or as the same may be increased from time to
time with the exception of a reduction in the
Employee's Basic Salary of less than ten percent
where such reduction is applied to the Basic Salary
of all executives in the same class;
1.1.11.3. the taking of any action by the Corporation
which would materially adversely affect the
Employee's participation in, or materially reduce the
Employee's Benefits and other similar plans in which
the Employee is participating at the date hereof (or
such other plans as may be implemented after the date
hereof providing the Employee with substantially
similar benefits), or the taking of any action by the
Corporation which would deprive the Employee of any
material fringe benefit enjoyed by him at the date
hereof;
1.1.11.4. without the Employee's consent, the
requirement that the Employee be based anywhere other
than the Corporation's principal executive offices
except for required travel on the Corporation's
business; or
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1.1.11.5. any reason which would be considered to
amount to constructive dismissal by a court of
competent jurisdiction.
1.1.12. "JUST CAUSE" means:
1.1.12.1. the failure of the Employee to properly
carry out his duties after notice by the Corporation
of the failure to do so and an opportunity for the
Employee to correct the same within a reasonable time
from the date of receipt of such notice; or
1.1.12.2. theft, fraud, dishonesty or misconduct by
the Employee involving the property, business or
affairs of the Corporation or its Subsidiaries or the
carrying out of the Employee's duties;
1.1.13. "PERSON" means any individual, partnership, limited
partnership, joint venture, syndicate, sole proprietorship,
company or corporation with or without share capital,
unincorporated association, trust, trustee, executor,
administrator or other legal personal representative,
regulatory body or agency, government or governmental agency,
authority or entity however designated or constituted;
1.1.14. "RESTRICTED PERIOD" means, as the case may be, (i)the
notice period provided for in section 8.1.2; or (ii) two years
if the employment of the Employee is terminated pursuant to
sections 8.1.1, 8.1.3 or 10.
1.1.15. "RETIREMENT" means Retirement in accordance with the
Corporation's retirement policy;
1.1.16. "SUBSIDIARIES" has the meaning attributed to such term
by the Business Corporations Act (Ontario) as the same may be
amended from time to time and any successor legislation
thereto;
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1.1.17. "YEAR OF EMPLOYMENT" means any 12-month period
commencing on January 1, provided that for the purposes of
this Agreement, the "First Year of Employment" shall be deemed
to commence on August 30, 2004 and to end on December 31,
2004.
2. EMPLOYMENT OF THE EMPLOYEE
The Corporation shall employ the Employee, and the Employee
shall serve the Corporation, in the position of President and Chief Operating
Officer on the conditions and for the remuneration hereinafter set out. In such
position, the Employee shall perform or fulfil such duties and responsibilities
as the Corporation may designate from time to time. The Employee shall report to
the Chairman and Chief Executive Officer of the Corporation.
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 (except in the case of illness or
accident) devote all of his working time and attention to his employment
hereunder except where expressly agreed by the Chairman and Chief Executive
Officer and shall use his best efforts to promote the interests of the
Corporation.
4. EMPLOYMENT PERIOD
The Employee's employment under this Agreement shall, subject
to section 8 and section 10, be for an indefinite term. Accordingly, the
Corporation shall employ the Employee and the Employee shall serve the
Corporation as an employee in accordance with this Agreement for the period
beginning on the date hereof and ending on the effective date the employment of
the Employee under this Agreement is terminated in accordance with section 8.2
or section 10 (the "Employment Period").
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5. REMUNERATION
5.1. BASIC REMUNERATION. The Corporation shall pay the Employee a gross
salary, minus applicable deductions and withholdings, in respect of
each Year of Employment in the Employment Period, of U.S.$225,000.00
(the "Basic Salary"), payable in equal installments according to the
Corporation's regular payroll practices. The Basic Salary shall not be
decreased with the exception of a reduction in the Employee's Basic
Salary of less than ten percent where such reduction is applied to the
Basic Salary of all executives in the same class. 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 Basic
Salary shall be prorated in respect of the First Year of Employment
such that the Employee shall be entitled and the Corporation shall be
required to pay in respect of each such year only that proportion of
the Basic Salary that the number of days in the First Year of
Employment is to 365.
5.2. BONUS REMUNERATION. The Employee shall, in respect of each Year of
Employment during the Employment Period, receive such bonus
remuneration, as outlined in Schedule 5.2.
5.3. STOCK OPTIONS. The Employee shall during the Employment Period,
receive such stock options, if any, as the board of directors of the
Corporation, in its sole discretion may, pursuant to the terms of the
Corporation's stock option plan, authorize. The Employee shall, in
respect of the First Year of Employment, be eligible for such stock
options, as outlined in Schedule 5.3.
5.4. BENEFITS. The Corporation shall provide to the Employee, in
addition to Salary, the benefits (the "Benefits") described in the
Benefit Plan, such Benefits to be provided in accordance with and
subject to the terms and conditions of the applicable plan relating
thereto in effect from time to time and subject to change at any time
in the sole discretion of the Corporation. In addition the Employee
shall receive a car allowance in the gross amount of C$1,000 per month
and will be reimbursed for membership fees and other miscellaneous
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expenses as agreed by the Chairman and Chief Executive Officer of up to
C$20,000 per annum.
5.5. PRO-RATA ENTITLEMENT IN THE EVENT OF TERMINATION. If the
Employee's employment is terminated pursuant to section 8 or section 10
or if the Employee dies during the Employment Period, the Employee
shall be entitled to receive in respect of his entitlement to Salary,
and the Corporation shall be required to pay in respect thereof, only
that proportion of the Salary in respect of the Year of Employment in
which the effective date of the termination of employment or the date
of death occurs that the number of days elapsed from the commencement
of such Year of Employment to the effective date of termination or the
date of death is to 365.
6. EXPENSES
Subject to the terms of the Corporation's expense policy, the
Corporation shall pay or reimburse the Employee for all travel and out-of-pocket
expenses reasonably incurred or paid by the Employee in the performance of his
duties and responsibilities upon presentation of expense statements or receipts
or such other supporting documentation as the Corporation may reasonably
require.
7. VACATION
The Employee shall be entitled during each full Year of
Employment during the Employment Period to vacation with pay of four (4) weeks.
Vacation shall be taken by the Employee at such time as may be acceptable to the
Corporation having regard to its operations. Except with the prior written
consent of the Chairman and Chief Executive Officer (i) no more than two weeks
of vacation shall be taken consecutively; and (ii) the vacation entitlement
earned in a Year of Employment is subject to any carryover provisions as stated
in the Company's vacation policy. Notwithstanding the foregoing, in the event
that the Employee's employment is terminated pursuant to section 8 or section
10, the Employee shall not be entitled to receive any payment in lieu of any
vacation to which he was entitled and which had not already been taken
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by him except to the extent, if any, of the payments in respect of vacation pay
required by the ESA.
8. TERMINATION
8.1. NOTICE. The Employee's employment may, subject to section 10
hereof, be terminated at any time:
8.1.1. by the Corporation without prior notice and without
further obligations to the Employee for reasons of Just Cause;
8.1.2. by the Corporation for any reason other than Just Cause
on 24 months' prior written notice to the Employee provided
that if the Employee is entitled under the ESA to a longer
period of notice than that prescribed above, the notice to be
given by the Corporation under this section 8.1.2 shall be
that minimum period of notice which is required under the ESA
and no more; or
8.1.3. by the Employee on one month's notice to the
Corporation.
The Employee's employment shall be automatically terminated, without
further obligation to the Employee, in the event of his death.
8.2. EFFECTIVE DATE. The effective date on which the Employee's
employment shall be terminated shall be:
8.2.1. in the case of termination under section 8.1.1, the day
the Employee is deemed, under section 18, to have received
notice from the Corporation of such termination;
8.2.2. in the case of termination under section 8.1.2 or
section 8.1.3, the last day of the minimum period referred to
therein; and
8.2.3. in the event of the death of the Employee, on the date
of his death.
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Notwithstanding the foregoing, where the Corporation is giving
or has given the notice pursuant to section 8.1.2 above, the Corporation shall
have the right, at any time prior to the end of the Employment Period and by
giving notice to the Employee to that effect (a "Stop Work Notice"), to require
that the Employee cease to perform his duties and responsibilities and cease
attending the Corporation's premises immediately upon the giving of the Stop
Work Notice. If a Stop Work Notice is given, the Corporation shall continue to
pay the Employee to the end of the Employment Period. For that purpose, in
calculating the Employee's entitlement to Salary and Bonus, the Employee shall
be considered to have been actively employed by the Corporation to the end of
the Employment Period. For the purpose of the Employee's entitlement to
Benefits, the Employee shall receive an amount equal to 2.5 percent of his Basic
Salary for the purpose of obtaining equivalent coverage during the notice
period.
9. RIGHTS OF EMPLOYEE ON TERMINATION AND LUMP SUM PAYMENT
Where the Employee's employment under this Agreement has been
terminated by the Corporation under section 8.1.2, the Employee shall be
entitled, upon providing to the Corporation appropriate releases, resignations,
and other similar documentation, to receive from the Corporation, in addition to
accrued but unpaid Salary, if any and any entitlement in respect of vacation as
contemplated by section 7, a lump sum payment equal to 24 months of his Basic
Salary and Bonus, a lump sum allowance of U.S.$ 100,000, in addition to 2.5
percent of his Salary in respect of his entitlement to Benefits, less any
amounts payable to the Employee in lieu of notice where a Stop Work Notice has
been given pursuant to section 8 and less any amounts owing by the Employee to
the Corporation for any reason and any required deductions and withholdings. For
the purpose of calculating the Bonus payable under this section, the Employer
will utilize the average annual bonus achieved during the Employee's employment.
For the purposes of the Employee's entitlement to Benefits, the Employee shall
receive an amount equal to 2.5 percent of his Basic Salary for the purpose of
obtaining equivalent coverage during the notice period.
Except as provided above in this section and subject to
section 10, where the Employee's employment has been terminated by the Employee
or by the Corporation for any
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reason, the Employee shall not be entitled, except to the extent required under
any mandatory employment standard under the ESA, to receive any payment as
severance pay, in lieu of notice, or as damages. Except as to any entitlement as
provided above and subject to section 10, the Employee hereby waives any claims
that the Employee may have against the Corporation for or in respect of
severance pay, or on account of loss of office or employment or notice in lieu
thereof or damages in lieu thereof (other than rights to accrued but unpaid
Salary and vacation pay and to reimbursement for expenses pursuant to section
6). The payments to the Employee where the Corporation has given notice pursuant
to section 8.1.2 above, whether or not a Stop Work Notice is given, shall be
deemed to include and to satisfy entitlement to severance pay pursuant to the
ESA to the extent of such payments.
10. CHANGE OF CONTROL
10.1. TERMINATION OF EMPLOYMENT BY THE CORPORATION FOR JUST CAUSE.
Following a Change of Control, the Corporation may terminate the
Employee's employment at any time without notice or further obligations
to the Employee under this Agreement for reasons of Just Cause. For
greater certainty, following a Change of Control, the Employee shall
not be deemed to have been terminated for Just Cause unless and until
there has been delivered to the Employee a copy of a resolution duly
adopted by the affirmative vote of not less than three-quarters of the
entire membership of the board of directors of the Corporation
(excluding the Employee if the Employee is at the time a director of
the Corporation) at a meeting of the board called and held for the
purpose (after reasonable notice to the Employee), finding that in the
good faith opinion of the Board, the Employee's conduct constituted
Just Cause and specifying the particulars thereof. The date on which
such resolution is given to the Employee shall be the effective date of
any termination pursuant to this section 10.1.
10.2. TERMINATION BY THE EMPLOYEE WITHOUT GOOD REASON
Notwithstanding the provisions of section 8 hereof, if at any time
within six months following a Change of Control the Employment of the
Employee is voluntarily terminated by the Employee for any reason other
than (i) Good Reason, death, or Retirement; or (ii) by
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the Corporation for Just Cause, the Employee shall be entitled to an
amount equal to his annual Salary (less any required deductions and
withholdings).
10.3. TERMINATION OF EMPLOYMENT WITHOUT JUST CAUSE OR FOR GOOD REASON.
If at any time within 24 months following a Change of Control, the
Employee's employment is terminated, (i) by the Corporation other than
for Just Cause; or (ii) by the Employee for Good Reason, the following
provisions shall apply and the provisions of sections 8 and 9 not
apply:
10.3.1. the Employee shall be entitled to receive, and the
Corporation shall pay to the Employee immediately following
termination, a cash amount equal to two times the Employee's
Basic Salary and annual Bonus, in addition to a lump sum
allowance of U.S.$100,000, less any required deductions and
withholdings. For the purpose of calculating the Bonus payable
under this section, the Employer will utilize the average
annual bonus achieved during the Employee's employment;
10.3.2. the Employee shall be entitled to receive, and the
Corporation shall pay to the Employee, immediately following
termination, a cash amount equal to five percent of his annual
Salary in lieu of continued benefit coverage; and
10.3.3. if at the date of termination of the Employee's
employment, the Employee holds options for the purchase of
shares under a share option plan, all options so held shall,
notwithstanding the terms of the Corporation's share option
plan, (i) immediately vest to the extent they have not already
vested at such date; and (ii) (A) continue to be held on the
same terms and conditions as if the Employee continued to be
employed by the Corporation or (B) if the Employee so elects
in writing within 90 days after the date of termination, be
purchased by the Corporation at a cash purchase price equal to
the amount by which the aggregate "fair market value" of the
shares subject to such options exceeds the aggregate option
price for such shares, provided that for this purpose, "fair
market value"
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means the higher of (i) the weighted average of the closing
prices for the shares of the same class of the Corporation on
the principal securities exchange on which such shares are
listed at the time of termination for each of the last 10 days
prior to such time on which such shares traded on such
securities exchange, and (ii) if the Change of Control
involved the purchase and sale of such shares, the average
value of the cash consideration paid to the shareholders of
the Corporation in connection with the transactions resulting
in the Change of Control.
For purposes of this Agreement, the Employee's employment shall be
deemed to have been terminated following a Change of Control by the
Corporation without Just Cause or by the Executive with Good Reason, if
(i) the Employee's employment is terminated by the Corporation without
Just Cause prior to a Change of Control and such termination was at the
request or direction of a Person who has entered into an agreement with
the Corporation or any shareholder of the Corporation the consummation
of which would constitute a Change of Control; (ii) the Employee
terminates his employment with Good Reason prior to a Change of Control
and the circumstance or event which constitutes Good Reason occurs at
the request or direction of a Person who has entered into an agreement
with the Corporation or any shareholder of the Corporation the
consummation of which would constitute a Change of Control; or (iii)
the Employee's employment is terminated by the Corporation without Just
Cause prior to a Change of Control and the Employee reasonably
demonstrates that such termination is otherwise in connection with or
in anticipation of a Change of Control which actually occurs.
For greater certainty, this section 10.3 does not apply in the event of
the termination of the employment of the Employee as a result of death,
Disability or Retirement or by the Corporation for Just Cause or, by
the Employee without Good Reason. If the Employee or the Corporation
intends to terminate the Employee's employment as contemplated in this
section 10, the party having such intention shall in accordance with
the provisions of section 17 hereof give the other notice thereof.
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11. NO OBLIGATION TO MITIGATE
The Employee shall not be required to mitigate the amount of
any payment or Benefits provided for in this Agreement by seeking other
employment or otherwise, nor (except as specifically provided herein), shall the
amount of any payment provided for in this Agreement be reduced by any
compensation earned by the Employee as a result of employment by another
employer after termination or otherwise.
12. NON-COMPETITION
The Employee shall not, either during the Employment Period or
the Restricted Period, within Canada or the United States of America, directly
or indirectly, in any manner whatsoever including, without limitation, either
individually, or in partnership, jointly or in conjunction with any other
Person, or as employee, principal, agent, director or shareholder:
(i) be engaged in any undertaking;
(ii) have any financial or other interest (including an
interest by way of royalty or other compensation
arrangements) in or in respect of the business of any
Person which carries on a business; or
(iii) advise, lend money to, guarantee the debts or
obligations of or permit the use of the Employee's
name or any parts thereof by any Person which carries
on a business;
which is the same as or substantially similar to or which competes with or would
compete with the business carried on during the Employment Period or at the end
thereof, as the case may be, by the Corporation or any of its Subsidiaries.
Notwithstanding the foregoing, nothing herein shall prevent
the Employee from owning not more than 5% of the issued shares of a corporation,
the shares of which are listed on a recognized stock exchange or traded in the
over the counter market in Canada or the United
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States, which carries on a business which is the same as or substantially
similar to or which competes with or would compete with the business of the
Corporation or any of its Subsidiaries.
13. NO SOLICITATION OF PATIENTS
The Employee shall not, either during the Employment Period or
the Restricted Period, directly or indirectly, solicit or attempt to solicit any
patients of the Corporation or any of its Subsidiaries for the purpose of
selling to the patient any products or services which are the same as or
substantially similar to, or in any way competitive with, the products or
services sold by the Corporation or any of its Subsidiaries during the
Employment Period or at the end thereof, as the case may be.
14. NO SOLICITATION OF EMPLOYEES
The Employee shall not, either during the Employment Period or
the Restricted Period, directly or indirectly, employ or retain as an
independent contractor any employee of the Corporation or any of its
Subsidiaries or induce or solicit, or attempt to induce, any such person to
leave his/her employment.
15. CONFIDENTIALITY
The Employee shall not, either during the Employment Period or
at any time thereafter, directly or indirectly, use or disclose to any Person
any Confidential Information provided, however, that nothing in this section
shall preclude the Employee from disclosing or using Confidential Information
if:
15.1. the Confidential Information is available to the public or in the
public domain at the time of such disclosure or use, without breach of
this Agreement; or
15.2. disclosure of the Confidential Information is required to be made
by any law, regulation, governmental body, or authority or by court
order.
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The Employee acknowledges and agrees that the obligations under this section are
to remain in effect in perpetuity and shall exist and continue in full force and
effect notwithstanding any breach or repudiation, or alleged breach or
repudiation, by the Corporation of this Agreement.
16. REMEDIES
The Employee acknowledges that a breach or threatened breach
by the Employee of the provisions of any of sections 12 to 15 inclusive will
result in the Corporation and its shareholders suffering irreparable harm which
is not capable of being calculated and which cannot be fully or adequately
compensated by the recovery of damages alone. Accordingly, the Employee agrees
that the Corporation shall be entitled to interim and permanent injunctive
relief, specific performance and other equitable remedies, in addition to any
other relief to which the Corporation may become entitled.
17. NOTICES
Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be given by prepaid first-class
mail, by facsimile or other means of electronic communication or by
hand-delivery as hereinafter provided, except that any notice of termination by
the Corporation under section 8 or section 10 shall be hand-delivered or given
by registered mail. Any such notice or other communication, if mailed by prepaid
first-class mail at any time other than during a general discontinuance of
postal service due to strike, lockout or otherwise, shall be deemed to have been
received on the fourth Business Day after the post-marked date thereof, or if
mailed by registered mail, shall be deemed to have been received on the day such
mail is delivered by the post office, or if sent by facsimile or other means of
electronic communication, shall be deemed to have been received on the Business
Day following the sending, or if delivered by hand shall be deemed to have been
received at the time it is delivered to the applicable address noted below
either to the individual designated below or to an individual at such address
having apparent authority to accept deliveries on behalf of the addressee.
Notice of change of address shall also be governed by this section. In the event
of a general discontinuance of postal service due to strike, lock-out or
otherwise, notices or other communications shall be delivered by hand or sent by
facsimile or other means of electronic
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communication and shall be deemed to have been received in accordance with this
section. Notices and other communications shall be addressed as follows:
a) if to the Employee:
Thomas P. Reeves
848 Sunningdale Bend
Mississauga, Ontario L5J 1G1
b) if to the Corporation:
Vascular Sciences Corporation
5280 Solar Drive
Suite 100
Mississauga, Ontario
L4W 5M8
Attention: Chairman and Chief Executive Officer
Telecopier number: (905) 625-8081
18. HEADINGS
The inclusion of headings in this Agreement is for convenience
of reference only and shall not affect the construction or interpretation
hereof.
19. INVALIDITY OF PROVISIONS
Each of the provisions contained in this Agreement is distinct
and severable and a declaration of invalidity or unenforceability of any such
provision by a court of competent jurisdiction shall not affect the validity or
enforceability of any other provision hereof.
20. ENTIRE AGREEMENT
This Agreement and the Management Services Agreement dated
August 30, 2004 constitute the entire agreement between the parties pertaining
to the subject matter of these Agreements. These Agreements supersede and
replace all prior agreements, if any, written or oral, with respect to the
Employee's employment by the Corporation and any rights which the Employee may
have by reason of any such prior agreement or by reason of the Employee's prior
employment, if any, by the Corporation. There are no warranties, representations
or agreements
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between the parties in connection with the subject matter of these Agreements
except as specifically set forth or referred to in these Agreements. No reliance
is placed on any representation, opinion, advice or assertion of fact made by
the Corporation or its directors, officers and agents to the Employee, except to
the extent that the same has been reduced to writing and included as a term of
these Agreements. 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.
21. WAIVER, AMENDMENT
Except as expressly provided in this Agreement, no amendment
or waiver of this Agreement shall be binding unless executed in writing by the
party to be bound thereby. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision nor shall any waiver of any provision
of this Agreement constitute a continuing waiver unless otherwise expressly
provided.
22. CURRENCY
All amounts in this Agreement, with the exception of the car
allowance and miscellaneous expenses of up to C$20,000 in section 5.4, are
stated in U.S. currency; and that all amounts in this Agreement shall be paid in
Canadian currency.
23. EMPLOYERS AND EMPLOYEES ACT NOT TO APPLY
The Corporation and the Employee agree that section 2 of the
Employers and Employees Act (Ontario) shall not apply to or in respect of this
Agreement or the employment of the Employee hereunder.
24. GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
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25. COUNTERPARTS
This Agreement may be signed in counterparts and each of such
counterparts shall constitute an original document and such counterparts, taken
together, shall constitute one and the same instrument.
26. ACKNOWLEDGMENT
The Employee acknowledges that:
26.1. the Employee has had sufficient time to review and consider this
Agreement thoroughly;
26.2. the Employee has read and understands the terms of this Agreement
and the Employee's obligations hereunder; and
26.3. the Employee has been given an opportunity to obtain independent
legal advice, or such other advice as the Employee may desire,
concerning the interpretation and effect of this Agreement; and
26.4. this Agreement is entered into voluntarily and without any
pressure and the Employee's continued employment has not been made
conditional upon execution of this Agreement by the Employee.
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IN WITNESS WHEREOF the parties have executed this Agreement.
Vascular Sciences Corporation
by: /s/ Elas Vamvakas
-----------------------------------------
Elas Vamvakas
Witness )
)
)
)
)
)
) /s/ Thomas P. Reeves
_________________________ ) --------------------------------------------
) Thomas P. Reeves
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SCHEDULE 5.2
BONUS REMUNERATION
In respect of each Year of Employment during the Employment Period, the Employee
shall be entitled to receive a maximum of 50 percent of his salary as bonus
remuneration based upon performance criteria agreed upon by the Chairman and
Chief Executive Officer and/or the Compensation Committee of the Board of
Directors. In respect of the First Year of Employment, the Bonus payable, if
any, shall be pro-rated to the proportion of the number of days in the First
Year of Employment is to 365.
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SCHEDULE 5.3
STOCK OPTIONS
Pending approval from the Board of Directors and contingent upon the successful
completion of an Initial Public Offering, the Employee, in respect of the First
Year of Employment, shall be entitled to receive 300,000 stock options at an
exercise price equal to the price of the shares issued on the Initial Public
Offering. Such stock options, if any, will vest at the rate of 33 1/3 percent
each year following the grant date and will expire ten years following the grant
date.