Employment Agreement - OccuLogix Inc. and Elias Vamvakas
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of this day of , 2004,
BETWEEN:
OCCULOGIX INC., a corporation incorporated under the laws of
the State of Delaware
(the "Corporation")
- and -
ELIAS VAMVAKAS, of the City of Thornhill, 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 July 28,
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 Chairman and Chief Executive 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 Board of Directors 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 with the exception of his duties as Chairman and Chief Executive
Officer of TLC Vision Corporation 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.$350,000.00 (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 acknowledges that
he has received a grant from the Corporation in the amount of 500,000
stock options on August 1, 2003.
5.4. BENEFITS. The Corporation shall provide to the Employee, in addition
to Salary and stock options, if any, 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. The Corporation shall
assume and maintain disability insurance for the benefit of the Employee
at the insurable level and on terms no less favourable to the Employee
than the existing disability insurance policy for the benefit
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of the Employee maintained by TLC Vision Corporation, provided that the
cost of maintaining such insurance is not unreasonable as determined by
the Compensation Committee of the Board of Director. 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
expenses as agreed by the Compensation Committee of the Board of Directors
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. 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
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lieu of any vacation to which he was entitled and which had not already been
taken 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 five (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, a lump sum
payment equal to 24 months of his Basic Salary and Bonus provided that the total
lump sum payment is no less than U.S.$1,400,000. Accrued but unpaid Salary, if
any, any entitlement in respect of vacation as contemplated by section 7 and
five (5) percent of the Employee's Salary in respect of his entitlement to
Benefits shall be added to this amount. Any amounts paid to the Employee in lieu
of notice where a Stop Work Notice has been given pursuant to section 8, any
amounts owing by the Employee to the Corporation for any reason and any required
deductions and withholdings shall be deducted from this amount. 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 five (5) percent of his Basic Salary for 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 lump sum payment equal to 24 months of his Basic
Salary and Bonus provided that the total lump sum payment is no less
than U.S.$ 1,400,000, in addition to accrued but unpaid Salary, if
any, and any entitlement in respect of vacation as contemplated by
section 7, 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
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option price for such shares, provided that for this purpose, "fair
market value" 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:
Elias Vamvakas
61 Thornbank Road
Thornhill, ON L4J 2A1
b) if to the Corporation:
OccuLogix Inc.
5280 Solar Drive
Suite 100
Mississauga, Ontario
L4W 5M8
Attention: Chairman of the Compensation Committee
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 constitutes the entire agreement between the parties
pertaining to the subject matter of this Agreement. This Agreement supersedes
and replaces 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 between the parties in connection with the subject
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matter of this Agreement except as specifically set forth or referred to in this
Agreement. 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 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.
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.
OccuLogix Inc.
by: /s/ Tom Davidson
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Chairman of the Compensation Committee
Witness
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/s/ Bill Dumencu ) /s/ Elias Vamvakas
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Bill Dumencu ) Elias Vamvakas
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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 100% percent of his salary as bonus
remuneration based upon performance criteria agreed upon by 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.