EMPLOYMENT
AGREEMENT
THIS
AGREEMENT is made as
of the 4th day of October, 2005 between OccuLogix,
Inc. , a corporation incorporated under the laws of the
State of Delaware (the “Corporation”), and Stephen
Parks who resides at 160 Gwen Road in the City of Senatobia in the
State of Mississippi (hereinafter referred as the
”Employee” or “Executive”).
WHEREAS, the Corporation and the Employee wish to enter
into this Agreement to set forth the rights and obligations of each
of them with respect to the Employee’s employment with the
Corporation;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings 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
1.1.1.
“Affiliate”
has the meaning attributed to such
term in Rule 405 of the Securities Act of 1933, as amended, as such
rule exists on the date hereof;
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” has
the meaning attributed to such term 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 holiday on which the
employees of the Corporation are not required to report for
work;
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 merges 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;
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 of the Corporation 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 and
Corporate General Counsel within three months of the date such
arrangement is entered into for any reason other than Just Cause;
or (ii) the termination by the Corporation for any reason other
than Just Cause of the employment of all such senior executive
personnel for any reason other than Just Cause within six months of
the date that such arrangement is entered into; 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 fulfill his obligations under this Agreement either for any
consecutive six-month period or any six-month period (whether or
not consecutive) in any consecutive 12- month period;
1.1.9.
“Employment
Period” has
the meaning attributed to such term in section 4;
1.1.10
“Good
Reason” means:
1.1.10.1. 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 in connection with the
Employee's death, Disability or Retirement or a voluntary
resignation by the Employee other than a resignation for Good
Reason;
1.1.10.2. a reduction by the Corporation of more than ten
percent in the Employee’s Salary as in effect on the date
hereof or as the same may be increased from time to
time;
1.1.10.3. the taking of any action by the Corporation
which would materially adversely affect the Employee’s
participation in the Corporation’s employee benefits plans,
or otherwise 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 that provide 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; or
1.1.10.4. any reason which would be considered to amount
to constructive dismissal by a court of competent
jurisdiction.
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1.1.11.
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“Just Cause”
means:
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1.1.11.1. 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
1.1.11.2. theft, fraud, dishonesty or misconduct by the
Employee involving the property, business or affairs of the
Corporation or its Subsidiaries or involving the carrying out of
the Employee’s duties;
1.1.12.
“ 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;
1.1.13.
“Restricted
Period” means
the one-year period immediately following the cessation of the
Employee’s employment;
1.1.14.
“Retirement”
means retirement in accordance with
the Corporation’s retirement policy from time to
time;
1.1.15
“Subsidiary”
has the meaning attributed to such
term in Rule 405 of the Securities Act of 1993, as amended, as such
rule is in effect on the date hereof;
1.1.16.
“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 October 13, 2005 and to end on December 31, 2005.
2.
Employment of the
Employee
The Corporation shall employ the Employee, and
the Employee shall serve the Corporation, in the position of
Vice-President, Sales on the conditions and for the remuneration
hereinafter set out. In such position, the Employee shall perform
and fulfill such duties and responsibilities as the Corporation may
designate from time to time. The Employee shall report to the
President and Chief Operating 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 President and Chief Operating 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 October 13, 2005 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”).
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 $200,000 (the
“Basic Salary”), payable in equal installments
according to the Corporation's regular payroll practices. The Basic
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 Basic 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 the First Year of Employment,
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 Executive shall, in respect of each Year of
Employment during the Employment Period, receive bonus
remuneration, in accordance with the terms and conditions 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 and absolute discretion may, pursuant
to the terms of the Corporation’s stock option plan,
authorize. The Employee hereby receives, in respect of the First
Year of Employment, stock options as outlined in Schedule
5.3.
5.4.
Benefits
.
The Corporation shall provide to the
Employee, in addition to Basic Salary, the benefits (the
“Benefits”’) described in the Corporation’s
employee benefit booklet, from time to time, and such Benefits will
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.
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 Basic Salary, and the Corporation
shall be required to pay in respect thereof, only that portion of
the Basic 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 (i) 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 (ii) 365.
6.
Expenses
Subject to the terms of the Corporation’s
expense policy, the Corporation shall pay, or reimburse the
Employee for, all authorized and appropriate travel and
out-of-pocket expenses reasonably incurred or paid by the Employee
in the performance of his duties and responsibilities, upon
presentation by the Employee 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 weeks. Vacation shall be taken by the Employee at such
time as may be acceptable to the Corporation. Except with the prior
written consent of the President and Chief Operating 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
Corporation’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 by
him.
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 obligation to the Employee for reasons of Just
Cause;
8.1.2.
by the Corporation for any reason
other than Just Cause, including the occurrence of
Disability;
8.1.3.
or by the Employee on one
month’s prior written notice to the Corporation.
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