Exhibit 10.7
Execution
Copy
TERMINATION
AGREEMENT
THIS AGREEMENT is made as of the 30 th day of June, 2008 by and between Thomas P.
Reeves (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 2600 Skymark Avenue, Building 9, Suite 201, Mississauga,
Ontario, L4W 5B2.
WHEREAS, the Employer and the Employee entered into an
employment agreement dated as of August 1, 2004, pursuant to which
the Employee has been serving the Employer as its President and
Chief Operating Officer, which employment agreement was amended as
of July 1, 2005 (as so amended, the “Employment
Agreement” );
AND WHEREAS, capitalized terms used in this Agreement, but
not otherwise defined, shall have the respective meanings
attributed to such terms in the Employment Agreement;
AND WHEREAS, the Employee and the Employer mutually have
agreed that the services of the Employee no longer are required
and, accordingly, have agreed to the termination of the
Employee’s employment with the Employer pursuant to Section
8.1.2 of the Employment Agreement;
AND WHEREAS, the Employee and the Employer hereby further
acknowledge and agree that, pursuant to Section 9 of the Employment
Agreement, when the Employee’s employment under the
Employment Agreement has been terminated by the Employer for any
reason other than Just Cause pursuant to Section 8.1.2 of the
Employment Agreement, the Employee is entitled to receive from the
Employer, in addition to accrued but unpaid salary, if any, a lump
sum payment equal to 24 months’ of his Basic Salary and Bonus
and 2.5% of his Basic Salary in respect of his entitlement to
Benefits plus U.S.$100,000, less any amounts payable to the
Employee in lieu of notice where a Stop Work Notice has been given
pursuant to Section 8.2 of the Employment Agreement and any amounts
owing by the Employee to the Employer for any reason;
AND WHEREAS, the Employee has not been given a Stop Work
Notice pursuant to Section 8.2 of the Employment
Agreement;
AND WHEREAS, each of the Employee and the Employer agrees
that it would not be in the bests interests of either of them to
obligate the Employer to pay immediately the amount payable to the
Employee pursuant to Section 9 of the Employment Agreement upon the
termination of the Employee’s employment with the Employer
pursuant to Section 8.1.2 of the Employment Agreement;
AND WHEREAS, between February 1, 2008 and April 30, 2008
inclusive, the Employee worked for the Employer at 50% of his Basic
Salary;
AND WHEREAS, between May 1, 2008 and the Termination Date
inclusive, the Employee worked for the Employer on a part-time
basis, for which he was paid a salary of Cdn$5,000 per
month;
AND WHEREAS, the Employment Agreement is further amended by
this Agreement;
AND WHEREAS, the Employee has been granted an aggregate of
420,000 time-based stock options (the “Stock
Options” ) pursuant to the Employer’s 2002 Stock
Option Plan, as amended (the “Stock Option Plan”
);
AND WHEREAS, notwithstanding the proposed termination of the
Employee’s employment with the Employer and subject to the
Employer obtaining the requisite approval of its stockholders
therefor, the Compensation Committee of the Employer’s board
of directors and the Employer’s board of directors have
approved the extension of the term of the Stock Options to the
tenth anniversaries of their respective dates of grant;
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained in this Agreement (the receipt and sufficiency
of which are hereby acknowledged by the parties hereto), the
parties hereto agree as follows:
1.1 The
Employee and the Employer hereby agree that the Employee’s
employment with the Employer is terminated pursuant to Section
8.1.2 of the Employment Agreement, effective at the close of
business on the date hereof (the “Termination
Date” ). The Employer shall pay the Employee,
on the next regularly scheduled payday, all accrued (to and
including the Termination Date) but unpaid salary. For
greater certainty, the Employee hereby waives the requirement,
under Section 8.1.3 of the Employment Agreement, to provide 24
months’ prior written notice to the Employee of the
Employer’s intention to terminate his employment with the
Employer.
2.1 The
Employee hereby certifies that he has returned to the Employer all
property of the Employer in the Employee’s possession,
including, without limitation, all keys, business cards, computer
hardware, including, without limitation, Blackberry units,
printers, mice and other hardware accessories, and computer
software. The Employee hereby further certifies that he
has returned to the Employer, or destroyed, all tangible material
embodying Confidential Information in any form whatsoever,
including, without limitation, all paper copy copies, summaries and
excerpts of Confidential Information and all electronic media or
records containing or derived from Confidential
Information.
3.1 The
Employee and the Employer hereby agree that, notwithstanding
Section 9 of the Employment Agreement, for reason of the
termination of the Employee’s employment with the Employer
pursuant to Section 8.1.2 of the Employment Agreement and effected
by this Agreement, the Employee shall be entitled to receive from
the Employer an amount equal to: (i) 24 months’ of
his Basic Salary and Bonus and 2.5% of his Basic Salary in respect
of his entitlement to Benefits; plus (ii) U.S.$100,000;
minus (iii) Cdn$8,568.29, being the aggregate amount that
the Employer disbursed in 2008, on the Employee’s behalf, for
club memberships (the “Employee’s
Severance” ). The Employee and the Employer
hereby further agree that the Employee’s Severance shall not
be paid to him on the Termination Date but, rather, in accordance
with the provisions of this Article 3. For clarity, for
purposes of calculating the Employee’s Severance,
“Basic Salary” shall mean the amount of the
Employee’s Basic Salary on January 31, 2008.
3.2 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 way of 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, the Employee’s Severance. “Change
of Control” shall be deemed to have occurred
when: (a) any Person, other than a Person or a
combination of Persons presently owning, directly or indirectly,
more than 20% of the issued and outstanding voting securities of
the Employer, 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 Employer, 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; (b) the Employer merges with one or more corporations,
including, without limitation, any Subsidiary or Affiliate of the
Employer; (c) the Employer sells, leases or otherwise disposes of
all or substantially all of its assets and undertaking, whether
pursuant to one or more transactions; (d) any Person not part of
existing management of the Employer or any Person not controlled by
existing management of the Employer enters into any arrangement to
provide management services to the Employer which results in either
(Y) the termination by the Employer, for any reason other than Just
Cause, of the employment of any two of the Chairman and Chief
Executive Officer, President and Chief Operating Officer, Chief
Financial Officer and General Counsel within three months of the
date such arrangement is entered into or (Z) the termination by the
Employer, for any reason other than Just Cause, of the employment
of all such
