Exhibit 10.1
Execution Copy
#4
SECOND AMENDING
AGREEMENT
THIS SECOND AMENDING AGREEMENT
is made as of the 16
th day of June, 2008 by and between John Cornish
(the “Employee” ), a resident of the State of
Florida, 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 a
termination agreement dated as of January 4, 2008 (the
“Termination Agreement” ) pursuant to which the
Employee’s employment with the Employer, as its Vice
President, Operations, was terminated;
AND WHEREAS, capitalized terms used in this Second Amending
Agreement, but not otherwise defined, shall have the respective
meanings attributed to such terms in the Termination
Agreement;
AND WHEREAS, the Employer and the Employee entered into an
amending agreement dated as of March 3, 2008 (the
“Amending Agreement” ) pursuant to which they
agreed that the Employer may pay the Employee up to 100% of the
Severance Balance by granting to the Employee stock options under
the Stock Option Plan;
AND WHEREAS, on May 20, 2008, the Employer filed a
preliminary proxy statement with the U.S. Securities and Exchange
Commission (the “Preliminary Proxy Statement” )
in which, under the heading “Proposal IX”, the Employer
has descried the methodology for calculating the number of stock
options to be granted under the Stock Option Plan in partial
satisfaction and discharge of its obligation to pay the Severance
Balance;
AND WHEREAS, the Employer has advised the Employee that it
will not be able to pay the Severance Balance on or prior to June
30, 2008, and they mutually have agreed to extend such deadline to
September 1, 2008;
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained in this Second Amending Agreement and the
Termination Agreement, as amended by the Amending Agreement, and
the receipt and sufficiency of which are hereby acknowledged by the
parties hereto, the parties hereto agree as follows:
1.1 The
first sentence of Section 3.2 of the Termination Agreement is
hereby deleted in its entirety and replaced with the following
sentence:
Subject to
Section 3.4, on the earliest to occur of (i) September 1, 2008,
(ii) the date on which the Employer closes a financing for total
gross proceeds in an aggregate amount of at least U.S.$5,000,000,
whether by 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 in Control
(defined below), the Employer shall pay the Employee, in a lump
sum, an amount equal to (A) the Employee’s Severance
minus (B) the Salary Continuance Amount, less applicable
deductions and withholdings (the “Severance
Balance” ).
Without derogating from the generality of
Section 1.4 of this Second Amending Agreement, and for greater
certainty, the other sentences of Section 3.2 of the Termination
Agreement remain in full force and effect, unamended.
1.2 Section
3.3 of the Termination Agreement, as such Section 3.3 has been
amended by the Amending Agreement, is hereby deleted in its
entirety and replaced with the following Section 3.3:
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At the sole
discretion of the Employer, and subject to the provisions of this
Section 3.3 and Section 3.4, and subject further to the Employer
obtaining all requisite corporate approval therefor (including,
witho
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