EMPLOYMENT AGREEMENT
EXECUTION
COPY
THIS
AGREEMENT
is made
as of the 1st day
of September, 2006 between OccuLogix,
Inc.,
a
corporation incorporated under the laws of the State of Delaware (the
“Corporation”), and Xxxx X. Xxxxx who resides at 00 Xxxxxxx Xxxx in the Town of
Sudbury in the Commonwealth of Massachusetts (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. In
this
Agreement,
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 of
the
Corporation;
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
and with reasonable accommodation, 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;
1.1.10.4. any
reason which would be considered to amount to constructive dismissal by a court
of competent jurisdiction; or
1.1.10.5. a
change
in the location of the Employee’s principal place of employment to a location
that is outside the greater Boston area and more than 50 miles away from the
Employee’s current principal location of employment, being 8 Saint Mary’s Street
in Boston, Massachusetts;
| 1.1.11. |
“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, setting forth the nature of such failure
in
reasonable detail, and after providing 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
1.1.12. “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 the
date hereof and to end on December 31, 2006.
2. Employment
of the Employee
The
Corporation shall employ the Employee, and the Employee shall serve the
Corporation, in the position of President and Founder of the SOLX Division
on
the conditions and for the remuneration hereinafter set out. In such position,
the Employee shall perform and fulfill such duties and responsibilities,
reasonably appropriate for such position, as the Corporation may designate
from
time to time. The Employee shall report to the President and Chief Operating
Officer of the Corporation. On the date hereof, the Employee’s principal
location of employment is 8 Saint Mary’s Street in Boston, Massachusetts and
shall remain within a 50-mile radius thereof or within the greater Boston area.
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. Notwithstanding the foregoing, nothing herein
shall be deemed to prevent the Employee from, subject to the prohibitions set
forth in section 12, (i) investing his personal assets, (ii) serving on the
board of directors or other governing board of any Person or (iii) engaging
in
religious, charitable, trade association or other community or non-profit
activities.
4. Employment
Period
The
Employee’s employment under this Agreement shall, subject to section 8 and
section 10, be for a three-year 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 earlier of (i) the third anniversary of the date hereof and (ii)
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 $275,000 (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 shall, in respect of the First Year of Employment,
be
eligible to receive stock options under the Corporation’s stock option plan in
accordance with the terms and conditions 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.
2
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.
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 17, to have received notice from the Corporation of such
termination;
8.2.2. in
the
case of termination under section 8.1.2, on the date of the event giving rise
to
the termination;
8.2.3 in
the
case of termination under section 8.1.3, on the date one month after notice
to
the Corporation; and
8.2.4. in
the
event of the death of the Employee, on the date of his death.
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9.
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Rights
of Employee on Termination and Lump Sum
Payment
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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 reasonably acceptable to the
Corporation, to receive from the Corporation, in addition to accrued but unpaid
Salary, if any, a lump sum payment equal to twelve (12) months’ of his Basic
Salary and 2.5 percent of his Basic Salary in respect of his entitlement to
Benefits, less any amounts owing by the Employee to the Corporation for any
reason.
Except
as
provided above in this section 9 and subject to section 10, where the Employee’s
employment has been terminated by the Employee or by the Corporation for any
reason, the Employee shall not be entitled 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
in account of loss of office or employment or damages in lieu thereof.
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10.
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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. 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 relevant 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 the copy of such resolution is given to the Employee shall be the
effective date of any termination pursuant to this section 10.1.
10.2.
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 section 8 and section 9 shall not apply:
10.2.1. the
Employee shall be entitled to receive, and the Corporation shall pay to the
Employee immediately following termination, a lump sum amount equal to twelve
(12) months of the Employee’s Basic Salary, less applicable deductions and
withholdings;
10.2.2. the
Employee shall be entitled to receive, and the Corporation shall pay to the
Employee immediately following termination, a cash amount equal to 2.5 percent
of his Basic Salary in lieu of continued benefit coverage; and
10.2.3. 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 or otherwise, all options
so
held shall, notwithstanding the terms of the Corporation’s share option plan or
of the agreement governing the Employee’s options, (i) immediately vest to the
extent they have not already vested at such date; and (ii) (A) for a period
of
two years following the Employee’s date of termination 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” 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 (in terms of volume of trading)
on which such shares are listed at the time of termination for each of the
last
ten 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 10.2 does not apply in the event of the termination
of
the employment of the Employee (1) as a result of death, Disability or
Retirement of the Employee or (2) by the Corporation for Just Cause or (3)
by
the Employee without Good Reason.
3
10.3 Limitation
on Payments Following a Change in Control
Notwithstanding
any other provision of this Agreement, if any payment to or for the benefit
of
the Employee under this Agreement either alone or together with other payments
to or for the benefit of the Employee would constitute a “parachute payment” (as
defined in Section 280G of the Internal Revenue Code of 1986, as amended (the
“Code”)), the payments under this Agreement shall be reduced to the largest
amount that will eliminate both the imposition of the excise tax imposed by
Section 4999 of the Code and the disallowance of deductions to the Corporation
under Section 280G of the Code for any such payments. The amount and method
of
any reduction in the payments under this Agreement pursuant to this Section
10.3
shall be as reasonably determined by the Compensation Committee of the board
of
directors of the Corporation.
11. No
Obligation to Mitigate
The
Employee shall not be required to mitigate any damages or losses arising from
any termination of 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 the United States of America or Canada, directly or indirectly,
in any manner whatsoever, including, without limitation, individually, or in
partnership, jointly or in conjunction with any other Person, or as an employee,
principal, agent, director or shareholder:
12.1. be
engaged in any undertaking;
| 12.2. |
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
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| 12.3. |
advise,
lend money to or 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;
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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 and outstanding shares of a corporation, 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, provided that the Employee is a passive investor therein and
does
not, directly or indirectly, in any manner whatsoever (including, without
limitation, individually, or in partnership, jointly or in conjunction with
any
other Person, or as an employee, principal, agent or director of such
corporation) control, manage or direct, or participate in the control,
management or direction of, the conduct of the business or activities of such
corporation. For greater certainty, nothing herein shall be construed as
prohibiting the Employee from owning greater than 5% of the issued and
outstanding shares of the Corporation.
13. No
Solicitation of Customers
The
Employee shall not, either during the Employment Period or the Restricted
Period, directly or indirectly, contact or solicit any patients or customers
of
the Corporation or any of its Subsidiaries for the purpose of selling to any
patients or customers of the Corporation 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 15
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
or
governmental body or authority or by court order.
The
Employee acknowledges and agrees that the obligations under this section 15
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 temporary 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 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 other reasons, 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 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 17. Notices and other
communications shall be addressed as follows:
4
a) if
to the
Employee:
Xxxxxxx
Xxxxx
00
Xxxxxxx Xxxx
Xxxxxxx,
XX 00000
X.X.X.
b) if
to the
Corporation:
0000
Xxxxxxx Xxx., Bldg. 9, Suite 201
Mississauga,
Ontario
L4W
5B2
Canada
Attention: Chief
Executive Officer
Telecopier
number: (000)
000-0000
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 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
Except
as
expressly provided in this Agreement, all amounts in this Agreement are stated
and shall be paid in U.S. currency.
23. Governing
Law
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the Commonwealth of Massachusetts, without regard to its conflicts of laws
rules, which are deemed inapplicable herein. The parties hereto each consent
to
the personal jurisdiction of the federal and state courts of the Commonwealth
of
Massachusetts.
24. 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.
25. Acknowledgment
The
Employee acknowledges that:
25.1. the
Employee has had sufficient time to review and consider this Agreement
thoroughly;
25.2. the
Employee has read and understands the terms of this Agreement and the Employee’s
obligations hereunder;
25.3. 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
25.4. this
Agreement is entered into voluntarily and without any pressure, and the
Employee’s continued employment, if applicable, has not been made conditional
upon execution of this Agreement by the Employee.
[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF the parties have executed this Agreement as of the date first
written above.
___________________________ /s/
Xxxx X. Adams__________________
Witness Xxxx
X. Xxxxx
By:
/s/
Xxxxx Vamvakas_______________
Xxxxx
Xxxxxxxx
Chairman
and Chief Executive Officer
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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 Basic Salary as bonus remuneration
based upon performance criteria agreed upon by the President and Chief Operating
Officer and the Chief Executive Officer and approved by the Compensation
Committee of the board of directors of the Corporation. In respect of the First
Year of Employment, the Employee will be entitled to a bonus payment, if any,
prorated to the proportion that the number of days in the First Year of
Employment is to 365.
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SCHEDULE
5.3
Stock
Options
The
Employee shall be entitled to receive 100,000 options, under the Corporation’s
2002 Stock Option Plan, entitling him to purchase 100,000 shares of common
stock
of the Corporation. Such options shall have the following terms and conditions,
among others: (1) the exercise price per share shall be the greater of the
NASDAQ National Market closing price of the Corporation’s common stock on the
date of grant and the weighted average trading price of the Corporation’s common
stock on the NASDAQ National Market during the five-day trading period
immediately preceding the date of grant; (2) such options shall become
exercisable at the rate of 33⅓ percent on each anniversary of the date of grant;
and (3) such options shall be subject to an option agreement, to be entered
into
forthwith by the Employee and the Corporation and to be effective as of the
date
of grant.
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