EMPLOYMENT AGREEMENT
X
X X X X X X:
OccuLogix,
Inc.,
a
corporation incorporated under the laws of the State of Delaware
(the
“Corporation”)
-
and
-
Nozhat
Choudry, of
the
City of Oakville, in the Province of Ontario
(the
“Employee”)
RECITAL:
WHEREAS
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;
AND
WHEREAS the
Employee understands and agrees that section 8.1.1 of this Agreement will have
the effect of entitling the Corporation, during the three-month period
commencing on the date hereof, to terminate her employment without prior notice
and without any severance obligation owing to her;
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:
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1.
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Definitions
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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;
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 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:
1.1.7. “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 her 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:
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 her
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 of more than ten percent in the Employee’s Basic
Salary as in effect on the date hereof or as the same may be increased from
time
to time;
1.1.11.3. 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 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
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 her 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 involving 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
the
one-year period immediately following the cessation of the Employee’s
employment;
1.1.15. “Retirement”
means
retirement in accordance with the Corporation’s retirement policy from time to
time;
1.1.16. “Subsidiaries”
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;
1.1.17. “Stop
Work Notice”
has the
meaning attributed to such term in Section 8.2;
1.1.18. “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
February 10, 2006 and to end on December
31, 2006.
The
Corporation shall employ the Employee, and the Employee shall serve the
Corporation, in the position of Vice-President, Clinical Research 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
President and Chief Operating Officer of the Corporation.
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3.
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Performance
of Duties
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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 her working
time
and attention to her employment hereunder, except where expressly agreed by
the
President and Chief Operating Officer, and shall use her best efforts to promote
the interests of the Corporation.
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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 February 10, 2006 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.
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Remuneration
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5.2. Bonus
Remuneration.
The
Employee 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 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 such stock options under the Corporation’s stock option plan in
accordance with the terms and conditions outlined in Schedule 5.3.
5.5. Prorata
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 her entitlement to Basic Salary, and the Corporation
shall be required to pay in respect thereof, only that proportion 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 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.
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Expenses
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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 her duties and
responsibilities upon presentation by the Employee of expense statements or
receipts or such other supporting documentation as the Corporation may
reasonably require.
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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. 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 she was entitled and which had not already been taken by her except to
the
extent, if any, of the payments in respect of vacation pay required by the
ESA.
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Termination
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8.1. Notice.
The
Employee’s employment may, subject to section 10
hereof,
be
terminated at any time:
8.1.2. by
the
Corporation without prior notice and without further obligations to the Employee
for reasons of Just Cause;
8.1.3. by
the
Corporation for any reason other than Just Cause, on twelve 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
8.1.4. 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 her death.
8.2.1. in
the
case of termination under section 8.1.1
or
section 8.1.2,
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 8.1.3
or
section 8.1.4,
the
last day of the minimum period referred to therein; and
Notwithstanding
the foregoing, where the Corporation is giving or has given 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 her 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 Basic
Salary, 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 2.5 percent of her Basic Salary for the purpose of obtaining equivalent
coverage during the notice period.
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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, resignations and other similar documentation, to receive from the
Corporation, in addition to accrued but unpaid Basic Salary, if any, and any
entitlement in respect of vacation as contemplated by section 7,
a lump
sum payment equal to 12 months of her Basic Salary and 2.5 percent of her Basic
Salary in respect of her entitlement to Benefits (in lieu of continued benefit
coverage), less any amounts payable to the Employee in lieu of notice where
a
Stop Work Notice has been given pursuant to section 8 and
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, 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 Basic 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.
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Change
of Control
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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. 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 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 in response to a Good Reason, the following
provisions shall apply:
10.2.1. the
Employee shall be entitled to receive, and the Corporation shall pay to the
Employee immediately following termination, a cash amount equal to the aggregate
of (i) twelve (12) months of the Employee’s Basic Salary and (ii) the average
amount of the per annum bonus remuneration paid to the Employee during each
full
Year of Employment during the Employment Period, less any required statutory
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 her annual 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, 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) 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 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 Employee 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 or result in a Change of Control;
(ii) the Employee terminates her 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 or result in 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: (i)
as
a result of death, Disability or Retirement, (ii) by the Corporation for Just
Cause or (iii) 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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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.
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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, individually, or in
partnership, jointly or in conjunction with any other Person, or as an employee,
principal, agent, director or shareholder:
| (i) |
be
engaged in any undertaking;
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| (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
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| (iii) |
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
involves the development, manufacturing, sales and/or distribution of products,
equipment, services and/or technology relating to the apheresis treatment of
ophthalmic diseases or which is otherwise the same as, or substantially similar
to, or which competes with or would compete with, the business carried on by
the
Corporation or any of its Subsidiaries during the Employment Period or at the
end thereof.
Notwithstanding
the foregoing, nothing herein shall prevent the Employee from owning not more
than 5% of the issued and outstanding 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 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.
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No
Solicitation of Customers or
Patients
|
The
Employee shall not, either during the Employment Period or the Restricted
Period, directly or indirectly, solicit or attempt to solicit any patients
or
customers of the Corporation or any of its Subsidiaries for the purpose of
selling to a patient 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.
|
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 or solicit, any such person to leave his/her
employment.
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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.
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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.
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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
other reason, 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 17. In the event of a general
discontinuance of postal service due to strike, lock-out or other reason,
notices or other communications shall be delivered by hand or sent by facsimile
or other means of electronic communication and shall be deemed to have been
received in accordance with this section 17. Notices and other communications
shall be addressed as follows:
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a)
|
if
to the Employee:
|
Nozhat
Choudry
0000
Xxxxxxxxxxx Xx.
Xxxxxxxx,
Xxxxxxx
X0X
0X0
|
b)
|
if
to the Corporation:
|
0000
Xxxxxxx Xxx., Xxxx. 0, Xxxxx 000
Xxxxxxxxxxx,
Xxxxxxx
X0X
0X0
Attention: President
and Chief Operating Officer
Telecopier
number: (000)
000-0000
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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.
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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.
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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, are stated and shall be paid in Canadian
currency.
|
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.
|
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;
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, if applicable, has not been made conditional
upon execution of this Agreement by the Employee.
IN
WITNESS WHEREOF the parties have executed this Agreement as of the date first
written above.
By: /s/
Xxxxxx X. Xxxxxx
Xxxxxx
X.
Xxxxxx
President
and Chief Operating Officer
Witness
)
)
)
)
)
)
)
)/s/
Nozhat Choudry
-
6
-
SCHEDULE
5.2
Bonus
Remuneration
In
respect of each full Year of Employment during the Employment Period, the
Employee shall be entitled to receive a maximum of 25 percent of the Basic
Salary as bonus remuneration based upon performance and other criteria agreed
upon by the Chairman and Chief Executive Officer and the President and Chief
Operating Officer and approved 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 that the number of days in the First
Year of Employment is to 365.
SCHEDULE
5.3
Stock
Options
The
Employee shall receive 80,000 stock options, entitling her to purchase 80,000
shares of common stock of the Corporation under the terms and conditions set
forth in the time-based Stock Option Notice and Agreement (a copy of which
is
attached hereto as Schedule “A”) and the Corporation’s 2002 Stock Option Plan.
Furthermore, the exercise price per share will be set at the closing price
of
the Corporation’s common stock on NASDAQ on the date hereof (the “Grant Date),
provided that it is not lower than the volume weighted average trading price
of
the Corporation’s common stock on NASDAQ for the five trading days immediately
preceding the Grant Date, in which case, the exercise price per share will
be
set at such volume weighted average trading price. Such stock options will
vest
at the rate of 33 1/3 percent on each anniversary of the Grant Date and will
expire on the tenth anniversary of the Grant Date.
