OPTION AGREEMENT
THIS
AGREEMENT
is made
effective as of the 4th day of October, 0000
X
X X X X X X:
OCCULOGIX,
INC., a
corporation incorporated under the laws of the State of Delaware
(hereinafter
referred to as the “Corporation”)
-
and
-
XXXXXXX
XXXXX of
the
City of Senatobia in the State of Mississippi
(hereinafter
referred to as the “Optionee”)
WHEREAS,
as
of the
Effective Date (defined below), the Optionee was appointed the Vice President,
Sales of the Corporation;
AND
WHEREAS, as
of the
Effective Date, the Corporation entered into an executive employment agreement
with the Optionee pursuant to which he was granted an aggregate of 300,000
options entitling him to purchase an aggregate of 300,000 shares of common
stock
of the Corporation (the “Executive
Employment Agreement”);
AND
WHEREAS
the
Executive Employment Agreement contemplated that the Corporation and the
Optionee would enter into a definitive option agreement which would set out,
in
detail, the terms and conditions of the options granted to the Optionee, which
terms and conditions would be substantially similar to those of options granted
prior to the Effective Date under the Corporation’s 2002 Stock Option Plan (the
“Plan”);
AND
WHEREAS
this
Agreement is such definitive option agreement;
NOW,
THEREFORE, in
consideration of the promises and mutual covenants set out in this Agreement
(the receipt and sufficiency of which are hereby acknowledged by the parties),
the parties hereto hereby agree as follows:
1. INTERPRETATION
1.1 Definitions.
In this
Agreement, the following terms shall have the meanings set forth
below:
| (a) |
“Acquiring
Corporation”
has the meaning attributed to such term in Section
8.2;
|
| (b) |
“Agreement”
means this agreement and the schedule 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 references to sections in this
Agreement;
|
| (c) |
“Board”
means
the board of directors of the Corporation or any committee appointed
by
the Board to administer the Plan or this
Agreement;
|
| (d) |
“Cashless
Exercise”
has the meaning attributed to such term in Section
4.2;
|
| (e) |
“Change
in Control”
has the meaning attributed to such term in Section
8.1(b);
|
| (f) |
“Code”
means the Internal Revenue Code of 1986, as amended, and any applicable
regulations promulgated thereunder;
|
| (g) |
“Disability”
means the inability of the Optionee, in the opinion of a qualified
physician acceptable to the Corporation, to perform the major duties
of
the Optionee’s position with the Participating Company Group because of
the sickness or injury of the
Optionee;
|
| (h) |
“Effective
Date”
means October 4, 2005;
|
| (i) |
“Exchange
Act”
means the Securities Exchange Act of 1934, as
amended;
|
| (j) |
“Executive
Employment Agreement”
has the meaning attributed to such term in the second recital
above;
|
| (k) |
“Fair
Market Value” means
the fair market value of the shares of common stock of the Corporation
or
other property, as determined by the Board, in its discretion, applying
the principles required to be applied by it in its determination
of Fair
Market Value under the Plan;
|
| (l) |
“New
Shares”
has the meaning attributed to such term in Section
7.3;
|
| (m) |
“Options”
means, collectively, the Time-based Options and the Performance-based
Options;
|
| (n) |
“Ownership
Change Event”
has the meaning attributed to such term in Section
8.1(a);
|
| (o) |
“Parent
Corporation”
means any present or future “parent corporation” of the Corporation, as
such term is defined in Section 424(e) of the
Code;
|
| (p) |
“Participating
Company”
means the Corporation or any Parent Corporation or Subsidiary
Corporation;
|
| (q) |
“Participating
Company Group” means,
at any point in time, all corporations collectively which are then
Participating Companies;
|
| (r) |
“Performance-based
Options”
has the meaning attributed to such term in Section
3.1;
|
| (s) |
“Performance-based
Vesting Condition”
has the meaning attributed to such term in Section
3.2;
|
| (t) |
“Plan”
has the meaning attributed to such term in the third recital
above;
|
| (u) |
“Securities
Act” means
the Securities Act of 1933, as
amended;
|
| (v) |
“Service”
means the Optionee’s employment or service with the Participating Company
Group, whether in the capacity of an employee or a
consultant;
|
| (w) |
“Stock”
means the common stock of the Corporation, as adjusted from time
to time
in accordance with Section 7.3;
|
| (x) |
“Stock
Option Exercise Notice”
has the meaning attributed to such term in Section
4.1;
|
| (y) |
“Subsidiary
Corporation”
means any present or future “subsidiary corporation” of the Corporation,
as such term is defined in Section 424(f) of the
Code;
|
| (z) |
“Time-based
Options”
has the meaning attributed to such term in Section
2.1;
|
| (aa) |
“Transaction”
has the meaning attributed to such term in Section 8.1(b);
and
|
| (bb) |
“Transferee”
has the meaning attributed to such term in Section
8.1(b).
|
1.2 Headings.
The
headings in this Agreement are solely for convenience of reference and shall
not
affect the construction or interpretation hereof.
1.3 Number
and Gender.
In this
Agreement, words importing the singular include the plural and vice versa.
Words
importing the masculine gender include the feminine and neuter
genders.
1.4 Invalidity
of Provisions.
Each of
the provisions contained in this Agreement is distinct and severable, and a
declaration of invalidity or unenforceability of any provision or part thereof
by a court of competent jurisdiction shall not affect the validity or
enforceability of any other provision hereof.
1.5 Entire
Agreement and Waiver.
Together with the Executive Employment Agreement, this Agreement constitutes
the
entire agreement between the Corporation and the Optionee with respect to the
subject matter hereof and supersedes all prior agreements, undertakings,
negotiations and discussions, whether written or oral, that may have taken
place
between the parties hereto with respect to the subject matter hereof. No
supplement or amendment to, or waiver of, this Agreement shall be binding unless
it is executed in writing by the party hereto to be bound thereby. No waiver
of
any provision of this Agreement shall constitute, or be deemed to be, a waiver
of any other provision of this Agreement, whether or not similar to the
provision being waived, nor shall any waiver constitute a continuing waiver,
unless otherwise expressly provided.
1.6 Paramountcy.
In the
case of any conflict or inconsistency between any of the provisions of this
Agreement and any of the provisions of any employment agreement then in effect
between the Corporation and the Optionee (including, for greater certainty,
the
Executive Employment Agreement), the latter agreement shall
prevail.
1.7 Governing
Law.
This
Agreement
shall be governed by the laws of the State of Delaware as such laws are
applied to agreements between Delaware residents entered into and to be
performed entirely within the State of Delaware.
2. GRANT
OF TIME-BASED
OPTIONS
2.1 Time-based
Options. The Corporation hereby grants to the Optionee an aggregate of
200,000 options entitling him to purchase an aggregate of 200,000 shares
of
Stock (the “Time-based Options”) at the exercise price per share of U.S.$6.28,
being the NASDAQ closing price of the Corporation’s common stock on the
Effective Date.
2.2 Right
to Exercise.
Except
as may be otherwise provided herein, the Time-based Options shall be
exercisable:
| (a) |
as
to 33⅓%, on and after the first anniversary of the Effective
Date;
|
| (b) |
as
to an additional 33⅓%, on and after the second anniversary of the
Effective Date; and
|
| (c) |
as
to the balance, on and after the third anniversary of the Effective
Date;
|
subject
to earlier termination of the Time-based Options as provided in this Section
2.2
and Section 5, in an amount not to exceed the number of vested shares of
Stock
less the number of shares of Stock previously acquired upon any previous
exercise of Time-based Options. All of the Time-based Options shall expire
on
the tenth anniversary of the Effective Date.
2.3 Non-statutory
Stock Options.
The
Time-based Options are intended to be “Non-statutory Stock Options” and shall
not be treated as “Incentive Stock Options” within the meaning of Section 422 of
the Code.
3. GRANT
OF
PERFORMANCE-BASED OPTIONS
3.1 Performance-based
Options.
The
Corporation hereby grants to the Optionee an aggregate of 100,000 options
entitling him to purchase an aggregate of 100,000 shares of Stock (the
“Performance-based
Options”)
at the
exercise price per share of U.S.$6.28, being the NASDAQ closing price of the
Corporation’s common stock on the Effective Date.
3.2 Right
to Exercise.
Subject
to earlier termination as provided in this Section 3.2 and Section 5, and except
as may be otherwise provided herein, the Performance-based Options shall become
exercisable if the Corporation achieves a minimum of U.S.$250,000,000 of
aggregate net sales over four consecutive fiscal quarters occurring prior to
January 1, 2011, net of marketing discounts, volume discounts, sales discounts
and other like discounts (the “Performance-based
Vesting Condition”).
If the
Performance-based Vesting Condition is fulfilled, the Performance-based Options
shall be exercisable on and after the date on which the Board approves the
unaudited or audited financial statements of the Corporation covering the last
of the aforementioned four consecutive fiscal quarters and in an amount not
to
exceed the number of vested shares of Stock less the number of shares of Stock
previously acquired upon any previous exercise of Performance-based Options.
The
Performance-based Options shall be deemed to have expired on January 1, 2011
if
the Performance-based Vesting Condition is not fulfilled by the end of the
fiscal quarter ending December 31, 2010. Otherwise, they shall expire on the
tenth anniversary date of the Effective Date.
3.3 Non-statutory
Stock Options.
The
Performance-based Options are intended to be “Non-statutory Stock Options” and
shall not be treated as “Incentive Stock Options” within the meaning of Section
422 of the Code.
4. METHOD
AND
PAYMENT
4.1 Method
of Exercise.
Exercise of Options shall be by written notice to the Corporation in the form
of
the exercise notice attached hereto as Schedule “A” or such other form that may
be approved by the Corporation from time to time (the “Stock
Option Exercise Notice”).
The
Stock Option Exercise Notice must be completed and signed by the Optionee and
delivered to the Chief Financial Officer of the Corporation, or other authorized
representative of the Participating Company Group, prior to the termination
of
the Options, accompanied by full payment of the aggregate exercise price, in
accordance with Section 4.2, for the number of shares of Stock being purchased.
Options shall be deemed to be exercised upon receipt by the Corporation of
the
completed and signed Stock Option Exercise Notice and the aggregate exercise
price.
4.2 Payment
of Exercise Price.
Payment
of the aggregate exercise price for the shares of Stock underlying Options
being
exercised shall be made (i) in cash or by certified or bank cashier’s check
payable to the Corporation, (ii) by tender to the Corporation, or attestation
to
the ownership, of whole shares of the Corporation owned by the Optionee for
at
least six months and having a Fair Market Value of not less than the aggregate
exercise price, (iii) by means of a Cashless Exercise or (iv) by any combination
of the foregoing. Notwithstanding the foregoing, Options may not be exercised
by
tender to the Corporation, or attestation to the ownership, of shares of the
Corporation unless such shares either have been owned by the Optionee for more
than six months (and not used for another exercise of Options by attestation
during such period) or were not acquired, directly or indirectly, from the
Corporation. “Cashless
Exercise”
means
the delivery of a properly completed and signed Stock Option Exercise Notice
together with irrevocable instructions to a broker, in a form acceptable to
the
Corporation, providing for the assignment to the Corporation of the proceeds
of
a sale or loan with respect to some or all of the shares of Stock to be acquired
upon the exercise of Options pursuant to a program or procedure approved by
the
Corporation (including, without limitation, through an exercise complying with
the provisions of Regulation T, as promulgated from time to time by the Board
of
Governors of the Federal Reserve System). The Corporation reserves the right,
in
its sole and absolute discretion, at any and at all times, to decline to approve
or terminate any such program or procedure.
4.3 Tax
Withholding.
It
shall be a condition to the Corporation’s obligation to issue shares of Stock
upon exercise of Options that the Optionee (or any beneficiary or person
entitled to act hereunder) pay to the Corporation, upon demand, such amount
as
may be requested by the Corporation for the purpose of satisfying any liability
to withhold federal, state, provincial or local income or other
taxes.
4.4 Restrictions
on Grant and Issuance.
The
grant of the Options and the issuance of shares of Stock upon the exercise
of
Options shall be subject to compliance with all applicable requirements of
federal, state, provincial, local or foreign law with respect to such securities
and the regulations or the requirements of any stock exchange or market system
upon which the stock of the Corporation may then be listed.
5. TERMINATION
OF OPTIONS
5.1 Termination
of Time-based Options.
The
Time-based Options shall terminate and may no longer be exercised after the
first to occur of (i) the tenth anniversary of the Effective Date, (ii) the
last
date for exercising Options following termination of the Optionee’s Service as
provided in Section 6 and (iii) a Change in Control.
5.2 Termination
of Performance-based Options.
The
Performance-based Options shall be deemed to have terminated on January 1,
2011,
and may not be exercised thereafter, if the Performance-based Vesting Condition
is not fulfilled on or before December 31, 2010 and otherwise shall terminate
and may no longer be exercised after the first to occur of (i) the tenth
anniversary of the Effective Date, (ii) the last date for exercising Options
following termination of the Optionee’s Service as provided in Section 6 and
(iii) a Change in Control.
6. EFFECT
OF
TERMINATION OF SERVICE
6.1 Disability.
If the
Optionee’s Service terminates because of the Disability of the Optionee, the
Options, to the extent unexercised and exercisable on the date on which the
Optionee’s Service terminates, may be exercised by the Optionee (or the
Optionee’s guardian or legal representative) at any time prior to the expiration
of the twelve-month period following the date on which the Optionee’s Service
terminates but, in any event, no later than the tenth anniversary of the
Effective Date.
6.2 Death.
If the
Optionee’s Service terminates because of the death of the Optionee, the Options,
to the extent unexercised and exercisable on the date on which the Optionee’s
Service terminates, may be exercised by the Optionee’s legal representative, or
other person who acquires the right to exercise the Options by reason of the
Optionee’s death, at any time prior to the expiration of the twelve-month period
following the date on which the Optionee’s Service terminates but, in any event,
no later than the tenth anniversary of the Effective Date. The Optionee’s
Service shall be deemed to have terminated on account of death if the Optionee
dies within three months of the termination of the Optionee’s
Service.
6.3 Termination
without Cause.
If the
Optionee’s Service is terminated without cause, the Options, to the extent
unexercised and exercisable on the date on which the Optionee’s Service
terminates, may be exercised by the Optionee (or the Optionee’s guardian or
legal representative) at any time prior to the expiration of the three-month
period following the date on which the Optionee’s Service terminates but, in any
event, no later than the tenth anniversary date of the Effective Date. The
date
on which the Optionee’s Service terminates shall be his or her last day of
active employment and shall not include any period of statutory or reasonable
notice or any period of deemed employment.
6.4 Other
Termination of Service.
If the
Optionee’s Service terminates for any reason, except Disability, death or
termination without cause, the Options, to the extent unexercised and
exercisable by the Optionee on the date on which the Optionee’s Service
terminates, may be exercised by the Optionee at any time prior to the expiration
of the one-month period following the date on which the Optionee’s Service
terminates but, in any event, no later than the tenth anniversary of the
Effective Date.
6.5 Extension
in Consideration of Section 16(b) of Exchange Act.
Notwithstanding Sections 6.1 to 6.4 inclusive, if a sale, within the applicable
time periods set forth in such sections, of shares of Stock acquired upon the
exercise of Options would subject the Optionee to suit under Section 16(b)
of
the Exchange Act, then the unexercised and exercisable Options shall remain
exercisable until the earliest to occur of (i) the tenth day following the
date
on which a sale of such shares of Stock would not longer subject the Optionee
to
such a suit, (ii) the 190th
day
after the Optionee’s termination of Service or (iii) the tenth anniversary of
the Effective Date.
6.6 Extension
if Exercise is Prohibited by Law.
Notwithstanding Sections 6.1 to 6.4 inclusive, if the exercise of Options within
the applicable time periods set forth in such sections is prevented by the
requirement to comply with applicable securities laws pursuant to Section 9,
then the unexercised and exercisable Options shall remain exercisable until
the
end of the three-month period following the date on which the Optionee is
notified by the Corporation that Options are not exercisable or such longer
period of time as determined by the Board in its discretion, provided, however,
that the Options shall, in no event, remain exercisable beyond the tenth
anniversary of the Effective Date.
6.7 Determination
of Termination of Service.
The
Optionee’s Service shall not be deemed to have terminated merely because of a
change of capacity in which the Optionee renders Service to the Participating
Company Group or a change in the Participating Company for which the Optionee
renders Service, provided that there is no interruption or termination of the
Optionee’s Service. Furthermore, an Optionee’s Service with the Participating
Company Group shall not be deemed to have terminated if the Optionee takes
any
military leave, sick leave or other bona
fide leave
of
absence approved by the Corporation; provided, however, that if any such leave
exceeds 90 days, on the 91st
day of
such leave, the Optionee’s Service shall be deemed to have terminated, unless
the Optionee’s right to return to Service with the Participating Company Group
is guaranteed by statute or contract. Notwithstanding the foregoing, unless
otherwise designated by the Corporation or determined by law, a leave of absence
shall not be treated as Service for purposes of determining the vesting of
the
Time-based Options. The Optionee’s Service shall be deemed to have terminated
either upon an actual termination of Service or upon the corporation for which
the Optionee performs Service ceasing to be a Participating Company. Subject
to
the foregoing, the Corporation, in its discretion, shall determine whether
the
Optionee’s Service has terminated and the effective date of such
termination.
7. ADMINISTRATION
7.1 Administration
by Board.
This
Agreement and the Options shall be administered by the Board. All questions
of
interpretation of this Agreement and the Options shall be determined by the
Board, and such determination shall be final and binding upon the Optionee
and
all other persons having an interest in this Agreement and the
Options.
7.2 Powers
of Board.
Without
derogating from the generality of Section 7.1, the Board shall have the full
and
final power and authority, in its discretion, to correct any defect, supply
any
omission or reconcile any inconsistency in this Agreement and to make all other
determinations and take such other actions with respect to this Agreement and
the Options as the Board may deem advisable.
7.3 Adjustment
for Changes in Capital Structure.
In the
event of any stock dividend, stock split, reverse stock split, recapitalization,
combination, reclassification or other similar change in the capital structure
of the Corporation, appropriate adjustments shall be made in the number and
class of shares of the Corporation subject to the then outstanding Options
and
in the exercise price per share of the outstanding Options. If a majority of
the
shares of the Corporation subject to the outstanding Options are exchanged
for,
converted into or otherwise become shares of another corporation (“New
Shares”)
(whether or not pursuant to an Ownership Change Event), the Board unilaterally
may amend the outstanding Options to provide that they shall be exercisable
into
New Shares. In the event of such an amendment, the number of New Shares subject
to, and the exercise price per share of, the outstanding Options shall be
adjusted in a fair and equitable manner, as determined by the Board in its
discretion. Notwithstanding the foregoing, any fractional shares resulting
from
an adjustment pursuant to this Section 7.3 shall be rounded down to the nearest
whole number, and, in no event, may the exercise price per share of any
outstanding Option be decreased to an amount less than the par value, if any,
of
a New Share. The adjustments determined by the Board to be made pursuant to
this
Section 7.3 shall be final, binding and conclusive.
8. CHANGE
IN
CONTROL
8.1 Definitions.
| (a) |
An
“Ownership
Change Event”
shall be deemed to have occurred if any of the following events occurs
with respect to the Corporation: (i) the direct or indirect sale
or
exchange, in a single transaction or a series of related transactions,
by
the stockholders of the Corporation of more than 50% of the voting
stock
of the Corporation; (ii) a merger or consolidation in which the
Corporation is a party; (iii) the sale, exchange or transfer of all
or
substantially all of the assets of the Corporation; or (iv) a liquidation
or dissolution of the Corporation.
|
| (b) |
A
“Change
in Control”
shall mean an Ownership Change Event or a series of related Ownership
Change Events (either, a “Transaction”)
wherein the stockholders of the Corporation immediately before the
Transaction do not retain immediately after the Transaction, in
substantially the same proportions as their ownership of shares of
the
Corporation’s voting stock immediately before the Transaction, direct or
indirect beneficial ownership of more than 50% of the total combined
voting power of the outstanding voting securities of the Corporation
or,
in the case of a Transaction described in Section 8.1(a)(iii), the
corporation or other business entity to which the assets of the
Corporation were transferred (the “Transferee”),
as the case may be. For purposes of the preceding sentence, indirect
beneficial ownership shall include, without limitation, an interest
resulting from ownership of the voting securities of one or more
corporations or other business entities which own the Corporation
or the
Transferee, as the case may be, either directly or through one or
more
subsidiary corporations or other business entities. The Board shall
have
the right to determine whether multiple sales or exchanges of the
voting
securities of the Corporation or multiple Ownership Change Events
are
related, and its determination shall be final, binding and conclusive.
|
8.2 Effect
of Change in Control on Options.
In the
event of a Change in Control, the surviving, continuing, successor or purchasing
corporation or other business entity or parent thereof (the “Acquiring
Corporation”),
as the
case may be, without the consent of the Optionee, may either assume the
Corporation’s rights and obligations under this Agreement and the then
outstanding Options or substitute for such Options options to acquire the
Acquiring Corporation’s stock. Any such Options which are not assumed or
substituted by the Acquiring Corporation in connection with the Change in
Control or which are not exercised as of the date of the Change in Control
shall
terminate and cease to be outstanding effective as of the date of the Change
in
Control. Notwithstanding the foregoing, shares of Stock acquired upon exercise
of Options prior to the Change in Control and any consideration received
pursuant to the Change in Control with respect to such shares of Stock shall
continue to be subject to all applicable provisions of this Agreement, except
as
otherwise provided in this Agreement. Furthermore, notwithstanding the
foregoing, if the corporation, the stock of which is subject to the outstanding
Options immediately prior to the Ownership Change Event described in Section
8.1(a)(i) constituting a Change in Control is the surviving or continuing
corporation and immediately after such Ownership Change Event less than 50%
of
the total combined voting power of its voting stock is held by another
corporation or by other corporations that are members of an affiliated group
within the meaning of Section 1504(a) of the Code without regard to the
provisions of Section 1504(b) of the Code, the outstanding Options shall not
terminate, unless the Board otherwise provides in its discretion.
9. COMPLIANCE
WITH SECURITIES LAWS
9.1 The
grant
of the Options and the issuance of shares of Stock upon exercise of Options
shall be subject to compliance with all applicable requirements of federal,
state, provincial and foreign law with respect to such securities. Options
may
not be exercised if the issuance of shares of Stock upon exercise would
constitute a violation of any applicable federal, state, provincial or foreign
securities laws or other applicable law, rule or regulation or the requirements
of any stock exchange or market system upon which the stock of the Corporation
may then be listed. In addition, no Options may be exercised unless (i) a
registration statement under the Securities Act shall, at the time of exercise
of Options, be in effect with respect to the shares of Stock issuable upon
exercise of such Options or (ii) in the opinion of legal counsel to the
Corporation, the shares of Stock issuable upon exercise of such Options may
be
issued in accordance with the terms of an applicable exemption from the
registration requirements of the Securities Act. The inability of the
Corporation to obtain from any regulatory body having jurisdiction the authority
deemed necessary, if any, by the Corporation’s legal counsel to the lawful
issuance and sale of any shares of Stock hereunder shall relieve the Corporation
of any liability in respect of any failure to issue or sell such shares of
Stock
as to which such requisite authority shall not have been obtained. As a
condition to the exercise of Options, the Corporation may require the Optionee
to satisfy any qualifications that may be necessary or appropriate to evidence
compliance with any applicable law or regulation and to make any representation
or warranty with respect thereto as may be requested by or of the
Corporation.
10. MISCELLANEOUS
10.1 Binding
Effect.
Subject
to restrictions on transfer set forth herein, this Agreement shall inure to
the
benefit of, and be binding upon, the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
10.2 Termination
or Amendment.
The
Board may terminate or amend this Agreement at any time, provided, however,
that
no such termination or amendment may adversely affect any unexercised Options
without the consent of the Optionee, unless such termination or amendment is
necessary to comply with any applicable law or regulation.
10.3 No
Right to Employment.
Nothing
in this Agreement shall confer upon the Optionee any right to continue in the
Service of the Corporation or a Participating Company or to interfere, in any
way, with any right of the Participating Company Group to terminate the
Optionee’s Service as an employee or a consultant, as the case may be, at any
time.
10.4 Facsimile
and Counterparts.
This
Agreement may be signed by facsimile and in counterparts, and each of such
counterparts shall constitute an original document, and such counterparts,
taken
together, shall constitute one and the same instrument.
IN
WITNESS WHEREOF
the
parties hereto have executed this Agreement.
| OCCULOGIX, INC. | ||
| |
|
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| : | By: | /s/ Xxxxxx X. Xxxxxx |
|
|
||
| President and Chief Operating Officer | ||
|
Signature
of Witness
|
Xxxxxxx
Xxxxx
|
|
|
Name
of Witness (please
print)
|
SCHEDULE
“A”
STOCK
OPTION EXERCISE NOTICE
OccuLogix,
Inc. (the “Corporation")
Attention:
Chief Financial Officer
1. Options.
Effective October 4, 2005, I was granted 200,000 time-based options (the
“Time-based
Options”)
and
100,000 performance-based options (the “Performance-based
Options”)
(collectively, the "Options”)
to
purchase shares of common stock of the Corporation (“Shares”)
at an
exercise price per share of U.S.$6.28 pursuant to the Option Agreement,
effective as of October 4, 2005, between the Corporation and me (the
“Option
Agreement”).
2. Exercise
of Time-based Options.
I
hereby elect to exercise Time-based Options to purchase the following number
of
Shares, all of which are vested Shares in accordance with the Option
Agreement:
Total
Number of Shares Purchased:
Total
Exercise Price (Total Shares x Exercise Price per Share) $
3. Exercise
of Performance-based Options.
I
hereby elect to exercise Performance-based Options to purchase the following
number of Shares, all of which are vested Shares in accordance with the Option
Agreement:
Total
Number of Shares Purchased:
Total
Exercise Price (Total Shares x Exercise Price per Share) $
4. Payment.
I
enclose payment in full of the total exercise price for the Shares in the
following form(s), as authorized by the Option Agreement:
Cash: $ _______________________________________________________
Check: $ ______________________________________________________
Tender
of
Stock: Contact
Plan Administrator
Cashless
Exercise: Attach
broker’s instructions
5. Tax
Withholding. I
authorize payroll withholding or otherwise hereby make adequate provision for
the federal, state, provincial, local and foreign tax withholding obligations
of
the Corporation in connection with the Options by enclosing payment in full
of
the applicable withholding taxes, if any, as follows:
Cash: $ ______________________________________________________
Check: $ _____________________________________________________
6. Optionee
Information.
My
address
is:______________________________
__________________________________________
__________________________________________
My
SSN or SIN
(circle
one)
is:
___________________________
7. Certificate
Registration.
The
stock certificate of the Corporation to be issued upon exercise of the Options,
representing the Shares being purchased, shall be registered in the name(s)
of
______________________.
8. Binding
Effect.
I agree
that the Shares are being acquired in accordance with, and subject to, the
terms, provisions and conditions of the Option Agreement, and I hereby expressly
assent to all of such terms, provisions and conditions. This agreement shall
inure to the benefit of, and be binding upon, my heirs, executors,
administrators, successors and assigns.
9. Acknowledgement.
I
understand that I am purchasing the Shares underlying the Options hereby being
exercised pursuant to the terms of the Option Agreement and this exercise
notice, copies of which I have received and carefully read and
understand.
Very
truly yours,
(Signature)
Receipt
of the above is hereby acknowledged.
By:
Title:
Dated:___________________________
