Dated as of January 6, 2004
Xxxxx X. Xxxxxxxx
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Re: CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE
Dear Angus:
This letter (the "Agreement") will confirm the arrangements concerning your
separation from employment with National Vision, Inc. (the "Company") under the
National Vision, Inc. Severance Plan (the "Plan") and the Plan's Summary Plan
Description (the "SPD," a copy of which is enclosed herein). It constitutes our
entire understanding regarding the terms of your separation.
TERMINATION OF EMPLOYMENT. Your last day of employment with the Company will be
January 6, 2004 (your "Severance Date"). You agree that on the Severance Date
you will cease to be an officer of the Company and its subsidiaries and you
hereby resign, as of the Severance Date, as an officer of the Company and as an
officer and director of the Company's subsidiaries.
SEVERANCE BENEFITS. In exchange for your executing and returning this Agreement
in a timely fashion and abiding by its terms, the Company will pay you a
severance payment of one year of base salary for a total amount of $202,052
("Severance Pay"). Severance Pay, less required withholdings and other
deductions you previously authorized, will be paid in the manner described on
page 4 of the enclosed SPD. Severance Pay will be adjusted or offset for
payments under a change in control agreement you previously executed, if
applicable. In addition, any payments to which you may be entitled under a
change in control agreement will be adjusted or offset so that the combined
total of payments you receive under this Agreement and under any change in
control agreement shall not exceed the maximum of payments to which you would be
entitled solely under the change in control agreement. The foregoing is not an
admission by the Company that you are or may be entitled to payments under the
change in control agreement. You acknowledge that you are not entitled to the
Severance Pay described above except as consideration for your execution of this
Agreement and that you must remain employed until your Severance Date to be
eligible for Severance Pay.
______________
[Initials of Employee]
Regardless of whether you sign this Agreement, the Company will:
- Pay you all accrued compensation (exclusive of equity compensation)
that you have earned through your Severance Date (such accrued
compensation includes amounts to which you are entitled under the
Management Incentive Plan for 2003 (the "Plan") and a Performance Share
Award Agreement dated as of October 25, 2001 (the "Award Agreement"),
provided, however, that (a) you will be paid amounts , if any, due
under the Plan and the Award Agreement at such time as the Company pays
incentives generally to its officers for the 2003 fiscal year, and (b)
you understand and agree that you will not be entitled to (and you
expressly waive any rights you may have to) any payments under the
Award Agreement for any performance period other than the 2002-2003
combined performance period;
- Pay you the additional sum of $4,500 representing the market value (as
of the date of this Agreement) of vested options you have to acquire
2,250 shares of common stock of the Company pursuant to a stock option
certificate and agreement dated as of October 25, 2001 (the "Option
Agreement");
- Pay you, within 30 days of the "Determination Date" (as defined below),
an amount equal to the product of (a) the number of options under the
Option Agreement, if any, that the Compensation Committee of the Board
of Directors of the Company (the "Committee") determines have vested in
light of the financial results of the Company for 2003 and (b) the
closing sale price (less $0.40) of the common stock of the Company on
the American Stock Exchange as of the date the Committee makes such
determination (the "Determination Date") or, if there is no such sale
on the Determination Date, then the closing sale price (less $0.40) on
the last previous day on which a sale was reported;
- Pay you, within 30 days of the Determination Date, an amount equal to
the product of (a) the number of shares of common stock, if any, that
the Committee determines to award under the Award Agreement in light of
the financial results of the Company for 2003 and (b) the closing sale
price of the common stock of the Company on the American Stock Exchange
as of the Determination Date or, if there is no such sale on the
Determination Date, then the closing sale price on the last previous
day on which a sale was reported;
- Pay you for any accrued but unused vacation time to which you are
entitled as of your Severance Date; and
- Provide you with information about your right to choose to take a
distribution from the Company's 401(k) plan.
- Provide you (if eligible) with information about your right to continue
health insurance coverage at your own expense in accordance with the
Consolidated Omnibus Budget Reconciliation Act ("COBRA").
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______________
[Initials of Employee]
COVENANT NOT TO XXX AND RELEASE. You represent that you have not, and you agree
that you will not, file any claims, complaints, charges, or lawsuits against the
Company or any of its divisions, subsidiaries, affiliates, predecessors,
successors, or assigns, or any of their present or former officers, directors,
employees, owners, or agents, or any of their benefit plans or trustees
(hereinafter collectively referred to as the "Releasees") about anything that
has occurred up to the time you execute this Agreement. In addition, in further
consideration of the Severance Pay described above, you hereby agree to release
and discharge the Releasees from any and all claims, losses, expenses,
liabilities, rights, and entitlements of every kind and description
(collectively referred to as "Claims") you now have or have had, or may later
claim to have had against them, whether currently known or unknown, arising out
of anything that has occurred up to the time you execute this Agreement. You
understand and agree that you will not be entitled hereafter to pursue any
Claims arising out of any alleged violation of your rights, including but not
limited to Claims for back pay, losses, or other damages to you or your property
resulting from any alleged violation of municipal, county, state, or federal
law, such as (but not limited to) Title VII of the Civil Rights Act of 1964, 42
U.S.C. ss. 2000e ET SEQ. (prohibiting discrimination on account of race, color,
sex, national origin, or religion); the Age Discrimination in Employment Act of
1967, 29 U.S.C. ss. 621 ET SEQ. (prohibiting discrimination on account of age);
the Employee Retirement Income Security Act of 1974, as amended (ERISA), 29
U.S.C. ss. 1001 ET SEQ.; the Americans with Disabilities Act of 1990 (ADA), 42
U.S.C. xx.xx. 12101-12213 (prohibiting discrimination on account of disability);
the Family and Medical Leave Act of 1993, 29 U.S.C. ss. 2601 ET SEQ.; 42 U.S.C.
ss. 1981; the Georgia Equal Employment for Persons with Disabilities Code,
O.C.G.A. xx.xx. 34-6A-1 to 34-6A-6 (prohibiting discrimination on account of
disability); the Georgia Sex Discrimination in Employment Law, O.C.G.A. xx.xx.
34-5-1 to 34-5-7 (prohibiting sex-based discrimination in pay); the City of
Atlanta Fair Private Employment Ordinance, Atlanta, Ga. Code of Ordinances
xx.xx. 94-110 to 94-121 (prohibiting discrimination on account of race, color,
creed, religion, sex, domestic relationship status, parental status, familial
status, sexual orientation, national origin, gender identity, age, or
disability); or any other federal, state, or local law, whether such Claims
sound in tort or contract, and whether in law or equity. You also agree that
each of the Award Agreement and the Option Agreement is of no force and effect
and you release any Claims you may have under each such agreement.
You agree that you will not hereafter be entitled to any individual recovery or
relief as a result of an action filed against the Company or any of its related
or affiliated entities, or their officers, directors, employees, owners, agents,
benefit plans, or trustees in any municipal, state, or federal court or agency
(such as the Equal Employment Opportunity Commission or the Department of Labor)
for or on account of anything that has occurred up to the time you execute this
Agreement, including, but not limited to, anything that has occurred up to the
present time as a result of your employment or the end of your employment with
the Company. You also understand and agree that the Company will have no
obligation to re-employ you.
For the purpose of implementing a full and complete release and discharge of the
Releasees, you expressly acknowledge that this Agreement is intended to include
in its effect, without limitation, all Claims that you do not know or suspect to
exist in your favor at the time you sign this Agreement, and that this Agreement
contemplates the extinguishment of any such Claim or Claims.
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______________
[Initials of Employee]
Notwithstanding the general release and covenant not to xxx set forth above,
nothing herein shall constitute a release or waiver by you of (i) any claim or
right you may have for unemployment compensation benefits or workers'
compensation benefits, (ii) any claim or right you may have for benefit rights
that have vested as of your Severance Date, (iii) any claim or right you may
have for indemnification as an officer of the Company (or as an officer or
director of any subsidiary of the Company) under applicable law or contract
(including, without limitation, any claim or right you may have under the
Restated Articles of Incorporation or the bylaws of the Company), (iv) any right
you may have to be defended or to receive insurance coverage under any directors
and officers insurance coverage which applies to directors and officers of the
Company and which applies to you in your capacity as chief financial officer, or
(v) any claims or rights you may have under this Agreement. In addition, nothing
herein shall affect (a) the terms of any existing contract you may for
indemnification from the Company and (b) your right to be defended or to receive
insurance coverage according to the terms of the Company's insurance for
directors and officers.
OUTPLACEMENT SERVICES. The Company agrees to provide you with outplacement
services from CMI International, Inc., or an outplacement firm of your choosing
in an aggregate amount not to exceed $6,000. All such fees will be paid directly
by the Company to the outplacement company.
INDEMNITY AND FORFEITURE. You agree that you will indemnify and hold the
Releasees harmless from any loss, cost, damage, or expense (including attorneys'
fees) incurred by them arising out of your breach of any portion of this
Agreement. You also understand that your entitlement to and retention of the
benefits the Company has agreed to provide you herein are expressly conditioned
upon your fulfillment of your promises herein, and if you breach this Agreement,
the Company may at its option immediately terminate your eligibility for any
unpaid benefits under this Agreement (less $100) and initiate appropriate action
to recover all benefits and monies previously paid to you as consideration for
your signing this Agreement. You also understand that the Company shall be
entitled to recover any actual damages caused by your actions in violation of
this Agreement, and you agree to reimburse the Company or any other party
released under this Agreement for any costs, including attorneys' fees, incurred
by them as a result of your breach of this Agreement. You understand and agree
that for purposes of this paragraph on indemnity and forfeiture only, the filing
of an Age Discrimination in Employment Act (ADEA) charge or lawsuit challenging
the validity of this Agreement shall not be considered a breach of this
Agreement or otherwise constitute grounds for invoking the provisions of this
paragraph on indemnity and forfeiture.
COOPERATION. You agree to be available to respond to future inquiries or
reasonable requests for assistance from the Company related to matters arising
during your employment.
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______________
[Initials of Employee]
NONDISPARAGEMENT. You agree not to do or say anything that criticizes or
disparages the Company or the Company's management or practices, that disrupts
or impairs the Company's normal, ongoing business operations, or that xxxxx the
Company's reputation with its employees, suppliers, or the public.
CONSIDERATION PERIOD. Because the arrangements discussed in this Agreement
affect important rights and obligations, we advise you to consult with an
attorney before you agree to the terms set forth herein. You have twenty-one
(21) days from the date you receive this Agreement within which to consider it,
and you may take as much of that time as you wish before signing. If you decide
to accept the benefits offered herein, you must sign this Agreement on or before
the expiration of the 21-day period and return it to the Company (Attention:
Vice President Human Resources at National Vision, Inc., 000 Xxxxxxx Xxxxxxx,
Xxxxxxxxxxxxx, Xxxxxxx 00000, or by telefax number 770/822-2039) by the close of
business on the twenty-first day after you receive this Agreement. If you do not
wish to accept the terms of this Agreement, you do not have to do anything.
REVOCATION RIGHTS. For a period of seven (7) days after you sign this Agreement,
you may revoke it entirely. No rights or obligations contained in this Agreement
shall become enforceable before the end of the seven-day revocation period. If
you decide to revoke the Agreement, you must deliver to the Company (Attention:
Vice President Human Resources at National Vision, Inc., 000 Xxxxxxx Xxxxxxx,
Xxxxxxxxxxxxx, Xxxxxxx, or by telefax number 770/822-2039) a signed notice of
revocation on or before the last day of this seven-day period. Upon delivery of
a timely notice of revocation, this Agreement shall be cancelled and void, and
neither you nor the Company shall have any rights or obligations under it.
ENTIRE AGREEMENT. This Agreement sets forth the entire agreement between the
parties and, except as set forth in this paragraph, fully supersedes any and all
prior agreements and understandings between the parties pertaining to the
subject matter of this Agreement. You agree that you will continue to be bound
by any confidentiality agreement you have previously entered into with the
Company.
EFFECTIVE DATE. This Agreement shall become effective (the "Effective Date")
eight (8) days after this Agreement, signed by you, is received by the Vice
President Human Resources of the Company within the Consideration Period set
forth above, unless it is revoked by you pursuant to the provisions set forth in
the "Revocation Rights" section above.
NON-ADMISSION. This Agreement shall not in any way be construed as an admission
or indication that the Company has engaged in any wrongful or unlawful conduct
of any kind.
CONFIDENTIALITY OF THIS AGREEMENT. You agree that you will keep the terms,
amount, and fact of this Agreement completely confidential, and that, except as
required by law or authorized in writing by the Company, you will not hereafter
disclose any information concerning this Agreement to anyone other than your
immediate family members and your professional representatives who will be
informed by you of, and be bound by, this confidentiality clause.
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______________
[Initials of Employee]
CONFIDENTIALITY OF COMPANY INFORMATION. You agree that you will maintain in
strict confidence and not use or disclose any Trade Secrets (as defined under
applicable law) or confidential business information of the Company following
your Severance Date. Confidential business information shall not include any
data or information that has been voluntarily disclosed to the public by the
Company or that has been independently developed and disclosed by others, or
that otherwise enters the public domain through lawful means.
NON-SOLICITATION OF COMPANY EMPLOYEES For a period of one (1) year after your
Severance Date, you will not solicit or induce to leave employment with the
Company anyone who is an employee of the Company or was an employee of the
Company within one (1) year of your Severance Date.
RETURN OF COMPANY PROPERTY. You agree that you will promptly return all
Company-owned property that is in your possession or under your control,
including, but not limited to, office equipment, computers, software, hardware,
credit cards, identification cards, keys, customer lists or information,
research, and/or information about the Company's business and/or its operations.
CONSTRUCTION AND SEVERABILITY. This Agreement is made and entered into in the
State of Georgia and shall in all respects be interpreted, enforced, and
governed under the laws of Georgia. The Agreement shall be construed as a whole,
according to its fair meaning, and not strictly for or against any of the
parties. The provisions of this Agreement are severable, and the invalidity of
any provision does not affect the validity of other provisions.
ACKNOWLEDGMENTS. If the terms of this Confidential Separation Agreement and
General Release correctly set forth our agreement, please so indicate by signing
in the appropriate space below and initialing each page of this Agreement where
indicated. Your signature will be an acknowledgment that no other promise or
agreement of any kind has been made to you by the Company to cause you to
execute this Agreement, that you had a reasonable period of at least twenty-one
(21) days to review this letter and to consult with an attorney or other person
of your choosing about its terms before signing it, that the only consideration
for your signature is as indicated above, that you fully understand and accept
this Agreement, that you are not coerced into signing it, and that you signed it
knowingly and voluntarily because it is satisfactory to you.
Should you wish to accept the terms of this Agreement, a space below is provided
for you to date and sign it.
Sincerely,
NATIONAL VISION, INC.
By: Xxxx Xxxxxx
Vice President Human Resources
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______________
[Initials of Employee]
I have carefully read the above Confidential Separation Agreement and General
Release, understand the meaning and intent thereof, and voluntarily agree to its
terms this ______ day of _______________, 2004.
/s/ Xxxxx X. Xxxxxxxx
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(Signature)
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Xxxxx X. Xxxxxxxx
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______________
[Initials of Employee]
