Exhibit 10.35
October 1, 0000
Xxxxx X. Xxxxxx
00 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Dear Xxx:
The purpose of this letter agreement (the "Agreement") is to confirm the
terms regarding your separation of employment from Sight Resource Corporation
(the "Company"). As more fully set forth below, the Company desires to provide
you with certain separation pay and benefits in exchange for certain agreements
by you.
1. Separation of Employment. You acknowledge that you resigned your
employment with the Company effective, today, October 1, 2001 (the "Separation
Date"). You acknowledge that from and after the Separation Date, you shall have
no authority and shall not represent yourself as an employee or agent of the
Company. The parties agree that no other effective notice of termination or
resignation has been effected and that no further notice of termination or
resignation shall be required.
2. Separation Pay and Benefits. In exchange for the mutual covenants set
forth in this letter, within ten (10) business days following the date on which
you execute and submit this Agreement as prescribed below (the "Effective
Date"), and provided that you have returned all Company documents and property,
the Company agrees to provide you with:
(a) Separation Pay in the amount of One Hundred Seventy-OneThousand Five Hundred
Dollars ($171,500), less all applicable federal, state, local and other
employment-related deductions;
(b) payments of Six Hundred Eighty-Five Dollars ($685) per month for the twelve
(12) months following the Separation Date in lieu of other benefits; provided,
however, that if you become employed or otherwise engaged in a business capacity
such that you become eligible to participate in any health insurance plan, you
shall immediately notify the Company in writing of that fact and the Company
shall cease making such payments as of the date on which such employment or
other engagement commences. In addition, you may, upon timely completion of the
forms required by the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA"), continue your health insurance coverage to the extent permitted by
COBRA at your sole expense. The COBRA "qualifying event" will be deemed to occur
on the Separation Date.
(c) indemnification against claims arising within the scope of your service as
an officer of the Company to the extent that and so long as in the commercially
reasonable discretion of the CEO, your interests and the Company's are not in
conflict; provided, however, you hereby represent that you are not aware of any
existing or potential claims against you in the scope of your employment with
the Company and you agree to notify the Company within two (2) days of learning
of any such claim or potential claim.
You acknowledge and agree that the Separation Pay and Benefits provided in
this Agreement are not otherwise due or owing to you under any Company
employment agreement (oral or written) or Company policy or practice, and that
the Separation Pay and Benefits to be provided to you are not intended to, and
shall not constitute, a severance plan, and shall confer no benefit on anyone
other than the parties hereto. You acknowledge that except for the specific
financial consideration set forth in this Agreement, you are not and shall not
in the future be entitled to any other compensation including, without
limitation, other wages, commissions, bonuses, vacation pay, holiday pay or any
other form of compensation or benefit. You acknowledge that no units or options
to purchase any equity interest (or any other equity interest) in the Company or
any related entity are vested or exercisable, and that any units, options or
other equity interest previously granted are null and void, and shall never be
exercisable.
3. Unemployment. The Company agrees that it will not contest any claim for
unemployment benefits by you. The Company, of course, shall not be required to
falsify any information.
4. Covenants by You. You expressly acknowledge and agree that:
(i) you have returned to the Company all Company documents (and any copies
thereof) and property, and that you will abide by any and all common law and/or
statutory obligations relating to protection and non-disclosure of the Company's
trade secrets and/or confidential and proprietary documents and information and
shall not disclose any confidential information regarding the Company unless
required to do so by law in which you agree to provide the Company with at least
five (5) business days' advance notice of such disclosure;
(ii) all information relating in any way to the negotiation of this Agreement,
including the terms and amount of financial consideration provided for in this
Agreement, shall be held confidential by you and shall not be publicized or
disclosed to any person (other than an immediate family member, legal counsel or
financial advisor, provided that any such individual to whom disclosure is made
agrees to be bound by these confidentiality obligations), business entity or
government agency (except as mandated by state or federal law);
(iii) you will not make any statements that are professionally or personally
disparaging about, or adverse to, the interests of the Company (or to any of its
officers, directors or managers) including, but not limited to, any statements
that disparage any such person, product, service, finances, financial condition,
capability or any other aspect of the business of the Company, and that you will
not engage in any conduct which is intended to harm professionally or personally
the reputation of the Company (or any of its officers, directors or managers);
(iv) you will cooperate fully with the Company, without compensation beyond that
provided in Section 2 of this Agreement, regarding any matters in which you were
involved during the course of your employment, and in the defense or prosecution
of any claims or actions now in existence or which may be brought or threatened
in the future against or on behalf of the Company, including any claims or
actions against its officers, directors and employees. Your cooperation in
connection with such matters, actions and claims shall include, without
limitation, being available to meet with Company officials regarding personnel
or commercial matters in which you have been involved; to prepare for any
proceeding (including, without limitation, depositions, consultation, discovery
or trial); to provide affidavits; to assist with any audit, inspection,
proceeding or other inquiry; and to act as a witness in connection with any
litigation or other legal proceeding affecting the Company. You further agree
that should you be contacted (directly or indirectly) by any person or entity
(for example, by any party representing an individual or entity) adverse to the
Company, you shall promptly (within 48 hours) notify the then-current Chief
Executive Officer of the Company;
(v) for a period of one (1) year commencing on the Effective Date, you shall
not, directly or indirectly, entice, solicit or encourage any customer,
prospective customer, business partner or prospective business partner of the
Company to cease doing business with the Company; nor may you solicit any
customer or business partner of the Company to do business with you or any
entity with which you may be affiliated in any capacity. For purposes of this
paragraph, "prospective," shall mean any person or entity with whom the Company
has had contact of any type regarding the possibility of engaging in any type of
business activity;
(vi) for a period of one (1) year commencing on the Effective Date, you shall
not, directly or indirectly, entice, solicit or encourage any Company employee
to leave the Company or any independent contractor to sever an engagement with
the Company, nor may you directly or indirectly be involved in the recruitment
of any Company employee or independent contractor on behalf of yourself or any
person or entity, other than the Company;
(vii) for a period of one (1) year following the Effective Date, you shall not,
without the prior written consent of the Company, for yourself or on behalf of
any other, directly or indirectly, either as principal, agent, stockholder,
employee, consultant, representative or in any other capacity, own, manage,
operate or control, or
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be concerned, connected or employed by, or otherwise associate in any manner
with, engage in or have a financial interest in any business which is directly
or indirectly competitive with the retailing of optical goods and services
business of the Company. You agree that, given the national nature of the
Company's business, any other geographical limitations on this non-competition
agreement are inappropriate
(viii) You acknowledge and agree that (i) the provisions of this Section 3 are
necessary and reasonable to protect the Company's Confidential Information,
Inventions, and goodwill; (ii) the specific temporal, geographic and substantive
provisions set forth in this Section 3 are reasonable and necessary to protect
the Company's business interests; and (iii) in the event of any breach of any of
the covenants set forth herein, the Company would suffer substantial irreparable
harm and would not have an adequate remedy at law for such breach. In
recognition of the foregoing, you agree that in the event of a breach or
threatened breach of any of these covenants, in addition to such other remedies
as the Company may have at law, without posting any bond or security, the
Company shall be entitled to seek and obtain equitable relief, in the form of
specific performance, and/or temporary, preliminary or permanent injunctive
relief, or any other equitable remedy which then may be available. The seeking
of such injunction or order shall not affect the Company's right to seek and
obtain damages or other equitable relief on account of any such actual or
threatened breach and the breach and shall relieve the Company of any further
obligations hereunder and, in addition to any other legal or equitable remedy
available to the Company, shall entitle the Company to recover any Separation
Pay and Benefits already provided to you pursuant to this Agreement.
5. Release of Claims. You hereby agree and acknowledge that by signing this
letter and accepting the Separation Pay and Benefits to be provided to you, and
other good and valuable consideration provided for in this Agreement, you are
waiving and releasing your right to assert any form of legal claim against the
Company1/ whatsoever for any alleged action, inaction or circumstance existing
or arising from the beginning of time through the Effective Date. Your waiver
and release herein are intended to bar any form of legal claim, charge,
complaint or any other form of action (jointly referred to as "Claims") against
the Company seeking any form of relief including, without limitation, equitable
relief (whether declaratory, injunctive or otherwise), the recovery of any
damages or any other form of monetary recovery whatsoever (including, without
limitation, back pay, front pay, compensatory damages, emotional distress
damages, punitive damages, attorneys fees and any other costs) against the
Company, for any alleged action, inaction or circumstance existing or arising
through the Effective Date.
Without limiting the foregoing general waiver and release, you specifically
waive and release the Company from any Claim arising from or related to your
employment relationship with the Company or the termination thereof, including,
without limitation:
** Claims under any local, state or federal discrimination, fair
employment practices or other employment related statute, regulation
or executive order (as they may have been amended through the
Effective Date) prohibiting discrimination or harassment based upon
any protected status including, without limitation, race, national
origin, age, gender, marital status, disability, veteran status or
sexual orientation. Without limitation, specifically included in this
paragraph are any Claims arising under the federal Age Discrimination
in Employment Act, the Older Workers Benefit Protection Act, the Civil
Rights Acts of 1866 and 1871, Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Equal Pay Act, the Americans
With Disabilities Act and any similar or other local, state or federal
statute.
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/1/ For purposes of this Section 5, the parties agree that the term, "Company,"
shall include the Company, its divisions, affiliates and subsidiaries and any
affiliated entities, and its and their respective officers, directors,
employees, agents, representatives, successors and assigns.
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** Claims under any local, state or federal employment related statute,
regulation or executive order (as they may have been amended through
the Effective Date) relating to wages, hours or any other terms and
conditions of employment. Without limitation, specifically included in
this paragraph are any Claims arising under the Fair Labor Standards
Act, the Family and Medical Leave Act of 1993, the National Labor
Relations Act, the Employee Retirement Income Security Act of 1974,
the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA")
and any similar local, state or federal statute.
** Claims under any state or federal common law theory including, without
limitation, wrongful discharge, breach of express or implied contract,
promissory estoppel, unjust enrichment, breach of a covenant of good
faith and fair dealing, violation of public policy, defamation,
interference with contractual relations, intentional or negligent
infliction of emotional distress, invasion of privacy,
misrepresentation, deceit, fraud or negligence.
** Claims under any local, state or federal securities law, including,
without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and any Massachusetts,
Delaware or other state or local securities statutes and regulations;
** Any other Claim arising under local, state or federal law.
Notwithstanding the foregoing, this section does not release the Company
from any obligation expressly set forth in this Agreement. You acknowledge and
agree that, but for providing this waiver and release, you would not be
receiving the Separation Pay and Benefits being provided to you under the terms
of this Agreement.
Because you are more than forty (40) years of age, you have specific rights
under the Older Workers Benefits Protection Act ("OWBPA"), which prohibits
discrimination on the basis of age, and that the releases set forth in this
Section 5 are intended to release any right that you may have to file a claim
against the Company alleging discrimination on the basis of age.
It is the Company's desire and intent to make certain that you fully
understand the provisions and effects of this letter. To that end, you have been
encouraged and given the opportunity to consult with legal counsel for the
purpose of reviewing the terms of this Agreement. Consistent with the provisions
of OWBPA, the Company is providing you with twenty-one (21) days (until October
24, 2001) in which to consider and accept the terms of this Agreement by signing
below and returning it to the Company's counsel, Xxxxxx X. Xxxxxx, Esq., Xxxxx
Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx, P.C., Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, XX
00000, or such other address as the Company may designate by written notice to
you. In addition, you may rescind your assent to this Agreement if, within seven
(7) days after you sign this Agreement, you deliver a written notice of
rescission to Xx. Xxxxxx at the address designated above. To be effective, such
rescission must be in writing and must be hand-delivered or post-marked within
the seven (7) day period and sent by certified mail, return receipt requested to
Xx. Xxxxxx at the address designated above.
6. Entire Agreement/Choice of Law/Enforceability. You acknowledge and agree
that this Agreement supersedes any and all prior or contemporaneous oral and/or
written agreements between you and the Company, and sets forth the entire
agreement between you and the Company. No variations or modifications hereof
shall be deemed valid unless reduced to writing and signed by the parties
hereto. This Agreement shall be deemed to have been made in the Commonwealth of
Massachusetts, shall take effect as an instrument under seal within
Massachusetts, and shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts, without giving effect to conflict of
law principles. You agree that any action, demand, claim or counterclaim
relating to the terms and provisions of this Agreement, or to its breach, shall
be commenced in Massachusetts in a court of competent jurisdiction, and you
further acknowledge
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that venue for such actions shall lie exclusively in Massachusetts and that
material witnesses and documents would be located in Massachusetts. The
provisions of this letter are severable, and if for any reason any part hereof
shall be found to be unenforceable, the remaining provisions shall be enforced
in full.
7. Miscellaneous.
(a) No amendment, waiver or revocation of this Agreement of any kind shall be
effective unless supported by a written instrument executed by you and an
authorized officer of the Company. The failure of the Company to seek
enforcement of any provision of this Agreement in any instance or for any period
of time shall not be construed as a waiver of such provision or the Company's
right to seek enforcement of such provision in the future.
(b) By executing this Agreement, you are acknowledging that you have been
afforded sufficient time to understand the terms and effects of this Agreement,
that your agreements and obligations hereunder are made voluntarily, knowingly
and without duress, and that neither the Company nor its agents or
representatives have made any representations inconsistent with the provisions
of this Agreement.
(c) The parties agree that the last act necessary to render this Agreement
effective is for the Company to sign the Agreement and that this Agreement may
be signed on one or more copies, each of which when signed will be deemed to be
an original, and all of which together will constitute one and the same
Agreement.
If the foregoing accurately sets forth your understanding, please sign,
date and return the enclosed copy of this Agreement by hand to Xxxxxx X. Xxxxxx,
Esq., Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx, P.C., Xxx Xxxxxxxxx Xxxxxx,
Xxxxxx, XX 00000, as soon as possible, but no later than 5:00 p.m. on October
24, 2001. This letter shall take effect as a legally binding Agreement between
you and the Company on the basis set forth above eight (8) days after the
Company receives a signed original from you. The enclosed copy of this letter,
which you should also sign and date, is for your records.
Very truly yours,
SIGHT RESOURCE CORPORATION
By: /s/ Xxxxxx Xxxxxxx CEO
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Xxxxxx Xxxxxxx
Chief Executive Officer
Dated: 10/1/02
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Confirmed and Agreed:
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Dated: 10/12/01
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