SETTLEMENT AGREEMENT AND GENERAL RELEASE
THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE (hereinafter
"Agreement"), made and entered into on the 24th day of April, 2001 (the
"Agreement Date"), is by and between XXXX X. XXXXXXXXX (hereinafter "Traberman")
and Emerging Vision, Inc. f/k/a Sterling Vision, Inc. (together with its wholly
owned subdivisions, hereinafter the "Company").
WHEREAS, effective May 31, 2001, Traberman submitted a notice of
resignation to the Company on or about March 2, 2001; and
WHEREAS, each party has asserted certain claims against the other
party and both parties now desire to effect the complete extinguishment of any
actual, asserted or prospective claim against one another.
NOW, THEREFORE, in consideration of the payment described in Section 2
and other good and valuable consideration, the receipt of which are hereby
acknowledged, the Company and Traberman agree as follows:
1. Entire Agreement. This Agreement and its exhibits constitute the complete and
entire agreement of the parties and supercedes any and all other agreements
between the parties. No oral statement or prior written agreement or matter,
extrinsic of this Agreement, shall have any force or effect, including
Traberman's Employment Agreement dated February 22, 2000 and the amendment to
the Employment Agreement dated February 23, 2000. In executing this Agreement,
the parties are not relying on any representations, promises, warranties,
covenants or undertakings other than those expressly set forth in this
Agreement. Each of the parties acknowledges that none of them has been induced
to execute this Agreement by reason of any representation or promise by or on
behalf of any other party not herein contained, nor by reason of any failure by
or on behalf of any other party to divulge any fact or facts, nor by any fraud,
pressure or undue influence, and that none of the parties will, under any
circumstances, assert or claim any invalidity of this Agreement, or any
provision hereof based upon the foregoing. Traberman acknowledges that the
waivers of contractual rights she has made in this Agreement are knowing,
conscious and voluntary and are made with full appreciation that Traberman is
forever foreclosed from pursuing any of the rights so waived.
2. Consideration.
a. In consideration for Traberman's execution of, and compliance with, this
Agreement (and subject to Traberman not revoking this Agreement during the
Revocation Period), the Company, in addition to the stock options granted
Traberman pursuant to sub-paragraph (b) of this Section 2, and pursuant to the
allocation set forth in sub-paragraph (c) of this Section 2, shall make a
payment to Traberman in the amount of $750,000.00, plus salary accrued and
unpaid as of the Agreement Date, less applicable payroll deductions and other
withholdings (the "Payment Amount"). This Payment Amount shall be held in escrow
as of the Agreement Date and (subject to Traberman not revoking this Agreement
during the Revocation Period) made to Traberman on the Effective Date (as
defined in Section 17) as set forth in Section 3.
b. Stock Options. Subject to Traberman not revoking this Agreement during the
Revocation Period, all stock options heretofore granted to Traberman by the
Company, including the grant of options to purchase 400,000 shares of the Common
Stock of the Company on February 22, 2000, are hereby cancelled as of the
Effective Date, and, as further consideration for Traberman's execution of the
Agreement, the Company will xxxxx Xxxxxxxxx 125,000 stock options as of the
Effective Date in accordance with the terms of the Non-Qualified Stock Option
Agreement, attached hereto as Exhibit A.
c. Allocation of Payment Amount. The Payment Amount is allocated as follows:
Salary - $298,200 (based on salary payable under the terms of Traberman's
Employment Agreement), plus $7,269.23 (based on the two weeks and two days of
salary accrued and unpaid as of the Agreement Date); and Cancellation of Stock
Options - $451,800 (based on the cancellation of all stock options heretofore
granted to Traberman by the Company, including the grant of options to purchase
400,000 shares of the Common Stock of the Company on February 22, 2000).
d. Expenses. Traberman is entitled to reimbursement in accordance with the
Company's existing business expense reimbursement policies for all ordinary and
necessary business expenses incurred through March 22, 2001 in the performance
of her duties as an officer of the Company subject to the Company's receipt of
appropriate documentation thereof by no later than the Effective Date.
e. Non-Competition and Non-Solicitation. Traberman understands that the
Traberman Employment Agreement contains a Non-Competition and Non-Solicitation
provision in favor of the Company (Article 5). Traberman acknowledges that as
further consideration for Traberman's execution of this Agreement, the Company
has agreed, subject to Traberman's execution of this Agreement and compliance
with its terms, effective as of the Effective Date of this Agreement, to release
Traberman from her obligations pursuant to the Non-Competition and
Non-Solicitation provisions of the Employment Agreement, it being specifically
understood and agreed that such release shall in no way be deemed to limit
and/or otherwise release Traberman from her obligation pursuant to Section 7 of
this Agreement.
f. Acknowledgment. Traberman hereby acknowledges that, notwithstanding the
effective date of her resignation, she is entitled to receive salary from the
Company only up to the Agreement Date. Traberman also acknowledges that, as of
the Agreement Date, and upon receipt of the payments and other consideration
described in this Section 2, the Traberman Affiliates (as defined below) have
received all salary, vacation pay and other compensation due from the Company
Affiliates. Traberman also acknowledges and agrees that the payments and
covenants provided pursuant to this Agreement are in full discharge of any and
all liabilities and obligations of the Company to her, monetarily or with
respect to employee benefits or otherwise, including but not limited to any and
all obligations arising under any alleged written or oral employment agreement,
policy, plan or procedure of the Company and/or any alleged understanding or
arrangement between Traberman and the Company and exceed any beneficial or other
thing of value to which she might have otherwise been entitled. The Company
hereby acknowledges and agrees that the payments and covenants provided pursuant
to this Agreement are in full discharge of any and all liabilities and
obligations of Traberman to the Company, monetarily or with respect to any
alleged written or oral employment agreement and/or any alleged understanding or
arrangement between the Company and Traberman.
3. Payment.
On the Agreement Date, pursuant to and subject to the terms of the Escrow
Agreement attached hereto as Exhibit "B," the Company will deliver the Payment
Amount into an escrow account established at Proskauer Rose LLP (the "Escrow
Agent") by wire transfer made payable to the order of the Escrow Agent. Upon
receipt of the Payment Amount, the Escrow Agent will promptly advise Traberman
of its receipt by faxing notice to Xxxxxx X. Xxxxxxxxx, Esq., 1350 Avenue of the
Xxxxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000) and to
Traberman (fax: 000.000.0000). Subject to the terms of the Escrow Agreement, no
later than the close of business on the Effective Date, the Escrow Agent will
initiate delivery of the Payment Amount by wire transfer to Traberman pursuant
to the following wiring instructions: Citibank, N.A.; New York, New York; ABA#
000000000; Acct.# 37158274; Attn: Xxxxxx Xxxxxxxxx and Xxxx X. Xxxxxxxxx.
4. Releases.
a. For and in consideration of the payments to be made and the promises and
obligations set forth in this Agreement, and subject to the Company's execution
of this Agreement and compliance with its terms, Traberman, on behalf of herself
and her heirs, dependents, executors, administrators, trustees, agents,
attorneys, employees, fiduciaries, legal representatives and assigns, whether
acting as agents for Traberman or in their individual capacities (collectively
together with Traberman hereinafter referred to as the "Traberman Affiliates"),
hereby forever release and discharge the Company and any of their parent
corporations, their past and/or present subsidiaries, divisions, affiliated
entities, successors and assigns, and all of its or their past and/or present
officers, agents, attorneys, employees, fiduciaries, trustees, administrators
and assigns, whether acting as agents for the Company or in their individual
capacities (collectively together with the Company hereinafter referred to
herein as the "Company Affiliates"), from any and all claims, demands, causes of
action, fees and liabilities of any kind whatsoever, whether known or unknown,
which any of the Traberman Affiliates ever had, now have, or hereafter may have
against any of the Company Affiliates by reason of any actual or alleged act,
omission, transaction, practice, conduct, statement, occurrence, or other matter
up to and including the date Traberman signs this Agreement.
b. Without limiting the generality of the foregoing, the Traberman Affiliates
release and discharge the Company Affiliates from: (i) any claim under Title VII
of the Civil Rights Act, the Americans with Disabilities Act, the Texas Labor
Code, the Texas Employment Discrimination Law, and the Texas Disability
Discrimination Law, the New York State Human Rights Law, the New York City
Administrative Code, and/or any other federal, state or local law (statutory or
decisional) or ordinance prohibiting employment discrimination; (ii) any claim
under the Family and Medical Leave Act ("FMLA"); (iii) any claim under the
Employee Retirement Income Security Act of 1974 ("ERISA"), except for claims for
accrued, vested benefits under any employee benefit pension plan of the Company;
(iv) any claim under the Age Discrimination in Employment Act ("ADEA"); (v) any
claim for breach of contract (express or implied), fraud, wrongful or
constructive discharge, retaliatory discharge, emotional distress or
compensatory or punitive damages; (vi) any claim in connection with, related to,
or arising out of Traberman's employment with the Company, the terms and
conditions of Traberman's employment, the separation or termination of such
employment, any of the events relating directly or indirectly to or surrounding
that separation or termination, and/or any other agreement, understanding,
relationship or arrangement with the Company; and (vii) any claim for attorneys'
fees, costs, disbursements and the like; which any of the Traberman Affiliates
ever had, now have, or hereafter may have against any of the Company Affiliates
by reason of any actual or alleged act, omission, transaction, practice,
conduct, statement, occurrence, or other matter up to and including the date on
which Traberman signs this Agreement.
x. Xxxxxxxxx acknowledges and agrees that by virtue of the foregoing, she has
waived any relief available to the Traberman Affiliates (including without
limitation, monetary damages, equitable relief and reinstatement) under any of
the claims and/or causes of action waived in this Section 4. Therefore,
Traberman agrees that the Traberman Affiliates will not seek or accept any award
or settlement arising from any source or proceeding (including but not limited
to any proceeding brought by any other person or by any government agency and
excluding any award or settlement from a claim under the ADEA) with respect to
any claim or right waived in this Agreement. If, notwithstanding the foregoing
promises, any of the Traberman Affiliates sues or commences any proceeding
against the Company Affiliates (unless compelled by legal process or court order
and excluding a claim under the ADEA), Traberman shall be required, to the
maximum extent permitted by law, to indemnify and hold harmless the Company
Affiliates from and against any and all demands, assessments, judgments, costs,
damages, losses and liabilities, and attorneys' fees and other expenses which
result from, or are incident to, such suit or proceeding.
d. For and in consideration of the promises and obligations set forth in the
Agreement, and subject to Traberman's execution of this Agreement and compliance
with its terms, the Company Affiliates hereby forever release and discharge all
of the Traberman Affiliates from any and all claims, demands, causes of action,
fees and liabilities of any kind whatsoever (upon any legal or equitable theory,
whether contractual, common-law, statutory, federal, state, local, or
otherwise), whether known or unknown, which any of the Company Affiliates ever
had, now have or hereafter may have against any of the Traberman Affiliates by
reason of any actual or alleged act, omission, transaction, practice, conduct,
statement, occurrence or other matter arising out of her employment with the
Company, up to and including the date of the execution of this Agreement.
e. The Company acknowledges and agrees that by virtue of the foregoing, the
Company has waived any relief available to the Company (including without
limitation, monetary damages and equitable relief) under any of the claims
and/or causes of action waived in this Section 4. Therefore, the Company agrees
that the Company Affiliates will not seek or accept any award or settlement from
any source or proceeding (including but not limited to any proceeding brought by
any other person or by any government agency) with respect to any claim or right
waived in this Agreement. The Company further agrees, to the maximum extent
permitted by law, that the Company Affiliates will not xxx or commence any
proceeding (judicial or administrative), or participate in any action, suit or
proceeding (unless compelled by legal process or court order), against any of
the Traberman Affiliates, with respect to any claim released herein. The Company
also warrants and represents that as of the date the Company signs this
Agreement, none of the Company Affiliates has taken or engaged in any of the
acts described in the foregoing sentences. If, notwithstanding the foregoing
promises, any of the Company Affiliates violates this Section 4, the Company
shall be required, to the maximum extent permitted by law, to indemnify and hold
harmless the Traberman Affiliates from and against any and all demands,
assessments, judgments, costs, damages, losses and liabilities, and attorneys'
fees and other expenses which result from, or are incident to, such violation.
f. The parties agree that Traberman and Balfour Investors Incorporated and Xxx
Xxxxxxxxx will each provide the other mutual general releases in the form
annexed to this Agreement as Exhibit "C."
5. Covenant Not To Xxx.
a. Except as to Traberman's rights to enforce the terms of this Agreement and to
exercise her rights to the stock options issued pursuant to this Agreement,
Traberman agrees, to the extent permitted by law, that she will not commence,
maintain, prosecute, initiate, or instigate any investigation, action or
proceeding of any kind (including administrative or court proceedings) against
the Company Affiliates with respect to any act, omission, transaction or
occurrence from the beginning of the world up to and including the date of this
Agreement (excluding claims under the ADEA). Traberman warrants and represents
that none of the Traberman Affiliates has commenced, or been party to, any
action or proceeding or court complaints or proceedings of any kind (on their
own behalf and/or on behalf of any other person and/or as a member of any class
of persons) against or involving any of the Company Affiliates.
b. Except as to the Company's right to enforce the terms of this Agreement, the
Company agrees, to the extent permitted by law, that the Company will not
commence, maintain, prosecute, initiate, or instigate any investigation, action
or proceeding of any kind (including administrative or court proceedings)
against the Traberman Affiliates with respect to any act, omission, transaction
or occurrence from the beginning of the world up to and including the date of
this. The Company warrants and represents that none of the Company Affiliates
have commenced, or been party to, any action or proceeding or court complaints
or proceedings of any kind (on their own behalf and/or on behalf of any other
person and/or as a member of any class of persons) against or involving any of
the Company Affiliates.
6. Non-Disparagement.
x. Xxxxxxxxx hereby agrees not to make any statements (orally or in writing) or
take any actions, which in any way disparage, or which could harm the reputation
or goodwill of the Company or any of the other Releasees, or in any way,
directly or indirectly, cause, encourage or condone the making of such
statements or the taking of such actions by anyone else.
b. The Company hereby agrees that its officers and directors will not make any
statements or take any actions, which in any way disparage, or which could harm
the reputation of Traberman, or in any way, directly or indirectly, cause,
encourage or condone the making of such statements or the taking of such actions
by anyone else.
7. Confidential and Proprietary Information.
7.1. Company Property. All information, data, computer and/or source code or
programs, databases or other information that Traberman has created, learned or
generated for the Company while employed belongs to the Company. Traberman
hereby represents that she has returned all information, documents, electronic
files, electronic records and databases, and all copies of such information that
Traberman received, created, learned or generated as an employee of the Company
by the Effective Date and that she will not make use of such property for any
purpose other than pursuant to this Agreement. Traberman agrees that she will
return to the Company all copies of the Company's Confidential Information
(defined below) that she locates in the future.
7.2. Confidential Information. Traberman acknowledges that, during the course of
her employment with the Company, she had access to information relating to the
Company's business that provides the Company with a competitive advantage (or
that could be used to the Company's disadvantage by a competitor), that is not
generally known by persons not employed by the Company and that could not easily
be learned or determinated by someone outside the Company ("Confidential
Information"). Confidential Information includes, but is not limited to:
i. the identity of the Company's past, present and prospective clients;
ii. the Company's products and its pricing of those products;
iii. the identity of suppliers from which the Company obtains products for
its clients, and the terms and conditions on which the Company
transacts business with those suppliers;
iv. the types of services the Company provides and the Company's internal
corporate policies related to those services;
v. the individual services purchased by or for the Company's clients;
vi. the individual specifications or characteristics of products or
services ordered by the Company's clients;
vii. the Company's business strategies;
viii. confidential information, including names, addresses and telephone
numbers of the Company's clients and the Company's contacts at those
clients;
ix. the transactions in which the Company's clients are engaged or are
considering engaging;
x. information concerning the Company's financial condition and
performance and the compensation paid to its other employees.
Confidential Information shall not, however, include information that is or
becomes generally known outside the Company through no act or failure to act by
Traberman.
7.3. Duty Of Confidentiality. Traberman agrees to use her best efforts to
maintain the confidentiality of the Confidential Information and to safeguard
such Confidential Information. Traberman also agrees that she will not directly
or indirectly use or disclose such Confidential Information. The rights set
forth herein are in addition to all rights the Company may have under the common
law or applicable statutory laws relating to the protection of trade secrets.
7.4. Injunctive Remedies. Traberman acknowledges and agrees that monetary
damages will not be an adequate remedy for a breach by Traberman of any of the
provisions of this Agreement and that irreparable injury will result to the
Company, and its business and property, in the event of such a breach.
Accordingly, Traberman acknowledges that the Company may, in addition to
recovering legal damages, including lost revenues, take appropriate actions to
enjoin Traberman from violating Section 7 of this Agreement.
7.5. Exclusions. Anything to the contrary herein notwithstanding, Traberman's
obligations with respect to Confidential Information under Sections 7.1 and 7.3
above shall not apply to any Confidential Information that in whole or in part:
(a) Traberman solely or jointly conceived, developed, authored, reduced to
practice or otherwise produced prior to her employment by the Company; (b) was
developed entirely on her own time; (c) as to which no equipment, supplies,
facility, services, or trade secret information of Company were used in its
development; (d) does not relate (i) directly to the retail optical business of
Company or (ii) to the actual or demonstrably anticipated business, research or
development of Company relative to the retail optical business; or (e) does not
result from any work performed by Traberman for Company.
8. Litigation.
a. Each party agrees that they will cooperate with the other party and/or its
affiliates and their counsel in connection with any investigation,
administrative proceeding or litigation relating to any matter that occurred
during the period of time in which Traberman was employed by the Company, in
which the party was involved or of which the party has knowledge.
b. Each party agrees that, in the event that they are subpoenaed by any person
or entity (including, but not limited to, any government agency) to provide
documents or to give testimony (in a deposition, court proceeding or otherwise)
which in any way relates to or arose from Traberman's employment by the Company
and/or its affiliates, that party will give prompt written notice of such
request to counsel of record for the other party (the Company's Chief Executive
Officer, or his designee, for the Company and Xxxxxx X. Xxxxxxxxx, Esq., 1350
Avenue of the Xxxxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000)
for Traberman) and will make no disclosure until the other party and/or its
affiliates have had a reasonable opportunity to contest the right of the
requesting person or entity to such disclosure, unless they are otherwise
compelled to do so by law.
c. The Company will reimburse Traberman for any reasonable expenses incurred as
a result of her cooperation pursuant to this paragraph, provided Traberman
supplies appropriate documentation of such expenses.
9. Non-Waiver. The waiver by either party of any breach by the other party of
any provision of this Agreement shall not operate or be construed as a waiver of
the waiving party's rights upon any subsequent breach.
10. Successors and Assigns. The rights and obligations of the parties under this
Agreement shall inure to the benefit of and shall be binding upon their
respective successors and assigns.
11. Amendment or Modifications. No amendment or modification of this Agreement
or of any covenant, condition or limitation of this Agreement, shall be binding
and valid unless contained in a writing executed by Traberman and an authorized
representative of the Company. No evidence of any amendment or modification
shall be offered or received in evidence in any proceeding between the parties
hereto arising out of or effecting this Agreement or the rights or obligations
or any party hereunder, unless such amendment or modification is in writing and
duly executed by Traberman and an authorized representative of the Company. It
is further agreed that the provisions of this Section may not be waived.
12. Governing Law. This Agreement shall be governed by, interpreted, and
construed in accordance with the laws of the State of New York.
13. Attorney Fees. The Company agrees to pay Traberman's reasonable attorney's
fees in connection with this matter up to $10,000.
14. Jurisdiction. With the exception of a claim for injunctive relief, for which
jurisdiction shall be reserved in the federal and/or state courts in New York
County and with respect to which the parties consent to personal jurisdiction,
any controversy or claim arising out of or relating to this Agreement or the
breach thereof shall be settled by arbitration, in the County of New York, in
accordance with the Employment Rules of the American Arbitration Association
(the "AAA") as then in effect. The decision of the arbitrator(s) shall be final
and binding on the parties hereto and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. To the
extent permitted by law, the prevailing party will be entitled to all reasonable
attorneys' fees and costs incurred in such arbitration.
15. Severability & Construction. Upon any finding by a court or agency of
competent jurisdiction that the release and covenants provided for in this
Agreement are illegal, void, or unenforceable, each party agrees that, at the
reasonable request of the other party, to execute a release, waiver and/or
covenant that is legal and enforceable. Further, with the exception of a claim
under the ADEA, if any of the Traberman Affiliates seeks to challenge the
validity of or otherwise vitiate this Agreement or any provision thereof
(including, without limitation, Section 4), Traberman shall, to the maximum
extent permitted by law, be required to immediately repay to the Company the
amount paid to Traberman pursuant to this Agreement. Additionally, if any of the
Company Affiliates seeks to challenge the validity of or otherwise vitiate this
Agreement or any provision thereof (including, without limitation, Section 4),
the Company shall be required to immediately pay to all monies due and owing
under the Employment Agreement.
16. Voluntary Agreement.
x. Xxxxxxxxx acknowledges that: (a) she has carefully read this Agreement in its
entirety; (b) she has been advised by Releasees in writing to consult with an
attorney of her choosing in connection with this Release; (d) she fully
understands the significance of all of the terms and conditions of this Release;
(e) she has discussed it with her independent legal counsel, or has had a
reasonable opportunity to do so; (f) she has had answered to her satisfaction
any questions she has asked with regard to the meaning and significance of any
of the provisions of this Release; and (g) she is signing this Release
voluntarily and of her own free will and assents to all the terms and conditions
contained herein.
b. The Company acknowledges that: (a) it has carefully read this Agreement in
its entirety; (b) it has had an opportunity to consider fully the terms and
conditions of this Agreement and it fully understands the significance of all
such terms and conditions; (c) it has been represented by its independent legal
counsel and has discussed the terms and conditions of this Agreement with such
counsel; and (d) it is signing this Agreement voluntarily and of its own free
will and assents to all the terms and conditions contained herein.
17. Consideration and Revocation Periods. Traberman understands that she will
have at least 21 days (the "Consideration Period") from the date of receipt of
this Agreement to consider the terms and conditions of this Agreement. Traberman
may accept this Agreement by signing it and returning it to: Emerging Vision,
Inc., 0000 Xxxxxxxxx Xxxxxxxx, Xxxx Xxxxxx, XX 00000, Attn: Xxxxxx Xxxxxxxxxxxx,
with a copy to Proskauer Rose LLP, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attn:
Xxxxxxxxxxx Xxxxx (fax: 000.000.0000). After executing this Agreement, Traberman
shall have seven days (the "Revocation Period") to revoke this Agreement by
indicating her desire to do so in writing delivered to Xxxxxx Xxxxxxxxxxxx at
his address above (or by fax at 000.000.0000) and to Xxxxxxxxxxx Xxxxx at his
address above (or by fax at 000.000.0000) by no later than 5:00 pm on the
seventh day after the date she signs this Agreement. The effective date of this
Agreement shall be the eighth day after Traberman signs the Agreement (the
"Effective Date"). If the last day of the Consideration Period or Revocation
Period falls on a Saturday, Sunday or holiday, the last day of the Consideration
Period or Revocation Period, as applicable, will be deemed to be the next
business day. In the event Traberman does not accept this Agreement as set forth
above, or in the event she revokes this Agreement during the Revocation Period,
this Agreement, and the transactions contemplated hereby, including but not
limited to the obligation of the Company to provide the payment and other
benefits provided herein (including, but not limited to the payment referred to
in Sections 2 and 3 above), shall be deemed automatically null and void.
Dated:____________________ __________________________
Xxxx X. Xxxxxxxxx
Witness
Name:
Emerging Vision, Inc.
Dated:____________________ __________________________
By:
Its:
Witness
Name:
EXHIBIT A
NON-QUALIFIED STOCK OPTION AGREEMENT
Emerging Vision, Inc.
0000 Xxxxxxxxx Xxxxxxxx
Xxxx Xxxxxx, Xxx Xxxx 00000
April 24, 2001
Xx. Xxxx X. Xxxxxxxxx
00 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Dear Xx. Xxxxxxxxx:
This Agreement confirms Emerging Vision, Inc.'s (the
"Company") grant of a Non-Qualified Stock Option to you effective as of April
24, 2001, under the Emerging Vision, Inc. 1995 Stock Incentive Plan (the
"Plan"), upon the following terms and conditions:
1. Grant of Option. Pursuant to the action of the Company's Compensation
Committee, the Company hereby grants to you a Non-Qualified Stock Option
(hereinafter referred to as the "Option") to purchase, subject to the terms and
conditions hereinafter set forth, 125,000 shares of the Common Stock of the
Company (the "Common Shares"), at a per share purchase price equal to $0.29 (the
"Purchase Price"). The number of shares under the Option and the Purchase Price
thereof shall be adjusted by the Committee, and you shall be entitled to such
adjustment, upon the occurrence of any event described in Section 2.4 of the
Plan. An equitable adjustment shall be determined by the Committee in good
faith.
2. Times of Exercise and Term of the Option. The Option shall be exercisable for
all of the Common Shares. If fewer than the number of Common Shares then
available for purchase pursuant to the Option are purchased at any time under
this Agreement, you may purchase the remaining Common Shares at any subsequent
time during the term of the Option. The Option is for a term of five years and
shall expire, in its entirety, on April 24, 2006 (the "Option Expiration Date").
The Option shall not terminate prior to the Option Termination Date by reason of
the termination of your employment. The Option may not be exercised for
fractional shares.
Notation of any partial exercise will be made by the Company on Schedule 1
annexed hereto.
3. Method of Exercise and Payment. Exercise of the Option shall be by written
notice, in a form substantially as attached to this Agreement as Schedule A,
delivered or mailed to the Secretary of the Company at its principal office
specifying the number of Common Shares as to which the Option is being exercised
and identifying the Option by date of grant. Such notice shall be accompanied by
the full amount of the Option exercise price for the Common Shares to be
purchased in cash or by certified check or, if approved by the Compensation
Committee, in its sole and absolute discretion, by delivery of your promissory
note payable to the Company, or by delivery of whole Common Shares owned by you
("Optionee Stock") in full or partial payment of the exercise price. You will
receive a credit against the purchase price of the Common Shares as to which the
Option is being exercised equal to the Fair Market Value (as defined in the
Plan) of such Optionee Stock as of the close of the business day immediately
preceding the date of delivery of the notice of election to exercise the Option.
Any Common Shares of Optionee Stock being delivered must be accompanied by a
duly executed assignment to the Company, in blank, or with stock powers
attached, together with a written representation that such Common Shares of
Optionee Stock are owned by you, free and clear of all liens, claims and
encumbrances, and such other representations as the Company shall reasonably
determine. Only whole Common Shares of Optionee Stock with a Fair Market Value
up to, but not exceeding, the Purchase Price of the Common Shares as to which
the Option is being exercised will be accepted hereunder. Delivery of the Common
Shares of Optionee Stock may be made at the office of the Company or at the
offices of the transfer agent appointed for the transfer of the Common Stock of
the Company.
It shall be a condition to the Company's obligation to deliver Common Shares
upon exercise of any portion of the Option that you pay, or make provision
satisfactory to the Company for the payment of, any taxes which the Company is
obligated to withhold or collect with respect to such exercise or otherwise with
respect to the Option.
4. Incorporation of Plan Provisions. This Agreement is made pursuant to the Plan
and is subject to all the terms and provisions of such Plan as if the same were
fully set forth herein, and receipt of a copy of such Plan is hereby
acknowledged. Capitalized terms not otherwise defined herein shall have the
meanings set forth for such terms in the Plan.
5. Shareholder Rights. You shall not be, nor have any of the rights or
privileges of, a holder of Common Shares in respect of any Common Shares
purchasable upon the exercise of the Option, including any rights regarding
voting or payment of dividends, unless and until a certificate representing such
Shares has been, or pursuant to the Plan is required to be, delivered to you.
6. Non-Transferability. This Option may not be transferred in any manner
otherwise than by will or the laws of descent and distribution.
7. Securities Law Requirements. You hereby acknowledge that in the event the
Registration Statement (pursuant to which the Common Shares were registered
under the Securities Act of 1933, as amended (the "Act") is not then effective,
no Common Shares issuable upon the exercise of the Option shall be issued and
delivered unless and until there shall have been full compliance with all
applicable requirements of the Act and any other requirements of law or of any
regulatory body having jurisdiction over such issuance and delivery
(collectively, the "Securities Laws"). Without limiting the foregoing, you
hereby agree that you will not sell or transfer any Common Shares subject to the
Option unless and until there shall have been full compliance, by you, with the
Securities Laws.
8. Miscellaneous. This Agreement: (a) shall be binding upon and inure to the
benefit of any successor of the Company and your successors, assigns and estate,
including your executors, administrators and trustees; (b) SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK AND ANY APPLICABLE LAWS OF THE UNITED STATES;
and (c) may not be amended except in writing.
It is your intent and that of the Company that this Non-Qualified Stock Option
is not classified as an Incentive Stock Option and that any ambiguities in
construction shall be interpreted in order to effectuate such intent.
To confirm your acceptance of the foregoing, please sign and return one copy of
this Agreement to: Emerging Vision, Inc., 0000 Xxxxxxxxx Xxxxxxxx, Xxxx Xxxxxx,
Xxx Xxxx 00000.
EMERGING VISION, INC.
By:____________________________
Xxxxxx X. Xxxxxxxxxxxx
Senior Vice President and
Chief Financial Officer
AGREED:
__________________________________
Xxxx X. Xxxxxxxxx
Date:____________________________
SCHEDULE A
STOCK OPTION EXERCISE FORM
-------------------------
(Date)
Emerging Vision, Inc.
0000 Xxxxxxxxx Xxxxxxxx
Xxxx Xxxxxx, XX 00000
Attn: Secretary
Dear Sirs:
The undersigned elects to exercise his/her Option to purchase
___________ shares, $.01 par value, of the Common Stock of Emerging Vision, Inc.
(f/k/a Sterling Vision, Inc.; hereinafter the "Company) under and pursuant to
the Non-Qualified Stock Option Agreement (the "Agreement") between the Company
and the undersigned dated as of ____________________.
Delivered herewith in payment of the option price is:
i. a certified check, in the amount of $_______________ and/or
ii/. certificate(s) for _________ shares of Common Stock
of the Company, valued at $____________ per share,
with appropriate stock powers attached thereto, which
shares are owned by the undersigned free and clear of
all liens, claims and encumbrances.
If the shares of the Company's Common Stock to be delivered to the
undersigned upon this exercise of the Option granted under the Agreement are not
subject to a current registration statement filed under the Securities Act of
1933, as amended (the "Act"), the undersigned hereby represents and agrees that
all of the shares of Common Stock being purchased hereunder are being acquired
for investment purposes only, and not with a view to the sale or distribution
thereof, and that the undersigned understands that such shares of Common Stock
are not currently registered under the Act and may not be sold, pledged,
hypothecated, alienated or otherwise assigned or transferred in the absence of
registration under the Act or an opinion of counsel which opinion is reasonably
satisfactory to the Company, to the effect that such registration is not
required.
Very truly yours,
____________________
Optionee
EXHIBIT B
ESCROW AGREEMENT
Dated: April 24, 2001
The parties to this agreement are Xxxx X. Xxxxxxxxx ("Traberman"),
Emerging Vision, Inc. ("EVI") and Proskauer Rose LLP (the "Escrow Agent").
Traberman and EVI have entered into a Settlement Agreement and General
Release dated April 24, 2001 (the "Settlement Agreement") (all capitalized terms
used but not otherwise defined herein have the meanings ascribed to such terms
in the Settlement Agreement);
According to Section 3 of the Settlement Agreement:
On the Agreement Date, pursuant to and subject to the terms
of the Escrow Agreement attached hereto as Exhibit "B," the
Company will deliver the Payment Amount into an escrow account
established at Proskauer Rose LLP (the "Escrow Agent") by wire
transfer made payable to the order of the Escrow Agent. Upon
receipt of the Payment Amount, the Escrow Agent will promptly
advise Traberman of its receipt by faxing notice to Xxxxxx X.
Xxxxxxxxx, Esq., 1350 Avenue of the Xxxxxxxx, 00xx xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000) and to Traberman (fax:
000.000.0000). Subject to the terms of the Escrow Agreement, no
later than the close of business on the Effective Date, the
Escrow Agent will initiate delivery of the Payment Amount by wire
transfer to Traberman pursuant to the following wiring
instructions: Citibank, N.A.; New York, New York; ABA# 000000000;
Acct.# 37158274; Attn: Xxxxxx Xxxxxxxxx and Xxxx X. Xxxxxxxxx.
Accordingly, the parties agree as follows:
1. Appointment of Escrow Agent.
---------------------------
Traberman and EVI appoint Proskauer Rose LLP as Escrow Agent, and
Proskauer Rose LLP accepts that appointment and agrees to hold and dispose of
the Escrow Deposit (as defined below) in accordance with the terms of this
agreement. The Escrow Agent acknowledges receipt, by wire transfer of
immediately available funds, of the Payment Amount (the "Escrow Deposit").
2. Investment.
----------
The Escrow Deposit may be deposited by the Escrow Agent in Citibank,
N.A. or such other bank as the Escrow Agent may select. The Escrow Agent may
(but shall not be required to) invest and reinvest the Escrow Amount in interest
bearing account or "money market" account of banks or trust companies organized
in the United States having a minimum net worth of $200 million, with maturity
dates prior to the Effective Date.
3. Release of Escrow Deposit.
-------------------------
(a) The Escrow Agent shall deliver the Escrow Deposit as follows:
If Traberman does not revoke the Settlement Agreement within the
Revocation Period, the Escrow Agent initiate delivery of the Escrow Deposit to
Traberman on the Effective Date in accordance with Section 3 of the Settlement
Agreement.
If Traberman does revoke the Settlement Agreement within the
Revocation Period, the Escrow Agent shall initiate delivery of the Escrow
Deposit to EVI on the Effective Date.
(b) Upon any delivery or deposit of the Escrow Deposit as provided in
this Section 3, the Escrow Agent shall be released and discharged from any
further obligation under this agreement.
4. Notices.
-------
All notices, instructions, objections or other communications under
this agreement shall be in writing and shall be deemed given when sent by United
States registered mail, return receipt requested, to the respective parties at
the following addresses (or at such other address as a party may specify by
notice given in accordance with this paragraph):
If to EVI:
Emerging Vision, Inc.
0000 Xxxxxxxxx Xxxxxxxx
Xxxx Xxxxxx, XX 00000
Facsimile: 516.390.2140
Attention: Xxxxxx Xxxxxxxxxxxx
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx Xxxxx, Esq.
Facsimile: 212.969.2900
If to Traberman:
Xxxxxx X. Xxxxxxxxx, Esq.
1350 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: 212.581.8958
If to the Escrow Agent:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx Xxxxx, Esq.
Facsimile: 212.969.2900
5. Miscellaneous.
-------------
(a) The Escrow Agent shall serve under this agreement without fee.
(b) If any provision of this agreement is determined by any court of
competent jurisdiction to be invalid or unenforceable in any jurisdiction the
remaining provisions of this agreement shall not be affected thereby, and the
invalidity or unenforceability in any jurisdiction shall not invalidate or
render unenforceable that provision in any other jurisdiction. It is understood,
however, that the parties intend each provision of this agreement to be valid
and enforceable and each of them waives all rights to object to any provision of
this agreement.
(c) This agreement shall be binding upon and inure solely to the
benefit of the parties and their respective successors and permitted assigns,
and shall not be enforceable by or inure to the benefit of any third party. No
party may assign its rights or obligations under this agreement or any interest
in the Escrow Deposit without the written consent of the other parties, and any
other purported assignment shall be void. In no event shall the Escrow Agent be
required to act upon, or be bound by, any notice, instruction, objection or
other communication given by a person other than, nor shall the Escrow Agent be
required to deliver the Escrow Deposit to any person other than, Traberman and
EVI.
(d) This agreement shall be governed by, interpreted, and construed in
accordance with the laws of the State of New York.
(e) The courts of New York State and the United States District Courts
for New York shall have exclusive jurisdiction over the parties (and the subject
matter) with respect to any dispute or controversy arising under or in
connection with this agreement. A summons or complaint or other process in any
such action or proceeding served by mail in accordance with Section 4 of this
agreement or in such other manner as may be permitted by law shall be valid and
sufficient service.
(f) This agreement contains a complete statement of all of the
arrangements among the parties with respect to its subject matter and cannot be
changed or terminated orally. Any waiver must be in writing.
(g) This agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
(h) The Section headings used herein are for convenience of reference
only and shall not affect the construction or interpretation of this agreement.
EVI: EMERGING VISION, INC.
By:
--------------------------------
Name:
Title:
Traberman: By:
--------------------------------
Name: Xxxx X. Xxxxxxxxx
Escrow Agent: PROSKAUER ROSE LLP
By:
---------------------------------
Name:
Title:
EXHIBIT C
MUTUAL RELEASE
This Mutual Release ("Release") is entered into effective April 24th,
2001 (the "Effective Date"), by and between Balfour Investors Incorporated
("Balfour") and Xxx Xxxxxxxxx ("Xxxxxxxxx") on one hand (collectively, the
"Consultants"), and Xxxx X. Xxxxxxxxx ("Traberman") on the other hand.
RECITAL:
Both parties desire to effect the complete extinguishment of any actual,
asserted or prospective claim against one another that particularly relates or
arrives from their respective relationships with Emerging Vision, Inc.
Therefore, in consideration of the payment of One Dollar ($1.00), and other good
and valuable consideration, in hand paid, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. This Release is subject to and conditional upon the receipt, prior to April
___, 2001, by Traberman's counsel, Xxxxxx X. Xxxxxxxxx, Esq., 1350 Avenue
of the Xxxxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Fax: 000.000.0000)
of facsimiles of executed counterparts of this Release from Balfour and
Xxxxxxxxx.
2. The Consultants do hereby release, cancel, forgive and forever discharge
Traberman from each of her predecessors, parent corporations, holding
companies, subsidiaries, affiliates, divisions, heirs, successors and
assigns, and all of their officers, directors, employees, agents and
attorneys from all actions, claims, demands, damages, obligations,
liabilities, controversies and executions, of any kind or nature
whatsoever, whether known or unknown, whether suspected or not, which have
arisen, or may have arisen, or shall arise by reason of the referenced
matter from the first day of the world, including this day and each day
hereafter, and the Consultants do specifically waive any claim or right to
assert any cause of action or alleged case of action or claim or demand
which has, through oversight or error intentionally or unintentionally or
through a mutual mistake, been omitted from this Release.
3. Traberman does hereby release, cancel, forgive and forever discharge the
Consultants, each of their predecessors, parent corporations, holding
companies, subsidiaries, affiliates, divisions, heirs, successors and
assigns, and all of their officers, directors, employees, agents and
attorneys from all actions, claims, demands, damages, obligations,
liabilities, controversies and executions, of any kind or nature
whatsoever, whether known or unknown, whether suspected or not, which have
arisen, or may have arisen, or shall arise by reason of the referenced
matter from the first day of the world, including this day and each day
hereafter, and Traberman does specifically waive any claim or right to
assert any cause of action or alleged case of action or claim or demand
which has, through oversight or error intentionally or unintentionally or
through a mutual mistake, been omitted from this Release.
4. The provisions of this Release must be read as a whole and are not
severable and/or separately enforceable by any party hereto.
5. The parties agree that this Release shall be governed for all purposes by
the laws of the State of New York as such laws apply to contracts performed
within the State of New York by its residents and that exclusive venue and
exclusive personal jurisdiction for any action arising out of this Release
shall lie in state or federal courts in the State and County of New York,
and with respect to which the parties consent to personal jurisdiction.
IN WITNESS WHEREOF, the undersigned have executed this Release in multiple
counterparts as of the Effective Date.
XXXX X. XXXXXXXXX
--------------------------------
Signature
BALFOUR INVESTORS, INC.
--------------------------------
Signature
--------------------------------
Print Name
--------------------------------
Title
XXX XXXXXXXXX
--------------------------------
Signature
