Exhibit 10.53
TRANSITION AGREEMENT
This Transition Agreement (the "Agreement") is entered into as of
January 12, 2005 between Xx. Xxxx X. Xxxxxxxxx ("Yimoyines") and OptiCare Health
Systems, Inc. ("OptiCare") (collectively the "Parties").
WHEREAS, in connection that certain Asset Purchase Agreement (the
"Asset Purchase Agreement"), dated as of January 12, 2005 and effective as of
December 31, 2004, among OptiCare Acquisition Corp. ("OAC"), Wise Optical, LLC
and AECC/Xxxxxxxx Buying Group, LLC, the Parties have mutually agreed to
terminate that certain Employment Agreement, dated August 10, 1999, between
OptiCare and Yimoyines, as amended (the "Employment Agreement").
NOW, THEREFORE, in consideration of the promises and conditions set
forth herein, Yimoyines and OptiCare agree as follows:
1. Effective as of the date hereof, Yimoyines hereby resigns from any
and all of his positions, whether as an officer, director or otherwise, with
OptiCare and each of its subsidiaries and affiliates, including, without
limitation, OAC, except that Yimoyines does not resign from his position as a
member of the board of directors of OptiCare or from any position with OptiCare
P.C. (the "Professional Corporation"). The Employment Agreement is hereby
terminated and each of OptiCare and Yimoyines waives any and all rights in
connection with the Employment Agreement except as set forth herein; provided,
that, nothing contained herein shall be deemed to supersede or abrogate any
rights or obligations of OptiCare or Yimoyines or any of their respective
affiliates pursuant to any agreement or arrangement other than the Employment
Agreement. OptiCare shall promptly pay to Yimoyines all compensation accrued as
of the date hereof and not yet paid in connection with OptiCare's obligations
under the Employment Agreement. OptiCare acknowledges that the termination of
the Employment Agreement and the entrance by Yimoyines into an employment
agreement with OptiCare P.C. shall have no effect on Yimoyines' current balance
or the vesting of same under, or Yimoyines' future participation in, OptiCare's
401(k) plan.
2. Set forth on Schedule 2(a) are all options to purchase securities
of OptiCare presently held by Yimoyines which, immediately prior to the
execution of this Agreement, were vested and exercisable (the "Vested Options").
Set forth on Schedule 2(b) are all options to purchase securities of OptiCare
presently held by Yimoyines which, immediately prior to the execution of this
Agreement, were not vested (the "Unvested Options" and, together with the Vested
Options, the "Options"). All of the Unvested Options shall continue to vest in
accordance with the vesting schedule or schedules, as applicable, to such
Unvested Options as in effect on the date hereof; provided, that all of such
Unvested Options shall immediately vest and become exercisable upon the
termination of the PSSA (as defined below). Subject to vesting, all of the
Options are hereby exercisable from the date hereof until the earlier of (a) the
ten year anniversary of the date of grant, and (b) second anniversary of a
Separation Event (as defined below). OptiCare will take any and all necessary
actions under the applicable plans of the Company or its Affiliates in order to
give effect to the provisions of this Section 2. A "Separation Event" shall mean
the latest of (i) the termination of that certain Employment Agreement, dated as
of even date herewith, between Professional Corporation and Yimoyines
(the "Yimoyines Employment Agreement"), (ii) the termination of the PSSA, and
(iii) Yimonyines ceasing to be a member of the Board (as defined below).
3. To the extent provided for in OptiCare's certificate of
incorporation and bylaws and subject to applicable laws, OptiCare shall
indemnify and hold harmless Yimoyines for any and all actions taken by Yimoyines
in his capacity as a director, officer or employee of OptiCare or any of its
Affiliates prior to the date hereof. For the purposes of this Agreement,
"Affiliate" shall mean, with respect to any entity, any other entity which
controls, is controlled by, or is under common control with, such entity.
4. In consideration of the mutual covenants set forth herein,
Yimoyines, on behalf of himself, his heirs, successors, current and former
agents, representatives, attorneys, assigns, executors, beneficiaries and
administrators and on behalf of each entity which is directly or indirectly
controlled by Yimoyines (collectively, the "Yimoyines Group"), hereby releases
and forever discharges OptiCare and each and all of its current and former
parents, divisions, subsidiaries and affiliates and each and all of their
predecessors, successors, assigns, officers, managers, directors, attorneys,
shareholders, partners, members, employees, representatives and agents
(collectively, the "OptiCare Group"), from any and all charges, complaints,
claims, liabilities, obligations, promises, agreements, controversies, damages,
actions, causes of action, suits, rights, demands, costs, losses, debts and
expenses (including attorneys' fees) of any nature whatsoever, whether in law or
in equity, which Yimoyines now has or ever may have had, from the beginning of
the world to and including the date hereof, against the OptiCare Group,
including, but not limited to, any and all matters related in any way to
Yimoyines's previous employment with, or separation from, OptiCare, but
excluding any and all matters that are (i) the subject of the Asset Purchase
Agreement, or (ii) the subject of the Professional Services and Support
Agreement, dated as of December 1, 1995 (the "Existing PSSA"), by and between
OptiCare Eye Health Centers, Inc. ("Health Centers") and OptiCare P.C.
("Professional Corporation"), as amended by that certain Amendment No. 1 to
Professional Services and Support Agreement, dated as of January 12, 2005, by
and between Health Centers and Professional Corporation (the "PSSA Amendment"
and together with the Existing PSSA, the "PSSA") or any of the documents or
agreements relating thereto. Nothing contained herein is intended to limit or
restrict Yimoyines' ability to enforce his rights under this Agreement.
5. In consideration of the mutual covenants set forth herein,
OptiCare, on behalf of itself and the OptiCare Group, hereby releases and
forever discharges the Yimoyines Group from any and all charges, complaints,
claims, liabilities, obligations, promises, agreements, controversies, damages,
actions, causes of action, suits, rights, demands, costs, losses, debts and
expenses (including attorneys' fees) of any nature whatsoever, whether in law or
in equity, which any member of the OptiCare Group now has or ever may have had,
from the beginning of the world to and including the date hereof, against the
Yimoyines Group, including, but not limited to, any and all matters related in
any way to Yimoyines's previous employment with, or separation from, OptiCare,
but excluding any and all matters that are (i) the subject of the Asset Purchase
Agreement, (ii) the subject of the PSSA or any of the documents or agreements
relating thereto, (iii) related to Yimoyines commission of fraud, intentional
malfeasance or violation of applicable securities laws, or (iv) of the type or
nature described in Section 102(b)(7) of the Delaware General Corporation Law or
any successor statute. Nothing
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contained herein is intended to limit or restrict OptiCare's ability to enforce
its rights under this Agreement.
6. Yimoyines expressly acknowledges the nondisclosure provisions
contained in Section 12 of the Employment Agreement and agrees that he shall
continue to be bound by same. In addition, during his employment with the
Professional Corporation and following (a) the termination of Yimoyines'
employment with the Professional Corporation for any reason (whether pursuant to
the Yimoyines' Employment Agreement or otherwise), (b) the termination of the
PSSA by the Professional Corporation other than by reason of OptiCare's default
of its obligations under the last sentence of Section 1 of the PSSA Amendment
which default is not on account of the Professional Corporation's default under
the PSSA, or (c) the termination of the PSSA by Health Centers of the PSSA by
reason of the Professional Corporation's default thereunder (any such
termination event, a "Termination Event" and if more than one shall occur, the
date as of which the last shall occur, the "Termination Date"), Yimoyines
covenants that he will not, at any time during the eighteen-month period
following the Termination Date (such period to be extended to include any period
of violation or period of time required for litigation to enforce this covenant,
the "Restricted Period"), engage in the practice of any branch of ophthalmology
or ophthalmic surgery, or otherwise provide ophthalmology or optometry services,
alone or with others as principal, partner or employee, in any manner or
capacity within the State of Connecticut or in that portion of any other state
where OptiCare or any member of the OptiCare Group actively conducts business.
Further, during the Restricted Period, Yimoyines shall not, without the prior
written consent of OptiCare, render services directly or indirectly to any
Conflicting Organization, except that employment may be accepted with a
Conflicting Organization whose business is diversified and which, as to part of
its business, is not a Conflicting Organization; provided, that OptiCare, prior
to the acceptance of such employment, shall receive from such Conflicting
Organization and from Yimoyines written assurances satisfactory to OptiCare that
Yimoyines will not render services directly or indirectly in connection with any
Conflicting Product. The term "Conflicting Organization" means any individual or
organization who or which is engaged in providing ophthalmology or optometry
services or researching, developing or marketing a Conflicting Product, and
"Conflicting Product" means any eyewear or eyecare product, process or service
of any individual or organization or the management of an ophthalmic medical
practice which competes, or would compete, with a product, process or service of
OptiCare or any member of the OptiCare Group; provided, that, the term
"Conflicting Product" shall exclude (i) the business of operating a "buying
group" through which members purchase optical products at discounted prices, and
(ii) the business of supplying contact lenses and other vision care products
mainly to eye-care practitioners through mail order, telephone, fax, the
internet and a direct and indirect sales force.
7. Each Party agrees that it and its agents will not publicize or
disclose, directly or indirectly, the existence of this Agreement, the terms
thereof, or the circumstances giving rise to this Agreement, to anyone other
than its attorney, accountant, financial advisor and, in the case of Yimoyines,
members of his immediate family, unless required by law or national stock
exchange rule or regulation. Each Party further agrees that it will advise any
individual to whom the terms, conditions or existence of this Agreement have
been disclosed of the confidentiality requirements of this paragraph and that it
will use its best efforts to ensure that the confidentiality requirements are
complied with in all respects.
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8. This Agreement constitutes an integrated agreement, containing the
entire understanding of the Parties with respect to the matters addressed herein
and, except as set forth in this Agreement, no representations, warranties or
promises have been made or relied on by the Parties. This Agreement shall
prevail over any prior communications between the Parties or their
representations relative to matters addressed herein.
9. Should any part, term, or provision of this Agreement be determined
by any tribunal, court or arbitrator to be illegal, invalid, or unenforceable,
the validity of the remaining parts, terms, or provisions shall not be affected
thereby, and the illegal, invalid, or unenforceable part, term, or provision
shall be deemed not to be part of this Agreement. Upon a finding by a Court that
a release or waiver of rights as set forth in paragraph 5 or 6 is illegal, void
or unenforceable, Yimoyines or OptiCare, as applicable, agrees that he or it
will, execute a release or waiver of claims that is legal and enforceable.
10. The Parties agree that a failure by any party at any time to
require performance of any provision of this Agreement shall not waive, affect,
diminish, obviate or void in any way that party's full right or ability to
require performance of the same, or any other provisions of this Agreement, at
any time thereafter.
11. This Agreement shall be interpreted, enforced and governed under
the laws of the state of Connecticut.
12. The Parties warrant and represent that they have read and
understand the foregoing provisions of this Agreement and that they and their
respective signatories are fully authorized and competent to execute this
Agreement on their behalves. Yimoyines further warrants and represents that he
has not previously assigned or transferred any of claims that are the subject of
the release contained herein.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Transition Agreement
to be duly executed by their duly authorized signatories as of eight days after
the day and year first written above.
OPTICARE HEALTH SYSTEMS, INC.
By:
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Xxxxxxxxxxx X. Xxxxx, President
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Xx. Xxxx X. Xxxxxxxxx
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