Severance Agreement - Sight Resource Corp. and William T. Sullivan
May 23, 2001
Mr. William T. Sullivan
53 Presidential Drive
Southborough, MA 01772
Re: Separation Letter Agreement
Dear Bill:
The purposes of this letter agreement (the "Agreement") are to confirm
the terms regarding your separation of employment from Sight Resource
Corporation (the "Company") and to resolve disputes between you and the Company
in order to avoid the uncertainties and substantial expenditures of resources
that would likely result from the litigation of such disputes. As set forth in
this Agreement, the Company desires to provide you with certain separation pay
and benefits under the terms specified below in exchange for your agreement to
settle fully and finally all disputes between you and the Company and certain
other agreements by you which are reflected below. By executing this Agreement,
you acknowledge that the covenants that you enter into by entering into this
Agreement are made in exchange for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged. As noted below, this Agreement
shall take effect on the eighth day following the Company's receipt of a signed,
original Agreement from you (the "Effective Date").
1. Separation of Employment. Your employment with the Company will be
deemed to have terminated on May 23, 2001 (the "Separation Date"). You
acknowledge that from and after the Separation Date, you shall have no authority
to bind the Company and shall not represent yourself as an employee or agent of
the Company for any purpose at any time.
2. Separation Pay and Benefits. In exchange for the mutual covenants
set forth in this Agreement, the Company agrees to:
(a) pay you (or your estate, in the event of your death) TWO HUNDRED
NINETEEN THOUSAND TWO HUNDRED DOLLARS and TWENTY-EIGHT CENTS ($219,200.28), less
customary and required local, state, and federal taxes and other
employment-related deductions, in fifty-two equal installments on a bi-weekly
basis over the course of the two (2) year period following the eighth day after
the Effective Date (the "Separation Pay");
(b) reimburse you or pay vendors directly for up to FIFTEEN THOUSAND
DOLLARS ($15,000) in bona fide relocation costs incurred, upon submission of
appropriate invoices, following the eighth day after the Effective Date;
(c) pay you (or your estate, in the event of your death) NINE HUNDRED
FIFTY DOLLARS ($950) per month commencing on the eighth day after the Effective
Date and continuing for the subsequent twenty-four (24) months in lieu of other
benefits; provided, however, that if you accept full time employment during such
twenty-four (24) month period, the Company shall cease making such payments as
of the date on which you commence full time employment (which date you agree
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to report to the Company as soon as it is determined). In addition, you may,
upon timely completion of the forms required by Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA"), continue, at your sole expense, your
health insurance coverage to the extent permitted by COBRA. The "qualifying
event" will be deemed to occur on the Separation Date.
You acknowledge and agree that the Separation Pay and Benefits provided
above shall not constitute a severance plan and shall confer no benefit on
anyone other than you and the Company. You further acknowledge that except for
the specific financial consideration set forth in this Agreement, you have been
paid and provided all wages, commissions, bonuses, vacation pay, holiday pay and
any other form of compensation or benefit that may be due to you now or which
would have become due in the future in connection with your employment with or
separation of employment from the Company.
3. Company Property; Confidentiality; Prohibited Competition;
Non-Disparagement; Intellectual Property; Future Cooperation; Material Breach.
You expressly agree to and acknowledge the following:
(a) You acknowledge and agree that you have returned all Company
documents and computer files (and any copies thereof) and property (including,
without limitation, keys, pagers, laptop computers, credit cards, phone cards,
and cellular phones);
(b) You acknowledge and agree that the Company has developed, uses and
maintains trade secrets and other confidential and proprietary information. As
used in this Agreement, the phrase, "Confidential Information," means that
secret proprietary information of the Company of whatever kind or nature
pertaining to any aspect of the Company's business disclosed to or known by you
as a consequence of or through your employment with the Company. Such
proprietary information includes, but is not limited to, information relating to
the Company's Inventions,1/ processes, plans, products, sources of supply and
material, operating and other cost data, lists of present, past or prospective
customers, customer proposals, price lists and data relating to pricing of the
Company's products or services, training materials, product information,
personnel information relating to Company employees, operating procedures,
marketing information, profit and loss information, product costs, profit
margins, product development and selling strategies, supplier information, and
customer information, any of which information is not generally known to the
public or to actual or potential competitors and with respect to which the
Company has taken and shall continue to take all reasonable measures to protect.
You acknowledge that during your employment with the Company you had
direct access to and knowledge of the Confidential Information. You covenant and
agree that all such Confidential Information is and shall remain the sole
property of the Company and that you will hold in strictest confidence, and will
not disclose to any business, firm, entity or person, either directly or
indirectly,
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1/ As used in this Agreement, the term, "Inventions," means copyrighted
materials, designs, trademarks, discoveries, formulae, processes, manufacturing
techniques, trade secrets, inventions, developments, improvements, ideas,
expressions of ideas, and "know-how" (whether or not patentable or protectable
by copyright), including all rights to obtain, register, perfect and enforce
these proprietary interests.
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any of the Confidential Information, unless expressly authorized by the Company
in writing or otherwise required by law. You also acknowledge that you have
returned any copies of any Confidential Information except to the extent
authorized by the Company or otherwise required by law.
(c) You agree and covenant that, with respect to the business of the
Company, for a period of one (1) year beginning on 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 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 business of the
Company; provided, however, that nothing contained herein shall preclude you
from purchasing or owning stock in any such business if such stock is publicly
traded, and provided that your holdings do not exceed three percent (3%) of the
issued and outstanding capital stock of such business.
(d) You agree that all ideas, discoveries, creations, manuscripts and
properties, innovations, improvements, know-how, inventions, developments,
apparatus, techniques, methods, and formulae (all of the foregoing being
hereinafter referred to as "the inventions") which may be used in the business
of the Company, whether patentable, copyrightable or not, which were conceived
or developed during your employment with the Company, whether during or out of
regular business hours, and whether at the request, or upon the suggestion of
the Company, or otherwise, are the sole and exclusive property of the Company,
and that you shall not publish any of the inventions without the prior consent
of the Company. You acknowledge that you have assigned to the Company all of
your right, title and interest in and to all of the foregoing.
You agree that you will fully cooperate with the Company, its attorneys
and agents, in the preparation and filing of all papers and other documents as
may be required to perfect the Company's rights in and to any of such
inventions, including, but not limited to, joining in any proceeding to obtain
letters patent, copyrights, trademarks or other legal rights of the United
States and of any and all other countries on such inventions, provided that the
Company will bear the expense of such proceedings, and that any patent or other
legal right so issued to you, personally, shall be assigned by you to the
Company without charge by you.
(e) You acknowledge and agree that, at all times following your
separation from the Company, you will not make any statement that is
professionally or personally disparaging about, or adverse to, the interests of
the Company, any of its officers, directors, shareholders or employees
including, but not limited to, any statement that disparages any person,
product, service, finances, financial condition, capabilities or other aspect of
the business of the Company or any of its officers, directors, shareholders or
employees. You further agree that at all times following your separation from
the Company, you will not engage in any conduct that is intended to or has the
result of inflicting harm upon the professional or personal reputation of the
Company or any of its officers, director, shareholders or employees.
(f) You agree that you shall cooperate fully with the Company in the
future regarding any matters in which you were involved during the course of
your employment, and in the defense
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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. You shall be reimbursed for any
reasonable costs and expenses incurred in connection with providing such
cooperation.
(g) 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; and (ii) 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.
4. Equity. The parties to this Agreement acknowledge and agree that you and the
Company executed a Non-Qualified Stock Option Agreement dated May 23, 2001 (the
"Option Agreement"), a copy of which is attached hereto as Exhibit A. The
Company hereby agrees that, as of the Effective Date, one hundred thousand
(100,000) options to purchase shares of the Company's common stock shall become
exercisable by you at a purchase price of fifty cents ($0.50) per share within
the four (4) year period beginning on the Effective Date, subject to the terms
of the Option Agreement and the Option Plan incorporated by reference therein.
You further agree that you shall not have any right to exercise any stock
options in the Company beyond the number of shares or on the terms recited in
the Option Agreement and you specifically disavow any rights to any equity in
the Company other than those granted through the Option Agreement. Your
commission of any material breach of this Agreement shall result in the
termination of the option provided by the Option Agreement.
5. Release of Claims. You agree and acknowledge that by signing this
Agreement and accepting the Separation Pay and Benefits to be provided pursuant
to Section 2, and other good and valuable consideration provided for in this
Agreement, you are settling fully and finally all disputes between you and the
Company and waiving your right to assert any form of legal claim against the
Company2/ of any kind whatsoever from the beginning of time through the
Effective Date. Your
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2/ For purposes of this Section, the phrase, "the Company," refers to Sight
Resource Corporation, its divisions, affiliates, subsidiaries and related
entities, and its and their respective officers, directors, employees, agents,
representatives, successors and assigns.
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waiver and release is 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, through the Effective Date of this Agreement.
Without limiting the foregoing general waiver and release of claims,
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:
(a) 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 of
this Agreement) 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 statute;
(b) Claims under any other local, state or federal employment related
statute, regulation or executive order (as they may have been amended through
the Effective Date of this Agreement) 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, COBRA and any similar statute;
(c) Claims under any local, 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;
(d) 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; and
(e) Any other Claim arising under local, state or federal law.
Notwithstanding the foregoing, this Section shall not release the
Company from any obligation expressly set forth in this Agreement.
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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 May 23,
2001) in which to consider and accept the terms of this Agreement by signing
below and returning it to Carene Kunkler at eyeshop.com, inc., 3100 Hawkslanding
Drive, Cincinnati, OH 45244, or such other person 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 Carene Kunkler 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 the person and address designated herein.
6. Entire Agreement/Choice of Law/Severability. You acknowledge and
agree that this Agreement supersedes any and all prior or contemporaneous oral
and/or written agreements between you and the Company. No variations or
modifications hereof shall be deemed valid unless reduced to writing and signed
by the parties hereto. You acknowledge that a substantial portion of the
Company's business is based out of and directed from the Commonwealth of
Massachusetts. You also acknowledge that during the course of your employment
with the Company you have had substantial contacts with Massachusetts. This
Agreement shall be deemed to have been made under seal in Massachusetts, and the
validity, interpretation and performance of this Agreement shall be governed by
the internal law of Massachusetts, without giving effect to conflict of law
principles. Both parties 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 that
venue shall lie exclusively in Massachusetts. Both parties further agree that
any action, demand, claim or counterclaim shall be resolved by a judge alone,
and both parties hereby waive and forever renounce the right to a trial before a
civil jury. The provisions of this Agreement are severable, and if for any
reason any part hereof shall be found to be unenforceable, the remaining
provisions shall be enforced in full. In signing this Agreement, you give the
Company assurance that you have read and understood all of its terms; that you
have had a full and reasonable opportunity to consider its terms and to consult
with any person of your choosing and that you have signed this Agreement
knowingly and voluntarily.
7. Miscellaneous.
(a) You acknowledge and agree that all information relating in any way
to the subject matter of this Agreement, including the terms and amounts, 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
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be bound by these confidentiality obligations), business entity or government
agency (except as required by law).
(b) The Company agrees to pay Elaine Azevedo TWELVE THOUSAND FIVE
HUNDRED DOLLARS ($12,500), less customary and required local, state, and federal
taxes and other employment-related deductions in exchange for Ms. Azevedo's
commitment to remain employed by the Company and use best efforts to perform
such duties as are reasonably assigned to her until such time as the Company
conducts an evaluation of its staffing needs following the closing of the
anticipated purchase agreement and merger agreement. The Company further agrees
to provide Ms. Azevedo a reasonable amount of paid leave to pursue other
employment at mutually agreeable times and written confirmation of the contents
of this Section 7(b), which shall be contingent on a written covenant by Ms.
Azevedo to refrain from disclosing the arrangement to anyone other than her
immediate family, attorney or financial advisor (who shall be required to honor
such confidentiality covenant).
(c) 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.
(d) 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.
(e) You acknowledge that nothing contained herein shall be construed or
considered to be an admission by the Company of any wrongdoing.
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(f) 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 facsimile and overnight
mail to Carene Kunkler, as soon as possible, but no later than 5:00 p.m. on May
23, 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/ Carene Kunkler
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Carene Kunkler, President and
Chief Executive Officer
Confirmed and Agreed:
/s/ William T. Sullivan
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William T. Sullivan
Dated: May 23, 2001
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