AGREEMENT OF TERMINATION OF AMENDED AND RESTATED EXECUTIVE AGREEMENT

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Exhibit 10.10

 

EXECUTION COPY

This Agreement of Termination of Amended and Restated Executive Agreement (this “Agreement”) dated as of November 7, 2013 (the “Effective Date”) is by and between Costa Inc. (the “Company”) and ▇▇▇▇ ▇. ▇▇▇▇▇ (the “Executive”).

 

WHEREAS, the Company and the Executive are parties to a certain Amended and Restated Executive Agreement dated as of February 21, 2013 (the “Executive Agreement”);

 

WHEREAS, in connection with that certain Agreement and Plan of Merger between Essilor International SA, GWH Acquisition Sub Inc. and the Company, dated as of November 7, 2013 (the “Merger Agreement”), the Company will become a wholly-owned subsidiary of Essilor International SA on the closing date (the “Acquisition Date”) of the merger contemplated thereby (the “Merger”); and

WHEREAS, effective as of immediately prior to the closing of the Merger, the parties wish to terminate the Executive Agreement;

WHEREAS, Executive and the Company wish to continue the Executive’s employment with the Company on an “at-will” basis;

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements hereinafter set forth, the Executive and the Company hereto mutually covenant and agree as follows:

1.

Effective Date.  This Agreement will become effective on the Effective Date upon its execution by each of the parties; provided, however, that this Agreement will be null and void ab initio and of no further force or effect if the Merger Agreement is terminated prior to the Acquisition Date or if, for any reason, the Acquisition Date does not occur.

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2.

Termination of Executive Agreement; Cash Payment. The Executive Agreement shall terminate immediately prior to the closing of the Merger. On the Acquisition Date, in consideration of this Agreement and the termination of the Executive Agreement, the Company shall pay Executive a lump sum cash amount of $535,500, less applicable tax withholdings; provided, that, such payment shall be contingent upon the Executive’s (i) delivery to the Company of a release (which has not been revoked prior to the expiration of any revocation period) in the form of Exhibit A hereto which is dated and effective as of a date which is at least 8 days prior the Acquisition Date (the “First Release”), and (ii) delivery to the Company of a release in the form of Exhibit B dated and effective as of the Acquisition Date (the “Second Release”). The parties agree that notwithstanding the termination of the Executive Agreement, Sections 3(a)(i) (accrued rights),  3(a)(iv) (health benefits), 4 (taxes), 7 (no duty to mitigate), 8(b) (conditions to payment), 9 (non-competition and non-solicitation), 10 (non-disparagement), 11 (arbitration) and 12 (miscellaneous) of the Executive Agreement and the letter dated August 8, 2013 commemorating the understanding of the parties regarding termination of employment under the Executive Agreement are hereby incorporated herein by reference with the same force and effect as if set forth herein in full, and therefore shall survive the termination of the Executive Agreement as of the Acquisition Date.  For avoidance of doubt, upon any termination of employment with the Company, the Executive shall be deemed to have terminated in a Change in Control Termination (as defined in the Executive Agreement) in applying the foregoing provisions incorporated herein by reference.  The health benefits incorporated by reference shall commence, and the 401(k) portion of the Company’s Excess Benefit Plan (as referenced in Section 5.1(n) of the Company Disclosure Schedule to the Merger Agreement) shall be paid, on the termination of employment.

It is further agreed that with respect to Section 3(a)(iv) of the Executive Agreement, the Company will elect to pay cash in lieu of benefits only to the extent the health insurance program does not permit such continuation of the Executive’s participation following his termination, such program is terminated, or such participation would result in a material penalty or fine to the Company under applicable law.

3.

Waiver of Severance.  Unless otherwise agreed in writing by the parties, the Executive agrees that the payments under this Agreement are in lieu of, and the Executive hereby waives the right to receive, any other severance payments or benefits to which Executive is otherwise eligible to receive upon a termination of employment now or in the future under any severance plan, practice or program of the Company or under any agreement between the Company and the Executive.

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4.

Employment “At-Will”.  Effective as of the Acquisition Date, Executive shall be employed on an “at-will” basis.

5.

Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.

[SIGNATURES BEGIN ON NEXT PAGE]

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SIGNATURE PAGE TO

 

AGREEMENT OF TERMINATION OF AMENDED AND RESTATED EXECUTIVE AGREEMENT

 

IN WITNESS WHEREOF, the parties have executed this Agreement on the date and year first above written.

 

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GENERAL RELEASE

 

Costa Inc. (the "Company") and ▇▇▇▇ ▇. ▇▇▇▇▇ (the "Executive" or "you") (collectively, the "Parties") enter into this Release Agreement (this "Release"), effective as of the date of execution of this Release (the “Effective Date”).

 

WHEREAS, a general release known as the First Release is required in connection with the payment of severance and other benefits set forth in Section 2 of the Agreement of Termination of Amended and Restated Executive Agreement, dated November 7, 2013 between the Company and the Executive (the "Termination Agreement");

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth herein, and in the Termination Agreement, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties hereto, the Parties hereby agree:

 

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2.            You acknowledge that before entering into this Release, you have had the opportunity to consult with legal counsel of your choice, and you have been advised to do so. You further acknowledge that you have executed this Release knowingly and voluntarily, and that no promises or representations have been made to you by any person to induce you to enter into this Release other than the express terms set forth herein. You further acknowledge that you have read this agreement and understand all of its terms, including the waiver and release of claims set forth in Paragraph 1 above.

 

 

 

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GENERAL RELEASE

 

Costa Inc. (the "Company") and ▇▇▇▇ ▇. ▇▇▇▇▇ (the "Executive" or "you") (collectively, the "Parties") enter into this Release Agreement (this "Release"), effective as of the date of execution of this Release (the “Effective Date”).

 

WHEREAS, a general release known as the Second Release is required in connection with the payment of severance and other benefits set forth in Section 2 of the Agreement of Termination of Amended and Restated Executive Agreement, dated November 7, 2013 between the Company and the Executive (the "Termination Agreement");

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth herein, and in the Termination Agreement, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties hereto, the Parties hereby agree:

 

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