Exhibit 10.53
TRANSITION AGREEMENT
This Transition Agreement (the "Agreement") is entered into as of
January 12, 2005 between Dr. Dean J. Yimoyines ("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/Pearlman 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
