Exhibit
10.26


 


SETTLEMENT AGREEMENT AND GENERAL
RELEASE


 


This
Settlement Agreement and General Release (hereafter “Agreement”) is entered
into as of this 24th day of November, 2003, between Sidney Landman (“Landman”),
and Ocular Sciences, Inc., USA (the “Company” or “OSI”), effective eight days
after Landman’s signature (the “Effective Date”), as provided in Paragraph 24,
below.


 


WHEREAS,
Landman was employed as the Chief Financial Officer of the Company, pursuant to
an Employment Agreement entered into as of November 30, 2000 (the “Employment
Agreement”);


 


WHEREAS,
Landman’s employment with the Company was concluded on July 6, 2003 (the
“Resignation Date”);


 


WHEREAS,
Landman has asserted various claims against the Company arising out of his
employment and the conclusion thereof;


 


WHEREAS,
the Parties mutually desire to amicably resolve and settle these claims;


 


WHEREAS,
the Company is willing to provide Landman the consideration set forth below in
exchange for a release of claims by Landman and the other terms set forth in
this Agreement;


 


THEREFORE,
in exchange for the good and valuable consideration set forth herein, the
adequacy of which is specifically acknowledged, Landman and the Company hereby
agree as follows:


 


1.             Conclusion of Employment.  Landman hereby confirms his resignation from
all positions that Landman held as an officer and employee of the Company, and
any of its subsidiaries, affiliates or related companies, effective July 6,
2003.


 


2.             Payment of Accrued Wages.  Landman hereby acknowledges that on the
Resignation Date he was paid all accrued wages, including accrued vacation,
less applicable withholding, due and owing him.


 


3.             Company’s Consideration.  As full, sufficient and complete
consideration for Landman’s promises and releases contained herein, the Company
provides the following:


 


a.             Cash
Payment.  On January 5, 2004 the
Company will pay Landman two hundred and one thousand two hundred fifty
($201,250) dollars, less applicable payroll and tax withholdings, by check made
payable to “Sidney Landman.”


 


b.             Relocation
Expenses.  On January 5, 2004, the
Company will pay Landman seventy five thousand ($75,000) dollars for
anticipated moving/relocation expenses, less applicable payroll and tax
withholdings, by check made payable to “Sidney Landman.”


 


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c.             Outplacement
Assistance.  The Company will
continue to pay Landman’s outplacement fees to Torcheana, Mastrov and Shapiro
until May 15, 2004, or until he obtains other employment, whichever occurs
earlier.


 


d.             Repayment
of Loan Made to Landman.  Landman
entered into a secured, non-interest bearing Promissory Note (the “Note”) in
favor of the Company in the amount of $300,000 (three hundred thousand dollars)
as of May 3, 2001. So long as Landman is in compliance with this Agreement, the
Company will forgive two hundred forty thousand ($240,000) dollars of this loan
amount on January 5, 2004, leaving a balance due of sixty thousand ($60,000)
dollars. The balance due of sixty thousand ($60,000) dollars shall be paid by
Landman to OSI in full no later than December 29, 2003, pursuant to the terms
of the Note. Upon payment of this balance in full, the Company shall furnish
the Note marked “cancelled” along with the deed of reconveyance suitable for
recording by Landman. The loan cancellation will be reported to the IRS via
Form 1099.


 


e.             Health
Benefit Payment.  On January 5,
2004, the Company will pay Landman Two Thousand Five Hundred Dollars ($2,500)
as a health benefit payment, less applicable payroll and tax withholdings, by
check payable to “Sid Landman”.


 


f.              Taxes.  To the extent any taxes may be payable by
Landman for the benefits provided to him by this Agreement beyond those
withheld by the Company, Landman agrees to pay them himself and to indemnify
and hold the Company and the other persons and entities released herein
harmless for any tax assessments, claims, interest or penalties, and associated
attorneys’ fees and costs, resulting from any failure by him to make required
tax payments.


 


4.             Acknowledgment of Additional
Consideration.  Landman acknowledges
that with the payments and undertakings set forth in Paragraph 3 above, Company
will fully discharge and satisfy all obligations for monies, compensation,
benefits, and/or stock due him by reason of his employment with Company and all
obligations under his Employment Agreement. 
Further, these payments and undertakings will also provide Landman with
additional monies and benefits which are not otherwise due him now, or in the
future, and therefore, said payments constitute valuable consideration for
Landman’s release of claims and other promises set forth herein.


 


5.             General Release of Claims by
Landman.


 


a.             Landman,
on behalf of himself and his executors, heirs, administrators, representatives
and assigns, hereby agrees to release and forever discharge the Company and all
predecessors, successors and their respective parent corporations, affiliates,
related, and/or subsidiary entities, and all of their past and present
investors, directors, shareholders, officers, general or limited partners,
employees, attorneys, agents and representatives, and employee benefit plans in
which Landman is or has been a participant by virtue of his employment with the
Company, from any and all claims, debts, demands, accounts, judgments, rights,
causes of action, equitable relief, damages, costs, charges, complaints,
obligations, promises, agreements, controversies, suits, expenses,
compensation, responsibility and liability of every kind and character
whatsoever (including attorneys’ fees and costs), whether in law or equity,
known or unknown, asserted or unasserted, suspected or unsuspected
(collectively, “Claims”), which 


 


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Landman has or may have had against such entities based on any events
or circumstances arising or occurring on or prior to the date hereof (other
than Company’s obligations to perform the terms of this Agreement), arising
directly or indirectly out of, relating to, or in any other way involving in any
manner whatsoever Landman’s employment by the Company or the conclusion
thereof, and any and all claims arising under federal, state, or local laws or
constitutional provisions relating to employment, including without limitation
claims of wrongful discharge, breach of express or implied contract, fraud,
misrepresentation, defamation, or liability in tort, claims of any kind that
may be brought in any court of administrative agency, any claims arising under
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment
Act, the Americans with Disabilities Act, the Older Workers Benefit Protection
Act, the Family and Medical Leave Act, the California Fair Employment and
Housing Act, and all other statutes, ordinances, and regulations applicable to
the employment relationship.


 


b.             This
release is not intended to nullify or forfeit any of Landman’s entitlements or
rights, if any, as to his 401(k) plan or unemployment insurance as a terminated
employee.  Further, Landman’s rights
under his Indemnification Agreement with the Company, entered into August 30,
2001, remain in effect and are not waived by this Settlement Agreement.


 


c.             In accordance with the Older Workers Benefit
Protection Act of 1990, Landman acknowledges that he is aware of the following:


 


(i)                                    He
has a right to consult with an attorney before accepting this offer;


 


(ii)                                He
has 21 days from the date this offer is received to consider this offer; and


 


(iii)                            He
has seven days after accepting this offer to revoke his acceptance, and his
acceptance will not be effective until that revocation period has expired.


 


6.             Company Release.  The Company hereby completely releases and
forever discharges Landman and his heirs and assigns, from all claims, rights,
demands, actions, obligations, and causes of action of any and every kind,
nature and character, known or unknown, existing at any time up to the
effective date of this Agreement, which the Company may now have, or has ever
had, against and arising from or in any way connected with Landman’s employment
with the Company, any actions during his employment, and the conclusion
thereof, including, but not limited to, any and all claims which are in any way
related to the subject matter of this Agreement (other than Landman’s
obligations to perform the terms hereof). 
This release covers all statutory, common law, constitutional and other
claims, including, but not limited to, all contract claims (express or
implied); any tort claim of any nature; any claims under federal, state, county
or municipal statute or ordinance; any claim for attorneys’ fees, costs or
expenses or interest on any sums allegedly due; any claims under the California
Constitution; any other laws or regulations which relate to Landman’s
employment or to the relationship between the parties.


 


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7.             Mutual Waiver Of Unknown Future
Claims.  The Parties have read or
been advised of section 1542 of the Civil Code of the State of California,
which provides as follows:


 


A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.


 


The
Parties understand that section 1542 gives them the right not to release
existing claims of which they are not now aware, unless they voluntarily choose
to waive this right. Having been so apprised, they nevertheless hereby
voluntarily elect to and do waive the rights described in section 1542, and
elect to assume all risks for claims that now exist in their favor, known or
unknown.


 


8.             Mutual Nonadmission.  It is understood and agreed that neither
this Agreement, nor the furnishing of the consideration for this Agreement,
shall be construed as an admission of liability or wrongdoing of any kind by
Landman or the Company.


 


9.             Mutual Confidentiality Agreement.  The parties agree that, upon execution of
this Agreement, the existence of and the terms and conditions of this Agreement
will be held strictly confidential.


 


a.                                       The
parties shall not disclose, discuss, or reveal the existence of or the terms of
this Agreement, to any person, entity, or organization, except:


 


1.                                       all
parties may disclose to their legal counsel, financial advisors, insurance
representatives, taxing authorities, and any other entity for which reporting
of income or expenses under this Agreement is required;


 


2.                                       the
Company may disclose to its corporate officers, directors, investors and
employees as business needs dictate;


 


3.                                       the
Company may disclose to the Securities and Exchange Commission as required by
law;


 


4.                                       Landman
may disclose to his immediate family members; and, if necessary, to his
outplacement professionals providing. business coaching assistance.


 


5.                                       all
parties may disclose as necessary to protect their rights under this Agreement;
and


 


6.                                       all
parties may disclose as required by subpoena, court order, or other applicable
law, after first giving immediate notice to the opposing party or its counsel,
as applicable, within three (3) days 


 


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of receipt so as to enable that party to keep the terms and conditions
of this Agreement confidential.


 


b.                                      If
any party discloses the terms or conditions of this Agreement to a third party
under any of the circumstances permitted in paragraph a. above, the party
making the disclosure shall specifically advise the recipient of the
confidentiality provision herein and shall expressly condition this disclosure
upon the recipient’s agreement to maintain the confidentiality of this
Agreement to the fullest extent practicable, except this condition will not
apply where disclosure is required by law.


 


c.                                       If
a party is asked about this Agreement or about the disputed claim which is the
subject of this Agreement, no comment shall be made other than “the matter has
been amicably resolved.”


 


d.                                      If
any party violates any of the promises of confidentiality contained herein, any
other party, in addition to other rights and remedies available under this
Agreement, shall be entitled to immediate injunctive relief, restraining the
breaching party from committing or continuing any violation of these
provisions, as well as a court action for monetary damages, and any other
remedies available in law or equity.


 


10.           Mutual Covenant Not to Sue.


 


a.             To
the fullest extent permitted by law, at no time subsequent to the execution of
this Agreement will any of the parties hereto pursue, or cause or knowingly
permit the prosecution, in any state, federal or foreign court, or before any
local, state, federal or foreign administrative agency, or any other tribunal,
any charge, claim or action of any kind, nature and character whatsoever, known
or unknown, which any party may now have, has ever had, or may in the future
have against any other part, which is based on whole or in part on any matter
covered by this Agreement.


 


b.             If
either party breaches the provisions of this paragraph and makes a claim or
files a lawsuit based on legal claims that are released in this Agreement, the
breaching party will pay for all costs incurred by the other party, including
reasonable attorneys’ fees, in defending against such claim.


 


c.             Nothing
in this paragraph shall preclude either party from seeking to enforce the terms
of this Agreement.


 


11.           Mutual Nondisparagement.  Landman agrees that neither he nor anyone
acting by, through, under or in concert with him shall disparage or otherwise
communicate negative statements or opinions about the Company, its Board
members, officers, employees, products or business. The Company agrees that
neither its Board members nor its officers shall disparage or otherwise
communicate negative statements or opinions about Landman.


 


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12.           Confidential Information; Return
of Company Property.


 


a.             Landman
hereby expressly confirms his continuing obligations to the Company pursuant to
the Confidential Information and Invention Assignment Agreement executed by
Landman on November 27, 2000 (the “Confidentiality Agreement”).


 


b.             Landman
shall immediately deliver to the Company all originals and copies of
correspondence, drawings, manuals, letters, notes, notebooks, reports,
programs, plans, proposals, financial documents, or any other documents
containing Confidential Information (as defined in the Confidentiality
Agreement) about the Company’s customers, business plans, marketing strategies,
products, processes or business of any kind and/or which contain proprietary
information or trade secrets.


 


c.             Landman
shall immediately return to the Company all equipment of the Company in his
possession or control, except his cell phone and laptop, which Landman may
retain exclusively for his own use.


 


13.           Waiver of Right to Reemployment.  Landman agrees that he will not be entitled
to any further employment with the Company. 
He therefore waives any claim now or in the future to other employment
or reemployment with OSI, or any of its related entities, and agrees that he
will not apply for nor accept employment with OSI or any of its related
entities in the future.


 


14.           In the Event of a Claimed Breach.


 


a.             All
controversies, claims and disputes arising out of or relating to this
Agreement, including without limitation any alleged violation of its terms,
shall be resolved by final and binding arbitration before a single neutral
arbitrator in Contra Costa County, California, in accordance with the
Employment Dispute Resolution Rules of the Judicial Arbitration and Mediation
Service (JAMS).  The arbitration shall
be commenced by filing a demand for arbitration with JAMS within fourteen (14)
days after the filing party has given notice of such breach to the other
party.  Unless otherwise provided by
law, the arbitrator shall award attorneys’ fees and costs to the prevailing party.


 


b.             Notwithstanding
the foregoing, it is acknowledged that it will be impossible to measure in
money the damages that would be suffered by the parties if either party fails
to comply with any of the obligations under Paragraphs 9 and 11 hereof,
and that in the event of any such failure, the injured party will be
irreparably damaged and will not have an adequate remedy at law.  The non-breaching party shall, therefore, be
entitled to injunctive relief, including specific performance, to enforce such
obligations, and if any action shall be brought in equity to enforce any of the
provisions of Paragraphs 9 and 11 of this Agreement, the breaching party
shall not raise the defense that there is an adequate remedy at law.


 


15.           Complete and Voluntary Agreement.  Except for the 2000 Confidential Information
Agreement, Landman’s Employment Agreement and Promissory Note, and the
Indemnification Agreement of August 30, 2001, this Agreement constitutes the
entire understanding of the parties on the subjects covered.  Landman expressly warrants that he has read
and fully understands this Agreement; that he is not executing this Release in
reliance on 


 


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any
promises, representations or inducements other than those contained herein; and
that he is executing this Release voluntarily, free of any duress or coercion.


 


16.           Agreement Not to be Construed
Against Drafter.  This Agreement
shall not be construed in favor of or against either of the parties hereto,
regardless of which party initially drafted it.  This Agreement has been reviewed and revised by both parties,
each having the opportunity to consult with their respective counsel, and the
terms and conditions hereof were determined through arms-length negotiations by
the parties.


 


17.           Headings Not to be Relied Upon in
Construing This Agreement.  The
paragraph headings used in this Agreement are for convenience of reference
only, and they shall not be relied upon in construing or interpreting this
Agreement.


 


18.           Modification.  No modification, amendment or waiver of any
provision of this Agreement will be effective unless in writing signed by
Landman and an authorized representative of the Company.


 


19.           Revocation Period.  Landman understands that he has twenty one
(21) days in which to consider whether he should sign this Agreement, and that
if he signs this Agreement, he will be given seven (7) days following the date
he signs this Agreement to revoke it, and that this Agreement will not be
effective until after this seven-day period has lapsed.


 


20.           Choice of Law.  This Agreement shall in all respects be
governed and construed in accordance with the laws of the State of California,
including all matters of construction, validity and performance, without regard
to conflicts of law principles.


 


21.           Notices.  All notices, demands or other communications
regarding this Agreement shall be in writing and shall be sufficiently given if
either personally delivered or sent by facsimile or overnight courier,
addressed as follows:


 


a.                                       If
to the Company:

Ocular Sciences, Inc., USA

1855 Gateway Boulevard, 7th Floor

Concord, CA 94520-3400

Attn: CEO [or Vice President of Human Resources]

Phone: 1-925-969-7000

Fax: 1-925-969-7123


 


b.                                      If
to Landman:

Sidney Landman

1106 Peacock Creek Drive

Clayton, CA 94521


 


22.           Counterparts.  This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original and all of which
together shall be deemed to be one and the same instrument.


 


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23.           Savings Clause.  Should any provision of this Agreement be
determined to be invalid by a court or government agency of competent
jurisdiction, it is agreed that such determination will not affect the
enforceability of the other provisions herein.


 


24.           Effective Date.  This Agreement shall become effective on the
eighth (8th) day following the date it is signed by Landman, provided it has
been signed by the Company.


 


	
  Dated:

  	
  1 December, 2003

  	
   

  	
  /s/ Greg Zimmerman

  	
   

  
	
   

  	
  for Ocular
  Sciences, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
  11/24/03

  	
   

  	
  /s/ S.B. Landman

  	
   

  
	
   

  	
  Sidney Landman

  
	
   

  	
   

  
	
   

  	
   

  
	
  APPROVED AS TO FORM

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FRANKEL & GOLDWARE

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
  11/24/03

  	
   

  	
  /s/ Richard Frankel

  	
   

  
	
   

  	
  Richard Frankel,
  Esq.

  
	
   

  	
   

  
	
   

  	
  FENWICK & WEST LLP  

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
  11/25/03

  	
   

  	
  /s/ Richard Frankel

  	
   

  
	
   

  	
  Victor Schacter,
  Esq.

  
							



 


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