Attached files
file | filename |
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EX-31.1 - EXHIBIT 31.1 - CEO CERTIFICATION - EMERGING VISION INC | exhibit31a.htm |
EX-31.2 - EXHIBIT 31.2 - CFO CERTIFICATION - EMERGING VISION INC | exhibit31b.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
10-K/A
Amendment
No. 1 to Form 10-K
|
ANNUAL
REPORT PURSUANT TO SECTION 13 OR
15(d)
|
|
OF
THE SECURITIES EXCHANGE ACT OF 1934
|
|
For
the fiscal year ended: December 31,
2009
|
|
Commission
file number: 1-14128
|
EMERGING
VISION, INC.
(Exact
name of Registrant as specified in its Charter)
NEW
YORK
(State or
other jurisdiction of incorporation or organization)
11-3096941
(I.R.S.
Employer Identification No.)
520
Eighth Avenue, 23rd
Floor
New
York, NY 10018
(Address
and Zip Code of Principal Executive Offices)
Registrant’s
telephone number, including area code: (646) 737-1500
Securities
registered pursuant to Section 12(b) of the Act: None
Securities
registered pursuant to Section 12(g) of the Act: Common Stock, par value $0.01 per
share
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act:
Yes__
|
No X
|
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Act:
Yes__
|
No X
|
Indicate
by check mark whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days:
Yes__
|
No X
|
Indicate
by check mark whether the registrant has submitted electronically and posted on
its corporate Web site, if any, every Interactive Data File required to be
submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405
of this chapter) during the preceding 12 months (or for such shorter period that
the registrant was required to submit and post such files):
Yes__
|
No
__
|
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K is not contained herein, and will not be contained, to the best
of registrant's knowledge, in the definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. []
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
Large
accelerated filer_
|
Accelerated
filer__
|
|
Non-accelerated
filer_
(Do
not check if a smaller reporting company)
|
Smaller
reporting company X
|
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Act):
Yes
|
No X
|
The
aggregate market value of the voting and non-voting common equity held by
non-affiliates computed by reference to the price at which the common equity was
last sold as of June 30, 2009, was $15,888,308.
Number of
shares outstanding as of April 30, 2010:
128,810,601 shares of Common Stock,
par value $0.01 per share
EXPLANATORY
NOTE
We are
filing this Amendment No. 1 to our Annual Report on Form 10-K for the
fiscal year ended December 31, 2009 for the purposes of filing the information
required to be disclosed pursuant to Part III of Form 10-K and
amending the Exhibit Index of Item 15 of Part IV. This Form 10-K/A
does not reflect events occurring after the filing of the original
Form 10-K. Except for the amendments described above, this
Form 10-K/A does not modify or update the disclosure in our Annual
Report on Form 10-K for the fiscal year ended December 31, 2009 originally
filed with the Securities and Exchange Commission on April 15,
2010.
PART
III
Item
10. Directors, Executive Officers and Corporate Governance
Our Board
of Directors (the “BOD”) presently consists of six directors. The BOD
is divided into two classes, designated as Class I and Class II,
respectively. Directors of each Class are elected at the Annual
Meeting of the Shareholders held in the year in which the term of such Class
expires, and serve thereafter for two years, or until their respective
successors are duly elected and qualified or their earlier resignation, removal
from office, retirement or death. Dr. Alan Cohen, Mr. Jeffrey E.
Kolton and Mr. Seymour G. Siegel presently serve as Class I Directors and were
each elected to serve for terms to expire at the 2009 Annual Meeting of
Shareholders or until his successor is elected and qualified. Mr.
Joel L. Gold, Mr. Glenn Spina and Mr. Joseph Silver presently serve as Class II
Directors and were each elected to serve for terms to expire at the 2010 Annual
Meeting of Shareholders or until his successor is elected and
qualified. Each of our officers was elected for terms extending until
the first meeting of the BOD following the next Annual Meeting of Shareholders
or until his successor is elected and qualified.
The
following table sets forth the positions and offices presently held by each of
our current directors and executive officers and their ages:
Name
|
Age
|
Position and Office
Held
|
|
Alan
Cohen, O.D.
|
59
|
Chairman
of the Board of Directors
|
|
Joel
L. Gold
|
68
|
Director
|
|
Jeffrey
E. Kolton
|
50
|
Director
|
|
Seymour
G. Siegel
|
67
|
Director
|
|
Joseph
Silver
|
64
|
Director
|
|
Glenn
Spina
|
53
|
Director,
President and Chief Executive
Officer
|
|
Samuel
Z. Herskowitz
|
39
|
Chief
Marketing Officer
|
|
Brian
P. Alessi
|
34
|
Chief
Financial Officer, Treasurer and
Secretary
|
|
Dr.
Nicholas Shashati
|
50
|
President
– VisionCare of California, Inc.
(“VCC”)
|
|
Neil
Glachman
|
56
|
President
– Combine Buying Group, Inc.
(“Combine”)
|
Dr. Alan Cohen has served as
one of our directors since our inception; and, as of May 31, 2002, became our
Chairman of the BOD. He also served as our Chief Operating Officer
from 1992 until October 1995, when he became Vice Chairman of the BOD, and as
our President, Chief Executive Officer and Chief Operating Officer from October
1998 through April 17, 2000, when he became President of our retail optical
store division, which position Dr. Cohen resigned from on January 9,
2001. Dr. Cohen is part owner of Meadows Management, LLC (“Meadows”),
which, until April 9, 2000, rendered consulting services to us. From
1974 to the present, Dr. Cohen has been engaged in the retail and wholesale
optical business. For more than 10 years, Dr. Cohen has also
been a director, principal shareholder and officer of CFO Group, Inc.
(previously known as Cohen Fashion Optical, Inc.)and its affiliates (“CF”),
which currently maintains its offices in New York City. Since January
15, 2001, Dr. Cohen has served as President of General Vision Services, LLC
(“GVS”), and, since October 2003, has served as an officer of Vision World, LLC
(“Vision World”), each of which currently maintains its principal offices in New
York City. Dr. Cohen is a member of GVS and Vision
World. GVS and Vision World also administer third party benefit
programs similar to those being administered by the Company. See
“Item 13. Certain
Relationships and Related Transactions, and Director
Independence.” Dr. Cohen is also an officer and a director of
several privately held management and real estate companies and other
businesses. Dr. Cohen graduated from the Pennsylvania School of
Optometry in 1972, where he received a Doctor of Optometry degree. We
believe that Dr. Cohen’s expertise and experience in the optical industry give
him the qualifications and skills necessary to serve as one of our
directors.
Joel L. Gold has served as one
of our directors since December 1995. He is currently Head of Investment Banking
at Andrew Garrett Inc. (“AGI”), an investment-banking firm located in New York
City. Mr. Gold has been with AGI since October 2004. From
January 2000 until September 2004, he served as Executive Vice President of
Investment Banking of Berry Shino Securities, Inc., an investment-banking firm
also located in New York City. From January 1999 until December 1999,
he was an Executive Vice President of Solid Capital Markets, an
investment-banking firm also located in New York City. From September
1997 to January 1999, he served as a Senior Managing Director of Interbank
Capital Group, LLC, an investment banking firm also located in New York
City. From April 1996 to September 1997, Mr. Gold was an Executive
Vice President of LT Lawrence & Co., and from March 1995 to April 1996, a
Managing Director of Fechtor Detwiler & Co., Inc., a representative of the
underwriters for our initial public offering. Mr. Gold was a Managing
Director of Furman Selz Incorporated from January 1992 until March
1995. From April 1990 until January 1992, Mr. Gold was a Managing
Director of Bear Stearns and Co., Inc. (“Bear Stearns”). For
approximately 20 years before he became affiliated with Bear Stearns, he held
various positions with Drexel Burnham Lambert, Inc. He is currently a
director, and serves on the Audit and Compensation Committees, of Best Energy
Services Inc., an oil services company, and of Innovative Food Products, a
marketer of specialty food items. We believe that Mr. Gold’s
expertise and experience in the financial industry give him the qualifications
and skills necessary to serve as one of our directors.
Jeffrey E. Kolton was elected
as one of our directors on April 16, 2010. Mr. Kolton is currently a
Principal member of Franchise Market Ventures, LLC, specializing in servicing
franchise and hospitality companies. Mr. Kolton founded FRANdata Corporation in
1989, and from its inception through 2001, Mr. Kolton served as President of
FRANdata Corporation, a leading franchise research firm serving over 2,500
clients within the franchise industry. From April 2003 through April 2006, Mr.
Kolton was a Partner at Kaufmann, Gildin, Robbins & Oppenheim, LLP, a
prominent franchise law firm in New York, focusing on mergers and acquisitions,
and international franchise transactions. Mr. Kolton graduated with
honors from Cornell University and the London School of Economics and Political
Science. Mr. Kolton also received a law degree from the Georgetown
University Law Center. Mr. Kolton is a member of the D.C., Maryland
and Pennsylvania bars and is an ASA licensed sommelier. We believe
that Mr. Kolton’s expertise and experience in the franchising business give him
the qualifications and skills necessary to serve as one of our
directors.
Seymour G. Siegel has served
as one of our directors since July 2004. Mr. Siegel is a certified
public accountant and a principal in the Business Consulting Group of Rothstein,
Kass & Company, P.C., an accounting and consulting firm. From 1974 to 1990
he was managing partner and founder of Siegel Rich and Co., P.C., CPAs, which
merged into Weiser & Co., LLP where he was a senior partner. He formed
Siegel Rich Inc. in 1994, which in April 2000 became a division of Rothstein,
Kass & Company, P.C. Mr. Siegel has been a director, trustee and officer of
numerous businesses, philanthropic and civic organizations. He has served as a
director and member of the audit committees of Barpoint.com, Oak Hall Capital
Fund, Prime Motor Inns Limited Partnership, Noise Cancellation Technologies, and
Global Aircraft Solutions, Inc.. Mr. Siegel currently serves as a director and
chairman of the audit committee of Hauppauge Digital, and Air Industries Group,
Inc. We believe that Mr. Siegel’s business expertise and experience
and his accounting background give him the qualifications and skills necessary
to serve as one of our directors.
Joseph Silver was elected as
one of our directors on April 16, 2010. Mr. Silver is currently the
Senior Vice-President of, and Florida General Counsel to, The Trump Group, a
multi-national company specializing in real estate and hotel development and
operation, as well as various other businesses. From 1969 through
1984, Mr. Silver served as the Executive Vic-President of, and General Counsel
to The Michael J. Swerdlow Companies, a firm specializing in complex real estate
transactions and financing. From 1984 through 1991, Mr. Silver served
as Executive Vice-President of, and General Counsel to, Donald J. Trump and The
Trump Organization, an individual and company recognized as one of the world’s
most successful developers and operators of real estate properties, hotels and
casinos. From February 1992 through November 2002, Mr. Silver served
in various executive capacities with the Company, including Executive
Vice-President of Legal Affairs and General Counsel. From December
2002 through November 2007, Mr. Silver served as Executive Vice-President of,
and General Counsel to, Trump Dezer Development and its affiliates, real estate
companies engaging in the development and operation of hotels and luxury
condominiums. From December 2007 through February 2010, Mr. Silver
was General Counsel to Aero Toy Store, LLC and its affiliates, a company reputed
to be one of the world’s largest dealer of high-end corporate
aircraft. Mr. Silver graduated from the City College of New York,
where he received a Bachelor of Business Administration Degree in
Accounting. Mr. Silver also received a Juris Doctor Degree from
Brooklyn Law School. Mr. Silver is a member of the Florida Bar under
its Authorized House Counsel Rules and a member of the New York State
Bar. We believe that Mr. Silver’s expertise and experience in the
optical industry and the governance and leadership skills he fostered as a
practicing attorney give him the qualifications and skills necessary to serve as
one of our directors.
Glenn Spina joined the Company
as our President, Chief Executive Officer and one of our directors in December
2009. Mr. Spina has had extensive experience in the optical industry
dating back to 1980, when he began as an original owner and founding member of
America’s Best Contacts and Eyeglasses (“ABCE”), a retail optical chain that
operated over 100 locations nationwide from Puerto Rico to
Alaska. From 1983 through February 1990, Mr. Spina served as Western
Regional President for ABCE. From March 1990 through July 1997, Mr.
Spina served as President and Chief Operating Officer, and was a director of
ABCE, until the sale of the Company in 1997. Mr. Spina was the
Founder and President of The Bartimaeus Project, a world-wide non-profit
organization, which brought the gift of sight to third world countries by
providing free eye exams and prescription eyewear. From 2005 through
2008, Mr. Spina served as President and Chief Executive Officer of The Quasar
Group, and from 2008 through 2009, Mr. Spina served as the Director of New
Business Development for Millennia Holdings. Mr. Spina holds a
Masters Degree from C.W. Post University. We believe that Mr. Spina’s
expertise and experience in the optical industry give him the qualifications and
skills necessary to serve as one of our directors.
Samuel Z. Herskowitz joined us
in January 1996 as Director of Operations of Insight Laser Centers, Inc.
(“Insight”), one of our wholly owned subsidiaries. Currently, Mr.
Herskowitz serves as our Chief Marketing Officer and President of our Franchise
Division. From April 2002 through June 2007, Mr. Herskowitz served as
one of our Chief Operating Officers. In June 2007, Mr. Herskowitz was
appointed President of our Franchise Division. From 1996 to April
1997, Mr. Herskowitz served as the Director of Operations of
Insight. In April 1997, Mr. Herskowitz became responsible for our
corporate communications and, in January 1998, was appointed to the position of
Director of Marketing and Advertising, in which position he served until April
1999, when he became our Vice President – Marketing and
Advertising. From 1993 to December 1995, Mr. Herskowitz was the
Director of Public Relations for Rosenblum Eye Centers located in New York
City. Mr. Herskowitz received a Masters in Business Administration
from Baruch College of the City University of New York.
Brian P. Alessi joined us as
our Assistant Controller in October 2001. In February 2002, he was
appointed as our Controller, and on March 24, 2004 was appointed as our
Treasurer. On June 7, 2004, Mr. Alessi was appointed Chief Financial
Officer and on November 19, 2008 was appointed as Secretary. From
December 1999 through October 2001, Mr. Alessi was employed by Arthur Andersen
LLP, where he provided audit, accounting and consulting services to small and
mid-sized companies in various industries. From August 1997 through
December 1999, Mr. Alessi was employed by Yohalem Gillman & Company LLP,
where he provided audit and accounting services to small and mid-sized private
companies, and tax services to individuals. Mr. Alessi graduated from
the University of Miami, where he received a Bachelors of Business
Administration degree in Accounting.
Dr. Nicholas Shashati has been
our Director of Professional Services since July 1992 and, since March 1, 1998,
the President of our wholly owned subsidiary, VCC. Dr. Shashati
earned a Doctor of Optometry degree from Pacific University of California in
1984, and received a Bachelor of Visual Science degree from Pacific University
and a Bachelor of Science degree in Biology from San Diego State
University. Dr. Shashati is licensed as an optometrist in the States
of New York, California, Arizona and Oregon. He is Chairperson for
the Quality Assurance Committee of the Company, as well as a Practice Management
Consultant.
Neil Glachman was appointed
President of our wholly owned subsidiary, Combine, in September 2006, following
our acquisition of substantially all of the assets of Combine Optical Management
Corp. (“COMC”), a company founded and owned by Mr. Glachman since
1989. From 1989 through 1995, under Combine, Mr. Glachman acquired
three competitive group purchasing organizations that supported independent
optical offices. In 1986, Mr. Glachman founded Ocular Insight, Inc.,
a group purchasing organization that supported optical franchise
owners. Mr. Glachman has 27 years of optical industry experience
including positions with Johnson & Johnson, Dow Corning Ophthalmics, and
American Hydron. Mr. Glachman also serves on the boards of directors
and is an officer of several private companies.
There are
no family relationships among any of our executive officers and
directors.
SECTION
16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section
16 of the Exchange Act requires that reports of beneficial ownership of common
shares and changes in such ownership be filed with the Securities and Exchange
Commission by Section 16 “reporting persons,” including directors, certain
officers, holders of more than 10% of the outstanding common shares and certain
trusts of which reporting persons are trustees. We are required to
disclose in this Annual Report each reporting person whom we know to have failed
to file any required reports under Section 16 on a timely basis during the
fiscal year ended December 31, 2009. To our knowledge, based solely
on a review of copies of Forms 3, 4 and 5 filed with the Securities and Exchange
Commission and written representations that no other reports were required,
during the fiscal year ended December 31, 2009, our officers, directors and 10%
stockholders complied with all Section 16(a) filing requirements applicable to
them, except that Mr. Harvey Ross, a former director who resigned in January
2010, filed ten Form 4s late, representing thirty transactions that were not
reported on a timely basis. Mr. Brian Alessi, our Chief Financial
Officer, Treasurer and Secretary, filed one amendment to Form 4 late,
representing two transactions that were not filed on a timely
basis.
CODE
OF ETHICS
Our BOD
adopted a Code of Ethics for our principal executive officer, principal
financial officer, principal accounting officer or controller, or persons
performing similar functions. A copy of the Code of Ethics is posted
on our website, www.emergingvision.com. We
intend to satisfy the disclosure requirements under Item 5.05(c) of Form 8-K
regarding the amendment to, or waiver from, our Code of Ethics by posting such
information on our website, www.emergingvision.com.
AUDIT
COMMITTEE
The Audit
Committee of the BOD is responsible for recommending independent accountants to
the BOD, reviewing our financial statements with management and the independent
accountants, making an appraisal of the audit effort and the effectiveness of
our financial policies and practices and consulting with management and the
independent accountants with regard to the adequacy of internal accounting
controls. The Audit Committee operates under a formal charter adopted
by the BOD that governs its duties and standards of performance. The
Audit Committee charter is posted and can be obtained on our website at www.emergingvision.com.
The
members of the Audit Committee currently are Joel L. Gold, Jeffrey E. Kolton and
Seymour G. Siegel. The BOD has determined that Seymour G. Siegel is
an “audit committee financial expert,” as that term is defined in Item 407(d)(5)
of Regulation S-K. The directors who serve on the Audit Committee are
“independent” directors based on the definition in Listing Rule 5605(a)(2) of
The Nasdaq Stock Market.
Item
11. Executive Compensation
Summary
Compensation Table
The
following table sets forth information concerning the total compensation for
fiscal years 2009 and 2008 awarded to, earned by or paid to certain executive
officers, including our Chief Executive Officer:
Name
and Principal Position
|
Year
|
Salary
|
Bonus
(3)
|
All
Other
Compensation
(4)
|
Total
|
|||||||||||||||
Glenn
Spina, President and Chief Executive Officer (“CEO”) (1)
|
2009
2008
|
$
$
|
21,000
-
|
$
$
|
-
-
|
$
$
|
1,000
-
|
$
$
|
22,000
-
|
|||||||||||
Christopher
G. Payan,
Former
CEO (2)
|
2009
2008
|
$
$
|
252,000
275,000
|
$
$
|
-
-
|
$
$
|
12,000
13,000
|
$
$
|
264,000
288,000
|
|||||||||||
Neil
Glachman, President – Combine
|
2009
2008
|
$
$
|
210,000 $210,000 |
$
$
|
50,000
93,000
|
$
$
|
-
-
|
$
$
|
260,000
303,000
|
|||||||||||
Samuel
Z. Herskowitz,
Chief
Marketing Officer
|
2009
2008
|
$
$
|
200,000 $190,000 |
$
$
|
-
-
|
$
$
|
10,000
10,000
|
$
$
|
210,000
200,000
|
1.
|
Mr.
Spina became our President and CEO on December 1,
2009.
|
2.
|
Mr.
Payan served as our Chief Executive Officer through November 30, 2009, at
which time his employment agreement
expired.
|
3.
|
Represents
bonuses paid to Mr. Glachman for the years ended December 31, 2009 and
2008, respectively.
|
4.
|
Represents
car allowances payments, and medical and dental
reimbursements.
|
We
entered into an Employment Agreement (the “Spina Employment Agreement”) with
Glenn Spina, our current CEO, which began on December 1, 2009 and extends
through November 2012. The Spina Employment Agreement provides for an
annual salary of $250,000 and certain other benefits. Additionally,
Mr. Spina will also be eligible for annual bonus compensation of 5% of our
EBITDA (earnings before interest, taxes, depreciations and amortization) of
greater than $2,000,000 during the associated fiscal year. No such
bonus was earned for the year ended December 31, 2009. Additionally,
subject to our shareholders approving the authorization of not less than
50,000,000 additional shares of Class A Common Stock (the “Shares”) at our next
Annual Meeting of Shareholders, Mr. Spina was to be entitled to a non-qualified
stock option pursuant to our 2006 Stock Incentive Plan (the “Plan”) to purchase
3,000,000 Shares (the “Stock Option”) having an exercise price equal to the fair
market value of the Shares as of the date of the grant of the Stock
Option. On April 22, 2010, the Company’s board of directors granted
the Stock Option, subject to our shareholders approving the authorization of the
Shares at our next Annual Meeting of Shareholders, which vests as
follows: 1,000,000 shares on January 1, 2011, 1,000,000 shares on
January 1, 2012 and 1,000,000 shares on January 1, 2013.
In the
event the Spina Employment Agreement is terminated by us without Just Cause (as
defined in the Spina Employment Agreement), Mr. Spina shall be entitled to (i)
Base Compensation (as defined in the Spina Employment Agreement)for the lesser
of (x) an amount equal to 6 months Base Compensation or (y) the number of months
until the end of the Term and (ii) the Performance Bonus (as defined in the
Spina Employment Agreement), if any, prorated for the year in which such
termination occurs.
Additionally,
in connection with the acquisition of Combine, we entered into a five-year
Employment Agreement (the “Glachman Employment Agreement”) with Neil
Glachman. The Glachman Employment Agreement provides for the payment
of an annual salary of $210,000, certain other benefits, and an annual bonus
based upon certain financial targets of Combine. For the years ended
December 31, 2009 and 2008, there was approximately $50,000 and $93,000 of such
bonuses was earned, respectively.
OUTSTANDING
EQUITY AWARDS AT FISCAL YEAR-END
Option
Awards
|
|||||||||||||
Name
|
Number
of Securities Underlying Unexercised Options Exercisable
|
Number
of Securities Underlying Unexercised Options Unexercisable
|
Option
Exercise Price
|
Option
Expiration Date
|
|||||||||
Glenn
Spina
|
- | 3,000,000 | $ | 0.10 |
11/30/2019
|
||||||||
Christopher
G. Payan
|
50,000 | - | $ | 0.26 |
7/16/2011
|
||||||||
Neil
Glachman (1)
|
3,515,625 | - | $ | 0.15 |
9/28/2016
|
||||||||
Samuel
Z. Herskowitz (2)
|
1,841,180
37,500
|
-
-
|
$
$
|
0.14
0.33
|
12/30/2014
4/26/2011
|
1.
|
Commencing
on September 29, 2010, and expiring September 28, 2016, 2,187,500 common
stock options may be put back to us at a put price per share of
$0.32.
|
On July
13, 2009, Mr. Payan and Mr. Brian Alessi, our Chief Financial Officer, elected
to exercise their outstanding common stock options totaling 8,128,810 on a
cash-less basis. Such options were converted into 3,059,618 shares of
the Company’s common stock.
On
December 15, 2009, the Company and Mr. Alessi agreed to, and effectuated the
rescission of the exercise, by Mr. Alessi, of 920,590 common stock
options. In connection therewith, the Company and Mr. Alessi agreed
to rescind the exercise and reinstate and modify certain terms of Mr. Alessi’s
original stock option agreement. As a result of such rescission
transaction, the Company’s outstanding Common Stock decreased by 346,502
shares.
DIRECTOR
COMPENSATION
Name
|
Fees
Earned or Paid in Cash
|
Total
|
||||||
Alan
Cohen, O.D.
|
$ | 26,000 | $ | 26,000 | ||||
Joel
L. Gold
|
$ | 26,000 | $ | 26,000 | ||||
Harvey
Ross (1)
|
$ | 26,000 | $ | 26,000 | ||||
Jeffrey
Rubin (2)
|
$ | 24,500 | $ | 24,500 | ||||
Seymour
G. Siegel (3)
|
$ | 36,833 | $ | 36,833 |
1.
|
Mr.
Ross resigned from the board of directors on January 12,
2010.
|
2.
|
Mr.
Rubin resigned from the board of directors on November 4,
2009.
|
3.
|
The
fees reflected in the table above include an additional $10,000 that Mr.
Siegel received during 2009 in consideration for serving as Chairman of
the Audit Committee, and an additional $833 in consideration for serving
as Lead Director on Corporate
Governance.
|
4.
|
There
were no options granted to the directors during fiscal
2009.
|
Directors
who are not employees or executive officers of the Company receive $20,000 per
annum, payable in equal, quarterly installments of $5,000 and $1,500 for each in
person meeting, with no additional compensation for telephonic meetings or
actions taken by written consent in lieu of a meeting. In the event
that multiple meetings are held on the same day, directors will receive
compensation for one meeting. Further, all directors are reimbursed
for certain expenses in connection with their attendance at board and committee
meetings.
Other
than with respect to the reimbursement of expenses, directors who are employees
or executive officers of the Company will not receive additional compensation
for serving as a director.
The
foregoing table represents the compensation provided by the Company to each of
the persons who served as a director during 2009, except for Christopher G.
Payan, our former Chief Executive Officer (“CEO”), whose compensation is set
forth in the Summary Compensation Table, and Glenn Spina, the Company’s current
CEO. Mr. Payan and Mr. Spina both did not receive any additional
consideration for their service on the Board of Directors.
Item
12. Security Ownership of Certain Beneficial Owners and Management and Related
Stockholder Matters
I.
|
COMMON
STOCK:
|
The
following table sets forth information, as of April 30, 2010, regarding the
beneficial ownership of our common stock by: (i) each person known by us to be
the beneficial owner of more than five percent of the outstanding shares of our
common stock; (ii) each of our directors; (iii) each of our Named Executive
Officers (as said term is defined in Item 402(a)(3) of Regulation S-K); and (iv)
all directors and executive officers of the Company as a group, in each case,
based on 128,909,120 total
number of common stock outstanding as of that date.
Name
and Address of Beneficial Owner
|
Amount
and Nature Beneficial Ownership
|
Percent
of Class
|
||||||
Dr.
Alan Cohen (a)
c/o
General Vision Services
520
8th
Avenue
New
York, New York 10018
|
8,123,590 | (1) | 6.3 | % | ||||
Neil
Glachman (b)
520
8th
Avenue, 23rd
Floor
New
York, New York 10018
|
3,515,625 | (2) | 2.7 | % | ||||
Joel
L. Gold (a)
c/o
Andrew Garrett
425
Park Avenue, 22nd
Floor
New
York, New York 10022
|
701,500 | (3) | * | |||||
Samuel
Z. Herskowitz (b)
520
8th
Avenue, 23rd
Floor
New
York, New York 10018
|
1,978,680 | (4) | 1.5 | % | ||||
Horizons
Investors Corp.
2869
Pitkin Avenue
Brooklyn,
New York 11208
|
50,526,543 | (5) | 39.2 | % | ||||
Jeffrey
E. Kolton (a)
142
West End Avenue
New
York, New York 10023
|
150,000 | (6) | * | |||||
Christopher
G. Payan (b)
520
8th
Avenue, 23rd
Floor
New
York, New York 10018
|
3,925,616 | (7) | 3.0 | % | ||||
Harvey
Ross
3140
Route 22 West
Somerville,
New Jersey 08876
|
10,909,491 | (8) | 8.4 | % | ||||
Seymour
G. Siegel (a)
c/o
Rothstein Kass
1350
Avenue of the Americas, 15th
Floor
New
York, New York 10019
|
575,000 | (9) | * | |||||
Joseph
Silver (a)
7000
Island Blvd.
Aventura,
Florida 33160
|
150,000 | (10) | * | |||||
Glenn
Spina (a) (b)
520
8th
Avenue, 23rd
Floor
New
York, New York 10018
|
3,000,000 | (11) | 2.3 | % | ||||
All
directors and executive officers as a group (10 persons)
|
19,414,985 | (12) | 13.8 | % |
* less
than 1%
|
(a) Director
|
(b) Named
Executive Officer
|
(1)
|
Includes
(i) the right to acquire 475,000 shares of Common Stock upon the exercise
of presently exercisable, outstanding options, (ii) the right to acquire
150,000 shares of Common Stock upon the exercise of presently vested
options not approved to be exercised as of the date hereof, and (iii)
26,700 shares owned by Dr. Cohen, as custodian for each of Erica and
Nicole Cohen (Dr. Cohen’s children, as to which Dr. Cohen disclaims
beneficial ownership), but excludes 16,840,528 shares, in the aggregate,
held in trust for Dr. Cohen’s minor children, Erica, Nicole, Jaclyn and
Gabrielle, as beneficiaries, in respect of which Dr. Cohen is not a
trustee and has no dispositive or investment authority, and as to which he
disclaims beneficial ownership.
|
(2)
|
Includes
the right to acquire 3,515,625 shares of Common Stock upon the exercise of
presently exercisable, outstanding options. Additionally,
commencing on September 29, 2010 and expiring September 28, 2016,
2,187,500 options may be put back to the Company at a put price per share
of $0.32.
|
(3)
|
Includes
(i) 76,500 shares of Common Stock owned by Mr. Gold’s children, (ii) the
right to acquire 475,000 shares of Common Stock upon the exercise of
presently exercisable, outstanding options, and (iii) the right to acquire
150,000 shares of Common Stock upon the exercise of presently vested
options not approved to be exercised as of the date hereof, but excludes
an additional 5,000 shares of Common Stock owned by Mr. Gold’s wife, as to
which Mr. Gold disclaims beneficial ownership.
|
(4)
|
Includes
the right to acquire 1,878,680 shares of Common Stock upon the exercise of
presently exercisable, outstanding options.
|
(5)
|
Includes
shares of Common Stock owned by Horizons Investors Corp., a New York
corporation principally owned by Benito R. Fernandez, a former director of
the Company, and includes the right to acquire 100,000 shares of Common
Stock upon the exercise of presently exercisable, outstanding
options.
|
(6)
|
Represents
the right to acquire 150,000 shares of Common Stock upon the exercise of
presently vested options not approved to be exercised as of the date
hereof.
|
(7)
|
Includes
shares of Common Stock owned by Christopher G. Payan, the Company’s former
Chief Executive Officer and former director.
|
(8)
|
Includes
shares of Common Stock owned by Harvey Ross, a former director of the
Company, and includes the right to acquire 425,000 shares of Common Stock
upon the exercise of presently exercisable, outstanding
options.
|
(9)
|
Represents
(i) the right to acquire 425,000 shares of Common Stock upon the exercise
of presently exercisable, outstanding options, and (ii) the right to
150,000 shares of Common Stock upon the exercise of presently vested
options not approved to be exercised as of the date
hereof.
|
(10)
|
Represents
the right to acquire 150,000 shares of Common Stock upon the exercise of
presently vested options not approved to be exercised as of the date
hereof.
|
(11)
|
Represents
the right to acquire 1,000,000, 1,000,000 and 1,000,000 shares of Common
Stock upon the exercise of outstanding options that vest on January 1,
2011, January 1, 2012 and January 1, 2013, respectively, which shares have
not been approved to be exercised as of the date
hereof.
|
(12)
|
Includes
(i) the right to acquire 7,989,895 shares of Common Stock upon the
exercise of presently exercisable, outstanding options, (ii) the right to
acquire 750,000 shares of Common Stock upon the exercise of presently
vested options not approved to be exercised as of the date hereof, (iii)
26,700 shares owned by Dr. Cohen, as custodian for each of Erica and
Nicole Cohen (as to which Dr. Cohen disclaims beneficial ownership), and
(iv) 3,000,000 shares of Common Stock upon the exercise of outstanding
options that vest in 1,000,000 increments on January 1, 2011, January 1,
2012 and January 1, 2013, respectively, but have not been approved to be
exercised as of the date hereof. In accordance with Rule
13d-3(d)(1) under the Securities Exchange Act of 1934, as amended, the
7,989,895 shares of Common Stock for which the Company’s directors and
executive officers, as a group, hold currently exercisable options, have
been added to the total number of issued and outstanding shares of Common
Stock solely for the purpose of calculating the percentage of such total
number of issued and outstanding shares of Common Stock beneficially owned
by such directors and executive officers as a
group.
|
II.
|
SENIOR CONVERTIBLE
PREFERRED STOCK:
|
Set forth
below is the name, address, stock ownership and voting power of each person or
group of persons known by the Company to beneficially own more than 5% of the
outstanding shares of its Senior Convertible Preferred Stock:
Name
|
Beneficial
Ownership
|
Percent
of Class
|
||||||
Rita
Folger
1257
East 24th
Street
Brooklyn,
NY 11210
|
0.74 | (1) | 100 | % |
(1)
|
These
shares are convertible into an aggregate of 98,519 shares of Common Stock;
and the holder thereof will be entitled to cast that number of votes at
any meeting of shareholders.
|
III.
|
EQUITY COMPENSATION
PLAN INFORMATION:
|
The
following provides certain information with respect to the Company’s equity
compensation plans as of December 31, 2009:
Plan
Category
|
Number
of securities to be issued upon exercise of outstanding options, warrants
and rights
|
Weighted-average
exercise price of outstanding options, warrants and rights
|
Number
of securities remaining available for future issuance under equity
compensation plans
|
|||||||||
Authorized
by shareholders under the 1995 Stock Option Plan
|
5,668,938 | $ | 0.79 | - | ||||||||
Authorized
by shareholders under the 2006 Stock Option Plan
|
4,715,625 | $ | 0.19 | 15,284,375 | ||||||||
Not
authorized by shareholders
|
2,080,885 | $ | 0.18 | - |
Item
13. Certain Relationships and Related Transactions, and Director
Independence
Cohen’s
Fashion Optical
Dr. Alan
Cohen, our Chairman of its Board of Directors, and, together with his immediate
family members, one of our significant shareholders, owns, operates, manages
and/or is otherwise involved with other companies in the retail optical
industry, which are in competition with our Sterling Stores and/or Combine
Members, and may result in potential conflicts. Until March 1,
2008, Dr. Cohen and his brother Dr. Robert Cohen were officers and directors of
and together with members of their immediate families, were the sole
shareholders of Cohen Fashion Optical, Inc. (“CFO, Inc.”), which company
operated and franchised retail optical stores similar to Sterling Stores and
Combine Member locations in the States of Connecticut, Florida, Massachusetts,
New Hampshire, New Jersey, New York and Puerto Rico. Effective March
1, 2008, CFO, Inc. sold substantially all of its assets to Cohen Fashion
Optical, LLC (“CFO, LLC”), a Kentucky limited liability company, which continues
to operate and offer franchises for retail optical stores primarily under the
name Cohen’s Fashion Optical. Although, Dr. Alan Cohen does not own
any interest in or participate in the management of CFO, LLC, Dr. Cohen is an
executive officer and director of Real Optical, LLC and CFO Retail, Inc.
(collectively “REAL”), and he and members of his immediate family are principal
members and shareholders of said companies. REAL is a franchisee of
CFO, LLC and operates retail optical stores in the States of Connecticut,
Florida, New Jersey and New York similar to Sterling Stores and Combine Member
locations. As of December 31, 2009, REAL was the franchisee of 16
Cohen’s Fashion Optical stores, and was also managing an additional store on
behalf of CFO, LLC.
General
Vision Services and Vision World
Dr. Cohen
is also an executive officer of, and he, together with members of his immediate
family, are principal members of General Vision Services, LLC (“GVS”) and Vision
World, LLC (“Vision World”). GVS operates retail optical stores
located in the New York metropolitan area. GVS does not offer
franchises, however, in connection with the transaction between CFO LLC, and
CFO, Inc., GVS agreed that all of its stores, including any stores to be opened
in the future, would be operated as franchisees of CFO, LLC. As of
December 31, 2009, GVS was the franchisee of CFO, LLC, and was operating 10
stores under the name General Vision Services. GVS and Vision World
both solicit and administer third party benefit programs, which provides
services under third party benefit plans administered by GVS and Vision World,
to certain of our Sterling Stores. Such Sterling Stores pay a
processing fee to GVS and Vision World to administer the processing of such
third party insurance claims. We believe that the cost of such
services were as favorable to the Sterling Stores as could be obtained utilizing
an unrelated third party.
Further,
in April 2010, Insight IPA of New York, Inc., our wholly owned subsidiary
(“Insight IPA”) and Insight Managed Vision Care, a division of ours (“Insight
MVC”) entered into an agreement with Vision World (the “Vision World
Agreement”), pursuant to which Vision World has agreed to:
· to
the extent that Insight IPA and Insight MVC have agreed with third party
organizations to administer Managed Care Plans (i.e., to process and
forward claims from providers for payment, respond to eligibility
determinations and receive and distribute payments), perform such
functions on behalf of Insight IPA and Insight MVC and, to collect and
distribute payments to franchisees and our store operators who have
entered into provider agreements with Insight IPA and/or Insight MVC
(“Insight Providers”);
|
· be
responsible for the credentialing of all Insight
Providers;
|
· provide
support for Insight Providers to seek to resolve any issues, including
requirements of applicable managed care plans and claim status;
and
|
· allow
certain of our franchisees and store operators (that are not Insight
Providers) the opportunity to serve as providers for Vision
World.
|
In
exchange for its service as a third party administrator for the Insight
Providers, the Vision World Agreement provides that Vision World shall be
entitled to a processing fee of $4.60 per claim submitted and collected by
Vision World (the “Processing Fee”) during the first year of the
term. For each subsequent year of the term, Vision World will have
the right, not more than once each year, to increase the Processing Fee,
provided the amount of the increase may not exceed five 5% in any one
year.
The
Vision World Agreement also provides that, for each claim submitted and
collected on behalf of our franchisees and store operators who elect to become
Vision World providers, Vision World shall be entitled to an administrative fee
of 25% of the amount collected on each such claim (the “Vision World
Administration Fee”). Vision World is required to make monthly
payments to us equal to 20% of the aggregate Vision World Administration Fees
for each month of the Term.
The
Vision World Agreement also provides for certain mutual indemnification
obligations and each of the parties to the Vision World Agreement has made
certain representations, as set forth in the Vision World
Agreement.
The
Vision World Agreement commences on May 1, 2010 and shall continue until April
30, 2015, subject to earlier termination as set forth in the Vision World
Agreement. The Vision World Agreement shall automatically renew for
additional 5 year periods unless either party provides notice of termination at
least 90 days prior to the expiration of any such 5 year period.
Newtek
Business Services
Our
former Chief Executive Officer and director, Christopher Payan, served on the
Board of Directors of Newtek Business Services, Inc. (“NBSI”), a company that
provides various financial services to both small and mid-sized
businesses. Additionally, Mr. Jeffrey Rubin, one of our directors
from April 2008 through November 2009 and part of the Cohen Family, held a 12.5%
interest in NBSI as of February 26, 2010. We utilize the bank and
non-bank card processing services of one of NBSI’s affiliated
companies. For the years ended December 31, 2009 and 2008, we paid
approximately $268,000 and $166,000, respectively, to such affiliate for such
services provided. Additionally, we utilize insurance administrative
services of one of NBSI’s affiliated companies, which brokers coverage of our
Director and Officers Insurance Policy. For the years ended December
31, 2009 and 2008, we paid American Internationl Group, Inc. (AIG) approximately
$146,000 and $225,000, respectively. No payments are made directly to the
NBSI affiliate, however, the NBSI affiliate does receive a commission from AIG
to broker the relationship. We believe that the cost of such services
were as favorable to us as those which could have been obtained from an
unrelated third party.
Transactions
among the Company and Neil Glachman
In
connection with the acquisition of Combine Optical Management Corporation
(“COMC”), a company owned by Mr. Neil Glachman, we entered into a series of
promissory notes with COMC. The promissory notes amounted to
$1,773,000 with $498,000 paid in October 2007; $300,000 paid in September 2008;
$250,000 paid in October 2009; $225,000 due on October 1, 2010; and $500,000
(with interest at 7% per annum) payable in sixty, equal monthly installments of
$9,900.60, which commenced on October 1, 2006. For the years ended
December 31, 2009 and 2008, there was approximately $47,000 and $75,000,
respectively, of interest expense. As of December 31, 2009 and 2008,
there was $417,000 and $770,000, respectively, of related party obligations due
under the terms of such promissory notes.
During
2009 and 2008, Combine members purchased contact lenses from Visus Formed
Optics, a contact lens manufacturer that is partially owned by Mr.
Glachman. For the years ended December 31, 2009 and 2008, the total
cost of such contact lenses was approximately $46,000 and $56,000,
respectively. We believe that the cost of such product was as
favorable to Combine as those which could have been obtained from an unrelated
third party.
During
2009 and 2008, Combine members purchased contact lenses from Ocular Insight,
Inc., a contact lens distributor that is partially owned by Mr.
Glachman. For the years ended December 31, 2009 and 2008, the total
cost of such contact lenses was approximately $18,000 and $13,000,
respectively. We believe that the cost of such product was as
favorable to Combine as those which could have been obtained from an unrelated
third party.
Director
Independence
Board
of Directors
Our Board
of Directors is currently comprised of Dr. Alan Cohen, Mr. Joel L. Gold, Mr.
Jeffrey E. Kolton, Mr. Seymour G. Siegel, Mr. Joseph Silver and Mr. Glenn
Spina. Each of Messrs. Gold, Kolton, Siegel and Silver is currently
an “independent director” based on the definition of independence in Listing
Rule 5605(a)(2) of The Nasdaq Stock Market.
Item
14. Principal Accountant Fees and Services
The
following information summarizes the fees paid or payable to Rosen Seymour
Shapss Martin & Company LLP (“Rosen”), our independent auditors, for
professional services rendered for the years ended December 31, 2009 and
2008.
Audit fees
– Consist of professional services rendered for the audit of our annual
financial statements and review of the interim financial statements included in
the annual and quarterly reports, and other services that are normally provided
by the independent auditors in connection with statutory and regulatory
filings. For the years ended December 31, 2009 and 2008, such fees
were approximately $180,000 and $194,900, respectively.
Audit-related
fees – In addition to the fees described above, we paid Rosen $34,400 for
services rendered during the year ended December 31, 2009 related to our
rescission transaction discussed in Item 11 and related to the review of our
responses to the SEC comment letter.
Tax fees -
We utilize a different accounting firm to prepare its consolidated
federal and state tax returns in connection with IRS regulations. For
the years ended December 31, 2009 and 2008, the fees billed to us for such
services were $38,900 and $36,000, respectively.
All other
fees – We were not billed for fees for any other services not described
above during the years ended December 31, 2009 and 2008.
|
Policy
on Audit Committee Pre-Approval of Audit and Permissible Non-Audit
Services of Independent Auditor
|
The Audit
Committee is responsible for the appointment, compensation and oversight of the
work of the independent auditors and approves in advance any services to be
performed by the independent auditors, whether audit-related or
not. The Audit Committee reviews each proposed engagement to
determine whether the provision of services is compatible with maintaining the
independence of the independent auditors.
Page
--
PART
IV
Item
15. Exhibits and Financial Statement Schedules
EXHIBIT
INDEX
Exhibit
Number
(2.1)Asset
Purchase Agreement, dated September 29, 2006, among Emerging Vision, Inc.,
COM Acquisition, Inc., Combine Optical Management Corp. and Neil Glachman
(incorporated by reference to Exhibit 2.1 to the Company’s Quarterly
Report on Form 10-Q, dated November 14, 2006)
|
(2.2)Promissory
Note, dated September 29, 2006, made payable by COM Acquisition, Inc. and
Emerging Vision, Inc. to the order of Combine Optical Management Corp., in
the original principal amount of $1,273,000 (incorporated by reference to
Exhibit 2.2 to the Company’s Quarterly Report on Form 10-Q, dated November
14, 2006)
|
(2.3)Promissory
Note, dated September 29, 2006, made payable by COM Acquisition, Inc. and
Emerging Vision, Inc. to the order of Combine Optical Management Corp., in
the original principal amount of $500,000 (incorporated by reference to
Exhibit 2.3 to the Company’s Quarterly Report on Form 10-Q, dated November
14, 2006)
|
(2.4)Letter
of Intent, dated as of May 23, 2007, by and among OG Acquisition, Inc.,
757979 Ontario Inc. (d/b/a The Optical Group), Corowl Optical Credit
Services, Inc. and Grant Osborne (Incorporated by reference to Exhibit 2.4
to the Company’s Current Report on Form 8-K, dated May 31,
2007)
|
(3.1)Restated
Certificate of Incorporation of Sterling Vision, Inc., filed on December
20, 1995 (incorporated by reference to Exhibit 3.1 to the Company's Annual
Report on Form 10-K/A for the year ended December 31,
1995)
|
(3.2)Amended
and Restated By-Laws of Sterling Vision, Inc., dated December 18, 1995
(incorporated by reference to Exhibit 3.2 to the Company's Annual Report
on Form 10-K/A for the year ended December 31, 1995)
|
(3.3)Certificate
of Amendment of the Certificate of Incorporation of Sterling Vision, Inc.,
filed on January 26, 2000 (incorporated by reference to Exhibit 3.3 to the
Company’s Annual Report on Form 10-K for the year ended December 31, 2002,
Securities and Exchange Commission (“SEC”) File Number 001-14128, Film
Number 03630359)
|
(3.4)Form
of Certificate of Amendment of the Certificate of Incorporation of
Sterling Vision, Inc., filed on February 8, 2000 (incorporated by
reference to Exhibit 10.94 to the Company’s Current Report on Form 8-K,
dated February 8, 2000, SEC File Number 001-14128, Film Number
03630359)
|
(3.5)Form
of Certificate of Amendment of the Certificate of Incorporation of
Sterling Vision, Inc., filed on February 10, 2000 (incorporated by
reference to Exhibit 10.96 to the Company’s Current Report on Form 8-K,
dated February 8, 2000, SEC File Number 001-14128, Film Number
03630359)
|
(3.6)Certificate
of Amendment of the Certificate of Incorporation of Sterling Vision, Inc.,
filed on April 17, 2000 (incorporated by reference to Exhibit 3.6 to the
Company’s Annual Report on Form 10-K for the year ended December 31, 2002,
SEC File Number 001-14128, Film Number 03630359)
|
(3.7)Certificate
of Amendment of the Certificate of Incorporation of Emerging Vision, Inc.,
filed on July 15, 2002 (incorporated by reference to Exhibit 3.7 to the
Company’s Annual Report on Form 10-K for the year ended December 31, 2002,
SEC File Number 001-14128, Film Number 03630359)
|
(3.8)First
Amendment to Amended and Restated By-Laws of Emerging Vision Inc., dated
November 13, 2003 (incorporated by reference to Exhibit 3.8 to the
Company’s Current Report in Form 8-K, dated December 31,
2003)
|
(4.1)Specimen
of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to
the Company's Registration Statement No. 33-98368)
|
(4.2)Form
of Warrant issued to Subject Shareholders in connection with Settlement
Agreements (incorporated by reference to Exhibit 4.8 to the Company's
Annual Report on Form 10-K for the year ended December 31,
2003)
|
(10.1)Sterling
Vision, Inc.'s 1995 Stock Incentive Plan (incorporated by reference to
Exhibit 10.2 to the Company's Registration Statement No.
33-98368)
|
(10.2)Form
of Sterling Vision, Inc.'s Franchise Agreement (incorporated by reference
to Exhibit 10.3 to the Company's Registration Statement No.
33-98368)
|
(10.3)Form
of Franchisee Stockholder Agreement to be entered into between Sterling
Vision, Inc. and certain of its Franchisees (incorporated by reference to
Exhibit 10.47 to the Company's Registration Statement No.
33-98368)
|
(10.4)First
Amendment to Sterling Vision, Inc.’s 1995 Stock Incentive Plan
(incorporated by reference to Exhibit 10.63 to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1996, File Number
000-27394, Film Number 96615244)
|
(10.5)Form
of Settlement Agreement and General Release, dated as of April 1, 2002,
between Emerging Vision, Inc. and each of V.C. Enterprises, Inc., Bridget
Licht, Sitescope, Inc., Eyemagination Eyeworks, Inc. and Susan Assael,
including the form of Area Representation Agreement annexed thereto as an
Exhibit (incorporated by reference to Exhibit 10.37 to the Company’s
Annual Report on Form 10-K for the year ended December 31,
2001)
|
(10.6)Employment
Agreement, dated September 29, 2006, between Emerging Vision, Inc. and
Neil Glachman (incorporated by reference to Exhibit 10.19 to the Company’s
Annual Report on Form 10-K for the year ended December 31,
2006)
|
(10.7)Employment
Agreement, dated December 1, 2006, between Emerging Vision, Inc. and
Christopher G. Payan (incorporated by reference to Exhibit 10.20 to the
Company’s Annual Report on Form 10-K for the year ended December 31,
2006)
|
(10.8)Amendment
to Revolving Line of Credit Agreement, dated as of April 1, 2009, executed
by Emerging Vision, Inc. in favor of Manufacturers and Traders Trust
Company (incorporated by reference to Exhibit 10.1 of the Company’s
Current Report on Form 8-K, dated April 13, 2009)
(10.9)Allonge
– Revision Agreement of Note, dated as of April 1, 2009, executed by
Emerging Vision, Inc. in favor of Manufacturers and Traders Trust Company
(incorporated by reference to Exhibit 10.2 of the Company’s Current Report
on Form 8-K, dated April 13, 2009)
(10.10)Letter
of Reaffirmation of General Security Agreement, dated as of April 1, 2009,
by and between Combine Buying Group, Inc., OG Acquisition, Inc., 1725758
Ontario Inc. d/b/a The Optical Group in favor of Manufacturers and Traders
Trust Company (incorporated by reference to Exhibit 10.3 of the Company’s
Current Report on Form 8-K, dated April 13, 2009)
(10.11)Letter
of Reaffirmation of Guaranty, dated as of April 1, 2009, by and between
Combine Buying Group, Inc., OG Acquisition, Inc., 1725758 Ontario Inc.
d/b/a The Optical Group in favor of Manufacturers and Traders Trust
Company (incorporated by reference to Exhibit 10.4 of the Company’s
Current Report on Form 8-K, dated April 13, 2009)
(10.12) Letter
of Reaffirmation of Pledge Agreement and Assignment and United States
Trademark Collateral Assignment and Security Agreement, dated as of April
1, 2009, executed by Emerging Vision, Inc. in favor of Manufacturers and
Traders Trust Company (incorporated by reference to Exhibit 10.5 of the
Company’s Current Report on Form 8-K, dated April 13, 2009)
(10.13)Non-Revolving
Line of Credit Note and Credit Agreement, dated as of March 31, 2010,
executed by Emerging Vision, Inc. in favor of Manufacturers and Traders
Trust Company (incorporated by reference to Exhibit 10.1 of the Company’s
Current Report on Form 8-K, dated April 14, 2010)
(10.14)LIBOR
Term Note, dated as of March 31, 2010, executed by Emerging Vision, Inc.
in favor of Manufacturers and Traders Trust Company (incorporated by
reference to Exhibit 10.2 of the Company’s Current Report on Form 8-K,
dated April 14, 2010)
(10.15) Limited
Waiver and Amendment, dated as of March 31, 2010, by and among
Manufacturers and Traders Trust Company, Emerging Vision, Inc. and the
subsidiaries of Emerging Vision, Inc. (incorporated by
reference to Exhibit 10.3 of the Company’s Current Report on Form 8-K,
dated April 14, 2010)
(10.16) Letter
of Reaffirmation of General Security Agreement, dated as of March 31,
2010, executed by Emerging Vision, Inc., Combine Buying Group, Inc., OG
Acquisition, Inc., 1725758 Ontario Inc. d/b/a The Optical Group in favor
of Manufacturers and Traders Trust Company (incorporated by reference to
Exhibit 10.4 of the Company’s Current Report on Form 8-K, dated April 14,
2010)
(10.17) Letter
of Reaffirmation of Guaranty, dated as of March 31, 2010, by and between
Combine Buying Group, Inc., OG Acquisition, Inc., 1725758 Ontario Inc.
d/b/a The Optical Group in favor of Manufacturers and Traders Trust
Company (incorporated by reference to Exhibit 10.5 of the Company’s
Current Report on Form 8-K, dated April 14, 2010)
(10.18) Letter
of Reaffirmation of Absolute Assignment of Franchise Notes and Proceeds
Due, Assignment of Rents and Subleases, Pledge Agreement and Assignment
and United States Trademark Collateral Assignment and Security Agreement,
dated as of March 31, 2010, executed by Emerging Vision, Inc. and OG
Acquisition, Inc. in favor of Manufacturers and Traders Trust Company
(incorporated by reference to Exhibit 10.6 of the Company’s Current Report
on Form 8-K, dated April 14, 2010)
(10.19) Continuing
Guaranty, dated as of March 31, 2010, executed by Visioncare of California
in favor of Manufacturers and Traders Trust Company (incorporated by
reference to Exhibit 10.7 of the Company’s Current Report on Form 8-K,
dated April 14, 2010)
(10.20) Continuing
Guaranty, dated as of March 31, 2010, executed by certain subsidiaries of
Emerging Vision, Inc. in favor of Manufacturers and Traders Trust Company
(incorporated by reference to Exhibit 10.8 of the Company’s Current Report
on Form 8-K, dated April 14, 2010)
(10.21) General
Security Agreement, dated as of March 31, 2010, executed by Visioncare of
California in favor of Manufacturers and Traders Trust Company
(incorporated by reference to Exhibit 10.9 of the Company’s Current Report
on Form 8-K, dated April 14, 2010)
(10.22) United
States Trademark Collateral Assignment and Security Agreement, dated as of
March 31, 2010, executed by Emerging Vision, Inc. and 1725758 Ontario Inc.
d/b/a The Optical Group in favor of Manufacturers and Traders Trust
Company (incorporated by reference to Exhibit 10.10 of the Company’s
Current Report on Form 8-K, dated April 14, 2010)
(10.23) Absolute
Assignment of Franchise Notes and Proceeds Due, dated as of March 31,
2010, executed by Emerging Vision, Inc. in favor of Manufacturers and
Traders Trust Company (incorporated by reference to Exhibit 10.11 of the
Company’s Current Report on Form 8-K, dated April 14, 2010)
(10.24) Assignment
of Rents and Subleases, dated as of March 31, 2010, executed by certain
subsidiaries of Emerging Vision, Inc. in favor of Manufacturers and
Traders Trust Company (incorporated by reference to Exhibit 10.12 of the
Company’s Current Report on Form 8-K, dated April 14, 2010)
(10.25) Agreement,
dated as of April 14, 2010, by and among Emerging Vision, Inc., Insight
IPA of New York, Inc., Insight Managed Vision Care and Vision World, LLC
(incorporated by reference to Exhibit 10.1 of the Company’s Current Report
on Form 8-K, dated April 21, 2010)
|
(10.26)Employment
Agreement, effective December 1, 2009, by and between, Emerging Vision,
Inc. and Glenn Spina (incorporated by reference to Exhibit 10.1 to the
Company’s Current Report on Form 8-K dated December 4,
2009)
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(14.1)Corporate
Code of Ethics and Conduct of Emerging Vision, Inc., dated November 14,
2005 (incorporated by reference to Exhibit 14.1 to the Company’s Annual
Report on Form 10-K for the year ended December 31,
2005)
|
(21.1)List
of Subsidiaries (incorporated by reference to Exhibit 21.1 to the
Company’s Annual Report on Form 10-K for the year ended December 31,
2009)
|
(23.1)Auditor’s
Consent (incorporated by reference to Exhibit 23.1 to the Company’s Annual
Report on Form 10-K for the year ended December 31,
2009)
|
(31.1)
*Certification of Chief Executive Officer pursuant to Securities Exchange
Act Rules 13a-14(a) and 15d-14(a)
|
(31.2)
*Certification of Chief Financial Officer pursuant to Securities Exchange
Act Rules 13a-14(a) and 15d-14(a)
|
(32.1)
+Certification of Chief Executive Officer and Chief Financial Officer
pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002
|
* Exhibit
being filed herewith
+ Filed
as an exhibit to our Annual Report on Form 10-K for the fiscal year ended
December 31, 2009, originally filed with the Securities and Exchange
Commission on April 15, 2010 and incorporated herein by
reference.
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SIGNATURES
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, the Registrant has duly caused this Report to be signed on its
behalf by the undersigned, thereunto duly authorized.
EMERGING VISION, INC.
By: /s/Glenn Spina
|
Glenn Spina
|
Chief Executive
Officer
|
Date: April 30,
2010
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, this
Report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Signature
|
Title
|
Date
|
/s/Glenn Spina
|
Chief
Executive Officer and Director
|
April
30, 2010
|
Glenn
Spina
|
(Principal
Executive Officer)
|
|
/s/ Brian P. Alessi
|
Chief
Financial Officer and Treasurer
|
April
30, 2010
|
Brian
P. Alessi
|
(Principal
Financial and Accounting Officer)
|
|
/s/ Dr. Alan Cohen
|
Chairman
of the Board of Directors
|
April
30, 2010
|
Dr.
Alan Cohen
|
||
/s/ Joel L. Gold
|
Director
|
April
30, 2010
|
Joel
L. Gold
|
||
/s/ Seymour G. Siegel
|
Director
|
April
30, 2010
|
Seymour
G. Siegel
|
||
/s/ Joseph Silver
|
Director
|
April
30, 2010
|
Joseph
Silver
|
||
/s/ Jeffrey Kolton
|
Director
|
April
30, 2010
|
Jeffrey
Kolton
|
||