Letter Agreement between National Vision, Inc. and Essilor of America, Inc., dated as of November 12, 2018

                                                

November 12, 2018

Megan Molony

National Vision, Inc.

2435 Commerce Ave.

Building 2200

Duluth, GA 30096

***@***

                                    

Dear Ms. Molony:

    

Customer may wish to consult with its legal advisers regarding how, where, and when any price reductions received under this Agreement should be reported and otherwise disclosed, including whether and how such price reductions should be apportioned over Customer's purchases during the relevant Contract Year.

Each party represents and warrants to the other that on and as of the date of this Agreement, each and every representation and warranty set forth is true and accurate.

Each party has full corporate power and authority to execute, deliver and perform the obligations contemplated by this Agreement and this Agreement and the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of such party.

This Agreement, as executed and delivered, constitutes legal, valid and binding obligations of each party enforceable in accordance with its terms. The execution, delivery and performance of this Agreement does not violate or contravene any provision of law, or conflict with the Articles of Incorporation of either party or any other document or charter under which such party was established, or conflict with or result in the breach of any provision of any agreement to which such party is a party, or constitute a default or an event that, with the giving of notice, or the passing of time, would create such a default.

Essilor represents and warrants that (a) it possesses all federal, state and local licenses and permits necessary to manufacture and sell the products in accordance with the terms of this Agreement, (b) the products manufactured by Essilor will be in accordance with legal and industry specifications (including ANSI standards) and will be free from defects in workmanship and material, and (c) Essilor shall comply with all federal, state and local laws and regulations applicable to the manufacture and sale of the products in accordance with the terms of this Agreement.

In the event either party is prevented or delayed in the performance of any obligation required under this Agreement due to delays caused by fire, catastrophe, strikes or labor trouble, civil commotion, acts of God, governmental prohibitions or regulation, inability or difficulty to obtain materials or other causes beyond the performing party's reasonable control, the performing party shall, within ten (10) days of the event causing such delay, provide written notice to the other party of the event causing the delay and the anticipated period of delay, and the period of such delay shall be added to the time for performance thereof. The performing party shall have no liability by reason of such permitted delays. In the event the performing party fails to provide notice to the other party of the force majeure delay within such ten (10) day period, the performing party shall not be excused from the timely performance of such obligation regardless of the cause. Notwithstanding the foregoing, Customer shall have the right, in the event of a force majeure delay that adversely affects the ability of Essilor to timely deliver the Direct Lenses under this Agreement, to order any Direct Lenses from a source other than Essilor.

The contents of this Agreement and confidential information exchanged in connection therewith are deemed confidential, shall not be disclosed to third parties, and shall be treated under an existing non-disclosure agreement between the parties. Notwithstanding the foregoing, each party may disclose such matters (a) in connection with tax proceedings, arbitration, or litigation that involves the terms of this Agreement and (b) to (i) its officers, directors, affiliates, employees, accountants, attorneys, advisors, and other individuals who need to know such contents in connection with their duties on behalf of such party; (ii) actual or potential financing sources, and other parties that may enter into business transactions with each party or its affiliates (including any Contract Laboratories, hereafter defined); and (iii) government authorities (including courts and administrative agencies) if required by or advisable under applicable legal requirements. The foregoing shall not prevent either party from disclosing the existence of their vendor/customer arrangement.

The parties acknowledge that Essilor considers the Price List confidential and that Customer intends to contract with HKO and laboratories in Mexico, and may in the future contract with other laboratories not owned or under common control with Customer (all the foregoing, “Contract Laboratories”) to process certain of the Direct Lenses for Customer. The parties accordingly agree that Customer will not contract with a Contract Laboratory for the processing of Direct Lenses unless and until either (a) the Contract Laboratory has entered into a customary confidentiality agreement, in a form and on terms substantially the same as that attached hereto as Schedule C, pursuant to which the Contract Laboratory has agreed to keep confidential the terms of the Price List or (b) Essilor and Customer have agreed upon procedures to enable the Contract Laboratory to process the Direct Lenses without having access to such terms (such procedure may include the direct shipment of the Direct Lenses to the Contract Laboratory). Essilor and Customer agree to work reasonably together to agree upon such procedures.

For purposes of the Agreement and the transactions provided for herein, the parties to the Agreement shall be deemed to be independent contractors. Nothing in the Agreement is intended to create, nor shall it be construed to create, an employer-employee, franchisor-franchisee, joint venture or partnership relationship between the parties.

Each party, on behalf of its respective successors, heirs and assigns, agrees to protect, defend, hold harmless and indemnify the other party, its respective parent, subsidiaries and affiliated corporations, as well as their directors, officers and employees, from and against any and all expenses, claims (including third party claims), actions, liabilities, losses and damages of any kind whatsoever (including, without limitation of the foregoing, death or injury to persons) resulting or arising out of the performance of or failure of the indemnifying party, its respective agents, employees or permitted assignees, to perform any of their joint or respective obligations pursuant to the terms of the Agreement or from any misrepresentation or the omission or commission of any act, lawful or unlawful, by the indemnifying party or any of its agents, employees or permitted assignees.

EXCEPT AS PROVIDED FOR HEREIN, ESSILOR HEREBY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, STATUTORY OR OTHERWISE, EXPRESS OR IMPLIED, OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO SHALL BE AS PROVIDED IN THIS AGREEMENT. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ON ANY LEGAL THEORY, WHETHER IN CONTRACT, TORT, EQUITY, OR AT LAW, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Any controversy, dispute or claim arising out of the interpretation, performance or breach of the Agreement shall be resolved by binding arbitration at the request of either party, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrators shall apply New York substantive law and federal substantive law where state law is preempted. Civil discovery for use in such arbitration may be conducted in accordance with the provisions of New York law, and the arbitrator(s) selected shall have the power to enforce the rights, remedies, duties, liabilities and obligations of discovery by the imposition of the same terms, conditions and penalties as can be imposed in like circumstances in a civil action by a court of competent jurisdiction of the State of New York. The provisions of New York law concerning the right to discovery and the use of depositions in arbitration are incorporated herein by reference and made applicable to the Agreement. The arbitrators shall have the power to grant all legal and equitable remedies and award compensatory damages provided by New York law, subject to the limitations on damages set forth above. The arbitrators shall prepare in writing and provide to the parties an award including factual findings and the legal reasons on which the award is based. The arbitrators shall not have the power to commit errors of law or legal reasoning. Notwithstanding the above, in the event any party wishes to obtain injunctive relief or a temporary restraining order, such party may initiate an action for such relief in

any court of competent jurisdiction. However, the courts shall not have the authority to review or grant any request or demand for damages.

In the event that either party to the Agreement institutes litigation or arbitration against the other party to enforce any of the terms or conditions of the Agreement, the prevailing party in such litigation or arbitration shall be entitled to recover reasonable costs and attorneys’ fees incurred by it from the other party. If any monthly statements are not timely paid by Customer, such obligation shall accrue interest at the lower of the highest interest rate allowed by applicable law and one and one-half percent (1 ½%) per month from the date that each such obligation is due until paid.

The failure of either party to seek redress for violation of, or to insist upon strict performance of, any term, covenant or condition contained in the Agreement shall not prevent a similar subsequent act from constituting a default under the Agreement.

14.    Previous Agreements, Modifications, and Assignment

This Agreement replaces any other preceding agreement, whether written or oral, between the parties on the subject matter hereof. The parties acknowledge that certain Direct Lens Supply Letter Agreement, dated May 25, 2011, as amended (the “Original Agreement”) shall remain in effect until the commencement of the Initial Term under this Agreement. No addition or modification to this Agreement shall be valid unless made in writing signed by both parties hereto. If any provision or clause of this Agreement is found to be null and void or unenforceable, the balance of this Agreement will be construed as a whole to effect as closely as practicable the original intent of the parties. Neither party may assign any of its rights or obligations under this Agreement to any other party without the prior written consent of the other, except for a transfer to an entity controlled by or under common control with the assigning party. Each and every assignee of any right(s) or obligation(s) under this Agreement shall be bound by all of the terms and conditions hereof.

Any notices required or permitted to be given hereunder or under the Agreement shall be given in writing and shall be delivered (i) in person, (ii) by certified mail, postage prepaid, return receipt requested, (iii) by facsimile, or (iv) by a commercial overnight courier that guarantees next day delivery and provides a receipt, and such notices shall be addressed as follows:

Essilor:        Essilor of America, Inc.

Office of the General Counsel

13555 N. Stemmons Freeway

Dallas, Texas 75234

Facsimile: (972) 241-1162

Customer:    National Vision, Inc.

2435 Commerce Ave., Building 2200

Duluth, GA 30096

Attn: General Counsel

With a copy to: Megan Molony

or to such other address as either party may from time to time specify in writing to the other party. Any notice shall be effective only upon delivery, which for any notice given by facsimile shall mean notice that has been received by the party to whom it is sent as evidenced by confirmation slip.

Very truly yours,

ESSILOR OF AMERICA, INC.

AGREED TO AND ACCEPTED BY:

National Vision, Inc.

Laboratorio Optimex, S.A. de C.V.

Eugenio Cuzin #945 Parque Industrial Belenes Norte

Zapopan, Jal. Mexico 45150

Hong Kong Optical, LLC.

Flat 03, 10/F, Kwong Sang Hong Centre

151 Hoi Bun Rd, Kwun Tong, Kowloon, Hong Kong